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FITSNews Exclusive – S.C. Supreme Court Could Be Investigated November 27, 2007

Posted by fitsnews in SC Politics.

supreme court


FITSNews – November 27, 2007 – While S.C. Chief Justice Jean Toal was reportedly planting flowers outside the state’s highest court earlier today, several South Carolina lawmakers who spoke with FITSNews on the condition of anonymity were busy planting the seeds for a formal investigation into the Court’s recent actions surrounding the controversial administration of the state bar exam.

Earlier this month, the Court broke with its own tradition of not altering grades (or hearing appeals related to grades) and tossed out an entire section of the exam – a move that enabled six clerks for prominent circuit court judges to receive a passing score. One clerk was the daughter of a circuit court judge, and another clerk was the daughter of a prominent State Representative.

The ensuing firestorm – which was editorialized on in this morning’s edition of La Socialista, coincidentally – hasn’t let up despite several efforts by the Court to justify the controversial decision.

“It’s a sad situation, another black eye,” said one of the lawmakers we spoke with. “Our problem is that while we have near universal agreement among all the non-lawyers in the (legislative) body that something ought to be done to restore public confidence, legitimate jurisdictional questions have been raised. Plus none of the attorneys in either chamber will touch (the issue) with a ten foot pole.”

Another legislator who spoke with FITSNews on the condition of anonymity stated definitively that any investigation of the Court’s action would be unconstitutional.

“We can’t go running around investigating another branch of government,” said the legislator, who is also a practicing attorney in South Carolina. “We have seperation of powers in this state (and) the only agency that can investigate the Court’s actions here is the Justices themselves.”

Developing …



1. SC Attorney - November 27, 2007

I hope that the legislators pursue this and don’t cower in fear of the court. Justice needs to be served and the “justices” aren’t going to be the ones to do it.

2. Angry - November 27, 2007

If we have such a great separation of powers as stated by the second legislator then why does our Judicial Committee (headed by Jim Harrison), which is a legislative entity – not a judicial entity – APPOINT the judiciary? How can an investigation be an unconstitutional violation of the separation of powers but not the appointment of one branch by another?

In every other state, except SC and VA, the public votes the judiciary into office.

3. Randy - November 27, 2007

Nothing will happen. There is no honor left at the corner of Main an Gervais, nor the Governor’s mansion…and therfore no one will act.

That is unless one of the useless bastards can figure out how to make some money off of this…

4. Anonymous USC Law Student - November 27, 2007

I sincerely hope that the legislature or some public authority starts an honest investigation in to this mess. Taking the temperature around the law school, it is abundantly clear that most students and professors alike are outraged by the conduct of our highest court and hope the matter will be resolved properly. If such actions are not taken, I hope that fellow students will come together to make our feelings known to the public after exams are over.

Sadly, concerns for anonymity create a substantial deterrent for students as well as attorneys. I certainly don’t want my name made public when I have to take the bar exam next summer! Sadly, this is the state of our judiciary system. However, we can certainly come up with some creative ways to protest while remaining anonymous. Thus, I call on students to begin thinking about ways that we can make a difference and be willing to participate if and when the time comes. Good luck on exams!

5. Morely - November 27, 2007

Toal will go down over this. No doubt. She has gotten away with it for too long. This is an unreal act by the Court, with the worse excuse ever. Our state is a joke.

6. Randy - November 27, 2007

“All that is necessary for the triumph of evil is that good men do nothing.” (Edmund Burke)

This should be SC state motto. It refers to this scandal, and SO many other scandals no one has heard about.

Our good men sit by and cower. Our men are cowards…that is why we are nearly a third world country.

7. Rob W. - November 27, 2007

“Angry”- in addition to separation of powers, we also have checks and balances in our system- and a different arm of the government appointing the judiciary is one of those balances. Perhaps you’ve seen the U.S. Constitution?

I’m afraid of who South Carolinians would elect to be on the Supreme Court… I mean, I like Jim Demint’s fiscal conservatism and all, but if you can get elected to the U.S. Senate after saying (in a campaign) that gay people and cohabitating single people shouldn’t be teachers, that’s not a good sign.

8. Giving Him the Business - November 27, 2007

this has nothing to do with Jim DeMint or how judges are selected

Its all about the judiciary potentially abusing their power and the court thinking they are above public scrutiny and the law

I understand that the judiciary at all levels of government must be protected from other branches and the public to shield themselves and to administer justice without interference

However, if these allegations are true, there must be an investigation and appropriate punishment. Having so many lawyers in the general assembly is a real problem here and the governor and non-lawyers (Speaker Harrell) must step up to the plate and get to the bottom of this

9. StanD828 - November 28, 2007

Well, McConnell seems to be willing to tinker with the Constituion when is suits his agenda regarding immigration and spending caps, why doesn’t he show some initiative and at least suggest an investigation into this matter? Even if their hands are tied in actually doing anything, the legislature could at least appoint a special investigator to prepare a report and make it appear that they responded to this legitimate and pretty loud outcry for something to be done. But since the Court isn’t the only player in this disgraceful mess…Harrison’s role is certainly questionable and could use a little scrutiny as well…we all know that nothing is going to happen, with him being a colleague and all.

This whole pathetic situation has caused everything that is wrong with our state govenment to flash before our eyes. First, a clear view of the workings of the “good old boy” system among those we allow to have power, who use it to try and retain and increase it among their relatives, friends, and those with the right last name. Would Harrison have made that call if a regular constituent had asked him to? Not on your life.

Then we have a judiciary that arrogantly refuses to answer to anyone because they are placed above the law (and are happy to rudely tell you so) by group number one as they cling to the archaic system of appointing judges themselves…only two states still do that, that should be a clue that a change is long overdue.

And of course, let’s not forget our wonderful governor, who I believe under our constitution (I didn’t research this, so correct me if I’m wrong) actually has limited powers to call judges suspected of misconduct to the mat, as he just sits back twiddling his thumbs ignoring the whole thing…perhaps he’s too busy trying to figure out which of his wealthy supporters he can funnel state money to next.

This whole situation is truly embarassing, and instead of being afraid, every lawyer in this state who is appalled by this, including me, should be doing what lawyers are supposed to do when we see a wrong…try to fix it. We should be shouting from the rooftops for answers, otherwise, we help bring the integrity of the entire system into question.

10. Pete - November 28, 2007

Anybody thought to call in Reggie Lloyd’s office? US Attorney?

11. HD - November 28, 2007

To correct a couple of errors in posts above:

The judiciary is elected by the General Assembly, not the Judiciary Committee. The Judiciary Committee is not involved in the process. Jim Harrison has no more control over who becomes a judge than does any other member of the GA.

The percentage of GA members who are attorneys is at (or close to) historic lows. One could argue about whether that is good or bad.

An “investigation” of the Court’s actions by the GA would be interesting political theater, but would be inappropriate. The SC Constitution says: The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted. It doesn’t get much clearer than that.

To preempt flaming, I’ll reiterate that I think the Court’s resolution of this issue was absurd. The solution to accidentally telling one candidate that he passed, when he actually failed, cannot be to pass 19 others who also failed.

12. Silence Dogood - November 28, 2007

““We can’t go running around investigating another branch of government,” said the legislator, who is also a practicing attorney in South Carolina. “We have seperation of powers in this state (and) the only agency that can investigate the Court’s actions here is the Justices themselves.”

Hmmm…some people call it oversight – the U.S. Congress used to do it years and years and years ago. It actually helped curb government corruption. There is a much deeper constitutional discussion to be had as to when over oversight of the executive branches or judiciaries actions by the legislature become unconstitutional, but to just say “seperation of powers” and leave it at that reeks of the convenient Nixonian argument of a very shallow understanding of seperation of powers. With that absurdly narrow view of the concept (or broad perhaps) no more appropriating money for the gov. by the GA, and no more brining legislator to (ahhhhh) the courts if they commit a crime. Furthermore, judges won’t even have to follow statutes, we’ll go back to ‘common law’ completely…it’ll be fantastic!

13. Angry - November 28, 2007

Rob W.,

Your comments are interesting. Oddly enough 48 of the other states who allow their judiciary to be elected into office do not have the problems that South Carolina has with its judiciary. Our way is of the vast minority. I do not think that it is the best way to elect the judiciary because of the exact type of thing that happened with the bar exam scandal. A legislator has more influence over judges in our system because the legislator is the one who ultimately decides whether or not the judge will remain in his/her position (especially the CHAIR of the judicial committee, i.e. Harrison).

Please explain where checks and balances come into play here. I see no checks and balances in this system. I see a good ole boy system where the law of the land is “you scratch my back, I’ll scratch yours… screw the good of the public so long as we get what we want.”

A proper check and balance as you speak of would be for an investigation of the Supreme Court to occur by the legislative branch. That would be a true form of a check and balance. However, it would probably never be carried out correctly even if initiated for the reasons just stated.

14. SC Lawyer - November 28, 2007


“An “investigation” of the Court’s actions by the GA would be interesting political theater, but would be inappropriate. The SC Constitution says: The Supreme Court shall have jurisdiction over the admission to the practice of law and the discipline of persons admitted. It doesn’t get much clearer than that.”

You are correct in asserting this statute. Yes – the Supreme Court does have jurisdiction over the admission to the practice of law. However, this is about more than admission to the practice of law. This is about possible misleading of the public (in comments on the SC website), this is about the violation of the due process (constitutional) rights of those students who still failed the July Bar after the Wills, Trusts essay was thrown out for arbitrary reasons, and this is about abuse of power by the judiciary.

This is a bigger issue than that statute’s scope covers. We have constitutional issues here aside from the ones mentioned by the legislator/attorney in this article. Those constitutional issues are violation of due process and a federal court could potentially hear them.

This is not just about the Bar Exam or admissions process. This is about the validity of the “reasons for the change” given after the public outcry. This is about whether that scriveners error is in fact why Wills was thrown out or whether there was favoritism. If there was favoritism then the Supreme Court is in violation of another one of its statutes (it has already violated its own Rule 402).

This truly is a big deal. The Supreme Court will probably get away with this in the end, but they should at the very least be investigated. I would love to see an attorney arguing in front of the Supreme Court that his paralegal had made a scriveners error when putting a client’s retainer in the bank and that it had gone into his personal account rather than the retainer account. I don’t think the Supreme Court would be so forgiving of this scriveners error in such a situation.

15. Mens Rea - November 28, 2007

SC Lawyer: those seeking admission to the Bar do not have a constitutional right to due process regarding their application. Bar admission is an administrative process. The right to due process has to do with criminal proceedings or some other taking of someone’s rights.

Whether a statement is “misleading” depends on one’s interpretation of the facts at hand.

The SC Supreme Court creates the Appellate Court Rules per the SC Constitution. They therefore can change or interpret those rules however they deem appropriate.

16. Mens Rea - November 28, 2007

SC Lawyer: also, attorneys have “trust” accounts, not “retainer” accounts, and a “scrivener’s error” would not the proper term for an accounting error.

while we’re nitpicking

17. What? - November 28, 2007

“a legislator has more influence over judges in our system because the legislator is the one who ultimately decides whether or not the judge will remain in his/her position (especially the CHAIR of the judicial committee, i.e. Harrison).”

I just want to clarify something. Chief Justice Toal was re-elected to a ten year term which will be over when she turns 72, which is also the mandatory retirement age for judges. So, Toal would or could never seek re-election beyond her current term. So doesn’t the above argument fail as far as Toal is concerned?

18. Pete - November 28, 2007

While we’re nitpicking, lawyers do have some rights of due process in that any administrative system the Supreme Court creates. There are Federal Court cases on point. Further, any administrative system should be fairly and equally administered and implemented. The SC Supreme Court will probably get away with this Bar Exam debacle because it’s power is absolute and the modifications to the rules were amended across the board for all examinees. If only those 6 or 7 with strong judicial, legislative and other strong Supreme Court connections had only passed, then the Supreme Court may have had more trouble.

19. Think Amendment - November 28, 2007

It seems pretty clear that the Supreme Court has virtually absolute power under the state constitution to remove or discipline judges. The most the legislature can do is pass some kind of resolution, but that is about it. Furthermore, it doesn’t appear that the Governor can do much either.

Thus, the only real long-term solution is to pass a constitutional amendment. The current system clearly has a monumental flaw when the highest court and chief justice are involved in misconduct. They are virtually untouchable until their terms expire.

What if we had hybrid election/appointment system? Perhaps the general public could elect only the Chief Justice for a shorter term and the remainder of judges would continue to be elected through the legislature. Additionally, we could give the power of impeachment of judges to the legislature. This would do a much better job of holding the highest official in check while also resulting in better top-down management and more checks and balances. Any thoughts?

20. SC Lawyer - November 28, 2007

Mens Rea: Incorrect. You are forgetting about the Constitutional right to PROCEDURAL due process. Where for example one is fired who has tenure – that person has a right to an administrative hearing on the firing. This is not criminal due process – totally different thing. Those seeking admission to the Bar do in fact have a Constitutional right to due process. Read this Am Jur excerpt on the issue:

“Procedural due process in connection with the denial of a license to practice law requires that the applicant be given notice and an opportunity to be heard by the body which rules on his or her application.[FN1] When the denial is based on lack of the requisite character and fitness, due process requires that the applicant be afforded notice of reasons why admission was refused, which adequately inform the applicant of the nature of the evidence against him or her.[FN2]

Caution: At least one court has held that where an applicant has a hearing before a committee of the state bar on the issue of moral character, the applicant has no constitutional right to information as to the nature of the charges, or the right of confrontation while the investigation as to moral character is being conducted.[FN3]

However, due process does not require a hearing in case of an applicant denied admission to the bar for failure to pass the bar exam[FN4] or where the procedures of the licensing authority provide an adequate review.[FN5]”

As you can see an applicant for admission to the Bar does in fact have a right to PROCEDURAL due process. As stated also, that right does not typically include the right to re-examine or verify the score of their Bar Exam. However, in cases where it appears that there has been a mishandling of the administrative agency’s (the Bar Admissions Office) handling of the procedural issues, then there is a right to a hearing or, in this case, a re-evaluation of the exam.

As far as misleading statements… yes they do depend upon interpretations. When a jury or judge viewing a matter interprets there to have been a misleading statement, then the issue of interpretation has been resolved. That is what we are talking about here… someone looking into it to see if there was a misrepresentation… no one is saying definitely that there was one. A fact finder would determine this and there would need to first be an investigation into the matter (thus the interpretation). Misrepresentations can be punished (i.e. purgery) so the fact that it involves interpretation really says nothing here other than that these things in fact do need to be interpreted and it really does not help your position out in the least. Basically you are saying the equivalent of “Murders require interpretations of the laws on murder and that even if a jury finds them guilty it is still just an interpretation of the facts to the law.”

And, yes, the SC Constitution does create the rules regarding Bar Admissions and the SC may change or interpret them. However, here we have the rules being changed very clearly in March (Rule 402) and we have the SC directly and clearly going against the new Rule 402 in allowing a final score to be not final, when in fact the rule states that “all exam scores are final.” There is really no room for disputing this… please try to do so if you if feel that there is. So, yes, they may interpret the rules and change them, but if there is at least circumstantial evidence of a misuse of their authority or if there is a showing of favoritism, then it becomes a constitutional issue via the PROCEDURAL right of all US citizens to due process. This is not merely a state right… this is a federal right created by the US Constitution and if you recall back to Constitutional Law class (or to George Wallace in Alabama in the 60’s) a state’s constitution is trumped by the US Constitution. It’s a little power given to the US federal government in Article 6 of the US Constitution that states: “the judges in every state shall be bound thereby, any thing in the laws or constitutions of any state notwithstanding.”

So, yes, SC does in fact have a Constitution of its own and the Supreme Court of our state does have authority over admissions, but both of these state powers are trumped by the Constitution. Here we have a constitutional violation of procedural due process, thus a violation of such would be a federal issue. What the SC Supreme Court “deems appropriate” will not stand up to the what the US Supreme Court deems appropriate.

As far as “trust” accounts, sorry for the mislabeling by calling it “retainer”.

21. Silence Dogood - November 28, 2007

Mens Rea, you noted that the bar admissions is an administrative procedure and one that does not involve due process. While I have not made my mind up about the current situation in regards to due process issues, due process can exist for administrative procedures as well, bar admissions have several times been contest regarding due process (particuarly regarding who is allowed to be an attorney i.e. based on citizenship, state of residence, race et cetera) I don’t know if this claim would be able to meet the due process criteria, but I wouldn’t be so flippant about casting that possibility aside.

“Due process – its not just for breakfast (and criminal hearings) anymore!”

22. Regina - November 28, 2007

The constitution should be amended. The executive and legislative branches should be granted some oversight, not over true legal opinions, but over ethical lapses by the judicial branch. There should be a high burden to remove a judge from the bench, but it should be possible — outside of the judicial branch.

We amend our state constitution every couple of years anyway, so why not?

The bar association should be an independent body that regulates and disciplines lawyers. The medical board is run as an independent body within the department of labor licensing & regulation. Why not the bar?

After the bar is established as an independent body, it should be responsible for seating judges. There is enough political diversity among the legal community that we probably wouldn’t get any Jim DeMints. Or Jean Toals.

That is all.

23. SC Lawyer - November 28, 2007

Regina, I agree. Leave the court rulings, legal opinions and trials to the justices. However, when the Supreme Court is acting as an administrative agency, which is the role that they play when they oversee Bar Admissions and when they discipline attorneys for ethical violations, they are no longer acting in their judicial capacities, but rather in an administrative capacity.

Our state constitution definitely needs to be amended. Again, we are only one of two states in the country who have not changed their constitution in regards to the appointment of justices, so as to those who say, “I don’t trust the public voting in judges”, I say “how can you trust the GA in voting them in?!” There are obvious problems here and they cannot be ignored.

Here is an interesting writeup on the topic of SC constitutional amendment by the dean of Louisville Law School in Kentucky, Jim Chen…


24. anon@anon.com - November 28, 2007

#17: You are right that as of now, the mandatory retirement age will bar J. Toal from seeking another term.

But if a bill pending in the SC House Committee on the Judiciary (hint, hint) is passed, the mandatory retirement age will be extended to 78.

There is still more to this story than the state’s MSM has covered. Keep digging.

25. None - November 28, 2007

Anon, what do you know about this pending bill in the House of Harrison? I wonder if the State knows of this. This needs to be publicized.

26. anon@anon.com - November 28, 2007

The bill is House 3082.

View the full text and status here: http://www.scsenate.org/sess117_2007-2008/bills/3082.htm

It was referred to the Committee on the Judiciary in January of this year.

27. Question Regarding Supreme Court's "Explanation" - November 28, 2007

I have a question regarding the Supreme Court’s “explanation” on the “scrivener’s error”. If the problem was a “scrivener’s error” and had absolutely nothing to do with Harrison’s or Burche’s calls to the powers that be, then why is Mr. Harrison quoted in the Greenville News saying that it was his daughter’s hard work that got the scores changed and not his? If it was a scoring error found by the examiner then what hard work is he talking about? What hard work is his daughter talking about on facebook? Why was hard work needed to fix a grade change that was found by the examiner and had nothing to do with favoritism?

Here is a link to that article.


28. Randy - November 28, 2007

The Bar is full of cowards.

29. ToTOALed - November 29, 2007

randy, shut up. we’re perfectly fit, and have the indomitable courage to judge ourselves. you can’t stop us, nobody can.

we’re not afraid of you, sic willie, or anyone. when you bump into cars, you call police, afraid of getting a ticket. not us. we have the guts of a rap star who says f*** the police. we just drive off and dare the m**********ers to stop us.

yeah, wait ’til we’re on your block, then you’ll see how afraid we are of you.

30. Bar Exam Thursday Roundup « Not Very Bright - November 29, 2007

[…] The usual bluster from FITSNews, but with interesting comments, here. […]

31. Just Another Embarassed SC Lawyer - November 29, 2007

to all who know that Harrison has some power over the SC but can’t quite put your finger on what that is- I’ll tell you what it is-

When the SC wants something, like more money, changes in retirement ages, better retirement benefits, etc., any legislation proposing those changes goes before the House Judiciary Committee, headed up by Harrison. If Harrison doesn’t want the bill to go anywhere, it won’t. Period. If Harrison does want the bill to go, it will. Period. So, when the clerk of the SC answered the phone call of Harrison on the fateful day that daddy called on behalf of his 25-year old law school graduate, the thought definitely ran through his mind, “hey, this guy could really f*&@ us over.” Whether the clerk, or anyone else, made decisions based on that fact is unclear. At that point in the game, in my humble opinion, the only one who committed a wrong was Harrison.

Here’s what is still troubling me- results came out Oct 26, and I believe I’ve read that daddy made the phone call that day or the next (Oct 27). Allegedly, Poston (T&E examiner), reviewed his transcription of grades on Oct 30 and reported the “error” to the SC at that time. Why, you may ask, did Poston feel the need to review the T&E grades at all?

Timing is everything, isn’t it?

32. Toal trying to serve another 10 year term - November 29, 2007

I seriously cannot believe that a bill is before the Judicial Committee, which Jim Harrison chairs, in the near future which would extend the mandatory retirement ages of justices, which would allow Jean Toal to serve another TEN year term.

This is absolutely ridiculous. Can I say “motivation for a grade change”?

33. Mens Rea - November 29, 2007

I stand corrected as to procedural due process. I do remember now reading some cases about applicants challenging character and fitness denials in court.

I’m not sure what else the Court could have done in this situation. They can’t go back and fail the person who was accidentally passed–that person would have a very good argument under the rules to remain in, and as a practical matter I think any applicant would go right off the rails if that happened. Suicide risk would be about a 7-8 out of 10 for me. If they allowed one person who failed WTE to pass, however, THEN the other applicants who failed WTE would have a strong due process argument!

Much is made of both Harrisons’ comments. It is probably a coincidence. My hypothesis–J. calls the clerk and says, my daughter C. and a bunch of her friends failed WTE. Clerk looks and sees WTE was failed by a lot of people. Clerk alerts scorer, who reviews his/her work, finds mistake and reports to Court.

What do y’all suggest the Court should have done differently, assuming what they said was true?

34. Bar - November 29, 2007

Well, Mens Rea, one thing that I would not suggest is to pass 20 who we know for a fact failed that section. As far as telling someone they failed after telling them they passed, well that has been done many times by many other states. In fact, the MBE had a scoring error in ’03 I believe and many students all over the country were told that they had in fact failed the Bar after being told they passed. So this is not unheard of.

On the same note, however, I agree that it would be unfair to allow this individual who failed wills to pass when others failed due to that essay. The problem with what the Court did is this. They have tossed out the Wills section only. I’m sure there were students who failed the entire Bar based solely on a different essay section. Say for example, that a student didn’t pass the MBE and failed the Insurance essay. This student would be in the same exact position as a student who failed the MBE and failed the Wills essay. However, under what the Court decided to do, the student who failed Insurance failed the bar while the student who failed wills passed the Bar. This is fundamentally unfair.

Not only that, but that student who failed Insurance has no avenues available to him for ensuring the score of his Insurance essay. I have heard from many students in that exact position who have asked for the court review their essay (not regrade, but review) to ensure that no scrivener’s error or scoring error occurred while adding up the points for the total score they made on that section. I know one person who failed due to an essay that he made a 68 on. The required score to pass an essay is a 70. He failed because he was two points off on one essay that just happened to be Wills, Trusts. The Court told him after he asked for a review that Rule 402 prohibited reviews for scrivener’s errors or scoring errors.

This is completely contradictory to what they stated in regards to the Wills section as they threw the whole thing out for a scoring error that occurred. However, they will not even recalculate other essay sections. The actual Wills essay or method of grading was not why it was thrown out… it was thrown out for a scoring error.

This leads one to believe that there was an issue of the court showing favoritism to certain individuals.

35. Bar - November 29, 2007

“He failed because he was two points off on one essay that just happened to be Wills, Trusts.”

Sorry, I meant “just happened to NOT be Wills, Trusts”. (if it had been Wills that student would have passed).

36. SCAnon - November 29, 2007

IMHO, # 31 nailed the real issue. If we are to accept the story of the SC, the WTE examiner, having already graded, tabulated, and reported the scores, just “happened” to notice one transposed grade out of over 500 while packaging up his materials to be sent to the SC. NOT BLOODY LIKELY. Much more likely is that an inquiry about the accuracy of the WTE result came down from on high and only then did he notice this purported error. We know from screen shots of Ms. Harrison’s facebook that she was trying to identify others who failed WTE so that daddy could then make a call for them all. Bottom line — the statement from the SC may be accurate so far as it goes, but what it leaves out is the key. Just like in the oath we expect witnesses in a trial to take — the truth, the whole truth, and nothing but the truth — our SC likely did only the first and woefully failed in the second and third.

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