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1. Suit seeks to recover seized money
2. Fighting for public defenders
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BY
BEN L. KAUFMAN
The Cincinnati Enquirer
Clermont County resident Shawn Simpson
sued Cincinnati this week, claiming city
policy makes it unconstitutionally
difficult to recover money mistakenly
seized during drug arrests.
Attorney Stephen R. Felson asked a federal
judge to certify Mr. Simpson's suit as a
class action because so many people have
been victimized by overzealous police.
Money used in — or meant for — drug
deals can be confiscated and kept by
law-enforcement agencies. Persons who say
their money was taken mistakenly can seek
its return, going to court if necessary.
Mr. Felson and co-counsel Robert B. Newman
said their client was arrested by
Cincinnati police on July 10 when he
bought some marijuana.
Mr. Newman said the seller per suaded
officers that Mr. Simpson, of Ohio 232,
New Richmond, was really the dealer.
Assuming the $5,241 found on Mr. Simpson
was drug money, officers confiscated it.
Mr. Simpson's role became clear and he was
allowed to plead guilty to a misdemeanor
and pay a $25 fine.
Mr. Felson said Mr. Simpson's cash came
from a personal injury settlement six days
earlier.
When Mr. Simpson sought its return,
Cincinnati had given the cash to the FBI.
If his suit fails, the FBI will return
about 80 percent to the city and keep the
rest.
Mr. Simpson's suit, filed in U.S. District
Court, says this city practice of using
federal agencies to put money out of easy
reach violates the Fourth Amendment ban on
illegal seizures and the 14th Amendment
right to due process.
Mr. Felson and Mr. Newman said Cincinnati
does this because it is much easier to
recover money in Hamilton County Common
Pleas Court than from federal authorities.
That need not be true, an FBI spokesman
said.
Forfeiture in Ohio requires a felony
conviction, but federal law requires only
probable cause that the money was involved
in drug dealing.
On the other hand, the Justice Department
has informal procedures which an
“innocent owner” can use to claim
seized funds, and Mr. Felson said the
government has not responded to those
approaches.
The suit asks Judge Herman J. Weber to
declare the city's practice
unconstitutional and to award damages and
attorney fees to Mr. Simpson.
No one at the city solicitor's office
could be reached for comment and Edwin H.
Boldt, the agent who supervises forfeiture
cases for the FBI in Cincinnati, said he
had not seen the suit.
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Thursday,
February 17, 2000
Supreme Court asked to look at
public defender pay
Constitutional issue:
Low-income not getting a fair
trial?
BY
DAN HORN
The Cincinnati Enquirer
The battle over pay rates for
Hamilton County's public
defenders is headed to the Ohio
Supreme Court.
A Cincinnati lawyer asked the
court to step in Wednesday when
he filed a petition claim ing
the county's pay rate is so low
it violates the U.S.
Constitution.
Without a pay raise, the
petition states, low-income
defendants will not receive fair
trials because their
court-appointed lawyers will not
have the resources to put up a
fight.
“Assigned counsel have one
hand tied behind their back,”
said lawyer Robert Newman, who
filed the petition. “They
don't have the support from the
public defender's office to try
cases the way they ought to be
tried.”
Mr. Newman filed the petition on
behalf of Cincinnati lawyer
Edward Felson, who recently
stopped doing public defender
work because of the pay level.
The petition asks the Supreme
Court to appoint a commission to
review the county's $30-an-hour
pay rate and recommend an
appropriate increase.
State records show Hamilton
County's pay to public defenders
is tied for second-lowest among
Ohio's 88 counties. It was last
increased 10 years ago and is 36
percent below the state average
of $47 an hour.
Hamilton County Public Defender
Louis Strigari said the pay rate
has prompted more than 100
lawyers to drop out of the
public defender program in the
last year.
He said he will soon ask county
commissioners for a rate
increase to $40 an hour or more.
“At this juncture, I really
don't know what is enough,”
Mr. Strigari said.
Although it does not recommend a
dollar amount, Mr. Newman's
petition argues that the current
pay scale jeopardizes the basic
rights of low-income defendants.
That's be cause the public
defender's job is based on the
principle that everyone —
including those who cannot
afford to hire a lawyer — will
have legal representation if
accused of a crime.
The public defender's office
provides that representation in
felony cases by making lawyers
in private practice available to
low-income defendants. Because
the lawyers voluntarily put
their names on the public
defender's list, they can drop
out at any time.
Mr. Felson said he left because
he took a financial hit whenever
he invested a significant amount
of time in a public defender
case.
While $30 an hour may sound like
a good wage, Mr. Felson and
other lawyers say that running a
private practice is like running
any business. For many of them,
the hourly expense of renting
office space, paying bills and
maintaining a staff tops $50 an
hour.
“When I totaled up the costs,
I realized that $30 an hour is
nothing,” Mr. Felson said.
“I just couldn't afford to
keep doing it.”
In the petition, Mr. Felson and
Mr. Newman suggest the pay rate
may encourage lawyers to cut
corners. Instead of going to
trial, they argue, attorneys may
cut deals with prosecutors that
are not always in the best
interest of their clients.
They say those deals — such as
guilty pleas to lesser charges
— might not be accepted by
defendants who are able to
afford lawyers.
Mr. Newman said most public
defenders do the best they can
under the circumstances and work
long hours without pay to do the
job right. “A great many
public defenders do good
work,” Mr. Newman said.
The problem, he said, is a
system that makes it almost
impossible for them to do that
work for long.
The Supreme Court could consider
Mr. Newman's petition in the
next few months.
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Friday,
September 03, 1999
Woman sues over bond going to child
support
Practice longstanding, county official
says
BY
BEN L. KAUFMAN
The Cincinnati Enquirer
A Mount Healthy resident sued Hamilton
County on Thursday, saying bonds posted in
certain cases are applied illegally to
unpaid child support.
Cheryl Denton says she put up $800 for a
friend and it was applied to his child
support account rather than being returned
to her when he appeared in court.
She says that violates the Fifth Amendment
ban on taking private property for public
use without fair compensation, and that it
violates her Fifth Amendment right to due
process because she never had a chance to
protest.
Her suit, filed in U.S. District by
attorneys Stephen R. Felson, Robert B.
Newman and Lisa T. Meeks, asks Judge S.
Arthur Spiegel to declare the county
practice unconstitutional, to certify the
suit as a class action, and to order
repayment of improperly confiscated bonds
and award damages.
Defendants are County Commissioners Bob
Bedinghaus, Tom Neyer Jr. and John Dowlin,
and the county Child Support Enforcement
Agency.
Mr. Felson said Ms. Denton posted bond in
March 1998 for boy friend James Kinney
when he was arrested on a contempt charge
of failing to appear in Juvenile Court.
Mr. Felson said Mr. Kinney was at least
$15,000 behind in payments to his two
children.
In April 1998, the Juvenile Court issued a
magistrate's decision “re: contempt of
support order” that said, “Apply
800.00 bond to child support arrearage.”
That was illegal, the suit says, because
Ms. Denton is unrelated to Mr. Kinney's
children and had no legal obligation to
support them.
“Sounds right to me,” Mr. Dowlin
responded when Ms. Denton's argument was
explained. “Does she want a witness?”
However, Mr. Dowlin said thecounty's
official response must come from the
prosecutor's office.
Melinda Klenk, administrative director of
case management for Juvenile Court, said
Ms. Denton's bond money was handled
according to longstanding policy and
practice.
A magistrate can return a bond, apply it
to unpaid child support regardless of who
posted it, or hold the money until the
case is over, when it will be returned or
applied to outstanding support bills, she
said.
Mr. Felson said he was not surprised that
the practice had gone unchallenged for
years because attorneys handling
child-support cases rarely are
civil-rights lawyers.
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Friday,
July 16, 1999
Federal case targets 2 Ohio creditors
Using police threats unlawful, suit
charges
BY
BEN L. KAUFMAN
The Cincinnati Enquirer
Complaints filed Thursday accuse a car
dealer and a furniture rental firm of
shabby and illegal consumer credit
practices.
The suits, filed in U.S. District Court by
attorneys Robert Newman, Lisa Meeks and
Stephen Felson, seek unspecified damages.
The attorneys filed a similar suit in
Hamilton County Common Pleas Court last
year but it has been moved to federal
court.
In all three cases, Mr. Newman said,
creditors threatened police intervention
if goods were not returned.
“This is how car dealers and finance
firms talk to poor people; if you don't
pay up, we're going to have you
arrested.”
Can they do that? “Heck no,” he said.
In his complaint, Barry L. Daniels, of
Lebanon Road, Sharonville, says he bought
a Ford minivan from Superior Chevrolet on
Mitchell Avenue in Winton Place, believing
the dealer had made or arranged the loan.
About a month later, Mr. Daniels says, the
dealer told him financing had fallen
through and police would be called if Mr.
Daniels did not return the van
immediately.
Mr. Daniels says he complied with the
illegal repossession although he had not
defaulted on any payments.
His suit says Superior also violated Ohio
and federal consumer protection laws, in
part by not providing an accurate odometer
reading or an accurate statement of the
amount being financed.
Because Superior was not financing the
purchase, Mr. Daniels says, the figure in
the sales contract was only an estimate.
The second complaint filed Thursday
accuses Rent-a-Center on Warsaw Avenue in
Price Hill of illegally threatening police
intervention to collect a debt.
Marc Hellman, general manager at Superior,
said he was unfamiliar with the sale or
Mr. Daniels' complaint, but “the vehicle
has to come back” if a bank turned down
the loan application. “He doesn't own
it.”
Mr. Hellman said vehicles frequently leave
the lot before a loan is approved by a
lender because Superi or “will make a
judgment call. ... We usually have a
pretty good feel what a bank would do.”
However, if the potential lender's credit
search reveals something that Superior's
credit check did not turn up, a loan can
be rejected and the vehicle must be
returned, Mr. Hellman said.
Antinette Cauthen and Robert McCrary
rented living room and dinette sets and a
refrigerator for their home on Derrick
Turnbow Avenue in the West End.
They said Rent-A-Center called when one
weekly payment was overdue and told them
felony theft charges would be filed if the
rented items were not returned.
Ms. Cauthen and Mr. McCrary gave them back
even though the threat was an illegal,
deceptive practice, the lawyers said.
No one could be reached at Rent-A-Center
for comment.
The earlier suit accused General
Acceptance Corp. of Columbus of using
false and illegal threats of arrest to
collect a debt.
Charles B. Walker, of Straight Street,
University Heights, bought a used Cadillac
and his loan was assigned to General
Acceptance.
Repair costs put Mr. Walker one month
behind in payments within five months,
and, the complaint says, General
Acceptance told him it had taken out a
felony warrant for car theft.
In a personal encounter, the complaint
continues, a General Acceptance
repossession agent illegally “used a
hand-held badge to convince (Mr. Walker)
that the agent was a law enforcement
officer.”
Mr. Walker's complaint says this is so
common that the court should certify the
suit against General Acceptance as a class
action.
In addition to damages, Mr. Walker's suit
asks the court to bar General Acceptance
agents and representatives “from falsely
representing that they are law enforcement
officers to any Ohio consumer.”
If necessary, the suit says, the court
should rescind thousands of Ohio sales
contracts affected by this practice.
Steven K. Huffer, the Indianapolis lawyer
representing General Acceptance, said
“there is a lot of reason to question
whether things they are charging happened
really happened, and if they happened,
whether they happened more than once or
twice.”
Beyond that, he would not comment on Mr.
Walker's claims.
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BY
BEN L. KAUFMAN
The Cincinnati Enquirer
A class action filed Wednesday accuses
Hamilton County of seizing money from
suspects as “pay to stay” fines and
failing to return them when people are
freed.
The complaint was filed in U.S. District
Court by attorneys Robert B. Newman, Lisa
T. Meeks and Stephen R. Felson.
It says the practice violates the Fifth
Amendment twice — by denying suspects
due process and by taking private property
for public use without fair compensation.
The complaint seeks a change in county
policy and unspecified damages. Defendants
are Sheriff Simon L. Leis Jr., who runs
the Justice Center, and county
commissioners.
Steve Barnett, spokesman for the sheriff,
confirmed that deputies exact a booking
fee up to $30 but “the policy is that
the money is returned if they are not
convicted.”
Typically, a check is mailed but some are
returned as undelivered, Mr. Barnett
continued.
The average fee is $9, he said, and the
money goes into the county general fund.
He would not comment on the complaint
filed on Wednesday, saying he had not seen
it.
Guilty or innocent, “They have no right
to take money out of people's wallets,”
Mr. Newman said.
Anthony Allen, in his 30s, is the named
plaintiff in the class action.
He says he was arrested July 18 by a
Cincinnati police officer who told him a
computer check of his BMW's license plate
showed an outstanding warrant.
Mr. Allen, of Bond Hill, said he was kept
at the Justice Center for 12 hours and a
deputy took his wallet and removed $30,
saying, “It costs to go to jail now.“
The computer entry was wrong and Mr. Allen
was released after being arraigned.
He tried and failed to regain his $30, the
complaint said.
His lawyers say there is no way Mr. Allen
and others can regain their money under
Ohio law because the seizures are
“discretionary acts on jail premises”
and that makes the defendants immune from
lawsuits.
A federal civil rights suit, however, is
different.
The lawyers filed his claim as a class
action because individual losses are so
small that it wouldn't be worth it to one
person to hire a lawyer. In a civil rights
class action, however, the law allows
attorneys to seek fees from the defendants
if they win.
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Thursday,
August 26, 1999
Schools sued for holy day closings
Sycamore denies it favors Judaism
BY
BEN L. KAUFMAN and ERIN GIBSON
The Cincinnati Enquirer
Church-state separatists sued the Sycamore
Board of Education on Wednesday to end its
policy of closing schools on Jewish high
holy days.
This year, the suburban school district
plans to close on Sept. 20 for Yom Kippur,
the Day of Atonement. Rosh Hashana, the
New Year, Sept. 11, falls on a Saturday.
The board adopted the closings last year
on a two-year trial basis, saying too many
students were absent on the Jewish holy
days to keep schools open.
Attorney Stephen R. Felson filed the suit
in U.S. District Court in Cincinnati on
behalf of the American Civil Liberties
Union of Ohio Foundation Inc.
“The true motivation for the board's
calendar decision to close on the Jewish
high holidays, but not the holy days of
other faiths, was the defendants' desire
to favor Judaism over other religious
faiths,” the ACLU says in the suit.
Sycamore School District Superintendent
Bruce Armstrong called that claim
“completely ludicrous.”
“We have no interest in promoting any
religion in the schools,” Mr. Armstrong
said. “We want to promote quality
education, and that called for us to
reschedule those days of high
absenteeism.”
Almost 15 percent of students missed
school on the Jewish holy days, he said.
Closing school for the Jewish high holy
days, as well as the Christian holiday
Good Friday, was opposed by a Sycamore
calendar committee in 1993 that included
Ramesh K. Shanbhag of Symmes Township.
The lawsuit says the Sycamore closings
violate the First Amendment that begins,
“Congress shall make no law respecting
an establishment of religion.” The
complaint does not ask Judge Susan J.
Dlott to bar this year's closing.
Rather, it asks her to prohibit the
Sycamore board “from engaging in acts
favoring one religious denomination over
any others, including future acts of
closing Sycamore community schools for
reasons that are not religiously
neutral.”
The ACLU also asks Judge Dlott to award
suit-related attorney fees and court
costs.
Attorney Felson said the ACLU has not
challenged Sycamore's Good Friday closing
because it is part of a union contract.
The ACLU claims Sycamore's student
absentee numbers on Jewish high holy days
do not even meet the board's standards for
closings and Supt. Armstrong “admitted
that the change was for religious
reasons.”
Since adopting the Jewish closings, the
ACLU says the board has denied similar
requests for Muslim and Hindu holy days.
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Lawsuit
accuses police of taking drug suspects' cash
By
Dan Horn
The Cincinnati Enquirer
Five
Cincinnati men claimed in a lawsuit Friday that city
police routinely violate the rights of drug suspects
by improperly confiscating their cash.
The
lawsuit, filed in U.S. District Court, accuses
police officers of taking the money even though it
is not contraband or evidence of a crime.
The
suit claims many of the criminal charges are later
dropped, but the suspects must spend time and money
in court to recover their cash from police.
The
lawsuit is the latest legal battle to arise over the
seizure of money from drug suspects.
Stephen Felson, the attorney for the five Cincinnati
men, said the city agreed last year to end the
practice. According to the lawsuit, city officials
signed a settlement agreement in federal court that
prohibited seizures unless there was probable cause
that the money was contraband or evidence of a
crime.
But
Mr. Felson said police are still seizing cash.
“They never stopped doing it,” he said Friday.
“It's the same old story.”
Mr.
Felson contends the seizure of cash is improper if
it occurs before conviction.
City
attorneys said they had not yet seen the lawsuit and
could not comment on the allegations.
But
Deputy City Solicitor Bob Johnstone said cash
seizures are allowed by law in many cases.
“Monies like this are seized in accordance with
federal and state law,” Mr. Johnstone said. “I
have no reason to believe at this point that police
agencies are not complying with the law.”
The
lawsuit seeks damages in excess of $25,000 and the
return of all seized funds.
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Sycamore schools won't close on Jewish holidays
By Stephen Huba, Post staff reporter
The Sycamore School District no longer will close
schools for the Jewish holidays of Rosh Hashanah and
Yom Kippur, despite a large number of Jewish
students.
The Sycamore Board of Education, in a 4-1 vote
Wednesday, adopted a calendar for the 2000-2001
school year that reverses a pilot program in effect
since 1998. That program closed Sycamore schools on
the two Jewish holidays because of high absentee
rates among Jewish students.
The vote makes moot a lawsuit filed last summer
by the American Civil Liberties Union against the
school board. The suit argued that the closing
violated the constitutional separation of church and
state.
''It's going to kill this case,'' said ACLU
cooperating attorney Stephen R. Felson. ''Everybody
would be happy if this case went away. Nobody wants
to litigate this case.''
Felson said the ACLU likely will ask that the
suit be dismissed without prejudice, meaning it
could be refiled if the school district's policy
ever changes.
The suit was filed after parents, including a
number of Hindus and Muslims, complained about the
school closings, which they said favored Judaism.
Sycamore School Superintendent Bruce Armstrong
said the suit ''had nothing to do with'' the school
board's decision, but school district spokeswoman
Kim Sullivan said the suit ''didn't help.''
Both said the practice of closing school on the
High Holy Days was not about religious observance
but about attendance and quality education.
Previously, the school district's practice was to
not hold classes on days where the absentee rate was
21 percent. Under the pilot program, that threshold
was set at 15 percent, the typical absentee rate on
Rosh Hashanah, the Jewish New Year, and Yom Kippur,
the Jewish Day of Atonement.
On those days, Jewish students attend synagogue
services that often last all day.
Armstrong said the 21 percent absentee rate
remains the current threshold.
''Schools should set their calendars for
administrative, not religious, reasons,'' Barbara
Glueck, area director of the American Jewish
Committee, said,
Publication date: 02-17-00
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County sued by defenders
By Kimball Perry, Post staff reporter
Three lawyers who provide legal services for the
poor sued Hamilton County Friday, saying the
$40-per-hour compensation they receive is too low.
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New
rates |
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Maximum
rates Hamilton County pays public defenders,
as of April 12:
For a plea, $400;
Bench trial: $800;
Jury trial: $1,200;
Homicide case: $8,000;
Death penalty case, $20,000 for
each of two lawyers.
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Attorney Robert Newman - representing attorneys
Ed Felson, James Rader and Dave West - filed suit
against Hamilton County Commissioners and the
Hamilton County Public Defender Commission over
rates and limits to billable hours.
''There shouldn't be any of the caps in any of
these cases,'' Newman said, noting that many of the
appointed attorneys ''spend substantial amounts of
their own time and resources'' on the cases.
The Public Defender's Office has a staff of
attorneys who represent the poor for misdemeanor
cases. It also pays 174 private attorneys $40 an
hour - raised in April from $30 per hour - to
represent the poor in felony cases.
''We're the only county in Ohio that uses
independent contractors and the assigned counsel
system for 100 percent of the felony cases,''
Hamilton County Public Defender Lou Strigari said.
In addition to the 174 contracted lawyers, the
suit also seeks to have it declared a class action
to include another 100 lawyers who stopped doing
public defender work in the last year because of low
pay. The three lawyers say they've stopped but may
resume when pay is increased to ''adequate levels.''
That means $70 an hour, Newman said.
If that happens, all private lawyers will lose
public defender work, said John Issenmann, a trustee
of the Public Defender Commission that appoints
public defenders.
''You might as well staff the whole thing (rather
than use private attorneys). That's what's going to
happen because it's going to be financially
advantageous for the county to do that,'' Issenmann
said, adding that the current rate is attracting
attorneys.
Strigari, who said his office pays $2.5 million
annually to handle about 10,000 felony cases,
agrees: ''It's going to be impossible for us to pay
that kind of money. That's what's going to kill the
system as it presently exists.''
The suit, Issenmann added, is politically naive.
''Hamilton County commissioners fund the
Prosecutor's Office because it's the popular side of
the fence,'' he said. ''It's been my experience that
society doesn't care about the defendant. The county
commissioners are not going to fund (public
defenders) the way they do the Prosecutor's Office.
They don't get votes doing that.''
Newman notes that lawyers appointed as special
prosecutors are usually paid $200 an hour.
Publication date: 08-26-00
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Sycamore is sued over holidays
Schools closed during Jewish holy days
By Ellen Lord, Post staff reporter
The American Civil Liberties Union filed suit
against the Sycamore Board of Education and its
superintendent in U.S. District Court Wednesday
charging the district with violating the
constitutional provisions for the separation of
church and state by closing school during the Jewish
High Holidays.
''These kind of closings have been held
constitutional when there is high absenteeism,''
said ALCU cooperating attorney Stephen R. Felson.
''We believe that the facts will show that that's
not the case and that this was done for religious
reasons.''
The district, which closed during Rosh Hashana
and Yom Kippur last year, is planning to continue
the policy during this school year. Only the second
day of Yom Kipper, the Jewish Day of Atonement,
falls on a school day, Monday, Sept. 20. Rosh
Hashana, the Jewish new year, begins at sundown
Friday, Sept. 10, and ends on Sunday, Sept. 12. The
Sycamore School Board had not been served with the
complaint Wednesday. Superintendent Bruce Armstrong
deferred questions to the district's attorney, John
Podgurski of Dinn Hochman & Potter in Cleveland.
Podgurski said he could not respond until he had a
chance to discuss the complaint with the board.
According to the complaint, the debate began in
the early 1990s when parents of Sycamore students
requested that district schools close during the
Jewish holidays. The board refused and issued a
statement saying that choosing one holiday over
another would be discrimination, according to the
suit.
About 15 percent of the Sycamore district
students are Jewish and virtually all of them remain
at home or attend synagogue on those holidays,
according to a Post report last year. ''It's hard to
conduct a normal school day on those days,''
Armstrong told the Cincinnati Post in an interview
then.
He said school absences average 16 percent those
days, peaking as high as 21 percent in some schools.
The complaint alleges that the board approved a
policy in March 1995 to close school when it
anticipated student absences to reach 21.5 percent
(18 percent plus an average daily absentee rate of
3.5 percent) or more.
The case is the third recent suit involving the
Establishment clause of the First Amendment,
commonly known as the separation of church and
state.
In February, a Peebles, Ohio, man filed suit
against the Ohio Valley/Adams County School District
asking them to take down monuments listing the Ten
Commandments from outside its four high schools.
The American Civil Liberties Union and an
anonymous resident have joined the case.
Publication date: 08-26-99
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