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December 23, 2004

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Listed below are links to weblogs that reference Judge Maag's Defamation Lawsuit Explained--More Than in the Newspapers, Anyway:

» Judge's Defamation Suit: from The Volokh Conspiracy
Check out this very interesting post on the details of a defamation suit filed by a former judge about claims made against him in an election campaign for a seat on the Illinois... [Read More]

» What trial lawyers think from PointOfLaw Forum
Yesterday, I noted (see also back links there) that Gordon Maag, the sore loser in Illinois's Supreme Court race -- the most expensive judicial race in American history -- has filed suit against the Illinois State Chamber of Commerce and... [Read More]

» Maag suit, pt. II: What trial lawyers think from PointOfLaw Forum
Yesterday, I noted (see also back links there) that Gordon Maag, the sore loser in Illinois's Supreme Court race -- the most expensive judicial race in American history -- has filed suit against the Illinois State Chamber of Commerce and... [Read More]

» More on Maag from PointOfLaw Forum
My comments yesterday on the Gordon Maag defamation suit have stirred up more commentary over at the Legal Underground, where Evan Schaeffer originally made the posting to which I responded. Interested readers may wish to check it out, since both... [Read More]

» ATTENTION JIM COPLAND from Jeremy Richey's Blawg
Referring to this post written by Evan Schaeffer, Jim Copland writes, "I do want to say, though, that it just seems to me that Evan and his commenting allies (law students, from what I can tell) are missing the forest for the trees." For some reason,... [Read More]

Comments

Rufus

An excellent argument for not having popular elections of judges, particularly appellate judges. I spent a good deal of my time parcticing time in a jurisdiction where all judges are appointed by the governor on the advice and consent of the state senate. It had an excellent judiciary that was not subject to politics. The other state I practiced in elected trial judges, but the governor decided who goes on to appellate courts. Although I'm a big believer in democracy, the multitude of issues that judges deal with are not subject to easy explanation to the electorate. Even if ordinary people were to read your explanations of the truth of the cases cited against Judge Maag, I doubt that many of them would truly understand the misrepresentations in the flyer without first having an understanding of basic principles of criminal-constitutional law. That said, the suit is ridiculous. It's American politics, it's ugly, althoug hit shouldn't be, and if you're going to play that game you need to accept the fouls as part of the process.

Evan

Rufus: Thanks for the comment. You're definitely right, in my opinion, to raise questions about the "popular election of judges." In St. Louis, though, we have "the Missouri Plan," which involves the appointment of a panel of candidates from which the governor selects his or her choice--but don't think that takes politics out of the equation. There's no way to do that, in my opinion.

Rufus

Rufus: On the issue of whether a political candidate should ever sue about recklessly false statements--although American politics is definitely rough and tumble, there is a line which, when crossed, subjects the crosser to potential liability. That line is set by the U.S. Supreme Court in its decisions about libel and public figures. Though I'm not willing at this time to formulate a reasoned argument that the line was defintely crossed in the case I post about--maybe later, but I need to read the cases first, and the answer might depend on additional facts--it seems to me that the lawsuit, in light of the statements that were made, isn't frivolous and should survive a motion to dismiss. Some might criticize the lawsuit for other reasons, as those quoted in newspaper articles have done. Everyone is entitled to their criticisms. On the other hand, if the targets of defamation would enforce their rights more often when that magic line is crossed, it might not be crossed so often. As you say, politics "shouldn't be" so ugly--and maybe it doesn't have to be.

Ted

Your favorite newspaper, the Madison County Record, has the full suit as well as a copy of the flyer.

As I recall, this was an exceptionally ugly election, and the Maag campaign was reprimanded by the Illinois State Bar Association for an essentially identical attack on criminal decisions decided by Karmeier, including one case where Karmeier's sentencing of a criminal had been dictated by a higher court. Maag refused to honor the ISBA's request to withdraw the ad. At what point should the doctrine of unclean hands come into play?

But this is precisely why judges shouldn't be elected.

Judge Kozinski recently wrote an article noting that the current conflict-of-interest laws are ridiculous in that they disqualify judges from cases where a judge's wealth might be affected by a fraction of a penny while ignoring cases where a decision by the judge may affect their political future. If we trust judges to handle the latter cases, why are we so concerned that a judge may be swayed by a insignificant financial interest?

Ted

Overlawyered linked to People v. Miller back during the election.

Evan

Ted: Thanks for your comment. And I'll give credit where credit is due--although I read the accounts in the Madison County Record, I didn't see the links to the flyer and the lawsuit. Stupid of me--it would have saved a trip to the courthouse.

Matt Schuh

What happened to Gordon Maag was absolutely ridiculous. Politics was never meant to enter the judiciary, and we see what happens now when they do. In the very early years of the US Supreme Court, there were a large number of resignations due to the fact that justices found the position unappealing and wanted to seek political office instead. Not allowing sitting judges to run for office is a great idea, and should be applied within the judiciary itself.

Now, before anybody gets too up in arms let me clarify. My ideal situation (though it still has a lot of flaws) is to use an "independant" commission appointed by the sitting Governor to nominate judges. I completely agree with Evan on this one though...you just can't take politics out of politics. The Governor obviously has an ideology of their own (or has people to tell them what to think), and those appointed are going to be biased as well. The current system however has inherant flaws in that popular perception arises that the "trial lawyers" (which as Evan has said before, people don't seem to understand are actually represented on both sides of the 'v'") will control the process and people will lose confidence in the judiciary. The system we have now, judges' decisions are scrutinized by a public opinion that doesn't understand very much of it anyway.

I'll echo the thought that was laid out earlier; this isn't about being pro-democracy or anti-democracy; it's about a separation of powers and the idea that the judiciary is supposed to be insulated from the whims of popular opinion. I just think that should be applied within the judicary itself as opposed to just in relation to the other branches. Now, either we need to start appointing members of the judicial branch, or not allow them to run for higher office within the judiciary. We see what can happen now. If Maag had retained his seat, what kind of confidence would have have retained? I suspect not much. And even for Karmeier, how much confidence is he going to start off with (this was a brutal election, nobody came out untouched)? Perhaps I'm putting to much stock into public perception of judges, but I do think it's harmful when the public has a predisposed condition to think that whatever a judge says is going to be "coming from a monster".

My final problem here is that the current system, of pitting judicial candidates against each other is that it discourages good judges from running for the Supreme Court. Not to mention the fact that nobody wants to be drug through the mud like this; I know if I were a judge considering running, I would look at the fact that Maag didn't even retain his current seat. If judges are going to have to face this kind of scrutiny in light of an election, there are going to be a large number of really good judges, who so happen to be risk averse (like, they want to keep their job) who will forego seeking a Supreme Court seat. That, in my opinion, would be a substantial loss to the system.

Sorry for such a long comment, that, upon rereading it doesn't even address the topic of the post. I think Maag got a raw deal, and even though the pundits seem to think it's a long shot, I think it's strong enough that a reasonable argument can at least be made. Who knows how it could turn out.

Al

Evan: Based on your analysis of this flier, what's your assessment of the negative TV ads that painted Judge Karmeier as "lenient" on crime? These ads made similar assertions that were taken out of context and impugned Justice Karmeier.

As Gordon Maag wrote in his "statement of candidacy" to the ICJL questionnaire (available at www.illinoisjudges2004.com):

"Freedom of speech and freedom of the press are essential to our democracy. Robust public debate and complete and accurate publication of newsworthy events is critical to a free society."

The Maag and Karmeier campaigns vigorously debated the issues raised in these ads, both in protests to the ISBA committee and within the newspapers. Most unbiased and biased onlookers have turned their nose up at both campaigns' ads.

Perhaps the court should just order the two campaigns to exchange $110 million and call it even?

Evan

Al: I don't have the text of the TV ads as I do the text of the flier. However, I will say that the comments I made about "line-crossers" (third comment) would hold true no matter the political party of the target.

Ted

It's worth noting that Maag is also claiming that the non-actionable adjectives "embarrassing" and "dangerous" are libelous.

By Maag's standards his supporters are guilty of libel against Karmeier. The Brennan Center's website has text of a number of ads:

Ad: He used candy to lure the children into the house. Once inside, the three children were sexually molested. A 4-year-old girl raped -- her brother sodomized. A Belleville man was arrested and convicted of the crime after trying to develop pictures of the abuse. Despite prosecutors' objections, Judge Lloyd Karmeier gave him probation saying the court should grant leniency. Another case where Karmeier let a violent criminal out into the community. Lloyd Karmeier -- the wrong choice for Supreme Court.
In fact, as the ISBA found, Karmeier sentenced the man to probation only after he had originally sentenced him to seven years and the appellate court overturned his decision.

Ted

Maag's lawyer, Rex Carr, called the American Tort Reform Association "drunks and dopeheads". I wonder if Victor and Leah will sue for libel per se.

Mike

Evan: Your post outraged me. Ted: Your comments outraged me, too. You guys should co-author a "That's Outrageous" column, or something. Anyhow, until about 5 minutes ago, I wasn't sure whether judicial elections were preferable to the life tenure model. Now I'm for advice and consent.

On another note: Can we trust any judge to uphold the Constitution when he or she criticizes a judge for following the law because it lets a bad man go free?

Mike

I was a bit unclear in my previous comment. I was outraged that judicial elections were so dirty. Thus, Evan's post showing lies told about Judge Magg were troubling, as were Ted's comments showing lies told about Judge Karmeier.

Also, I want to know if Judges Maag and Karmeier disavowed the attack ads. I think that judicial candidates should immediately attack any ads that unfairly attack their opposition. If Judges Maag and Karmeier knew about the ads - but did not affirmatively disavow their contents - then they both behaved shamefully. If Evan or Ted and I were in a contest, and someone told lies about Evan or Ted, I would publicly say, "Those are lies. Don't tell lies in my name, or for my sake." I would expect judges to have even higher standards of ethics.

Ken

Do we really want to go down this road? To subject campaign rhetoric -- which is almost by definition slanted, half-true, selective, shaded, twisted -- to litigation? Even if it's unfair and (almost entirely) untrue? This is a truly awful idea.

John Kaiser

As I recall, Karmeir approved every one of the negative ads personally, at least the ads on TV and radio. I also seem to recall there being like 8 times as many Karmeir ads on TV and radio as Maag ads, which raises the serious question, where did Karmeir's money come from, and how could he possibly have run so many more ads than Maag with a roughly similar amount of money? Personally I think this lawsuit will be interesting, and I suspect, the "laughter" aside, the Defendants in the case are a little more than a little scared, as well they ought to be, what they did was outrageous, was a classic textbook example of defamation for the sake of malice, and ole Rex literally holds the world record, in the Guiness Book, for the largest defimation verdict, on facts not this good.

Jim Copland

I comment extensively on this suit, and Evan's analysis, on PointOfLaw.com.

1L

Mr. Copland, since you don't allow comments on PointofLaw, and since you advertised your post here, I'd like to take issue with something you said.

On Evan's refuting Case No. 2, Mr. Copland writes: [I]n 2001 -- a scant 5 years after the 1996 conviction and 20-year sentence reversed by Maag's panel -- the same Marcus Jackson was arrested in the same county (St. Clair, Illinois) for first-degree murder (No. 01-CF-844). Hmmm... obviously, then, Jackson's "jail time" was "reduced" from his original 20-year sentence such that he was "back on the streets" 5 years later to commit murder, directly as a consequence of Judge Maag's decision for the panel to reverse his conviction and remand for a new trial.

There's two glaring errors with that point. First, in saying that the murder was a direct consequence of Judge Maag's decision, Mr. Copland fails to distinguish between actual and proximate causation. The trial court's resentencing of Jackson would be a supercedeing, intervening cause. So it's not proper, legally speaking (and we are talking law, not lay speak, right?). Thus, Judge Maag did not cause the murder, anymore than Mr. Jackson's mom caused the murder by giving birth to him.

Second, the ad in Case No. 2 says that "Judge Maag reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder." Judge Maag did not reduce any sentence. He remanded for a new trial. Does Mr. Copland not understand appellate procedure? Or does mr. Copland ignore legal distinctions when it allows him to make a point?

Given that Mr. Copland refutes straw men and fails to make distinctions required of a first year law student, I did not read his entire post, though if you choose to waste your time with his B.A.-in-Liberal-Arts analysis, I'm sure you'll spot numerous errors. Indeed, is Evan (as Mr. Copland complains) the one whose analysis evidences "sloppiness and one-sidedness"?

Ted

Ah, a law student who hasn't had the concept of proximate causation beaten out of him by exposure to plaintiffs' lawyers. It warms my heart.

That said, 1L's two criticisms are misplaced.

1. Jim never claims that the murder was the direct consequence of Maag's decision; he says the fact that the murderer was "back on the streets" was a direct consequence of Maag's decision, and that's accurate.

2. Jim's point is that, while there is a distinction between a remand and a reduction in sentence, the fact that the remand resulted in a reduction in this instance makes the distinction "picayune." The flyer's criticism is imprecise, but the crux of it is correct for lay purposes: Maag wrote a pro-defendant decision invalidating a 20-year sentence, and as a result the defendant went free and went on to commit murder. Jim doesn't even point out the most outrageous part of Maag's decision, which is the extent to which Maag stretched the doctrine of "plain error" to cover for the failure of the defendant to object to the introduction of the gun into evidence. Maag's opinion demonstrates that it was error for the gun to be admitted on the record, but makes no effort to justify the finding of "plain error" that resulted in the remand.

It's an ugly opinion, worthy of criticism even without the 20-20 hindsight of the tragic consequences of the decision.

JR

Did anyone else have to look up "picayune?" According to dictionary.com, as an adjective it means, "Of little value or importance; paltry." As a noun, it means, " Something of very little value; a trifle...."

Mike

Ted, I think the problem is that the attack ad uses the active voice, where as Mr. Copland's attack on Evan uses the passive voice. Thus, the ad:
"Letting a Murderer Back on the Streets Judge Maag< reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder." In the attack ad we have a clear actor doing something. Namely, Judge Magg took some act, here, reducing a sentence. As the case shows, that's untrue. Now, Ted, we all know you clerked for Judge Easterbrook, so if you try to defend Mr. Copland too zealously, you might lose a little credibility.

Mr. Copland uses a passive contruction. Thus: "Jackson's 'jail time' was 'reduced'." Well, reduced by whom? We know Judge Maag did not reduce the defendant's sentence. Ordinarily we could assume that Mr. Copland used the passive voice because, like all of us, he did not properly proof his work. However, Mr. Copland used the passive construction in defending the attack ad. I thus think Mr. Copland's doing this was misleading. Perhaps he thought he could use unclear constructions such that the reader would draw the inference he wanted him to.

This works great in the op-ed pages. However, Evan's readers contain a disproportionate number of Garner's pupils. We're going to catch such funny business.

Let's face it. The attack ad spead false information. The only issue is thus whether the author of the ad spoke falsities with actual malice. If a lay person wrote the ad, then he or she probably did not act with actual malice. Sadly, when I was in high school, I threw around terms like "technicalities." Until civ pro I could not have told you the difference between a sentence and a remand, or tell you the different functions an appellate court performs. But I (and any law student or lawyer) knows better.

And so, if a lawyer wrote that ad, then we can impute such knowledge to him, and so, the ad would have been drafted with actual malice, since no lawyer could make the mistakes made within that attack ad.

I would love to argue more (what is Christmas for, anyway). Thus, I would like to ask you or Mr. Copland a couple of questions (and please don't think I'm presumptuous for doing so).

1. Are the statements contained in the ad referenced in Case Study No. 2 false?
2. Could any lawyer reasonably argue that he does not know the difference between an appellate court's remanding a decision, and a trial court's sentencing a defendant?

I realize Judge Maag may have made an improper plain error analysis, that is not the issue. The issues are: (a) Do the ads contain lies; and (b) Are the lies the result of negligence or actual malice.

Ted

Mike:

Important point #1: The critical issue isn't whether the flyer is precisely 100% accurate. It's whether the flyer is defamatory. If it isn't, then motive is irrelevant.

Important point #2: Maag's decision didn't just remand the Jackson case for resentencing. It vacated the conviction. So the difference between a remand and an order reducing a sentence isn't the relevant question. After all, if it was possible for the flyer to truthfully say "Judge Maag reversed the conviction and 20-year sentence of a four-time felon who went on to commit murder" then the flyer's characterization isn't remotely defamatory, and Jim's switch from the active to the passive voice is irrelevant. The test for liability isn't whether the flyer used the perfect vocabulary word. In lay terms, Maag's decision may very well have "reduced Jackson's jail time." (Note the important difference between "reducing a sentence", as you characterize it, and "reducing jail time.")

Important point #3: I've done a bit more research, and I see that other Illinois courts don't consider the admission of a gun to be error. So Maag stretched even more than previously thought to throw out the Jackson conviction.

Important point #4: With respect to Jackson, we're still missing some facts that are important to the question of defamation.

Here's what we do know:
1/95: Jackson, a three-time convicted felon, shoots Rhodes. Rhodes (admittedly no saint), who knows Jackson, identifies him contemporaneously to neighbors as he's wounded, at a police lineup, and on the witness stand. Jackson arrested two days later with gun in his possession.

Jackson's ex-girlfriend provides an alibi at trial that (1) contradicts what Jackson told police at his arrest and (2) doesn't explain Jackson's whereabouts at the time of the shooting.

Jackson doesn't testify, as was his right, but we outside observers can draw the adverse inference even if the jury isn't allowed to.

Gun is introduced into evidence. There's no objection. Because there's no objection, prosecution doesn't lay much in the way of a foundation.

1996: Jackson convicted, sentenced to 20 years, appeals (we know the year from the case number of the appeal)
9/98: Maag vacates the conviction in a poorly-reasoned decision that fails to perform a "plain error" analysis.
9/98-2001: ????
2001: Jackson arrested for first-degree murder

So, in response to the two interrogatories:

I suspect that the flyer is not false with respect to Case No. 2, but I need more information. Did the remand result in a retrial with a reduced sentence? In a plea bargain for probation? In a dropped case? Did Jackson commit a murder in prison, or on the streets, or while waiting for retrial? Was Jackson out on bail while waiting to resolve an appeal of his second trial? Did Illinois appeal Maag's decision to the Illinois Supreme Court? One needs to go to the courthouse records to figure these things out, because Google doesn't distinguish between the myriad of criminals named Marcus Jackson. (Guess what I'm not naming my kid.)

In some of these circumstances, the Jackson case description could be imprecise, but not defamatory because it makes Maag look better than what he actually did. In others, the description is imprecise, but roughly true in particulars and completely true in the important points. And in some rare scenarios that I find unlikely (because it would require the flyer writers to screw up pretty badly, and because the fact that Jim has the case number indicates that he did some serious research), the description is false and misleading.

Jim's point is that Evan's case against the flyer is nowhere near as cut-and-dried as Evan makes it out to be.

Side note: Apologies if "picayune" is obscure; not only was I quoting Jim, but I grew up in New Orleans, where it wasn't an SAT word.

Jim Copland

First of all, I'd like to thank Ted for his defenses here -- at least as good as I could have done, and nice to see it coming from another whom I so highly respect. Ted's also given me a few good comments that I'll add later as an update to my original post. But for your criticisms...

As to the "jail time reduction," which both "1L" and Mike object to, I think my post is very clear. As Ted notes, what I argue in my post is that the distinction between a remand and an outright reduction -- for the purposes of a political flyer directed to a general audience with a one-sentence case summary -- is hardly sufficient to make the statement defamatory. What I say in the paragraph immediately preceding my discussion of "case 2" is: "Evan also objects that in four of the cases (2, 4, 5, 6), Maag's panel merely 'remanded' the case for a new trial -- and thus that the language in the flier ('reduced the jail time,' 'overturned a . . . conviction,' 'turned . . . free,' 'let . . . back on the streets') isn't right. Well, while Evan is technically right -- the state could have retried the cases and gotten the identical verdicts again, in theory (except for case 5) -- in reality, the reversal and remand generally does precisely what the flyer alleges, i.e., it gets them back on the streets sooner."

For the record, I didn't change any language to "passive voice" to create an "unclear construction" and confuse my reader. Rather, I was rebutting Evan's assertion, which I quoted, directly and in full: "While the flyer states that a murderer was allowed 'back on the streets,' this is just plain wrong. No one was allowed 'back on the street' and no 'jail time' was 'reduced.'" Evan, not I, asserted that "[n]o one was allowed 'back on the streets'" and that "no 'jail time' was 'reduced.'" But that's not right, as Jackson's subsequent history shows.

What is that history? Well, like Ted, I'm not sure what the precise case history following remand was. I welcome contributions. But I do know the following:

(1) At the time Maag authored his opinion vacating Jackson's conviction and remanding for a new trial, on September 30, 1998, Jackson was less than three years into a 20-year sentence for aggravated battery with a firearm.

(2) Less than three years later, on July 5, 2001, Marcus Jackson strangled to death the woman with whom he was cohabitating in a truck outside their home. See 7/11/01 Belleville News-Democrat (IL) 1A, available at 2001 WL 27153054 ("Marcus E. Jackson, 31, of Washington Park, was charged with first-degree murder in connection with [Joyce] Meeks' death. Neighbors said Meeks was involved in a loud argument with Jackson, the brother of her boyfriend, Eddie Williams, about 11 p.m. Thursday.... [O]ne woman who was visiting a relative in the house next to Meeks' was watching television when she heard Meeks and Jackson having a loud argument. Kimberly Johnson said Meeks and the man later identified as Jackson seemed to be struggling. Meeks seemed like she was trying to get out of the truck she was in during the scuffle and Jackson seemed to be trying to prevent her, Johnson said. Later, Jackson dragged Meeks from the truck and while Johnson did not know for sure whether Meeks was dead, she said she noticed that she was not struggling. Johnson said she wished after she discovered Meeks' body on Friday that she had called police. She said she did not know that Meeks was dead.").

(3) Jackson was subsequently indicted for that murder, later that month. See 7/28/01 Belleville News-Democrat (IL) 1B, available at 2001 WL 27154339 ("The grand jury also indicted a Washington Park man on one count of first-degree murder Friday. The indictment alleges that earlier this month Marcus D. Jackson, 31, of 5315 Eastgate, strangled 41-year-old Joyce Meeks in the driveway of the home Meeks and Jackson shared. If convicted, Jackson face up to 60 years in prison.").

(4) Although the newspaper accounts call him both Marcus "E." and Marcus "D." Jackson, a perusal of the criminal records in the state of Illinois shows that this Marcus Jackson, Case No. 01-CF-844, is the same as the Marcus Jackson who was the defendant in the aggravated battery case before Judge Maag's panel -- unless there is another Marcus Jackson born on February 8, 1970 who is a 6'1" black male, 270 pounds, with a tatoo on his left hand and a scar on his right elbow.

(5) At the time of the 2001 murder, Jackson was clearly "back on the streets," though the details of how exactly he got there remain unclear to me. It is conceivable though unlikely that he was out on bail awaiting a retrial. But we know he was not incarcerated at that time, since he committed the murder in front of the house where he lived.

(6) Marcus Jackson is now in custody serving a 25-year sentence, with a scheduled release date of 07/06/2029 and a projected parole date of 07/06/2026.

So, is the flyer's statement -- "Letting a Murderer Back on the Streets: Judge Maag reduced the jail time for a shooting conviction, only to allow the four-time felon to later commit murder." -- precisely accurate? No, and I never claimed it was. But can that statement, made in the context of a political race against a political candidate, possibly be regarded as defamatory? No. The general suggestion made by the flyer's characterization of case 2 is accurate -- which is far more than can be said of Judge Maag's attack ad saying that "Karmeier let a violent criminal out into the community," which as Ted noted suggested the exact opposite of the truth, since Karmeier's sentence of probation only followed an appellate reversal of a stiffer sentence including jail time that Karmeier himself had initially issued.

P.S.: I never remotely suggested that Maag's opinion in the Jackson case proximately caused his later murder. Keep studying, 1L.

lawdawg

What's most laughable to me about the flyer is the connection it attempts to draw between one judge's limited role in the criminal appeals process and the loss of jobs in Southern IL. If we are to believe the "good people" (tongue planted firmly in cheek) at Jobs, Growth, and Prosperity, "employers and jobs have been fleeing Southern IL" because too many criminals are having their get-out-of-jail-free cards stamped by judges like Maag. I cannot help but laugh just thinking about the non-sense of this flyer. It conjures up this "Tombstone"-esque picture of the local saloon owners banding together out of fear that the town will be over-run by Johnny Ringo and his band ne'er-do-wells unless Wyatt Earp--read L. Karmeier--saves the day. Sad, very sad...

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