2022 MT 66

State v. Rich

A district court does not lose its jurisdiction over a defendant when it does not make a determination of fitness within 90 days of commitment under § 46-14-221(3), MCA.  A defendant does not timely raise a claim of improper delay when counsel raises the issue after the statutory timeline has passed.

The District Court committed Rich to the Montana State Hospital to regain fitness after the court determined she was unfit to stand trial.  Rich was transferred to MSH 20 days later.  At a status hearing the day after Rich’s transfer, the court set the matter for a review hearing 90 days after the transfer date.  Rich’s counsel did not object or argue that the hearing should take place 90 days after the date of the commitment order. 

The day before the review hearing, Rich moved to dismiss for lack of jurisdiction, asserting that the commitment date under § 46-14-221(3), MCA, commenced on the date of the commitment order, not the date of transfer.  Therefore, she asserted the court lost jurisdiction when it failed to make a finding regarding her fitness within 90 days of the order.  Following the review hearing, the court denied Rich’s motion and found she had not yet regained fitness, extending her commitment for 45 days.  Rich regained fitness less than 45 days later, and she entered a plea agreement.  Rich appealed the denial of her motion to dismiss.

The Montana Supreme Court affirmed the denial of Rich’s motion to dismiss.  On appeal, Rich cited State v. Meeks, 2002 MT 246, 312 Mont. 126, 58 P.3d 167, and State v. Tison, 2003 MT 342, 318 Mont. 465, 81 P.3d 471 to argue that the District Court lacked jurisdiction upon the expiration of the 90-day timeline.  Because later case law clarified that statutory deadlines are not jurisdictional, the Court overruled Meeks and Tison to the extent they suggest § 46-14-221(3)(a), MCA, imposes a jurisdictional bar.

The Court further rejected Rich’s contention that the District Court’s failure to strictly comply with § 46-14-221(3)(a), MCA, warrants dismissal because Rich did not timely raise her claim of improper delay or otherwise demonstrate that she was entitled to have the charges against her dismissed.

Points of Interest: fitness to proceed, jurisdiction, statutory deadlines


2022 MT 61

State v. Harning

The odor of marijuana and a driver’s nervous behavior failed to create a particularized suspicion justifying the canine sniff search of a vehicle.

Harning was pulled over for speeding. As the trooper approached, Harning rolled his window down a few inches and the trooper noticed the smell of marijuana coming from Harning’s vehicle. Harning admitted to smoking 80 miles prior to the stop. The trooper also observed Harning’s “evasive” behavior and hesitant answers to questioning. The trooper later differentiated Harning’s behavior from nervous behavior based on “subtle kind of things.” Based on these observations, the trooper determined to initiate a DUI and drug investigation. The DUI investigation indicated Harning was not impaired. The trooper ordered a canine to sniff search Harning’s vehicle, and the canine found the presence of drugs. The trooper obtained a search warrant, which found drug paraphernalia in Harning’s vehicle. Harning was charged with drug possession and moved to suppress the evidence. The court denied the motion, and Harning pleaded guilty.

On appeal, the Supreme Court reversed Harning’s conviction. Although the DUI investigation was justified by the odor of marijuana and admission of smoking, the stop should have terminated after the trooper warned Harning about speeding and determined Harning was not impaired. The State failed to connect Harning’s behavior specifically to drug activity in his vehicle to justify extending the stop and ordering a sniff search. Because the State failed to articulate specific facts indicative of drug activity, the evidence gathered from the canine sniff should have been suppressed.

Points of Interest: search and seizure, suppression, DUI


2022 MT 58

Sagorin v. Yellowstone Lodging, LLC

The sole shareholder of an LLC may not, through an assignment, bring the LLC’s claims on his own behalf and without counsel.

Sagorin is the sole member of Yellowstone Lodging, LLC.  Though he is not a licensed attorney, Sagorin filed a complaint as a "successor in interest" to the LLC against several HVAC contractors related to the installation of an HVAC system at a motel the LLC owned.  The contractors moved to dismiss for lack of standing.  In response to the motion, Sagorin produced an “Assignment for the Sale or Transfer of Interest” which purported to transfer to Sagorin the LLC’s rights and interests in any legal claim it could bring.  The District Court dismissed the case, concluding that Sagorin as sole member of the LLC lacked standing to bring suit in his individual capacity for claims arising out of work performed for the LLC on the LLC’s property.

On appeal, the Supreme Court reiterated the general rule that business entities may appear in court only through licensed counsel.  Sagorin, as the sole member of the LLC, lacked standing to assert claims on behalf of the LLC, and he could not represent the LLC in court.  The Court further held, as an issue of first impression, that the assignment of legal claims from an LLC to a sole member does not confer standing on the member to assert those claims as a self-represented litigant.  Neither does an assignment allow an LLC to bypass the longstanding rule that corporate entities cannot appear through an individual member, except where the Legislature has expressly allowed for small claims and justice court proceedings.  

Points of Interest: standing, self representation


2022 MT 57

Egan Slough Cmty. v. Flathead Cty. Bd. of Cty. Comm’rs

The statutes governing county-level citizen initiatives allow citizens to enact zoning changes through the initiative process and the use of the initiative process to enact zoning changes is not unconstitutional in and of itself.

This case arose from a successful ballot initiative to expand an agricultural zoning district to include the land on which Montana Artesian Water Company was developing a large-scale water bottling plant.  Egan Slough Community sued to have the new zoning regulations enforced to shut down MAWC’s operations. MAWC filed various counterclaims, asserting the initiative was illegal, unconstitutional, and could not be enforced.  The District Court determined MAWC’s operations were a preexisting nonconforming use, which could continue in accordance with the regulations. It denied MAWC’s counterclaims.

The Supreme Court affirmed.  Interpreting the plain language of the regulations, the Court agreed MAWC’s facilities were a preexisting nonconforming use. This use could continue in accordance with the regulations, which imposes limits on MAWC’s future expansion.  The initiative process did not violate the statutes regulating local initiatives, create illegal reverse spot zoning, or violate due process or equal protection.  The regulations did not constitute a taking of MAWC’s water right and other business property and MAWC was not entitled to compensation for water it was not capable of putting to beneficial use.

Points of Interest: ballot initiatives, zoning, water rights


2022 MT 50

Sutey Oil Co., Inc. v. Monroe’s High Country Travel Plaza, LLC

Where a party seeks modification of an arbitration award based on an “evident miscalculation of figures,” a reviewing court is limited to considering the award on its face together with the record of the proceedings to determine whether a mathematical error is so readily apparent from the documentation that explanation by proofs is not necessary.  The court may submit the question to the arbitrator for clarification.

Sutey sued Monroe’s over Monroe’s failure to pay five invoices.  Monroe’s counterclaimed, and the parties agreed to arbitrate.  The arbitrator found Monroe liable for the amount of the invoices but rejected Sutey’s claims for refund of unearned discounts and compound interest.  The day after the decision, the arbitrator heard Monroe’s concern that the arbitrator made a mathematical error by failing to deduct certain credits Sutey’s witnesses had calculated.  The arbitrator agreed to investigate, but before he could respond Sutey moved the District Court to confirm the award.  The court entered an order confirming the award before Monroe filed a response.

Monroe moved to either modify or vacate the award.  Noting the extremely narrow constraints on a court’s review of arbitration rulings, the District Court refused to consider any evidence beyond the face of the arbitrator’s decision and concluded that it lacked power to review his rulings on the merits.  The court determined that it was unable to find an evident miscalculation from the face of the award. 

On appeal, the Supreme Court held that the District Court applied an overly narrow view of what it may consider.  Both the arbitrator and a reviewing court may modify an award if there is an “evident miscalculation of figures,” and this review may include the record before the arbitrator.  A court may not, however, receive additional evidence or re-weigh the evidence the arbitrator considered. 

Here, because the arbitrator adopted Sutey’s calculation of what Monroe owed, excepting two items the arbitrator expressly rejected, the arbitrator’s findings indicated that he may have miscalculated by neglecting to subtract two items.  Monroe attempted timely to seek clarification but was cut short by Sutey’s District Court filing.  Monroe then timely sought modification in the District Court.  Section 27-5-217, MCA, permits a court considering confirmation, modification, or vacatur of an arbitration award to submit the matter to the arbitrator, “under conditions that the court may order,” for modification, correction, or clarification.  Given Monroe’s aborted attempt to seek such clarification, the Court remanded for the District Court to follow this process and to direct the Arbitrator to clarify his calculation.

Points of Interest: arbitration, scope of review, modification of award


2022 MT 46

Advocates for Sch. Trust Lands v. State

A facial challenge to § 85‑2‑441, MCA, was ripe for review because it alleged that the statute violated of Article X, Section 11, of the Montana Constitution.  However, § 85‑2‑441, MCA, is not facially unconstitutional because the plain language of the statute does not impair Montana’s sovereign trustee duties or devalue school trust lands.

Advocates challenged § 85‑2‑441, MCA, (HB 286) arguing that it violates the State’s trust obligations under the Enabling Act of 1889 and Article X, Section 11, of the Montana Constitution because it provides that the State may not obtain an ownership right in privately developed groundwater used on school trust land, except through litigation or a voluntary transfer of ownership from the private water right holder to the State.  The State argued that Advocates’ challenge was not ripe for judicial review because nothing in its plain language reduced the value of school trust lands and because Advocates presented no facts showing that HB 286 devalued a particular parcel of land.  The District Court agreed with the State, dismissing Advocates’ challenge.

On appeal, the Supreme Court determined that Advocates’ argument that HB 286 reduces the value of school trust lands, was not ripe for review because the alleged reduction in value was a hypothetical and abstract injury.  However, Advocates’ argument that HB 286 creates a presumption against State ownership was ripe for review because it alleged that the enactment of HB 286 violates the State’s trust obligations.  The Court held, however, that the plain language of HB 286 does not create a presumption against State ownership; it simply creates a process for the State to assert an ownership right in privately developed groundwater used on school trust land.  HB 286 is facially constitutional because nothing in its plain language impairs Montana’s sovereign trustee duties or devalues school trust lands.

Points of Interest: constitutional law, ripeness, Art. X(11)


2022 MT 42

Truss Works v. Oswood Constr. Co.

A contract that does not impose a mutual obligation on the parties to approve plans yet to be determined is not a satisfaction-type contract and does not impose a duty on the receiving party to cooperate with the party submitting designs.  No error where trial court does not explicitly address a party’s claim if determination of the claim is implicit to its other findings and the implicit finding is supported by substantial evidence. 

Truss Works sued Oswood Construction Company to foreclose on its construction lien.  Oswood counterclaimed.  At trial, the parties had differing interpretations of what the Purchase Order Contract required.  The District Court found that Oswood did not cooperate with Truss Works during the drawing submittal process and that it had a duty to do so pursuant to Nicholson v. United Pacific Insurance Company, 219 Mont. 332, 710 P.2d 1342 (1984).  The court implicitly found that Truss Works was not obligated under the Purchase Order to provide truss connections and rejected Oswood’s counterclaim. 

Oswood appealed, arguing that the District Court failed to address its counterclaim in its findings and conclusions. The Supreme Court affirmed, finding that the District Court’s findings of fact and conclusions of law were sufficient.  The District Court erred by concluding that the Purchase Order was a satisfaction-type contract like Nicholson because the Purchase Order did not impose an obligation on the parties to mutually approve plans yet to be determined.  The District Court’s finding that Oswood failed to cooperate and that the Purchase Order contained conflicting submittal procedures was not incorrect, however, to the extent that it attributed most delays to Oswood.  While the parties’ testimonies were at odds, the District Court, as the trier of fact, made credibility determinations, and those determinations were supported by substantial evidence. 

The District Court did not err by not making specific findings regarding the truss connectors or Oswood’s counterclaim.  Necessary to several of the court’s findings was its implicit finding that the Purchase Order did not require Truss Works to provide or design connectors.  Further, the court implicitly rejected Oswood’s counterclaim when it found Oswood “fully breached” the contract.  Both implicit findings were supported by substantial evidence and not erroneous.  Finally, although the court did not use the word “counterclaim,” it addressed each element of Oswood’s claim for damages.

Points of Interest: contracts, implicit findings, counterclaims


2022 MT 41

Marriage of Harms

A properly disclosed asset was not mistakenly omitted and was subject to distribution in the property settlement agreement’s remainder clause.

Sharon petitioned for dissolution of her marriage to Bo.  During discovery, Sharon provided information identifying Bo’s annuity account with TransAmerica.  The parties attempted to mediate.  Bo offered to pay Sharon $600,000 from a different account and to distribute all remaining property to Bo.  Sharon accepted the offer via her attorney, but later refused to sign the papers.  The parties renegotiated and increased the distribution to Sharon by $25,000, retaining the other terms.  The District Court adopted the settlement agreement. 

Months later, Sharon had failed to transfer the TransAmerica annuity to Bo.  Bo sought enforcement of the agreement and moved to hold Sharon in contempt.  The District Court denied Bo’s motion and ordered the parties to equitably divide the annuity.  The court concluded the annuity was not part of the remainder provision due to the specific identification of other property.

On appeal, the Supreme Court concluded the District Court erred in amending the agreement.  All assets were properly disclosed and the parties were aware of the assets and represented by counsel throughout the proceedings.  The District Court had previously adopted the property settlement agreement, and the terms of the remainder clause clearly provided all other property would pass to Bo.

Points of Interest: dissolution of marriage, property, settlement agreements


2022 MT 36

State v. LaFournaise

State’s mid-trial amendment was an amendment of form, not substance, and did not substantially prejudice Defendant’s rights. The jury instruction relying on the 2017 definition of consent for conduct that occurred in 2015 did not implicate Defendant’s fundamental rights. 

At the beginning of trial, LaFournaise stood charged with aggravated sexual intercourse without consent for conduct occurring in August 2015. After the first day of trial, the District Court informed the parties that this crime did not exist before October 1, 2017, making the charge invalid. The State was permitted to amend the charge to sexual intercourse without consent, which is codified in a different statutory section. During jury instructions, the jury was instructed on the 2017 definition of consent, which differed from the 2015 definition. LaFournaise did not object. The jury found LaFournaise guilty of sexual intercourse without consent.

On appeal, the Court affirmed LaFournaise’s conviction.  Even though the amended charge stemmed from a different statutory section, the nature of the offense, the underlying facts, and the essential elements of the crime remained the same after the amendment. The amendment contained no new or different crimes or facts and LaFournaise could only be convicted based on the original facts. The amendment did not expose LaFournaise to greater punishment or reduce the State’s burden of proving each element. The amendment was permissible because it changed the form, not the substance, of the charge, and LaFournaise failed to demonstrate the change prejudiced him.

The jury instruction on consent did not implicate LaFournaise’s fundamental rights. The instruction did not lower the State’s burden of proof and the jury was provided a valid definition of a person incapable of consent, effective in 2015. Furthermore, the parties understood that the State met its burden of proof under both definitions of consent. 

Points of Interest: amended charges, jury instructions, criminal law



2022 MT 28

State v. Lake

The State’s repeated and explicit reference at trial to defendant’s highly inflammatory comments about child sex abuse was unfairly prejudicial under M. R. Evid. 403 and warranted reversal.

It was common knowledge among patrons at Jesters Bar that Lake often made offensive comments about child sex abuse.  After an incident where Lake repeatedly stabbed a fellow patron outside the bar, he told police that the victim had previously slandered him to other patrons.  Prior to Lake’s trial for attempted deliberate homicide, he sought to categorically exclude evidence of a rumor among bar patrons that he was a pervert and a child molester, arguing that the evidence was irrelevant and highly prejudicial.  The District Court denied Lake’s pretrial motion and allowed the State to present evidence of Lake’s prior offensive comments as proof of his motive to retaliate against the victim for the alleged slander, subject to a limiting instruction.  Throughout the trial, the State repeatedly elicited explicit testimony from multiple witnesses regarding Lake’s comments and references to child sex abuse.

On appeal, the Supreme Court determined that the other acts evidence was relevant and admissible as proof of motive under M. R. Evid. 404(b).  However, the evidence of Lake’s comments about child sex abuse was inherently prejudicial and highly inflammatory, and thus where an alternative, more generic, and less explicit form of the same evidence was available, sound judicial discretion counselled exclusion under M. R. Evid. 403.  The Court reversed and remanded for a new trial on the grounds that the District Court did not carefully or sufficiently limit the use of otherwise relevant prior bad acts evidence to avoid its manifestly inherent risk of unfair prejudice.

Points of Interest: Rule 403, Rule 404, evidence


2022 MT 27

In re C.K.

A district court does not abuse its discretion in denying a motion to amend a treatment plan the day of a termination hearing when the requested amendments are covered under the existing treatment plan and a parent has not previously objected, nor does not abuse its discretion in determining a parent is unlikely to change in a reasonable time when the parent fails to engage with services when they are belatedly offered.

The Department removed Child due to concerns of Mother’s drug use and physical neglect.  Child was diagnosed with autism after removal and had substantial needs. Over the next three years, Mother largely addressed her substance abuse issues but failed to engage in parental education classes or with Child’s numerous providers. While the Department referred Mother to a general parenting class, it did not refer her to autism-specific parenting education until 28 months into the case.  A week before the termination hearing, Mother moved to amend her treatment plan to enumerate specific parenting tasks related to raising a child with autism and to provide related services.  The Department argued these tasks were included under the existing parental education component of the plan and Mother had not engaged in the services she was referred to.  The court denied the motion to amend and terminated Mother’s parental rights under § 41‑3‑609(1)(f), MCA.

On appeal, the Supreme Court held the District Court did not abuse its discretion in denying Mother’s motion to amend.  The requirement in a treatment plan “to follow all recommendations” of a provider cannot expand a treatment plan into a completely new area.  Mother’s plan, however, required her to enroll in a parenting program approved by the Department.  The Department first referred her to a general parenting course and later referred her to an autism-specific parenting program.  She did not object when the Department reported at multiple hearings that she still needed to engage in autism-specific education under her existing treatment plan.  The Court also held the District Court did not abuse its discretion in determining Mother was unlikely to change in a reasonable time.  Mother contended the Department did not refer her to an autism-specific parenting program until 28 months into the case.  While the Court found the delay troubling, Mother did not engage in those services in the seven months before the termination hearing even though parent has an obligation to avail herself of services arranged or referred by the Department.

Points of Interest: dependent neglect, treatment plans


2022 MT 26

Yellowstone Disposal, LLC. v. DEQ

A regulatory agency cannot be compelled through a writ of mandamus to issue an operating license or decision on an application without having all the necessary materials to legally take the requested action, even if the agency has exceeded statutory time limits for review.

Yellowstone Disposal applied to the Department of Environmental Quality for a license to operate a landfill in Richland County.  DEQ is subject to specific statutory time limits within which to complete its environmental review under The Montana Environmental Policy Act, § 75-1-208, MCA.  DEQ greatly exceed these time limits.  While Yellowstone was waiting on DEQ to complete its review, Richland County changed its zoning regulations and Yellowstone no longer had permission to build the landfill without a conditional use permit from the County.  DEQ notified Yellowstone that it determined to “stay” further review of the application until the zoning issue was resolved.  Yellowstone petitioned for a writ of mandamus to compel DEQ to issue the license, or alternatively, to decide “one way or another” on its application, citing § 75-1-208(7)(a), MCA.  The statute provides that if an agency has not completed its environmental review within the statutory time limits, it may not withhold a permit without a written finding that issuing the permit would violate legal requirements.  The District Court denied Yellowstone’s petition.

The Supreme Court affirmed and held that Yellowstone did not meet the requirements for the “rare” remedy of mandamus.  A writ of mandamus would require 1) DEQ to have a “clear legal duty” to issue the license or decide on the application; and 2) Yellowstone to have no other adequate legal remedy.  Due to the unresolved zoning issue, DEQ could not legally issue the license and the application did not include all materials required for a legal DEQ decision.  Therefore, DEQ did not have the “clear legal duty” required for mandamus.  Additionally, Yellowstone still had an adequate legal remedy to make DEQ resume its review — obtaining the conditional use permit and, if necessary, appealing DEQ’s ultimate decision administratively and then to the District Court.

Points of Interest: writ of mandamus, administrative law, environmental law


2022 MT 25

Higgins ex rel. E.A. v. Augustine

No abuse of discretion where District Court excluded portions of an expert’s testimony disclosed months after discovery closed when the testimony was not previously disclosed and the party relying on the expert was not diligent in making the expert available for deposition by the opposing party.

Higgins sued Augustine for medical malpractice for an injury that occurred during the circumcision of her newborn son.  Higgins provided a one-paragraph expert disclosure, broadly asserting the surgical procedure was not performed correctly, causing the injury.  In her complaint and discovery responses, the only particular means by which Higgins asserted the surgery was not performed correctly was the failure to properly secure the baby for surgery.  Augustine sought to depose Higgins’s expert for months.  Higgins did not make her expert available until four months after the close of discovery and a week before the pretrial motions deadline.  At the deposition, Higgins’s expert disclosed the injury could have occurred with the use of improper scissors or using the proper scissors incorrectly.  Augustine moved to exclude the newly disclosed scissors opinions.  The district court granted the motion.  A jury found for Augustine.

On appeal, the Supreme Court held the District Court did not abuse its discretion in excluding the late disclosed portions of the expert’s opinion under the totality of the circumstances.  The court recognized that it is not uncommon for an expert to make more thorough and detailed disclosure during the expert’s deposition.  But Higgins never identified the failure to correctly use scissors as how the surgery had been improperly performed, either in her complaint, her answers to interrogatories, or in her M. R. Civ. P. 26 expert disclosure.  Augustine diligently sought to depose Higgins’s expert, but Higgins failed to make her expert available until four months after discovery had closed and only a week before pretrial motions were due.  Under the circumstances, the court did not abuse its discretion in excluding the newly disclosed portions of the expert’s testimony.

Points of Interest: experts, discovery, evidence


2022 MT 24

Associated Press v. Usher

A number of Republican members of the House Judiciary Committee, but not enough to constitute a quorum of the Committee, did not violate the constitutional right to public access when they met privately during a committee recess.

During the 2021 Legislative session, a group of Republican members of the House Judiciary Committee denied Associated Press (AP) reporters access to a meeting they held privately during a committee recess. The committee chair deliberately convened the conversation with less than a quorum of the committee’s membership so that it would not constitute an official public meeting under the open meeting laws. The AP sued, arguing that this was a violation of the constitutional “right to know.”  The District Court dismissed the AP’s lawsuit.

On appeal, the Montana Supreme Court upheld the dismissal.  Article II, Section 9, of the Montana Constitution guarantees the public a right to observe the deliberations of governmental bodies. Section 2-3-202, MCA, defines such deliberations for certain bodies as only those comprising a “quorum of the constituent membership.”  The statutory definition of a meeting could control the unofficial character of the gathering. In the context of informal conversations among legislators, the well-established quorum rule remains an effective means of bounding when the constitutional right applies.

Points of Interest: constitutional law, right to know, Art. II(9)


2022 MT 18

State v. Quiroz

In a case that turned on the victim’s credibility, defense counsel provided ineffective assistance by failing to object to statistical testimony regarding the frequency of false reporting in sexual assault and rape cases.  The jury’s split verdict indicated that counsel’s deficient performance, which was specific to sexual assault and rape cases, did not prejudice the defendant with respect to his convictions for aggravated kidnapping or assault with a weapon.

Helena police arrested Quiroz after his on-again, off-again girlfriend alleged he had detained and abused her over the previous day and night.  A jury convicted Quiroz of five offenses—aggravated kidnapping, assault with a weapon (knife), partner or family member assault, sexual intercourse without consent, and criminal possession of dangerous drugs—and acquitted him of two others—assault with a weapon (hammer) and strangulation of a partner or family member.

At trial, the State solicited expert testimony that only a small proportion of sexual assault reports are false, and the percentage of false reports is “much, much, much lower” when the victim and perpetrator are dating.  Defense counsel did not object, despite longstanding Montana law holding that expert testimony regarding the statistical frequency of false accusations in sexual assault or rape cases is inadmissible as an improper comment on the credibility of the victim. 

On appeal, Quiroz argued that his counsel’s failure to object to the statistical testimony prejudiced his defense as to his convictions for aggravated kidnapping, assault with a knife, and sexual intercourse without consent.  The Supreme Court held that because there is a reasonable probability the inadmissible evidence swayed the jury to convict Quiroz of sexual intercourse without consent, counsel’s deficient performance undermined the Court’s confidence in the verdict and Quiroz’s conviction for sexual intercourse without consent was reversed and remanded for a new trial. 

However, Quiroz’s convictions for aggravated assault and assault with a weapon (knife) were affirmed.  Quiroz presented no basis by which the Court could conclude the statistical testimony swayed the jury enough to convict Quiroz for some, but not all, of the remaining offenses.  The split verdict indicated that the jury considered the evidence as it pertained to the elements of each charge individually and on its own merits.

Points of Interest: experts, ineffective assistance of counsel, verdicts


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