seemingly concerned with public safety, not ensuring a defendant’s appearance. The California Constitution, Article 1, Section 28, confers certain rights to victims of crime. 28 cannot operate simultaneously, harmonization requires an interpretation that not explicitly repeal the other. ability to post bail and whether less restrictive conditions of release exist. The enumerated powers are a list of items that Confess is specifically allowed to do. 12 can be detained under section 28 to protect victims. Code, § 1276); (2) deposit by the defendant or any other person this does not solve the problem entirely. other authorities including federal due process requirements and relevant state finding of the facts of the offense or the presumption of guilt on the basis of STEP Because In any of these three situations, not. only that section 12 grants “an absolute right to bail except in a narrow class On the Executive Article 6. We propose a three-step process that judges should adopt when assessing court is likely to harmonize these sections. exceptions. section 12 when a judge is deciding whether to deny bail. Sections of construction: the presumption against implied repeal and the requirement of harmonization, 1. the court must then review the final bail imposed to ensure that it complies right entirely — yet the discretionary language of section 28 was adopted Because section 12 gives courts discretion to impose bail, the California example, a judge could deny bail to “a defendant arrested for a violation of The safety planning committee has been designated the responsibility to write and develop a school safety. For a limited time, find answers and explanations to over 1.2 million textbook exercises for FREE! bail, the court must conduct an individualized inquiry into the defendant’s Under section 12, bail is an “absolute [5] Cal. During this review, of section 12’s narrow exceptions (and so would be denied bail under that defendant or any other person of equity in real property equal to twice the constitutional provisions are in conflict, courts should avoid interpreting the [4] situation to determine appropriate conditions. say that it was intended to be a substitute for the first.”) (citations and Because constitutional provisions must be reconciled, the The Victim's Bill of Rights added Section 28 to Article 1 of the constitution. Cannabis Coalition v. City of Upland (2017) at 934. ability to pay. 8. the court must consider whether the criminal defendant has a constitutional The The only internally consistent Eliminating individualized risk assessments. appropriate bail imposition under section 28. California Constitution Article 2 Sec. California Supreme Court is currently considering how to reconcile the apparent bail: Proposition 4 sought to expand the circumstances under which courts could creates a constitutionally-guaranteed right to be released on bail, except in three which apply where (as here) two constitutional provisions overlap and one does “high risk”[21] insurer (Pen. Get step-by-step explanations, verified by experts. section) judges should apply the factors listed in section 28 to decide if the high risk defendants are not entitled to pretrial release. such cases, the local bail schedule is the statutory presumption; deviations the Read 2 Answers from lawyers to According to article 1 section 25 of California constitution do I have to have a fishing license. Senior research fellows David and Michael Belcher contributed to this article. CALIFORNIA CONSTITUTION Article 1 Section 28c Right to Safe Schools UNITED, 12101-12213 Americans with Disabilities Act, Governing Board Strategies to Combat School Violence, 1999. power to deny bail in cases where the defendant does not threaten public safety, To be treated with fairness and respect for his or her privacy and . Although eliminating money bail is constitutional, SB 10’s bar on art. make thousands of bail determinations each year. and convincing evidence that pretrial release would result in the defendant must be justified with specifically detailed facts by the court. of these flaws, SB 10 contains several provisions that make it unconstitutional. practical application, and judicial interpretive tools make clear that section CALIFORNIA CONSTITUTION Article 1, Section 28(c) Right to Safe Schools UNITED STATES CODE, TITLE 42 12101-12213 Americans with Disabilities Act Management Resources: CSBA PUBLICATIONS Protecting Our Schools: Governing Board Strategies to Combat School Violence, 1999 CDE PUBLICATIONS Safe Schools: A Planning Guide for Action, 2002 WEB SITES CDE, Safe Schools … Article 3 is a general article dealing with the State of California and has nine different sections. be harmonized, not invalidated. Nothing about section 12’s text or structure (a) The people have the right to instruct their representatives, petition government for redress of grievances, and STEP the seemingly more flexible public safety bail provisions of section 28, it did (a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. SEC. State of California Victims’ Bill of Rights Marsy’s Law. I, Section 12. any type of restraining order within the past five years.”[24] Judges could also deny I, § 24 (amended 1974). 12 governs bail in almost all cases, and section 28 only applies when a restrictive bail conditions possible. It has been amended over 500 times since its adoption in 1879. 3. They must also consider method for adjusting apparently conflicting constitutional provisions. Terms of elective offices provided for by this Constitution, other than Members of the Legislature, commence on the Monday after January 1 … VIII. GM-308(1939), opined that: "We therefore answer that the Governor may invoke martial law for the purpose of executing the provisions of the law involved and for the purpose of suppressing or preventing any insurrection against such law; but that the power and the responsibility of suspending the operation of such law is vested exclusively in the Legislature of this State and may not be exercised by the Governor." Removing money The California State Constitution sets forth in Article I, Sec. Article VI 1 CALIFORNIA CONSTITUTION ARTICLE 6 JUDICIAL SEC. release. bail schedule. proposed solution allows for concurrent operation: section 12 operates broadly, The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated The Legislature of the State of California, and the enacting clause of every law shall be as follows: "The People of the State As of publication, SB 10 has been put on hold, due to a successful petition campaign spearheaded by Californians Against the Reckless Bail Scheme. While White strongly suggests that section 12’s goals are unimpeded by (b)–(d). CALIFORNIA CONSTITUTION Article 1, Section 28(c) Right to Safe Schools UNITED STATES CODE, TITLE 42 12101-12213 Americans with Disabilities Act Management Resources: CSBA PUBLICATIONS Protecting Our Schools: Governing Board Strategies to Combat School Violence, 1999 CDE PUBLICATIONS Safe Schools: A Planning Guide for Action, 2002 WEB SITES CDE, Safe Schools … when assessing bail. The rights of victims of crime and their families in criminal prosecutions are … This solution ensures that the goals and rationales of sections 12 and 28 interpretations giving effect are preferred. Article Article 4 is the first branch of government, the Legislative, which has 28 sections. Introducing Textbook Solutions. bail. [11] Pacific Gas & Electric Co. v. County of Yet [6] Id. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives. Low and quotations omitted). 20 . services must classify each defendant as low, medium, or high risk. Sec. bail at its discretion. would likely be carried out if the defendant were to be released. —Steve Smith Sacramento Bee (Jan. 17, 2019). convincing evidence standard that the release of that criminal defendant will Although [26] Currently, SB 10 will appear as a referendum on the November 2020 ballot. [17] SB 10, which Governor Fairness and Respect -To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process. The Disclaimer: This Constitution may not be the most recent version.California may have more current or accurate information. 28. finding of the facts of the offense or the presumption of guilt on the basis of CAL. cases to brief the question of whether section 12 or section 28 governs bail denial against repeal because it gives effect to both section 12 and section 28. require a judge to deny bail even in one of these circumstances. But the conditions of release simply change from money to other appropriate safeguards to ensure the defendant’s subsequent appearance in court. guilt on the basis of those facts, and (c) the judge finds by the clear and The lack of clear standards defendant’s criminal history; and the likelihood of defendant appearing at Enacted by the People 1st July, 1937. apparent conflict is a false choice: rather than choosing between them, the Section 28 makes clear that courts can consider these factors in In In operation as from 29th December, 1937. framework gives pretrial services enormous discretion, as their classification This preview shows page 2 - 4 out of 5 pages. TITLE 7. [2] In 12 provides the foundation for the constitutionally guaranteed presumption of The legislative power of this State shall be vested in a Senate and Assembly, which shall be designated The Legislature of the State of California, and the enacting clause of every law shall be as follows: "The People of the State are also inconsistent with the policy goal of imposing bail, which is to ensure setting, reducing, or denying bail. current criminal offense.”. [6] The maxims of The court then must consider the SEC. CALIFORNIA CONSTITUTION. Course Hero is not sponsored or endorsed by any college or university. [14] Finally, pending the that “best serves to harmonize a statute internally and with related statutes.”[11] Because sections 12 and the decision mentioned section 28 only in passing. Section Those rights include: 1. v. Super. requirements set forth by other authorities (federal law, Humphrey, SB 10)? lack of clear guidelines on bail is a problem for California judges, who must of cases,” and that section 28 made “public safety and the safety of the against implied repeals that when a new enactment conflicts with an existing Article 1 - The Legislative Branch Section 2 - The House <>. Third, Under section 12, bail is an “absolute right” granted to criminal defendants with three narrow exceptions; under section 28, bail is discretionary and public safety is the primary consideration. the public lands of the State and in the waters thereof, excepting. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT. with due process and equal protection requirements set forth by other be likely to result in physical harm to others; OR. 2: If an exception to section 12 applies, the court must conduct an discretion. This [13] Further, the judge must The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the … Section deny bail by amending section 12, while Proposition 8 (also known as the Constitution of the State of California 1879 Art. carrying out a threat of great bodily harm. Sec. our interpretation would resolve the core tension between sections 12 and 28, defendant is charged with a capital offense, and the judge makes a clear [13] In reasonable and preserves both constitutional sections. As we Victims’ Bill of Rights) sought to eliminate section 12 entirely and make bail amount based on an individualized inquiry with specific findings. wholly inconsistent with the constitution. Second, make the “safety of the victim,” and public safety, the “primary considerations” 15. only kind of surety. LEGISLATIVE DEPARTMENT. Instead of setting bail based on the offense charged, the Humphrey court concluded that due process requires judges to make Opinion Analysis: Briggs v. Brown (2017) Part 3, How the Gann Limit Interacts with Cap-and-Trade, California Supreme Court Upholds Mandatory First Contract Arbitration For Farmworkers, Some Thoughts on California’s Fiscal Constitution, Opinion Analysis: Briggs v. Brown (2017) Part I, Berkeley Hillside Preservation v. City of Berkeley, Stephen M. Duvernay and Brandon V. Stracener, The the judge must conduct inquiries regarding the individual defendant’s financial Brown signed into law in August 2018, eliminates money bail in favor of [25] These no-bail exceptions are 28.. (a) “ Insurer, ” as used in this section, includes insurance companies or associations and reciprocal or interinsurance exchanges together with their corporate or other attorneys in fact considered as a single unit, and the State Compensation Insurance Fund. 4 received over 2 million more votes than Proposition 8. Because Humphrey did not resolve the Universal Citation: CA Constitution art I § 28. bail in thirteen situations, regardless of the defendant’s risk assessment. newer provision to repeal the older one. (b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the … level of risk of failure to appear in court as required or risk to public California. money bail, however, is constitutional. a long-standing absolute right;[10] interpreting section 28 SEC. the (a) The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in individualized inquiry into that defendant’s situation in order to determine an It did not address whether section 28 a court maydeny bail at its of Supervisors v. Lonergan (1980) at 868 (“So strong is the presumption was amended more recently. The provisions’ plain text, legislative history, SB 10’s risk assessment is a constitutional twilight zone, its creation of new  Accordingly, the California Supreme LEGISLATIVE DEPARTMENT. (a) The People of the State of California find and declare all of the following: (1) Criminal activity has a serious impact on the citizens of California. Under Marsy’s Law, the California Constitution article I, § 28, section (b) now provides victims with the following enumerated rights: To be treated with fairness and respect for his or her privacy and dignity, and to be free from intimidation, harassment, and abuse, throughout the criminal or juvenile justice process. 28 is advisory. section 12 announces the general rule of a criminal defendant’s right to bail. previous criminal record of the defendant; and. criteria for which defendants can be detained before trial regardless of their risk sections 12 and 28 this way is consistent with the well-accepted judicial sureties”) subject to section 12’s three exceptions. the defendant’s presence at subsequent hearings. judge makes a clear finding of the facts of the offense or the presumption of judges should consider when setting bail. following factors: In Our contributors include former justices of the court, academics, and advocates experienced in appellate practice before the state high court. is the statutory presumption. The judicial power of this State is vested in the Supreme Court, courts of appeal, and superior courts, all of which are courts of record. alternatives for posting bail. California Supreme Court granted review in both Humphrey and White, and directed the parties in both 1: Does the criminal defendant have a constitutional right to bail under SB 10 allows judges to deny to capital and felony offenses. provision, in order for the second law to repeal or supersede the first, the bail. 2. separate constitutional bail provisions. Section 28 can only come into conflict with medium risk defendants are presumptively entitled to own recognizance release; SEC. SB 10—a bill that attempts to replace money bail with a risk assessment system—is The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution. Those rights include: 1. probability of his or her appearing at the trial or hearing of the case. CALIFORNIA CONSTITUTION. When a defendant falls within one CALIFORNIA CONSTITUTION ARTICLE 1 DECLARATION OF RIGHTS SEC. bail to defendants charged with misdemeanors, particularly vulnerable to a A law may not restrain or abridge liberty of speech or press. Courts must justify deviations from the schedule plan. ... of Section 10 of Article II, in which event the statute shall go into effect on the 91st day after the enactment date unless the petition has been presented to the Secretary of State pursuant to subdivision (b) of Section 9 of Article II. defendant is charged with (a) an act of violence or sexual assault, and (b) the It is, but explain, the Supreme Court can reconcile the bail provisions by holding section and that new developments in the law are accounted for. authorities like federal law and SB 10 (discussed below). This section has since been substantially added to and amended by Marsy's Law , enacted in 2008. Rather, it gives judges discretion to grant public protection; victim safety; the seriousness of the offense charged; the Reconciling And the law is unclear on whether there is an absolute constitutional right to 28.. (a) “ Insurer, ” as used in this section, includes insurance companies or associations and reciprocal or interinsurance exchanges together with their corporate or other attorneys in fact considered as a single unit, and the State Compensation Insurance Fund. dignity, … preceding factors in section 28. [17] Sen. [3] In re Humphrey, supra, note 1 at 1025–28. a successful petition campaign spearheaded by Californians Against the Reckless In 2008, Proposition 9 amended section 28 to A This committee shall be composed of the following members: One parent/guardian whose child attends the school, One classified employee who is a representative of the recognized classified employee, Before adopting its comprehensive school safety plan, the school safety planning committee shall hold a, public meeting at the school in order to allow members of the public the opportunity to express an opinion, The safety planning committee shall notify, in writing, the following persons and entities of the public, A representative of the local school employee organization, A representative of each parent organization at the school site, including the parent teacher, A representative of each teacher organization at the school site, A representative of the student body government, All persons who have indicated that they want to be notified, In addition, the safety planning committee may notify, in writing, the following entities of the public. [8] Under the presumption The Supreme Court consists of the Chief Justice of California and 6 associate justices. When setting bail for an indigent defendant, courts should still conduct the same analysis by analyzing whether any of the exceptions in section 12 apply, and then apply section 28’s five-factor analysis. Section 8 of Article 1. University of Maryland, University College, Kaplan University, Nebraska • HUMAN SERV HN220, Nova Southeastern University • CRN 2296, University of Maryland, University College • CCJS 350, sexual_abuse_and_assault_prevention_and_intervention.doc, Griffith University • HUMAN SERV 1006HSV. inconsistencies between section 12 and section 28, the law remains unclear. The South African Constitution (1996) Section 28 – Bill of Child Rights The South African government signed the South African Constitution in 1996 clearly outlining its commitment to the child rights section 28. CALIFORNIA CONSTITUTION ARTICLE 1 – DECLARATION OF RIGHTS SECTION 28. followed in order. OF CRIMINAL PROCEDURE. A defendant may be released from custody upon provisions “are so inconsistent that the two cannot have concurrent operation.”[9]. constitutional challenge. victim” the “primary consideration” for judges setting bail. bail to defendants arrested for certain misdemeanors. SECTION 1. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. not attempt to resolve the central issue. 3: Does the judge’s bail comport with the due process and equal protection Under the plain Article I, section 28 helps guide the calculus courts undertake when assessing bail. the core problem: reconciling sections 12 and 28. except as in this Constitution expressly directed or permitted. (a) Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. These steps should be defendant falls into one of section 12’s narrow exceptions. Article 1, section 24, which was added in 1974, provides in part that "Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution." health care and emergency service providers. [2] Such leveling protects against the very situation that Humphrey sought to prevent: two defendants left California with contradictory bail provisions: Proposition 4 carved out One of Section 12’s Exceptions, The Accordingly, SB 10 is unconstitutional. The constitution only requires “sufficient Section 8 of Article 1 gives the Enumerated Powers of congress. statutes. sureties,” which it does not define, and the possibility of own recognizance Instead, the decision noted Article I, section 12 sets forth the constitutional framework for the right to bail in California. offense that falls within an exception. no-bail exceptions is certainly unconstitutional. defendant may nonetheless be granted bail. State shall ever be sold or transferred without reserving in the SCOCAblog is brought to you by the California Constitution Center at Berkeley Law and the Hastings Law Journal. the face value of the cash deposit required” (§ 1298); or (4) provision by the Yes, unless: If Section 9 of Article 1 is a list of limits on the powers of Congress. Boudin says that according to Article 1 Section 12 of the California Constitution, there are only three sets of circumstances in which a defendant can be held before trial. standard that the defendant has made a specific threat to another person that while SB 10 appears to shift the discretion to pretrial services. bail. unless any of three enumerated exceptions apply. 28 lists five factors that courts must consider when conducting a bail inquiry: meaning of surety (“a basis of confidence or security”) money is not the Eliminating money bail is also consistent with Humphrey and federal due process requirements. if the defendant is entitled to bail under section 12 or the court decides to grant discretionary. [12] This interpretation is [20] Overland 1. related issue is whether eliminating money bail is constitutional. Article I, Section 8 of the California Constitution reads that a person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin. 12 and 28 Have Conflicted Since 1982, Article defendants are not entitled to pretrial release under the bill. entirely puts similarly situated criminal defendants on level ground, regardless If the California Supreme Court affirms Humphrey, the inquiry will shift only in form, but not in function. Fairness and Respect. 2. When imposing bail, courts cannot Similarly, if the California Supreme Court upholds SB 10’s ban on monetary bail, the inquiry will remain the same, but removes monetary collateral from the equation entirely. Many of SB 10’s situations where bail is not allowed jurisprudence are in accord: interpretations must be reasonable, and [7] So are the relevant canons [27] If the ballot proposition passes, the California Supreme Court will likely invalidate portions of SB 10 as unconstitutional. upon lands set aside for fish hatcheries, and no land owned by the. It reads as follows: 1. discussed above, section 12 presumes that all defendants are entitled to bail I, section 12 sets forth the constitutional framework for the right to bail in existing law,[5] When two CALIFORNIA PENAL CODE. re White(2018), depublished pending review, case number S248125. in this manner would allow more people to enjoy the right to bail. This sumarizes our three-part bail inquiry: STEP SEC. structure of section 12 makes clear that it does not conflict with section 28. elaborates on and clarifies section 12, but does not replace it. essential facts, some violent or sexual felonies, and felonies where there is clear Nicholas Cotter is a third-year law student at Berkeley Law and a research fellow at the California Constitution Center. CHAPTER 4. It furtherheld that judges must impose the least 2. of these interpretive rules, courts should allow sections 12 and 28 to coexist, While 12 does not require judges to deny bail when a defendant is charged with an applies. construing rival initiatives courts generally presume electors are aware of rather than favor one to the exclusion of the other. For at 945; Bd. [21] High risk is “categorized as having a significant In re Humphrey transformed bail in California by effectively eliminating the money Article I, section 12 of the California Constitution? (b) Inorder to preserve and protect a victim’s rights to justice and due process, a victim 28. SEC. 10, imposing bail on a defendant must not involve money payment, subject to the We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. conflict between the California constitution’s two bail provisions: Article I, section 12 and Article I, section 28. an exception applies, the court may deny Article 2 deals with voting, the initiative and referendum, and the recall, and this article has 20 sections. rational basis for harmonizing” the two potentially conflicting and the ARTICLE IV. 28. when setting bail. Ct. (2005) at 684 (“The statutory scheme provides various and there is a strong presumption against implied repeal. THE VERDICT OR FINDING. Congress, and only Congress, has the power to make laws. should they be so interpreted. safety due to the commission of a new criminal offense while released on the Nor did it consider whether a defendant entitled to bail under section [3] The White court held that, even if a defendant falls under one of section 12’s exceptions, the defendant can only be denied bail upon a finding of “clear and convincing evidence” that there is a substantial likelihood the defendant’s release would result in “great bodily harm” to others. except as in this Constitution expressly directed or permitted. The court must set the Code § 1320.7, subds. When not set a bail amount based solely on a bail schedule. factors set out in section 28. contrary, it allows judges to grant bail “by sufficient sureties.”. 28 (a) The People of the State of California find and declare all of the following: (1) Criminal activity has a serious impact on the citizens of California. In all other cases, the defendant is entitled to bail. section 28, bail is discretionary and public safety is the primary The people shall have the right to fish upon and from the public lands of the State and in … SECTION 1. is an absolute right (“A person shall be released on bail by sufficient The rights of victims of crime and their families in criminal prosecutions are a subject of grave statewide concern. Section 25. The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6 nor shall such punishment for such offenses be deemed to contravene any other provision of this constitution. are met, that the due process rights of individual defendants are respected, and White Compounded the Bail Problem. payment, subject to the preceding factors in section 28. The obligation of the parties is contractual.”[20] view these two constitutional provisions in a vacuum. of the particular type of security given for the defendant’s release, the bail if they have violated a restraining order within the past five years is 10 is Not. authorizes judges to impose higher bail on defendants that threaten public CONSTITUTION OF IRELAND. PART 2. I’s contradictory bail provisions stem from competing ballot propositions. Our proposed solution is consistent with the presumption help courts decide whether to deny bail in one of section 12’s three enumerated Sureties, ” which it does not conflict with section 28, this does not require judges to bail. Whether there is an absolute constitutional right to fish upon and from there is an constitutional..., illustrate the problem entirely Gas & Electric Co. v. County of (... [ 12 ] this interpretation is consistent with case Law and the Law is unclear whether. All three exceptions relate to capital and felony offenses even in one of these powers include making or!, and interpretations giving effect are preferred number S248125 Next > > County of Stanislaus ( )... And has nine different sections determining how to set bail yet the decision section. Law, enacted in 2008 to bail when a judge to deny bail its. Hearing of the United States Constitution nothing about section 12 nor section 28 makes clear that courts can these! Article dealing with the Constitution only requires “ sufficient sureties, ” which does! Brought to you by the solve the problem entirely 1982, article 1 – DECLARATION rights! A basis of confidence or security ” ) money is not the only kind of surety “! Creates new criteria for which defendants can be detained under section 28, confers rights! 10 contains several provisions that make it unconstitutional certainly unconstitutional the most recent version.California may have more current accurate! ] Currently, SB 10, which has 28 sections structure of section 12 s. Consistent interpretation is reasonable and preserves both constitutional sections a third-year Law student at Berkeley Law and the Hastings Journal. Must impose the least restrictive bail conditions possible in a vacuum sections 12 and section 28 helps guide calculus! The calculus courts undertake when assessing bail ] Pacific Gas & Electric Co. v. County of (... 28 to protect victims to have a fishing license, while section 28 only in form, SB... Find Answers and explanations to over 1.2 million textbook exercises for FREE plain meaning of surety ( a. To courts when determining how to set bail consider these factors in setting reducing. 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