Context and constitutionality: why “separation of powers” doesn’t really mean “separate”

If you want to open a can of worms at Peach Pundit, simply start a thread that gives readers an excuse to talk aboutseparation of powers” and the role of the Lieutenant Governor. Eventually someone will start throwing around the term “separation of powers” and even suggest that a lawsuit is inevitable if Lt. Gov. Casey Cagle is given back some of the traditional administrative duties of the office he holds.

But such a viewpoint fails to consider the context of the notion of separation of powers in the twenty-first century and oversimplifies a complex subject to the level of an episode of Schoolhouse Rock. Eventually it bends the concept so far by suggesting that the judiciary may intervene to sort out a disagreement about Senate rules, that it breaks the principle of separation of powers more effectively than any change in Senate rules could manage.

Context and the Georgia Constitution

Now whenever a writer starts talking about “context” the very next thing you should expect is for them to try and tell you that some words you think you understand mean something completely different from what you think they mean. But when construing our state Constitution, the most important piece of context is the rest of the document itself. Check it out or just jump to the summary.

Section II, paragraph III of the Georgia Constitution (.pdf) states

Separation of legislative, judicial, and executive powers. The legislative , judicial, and executive powers shall forever remain separate and distinct; and no person discharging the duties of one shall at the same time exercise the functions of either of the others except as herein provided.

Sounds simple enough, right? You might even point to an Attorney General’s opinion addressing whether an Assistant District Attorney may serve in the legislature that along the way discusses the Constitutional separation of powers.

“This provision distinguishes our state Constitution from the federal Constitution, which has no express provision ‘prohibit[ing] the officials of one branch of government from exercising the functions of the other branches.’”   Sentence Review Panel v. Moseley, 284 Ga. 128, 129 (2008).

In addressing the application of the separation of powers doctrine, it is evident that under the plain language of the Constitution any analysis of whether the doctrine has been violated must look both at the legal designation of the branch of government to which a particular position is assigned as a matter of law and at the underlying duties and responsibilities that are being performed.

Seems pretty clear. Until you get to Article IV (Constitutional Boards and Commissions) and Article V, Section I, paragraph III, which states

Lieutenant Governor. There shall be a Lieutenant Governor, who shall be elected at the same time, for the same term , and in the same manner as the Governor. The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution [emphasis added]….

The rise of administrative agencies in Georgia government

The first sign that separation of powers isn’t going to be as simple as it seems is not the grant of power to the Lt. Gov., but the creation of Constitutional Boards and Commissions, which are not clearly placed in any of the three traditional branches and in many cases exercise a blend of quasi-legislative, quasi-judicial and executive powers.

In fact, these boards and commissions have their own section of the Georgia Constitution, Article IV, while the legislative branch is constituted in Article III, the executive branch in Article V and the judiciary in Article VI. This clearly demonstrates that as far as separation of powers, these agencies are neither fish nor fowl; they throw a monkey wrench into any simplistic understanding of separation of powers.

The Georgia Public Service Commission, created in Article IV, Section I is the best example of a triple-quasi administrative agency. Under our current constitution, the PSC is established “for the regulation of utilities” and exercises “such jurisdiction, powers, and duties as provided by law” without further explanation or limitation.

The Public Service Commission was established in 1879 as the Railroad Commission of Georgia. During this period most states developed similar agencies to address the complex issues of railroad regulation. In 1922, the commission was given its current name in recognition of the expansion of its regulatory responsibilities, which came to include intrastate trucking, limosuines and household goods movers, for-profit electric utilities, gas companies, intrastate telephony and other similar industries that are widely considered to be “natural monopolies.”

This mirrored the rise in the federal government of a new form of government called the administrative agency, a development that would accelerate through the New Deal era until the 1980s and 1990s saw movements to consolidate and in some cases, curtail these agencies.

By 1952, U.S. Supreme Court Justice Robert Jackson wrote:

The rise of administrative bodies probably has been the most significant legal trend of the last century, and perhaps more values today are affected by their decisions than by those of all the courts, review of administrative decisions apart. They also have begun to have important consequences on personal rights. Cf. United States v. Spector, 343 U. S. 169. They have become a veritable fourth branch of the Government, which has deranged our three-branch legal theories much as the concept of a fourth dimension unsettles our three-dimensional thinking.

Courts have differed in assigning a place to these seemingly necessary bodies in our constitutional system. Administrative agencies have been called quasi-legislative, quasi-executive, or quasi-judicial, as the occasion required, in order to validate their functions within the separation of powers scheme of the Constitution. The mere retreat to the qualifying “quasi” is implicit with confession that all recognized classifications have broken down,and “quasi” is a smooth cover which we draw over our confusion, as we might use a counterpane to conceal a disordered bed.

FTC V. RUBEROID CO., 343 U. S. 470 at 487-88 (1952) (Jackson, J., dissenting).

But back to Georgia. Under current legislation, the Public Service Commission promulgates and enforces rules about how regulated companies may interact with ratepayers. This is a legislative function that has been delegated by the General Assembly. The PSC also makes decisions in rate cases and in cases between regulated entities that include procedural rules, lawyers, sworn witnesses, and written decisions. This is a quasi-judicial function, and in some cases includes the ability to levy fines. Until changes made under Governor Perdue, the PSC had sworn enforcement officers with badges, guns, and Crown Vics; clearly an executive function.

This mish-mash of functions from the three traditional branches of government would almost certainly be unconstitutional…. if it weren’t actually in the Constitution itself.

There are other examples I could give, but I’m well over 900 words now, and Richard Halicks at the AJC must be judging me harshly by now.

Whatever simplistic understanding we might have had about the meaning of “separation of powers” does not survive the rise of administrative law, and must give way to a more nuanced understanding.

If it’s in the Constitution, then by definition, it cannot be unconstitutional

The problem with simply asserting that “[t]he Lt. Governor is a member of the Executive branch and has no business being involved with legislating” is that the Constitution requires that he preside over the Senate. It’s not optional under the actual language of the Constitution. “Shall” does not mean “may” and if presiding over the Senate is required by the Constitution, it is by definition constitutional.

So what did the framers of our state constitution mean when they said the Lt. Gov. shall be President of the Senate? The courts, should it ever come to that, would likely look at what the role of the Lt. Gov.

For nearly sixty years between the 1945 adoption of the first Georgia Constitution to include Lt. Gov. as a constitutional office until the 2003 stripping of many of the internal organizational functions from Lt. Gov. Mark Taylor, the Lt. Gov. exercised powers including naming of committee chairs and playing an active role in the internal organization of the Senate. No successful constitutional challenges were mounted against the exercise of these powers.

The Senate can delegate power to the Lieutenant Governor

When the Lt. Gov. exercises organizational powers under the Senate Rules, it is clear that the Senate has delegated those powers to him. While that historical context is not conclusive, it does suggest that a full generation of Georgia politicians believed that the Lt. Gov. could exercise such powers if they were properly delegated to him by the General Assembly.

I’m not aware of any Georgia court cases determining the limits of the General Assembly’s ability to delegate organizational responsibilities to the Lt. Gov. in his role as President of the Senate, but some cases addressing the legislature’s power of delegation in the agency context are helpful.

In 1990, the Georgia Supreme Court addressed the limits of the General Assembly’s ability to delegate its legislative power to an administrative agency and cited an earlier case for the proposition that “[w]hile the Constitution declares that the three departments of government shall be separate and distinct, this separation is not and from the nature of things cannot be total.”

A 1978 case in the Supreme Court dealt with the legislature’s grant of some legislative power to another constitutional officer

It has often been held that the constitutional restriction on delegation of legislative powers does not prevent the grant of legislative authority to some ministerial officer, board or other tribunal to adopt rules, by-laws, or other ordinances for its government, or to carry out a particular purpose.

Scoggins v. Whitfield Finance Co. 249 SE2d 222 (1978).

So it is clear that the General Assembly, or one house, can delegate some of its rulemaking power to a constitutional executive officer, like the Lt. Gov. but there are also limitations on the General Assembly’s power to delegate.

In 1936, the Georgia Supreme Court discussed limitations on the legislature’s delegations, stating “those functions which are essentially legislative must be performed by the legislative body, and may not be delegated to executive or ministerial officers.”

So we now have some idea of the limitations of the powers that the Senate might delegate to the Lt. Gov. — somewhere between merely administrative or ministerial functions, up to the limits of essential legislative functions dealing with substantive legislation. While not the height of clarity, it appears that the traditional functions of the Lt. Gov. in presiding over the Senate can legitimately be delegated to him by the General Assembly.

The problem of “standing” – why no lawsuit will succeed

It has been suggested that any Senate rules that restore the traditional functions of the Lt. Gov. might result in a lawsuit challenging the rules. Another commenter raises the issue that private citizens would not have standing to challenge the rules in a lawsuit.

Standing is the legal doctrine stating that a plaintiff cannot challenge a law unless she can demonstrate that she has actually been harmed by it or will imminently be harmed. Georgia’s cases on standing generally require a plaintiff challenging a legislative action as unconstitutional to show that they are individually harmed by the statute they are challenging. It is difficult to imagine a set of circumstances in which a court would find that an individual plaintiff had been harmed by the adoption of Senate rules that delegate administrative functions to the Lt. Gov., though some of you have more fertile imaginations that I do.

A lawsuit about separation of powers will probably be dismissed due to the doctrine of separation of powers.

We now come to the real separation of powers issue, which a commenter touched upon; that a state court is unlikely to insert itself into an internal dispute over legislative procedural rules. While it is true that in our system of government the courts are the final arbiters of constitutionality, they traditionally have shown great deference to the other branches of government in organizing their own internal affairs. And if we are talking about rules adopted by a majority of the Senate, the defendant in such a challenge would not be the Lt. Gov., but the Senate itself.

Finally, we’re at the end

In summary, the doctrine of separation of powers under the modern Georgia constitution is more complicated than the Schoolhouse Rock version some citizens proclaim. The existence of Constitutional boards and commission, which at times exercise powers traditionally considered to be legislative, judicial and executive, at the same time that they stand outside the traditional three-ring structure indicates that strict separation is no longer the rule. The constitutional requirement that the Lt. Gov. shall serve as President of the Senate means that some exercise of legislative involvement by the Lt. Gov. is not only permissible under the constitution but is required. Further delegation by Senate Rules of administrative functions to the Lt. Gov. is almost certainly permissible under the constitution, though not required. Ordinary citizens will not have standing to challenge the constitutionality of such rules in any case. And no court in its right mind will wade lightly into the propriety of internal Senate Rules.

I take no position on whether the Senate should delegate more of the traditional functions exercised by past Lt. Govs. to the current occupant of that office. That is a political decision for the Senate alone.

36 comments

  1. debbie0040 says:

    I disagree and plan on either filing a court challenge or asking Sam Olens for an official opinion. Nice attempt at spin but not buying it.. It will not be about senate rules, it will be over violation of the GA Constitution and whether or not Senators overstepped their Constitutional authority.

    If you are so sure about your interpretation, then why are you so worried about the GA SC taking it up?

    Todd, you have an interest in wanting the Lt. Governor to have more power, now don’t you?

    • Debbie,

      Todd gave us a very thorough and exhaustive post on the subject. You can disagree with his conclusion, though from people I’ve talked to, you’re in the minority. However, just because you disagree with Todd doesn’t mean he’s spinning or shilling for the Lt. Governor or anyone else.

      You seem hell bent on filing a Court challenge if the Senators don’t do as you want. What would the other Tea Party activists in the State think of this Quixotic venture?

      • Todd Rehm says:

        It’s a textbook ad hominem attack, Buzz, the kind that people resort to when they don’t have an argument on the facts or the merits.

        Next thing you know, she’ll call me a liberal.

  2. Todd Rehm says:

    Debbie, you can disagree all you want but lacking a rational basis for your disagreement means you’re still wrong.

    And no, I don’t have any interest in Casey having anymore power, but I do have an interest in a fully-functional state senate, whatever that takes.

    I’m not worried about the S.Ct. taking it up and will wager a dozen Krispy Kreme donuts that if you are able to find a lawyer to file suit on your theory of the law, that the suit gets bounces out of court without ever reaching the merits of the case.

  3. debbie0040 says:

    Sure, Todd… If the Senate tries to usurp the Constitution and gives the Lt. Governor more power than the Constitution allows, we will pursue legal means to make sure the Senators don’t violate the Constitutional rights of citizens by amending the Constitution without following the amendment process.. You and others can try to spin it like you want to, but it won’t work.

    I have also heard a very disturbing rumor and I really hope it is not true. I have heard the nine State Senators will form a coalition with the Senate Democrats to remove Tommie Williams as Senate Pro Tem. I can just see the outcry if that happens and GOP Senators that go along with that will be held accountable at re-election time. I can just see it now, ” GOP Senators cut deal with Senate Dems to remove conservtative Tommie Williams as Senate Pro Tem and elect a moderate that wants to usurp the Constitution and grant the Lt. Governor more power than is allowed in the GA Constitution.. Yea, that will go over real well..

    • Todd Rehm says:

      You didn’t really read what I wrote, did you, Debbie? Or at least you didn’t understand it. It’s not spin, it’s real analysis. If you want to have any credibility in refuting it, you’ll have to cite something authoritative.

      Sorry, I don’t make the rules.

    • WhatsNew says:

      Why do the last four words of the separation clause not settle this for you? “Except as herein provided” seems to recognize that within the Constitution there are roles that cross lines such as the Lt. Gov.

      Speaking of the Pro Tem, what is that role under your scenario Debbie? If the President of the Senate has no authority, no real role, what does the Pro Tem have?

      Good analysis Todd

    • Cloverhurst says:

      Debbie is a genius

      I’m pretty sure that if the Lt. Governor controlling internal senate functions was unconstitutional and anyone with half a brain thought that the courts might intervene we would have seen a lawsuit sometime around 1948 when this tradition began.

      What about Tom Murphy, always looking to get the upper hand on Zell Miller and the Senate- don’t you think he would have found someone to sue- in affect to make the Senate a dysfunctional mess like it is today.

  4. debbie0040 says:

    We are going to do what we have to do to see the Constitution is followed. You can post opnions until your are blue in the face and that will not alter us one bit. Why worry if you think you are on solid footing? What difference does it make if we go to Sam Olens and ask for an opinion or file a lawsuit against the Senators that vote to grant the Lt. Governor more power? After all, you are so confident nothing will come of it.. I am not going to waste my time and respond further…

    • Todd Rehm says:

      What I worry about is that you’re misleading people with an incorrect statement about what the state constitution says and means.

      Please seek an AG’s opinion, but your comments yesterday regarding the AG’s opinion under Thurbert Baker and your comments here demonstrate conclusively that you are either unwilling or unable to understand what it means.

      • Andre says:

        I wonder if Debbie can answer this question for me.

        If you “file a lawsuit against the Senators that vote to grant the Lt. Governor more power”, how will you show that you have been harmed by the actions of the Georgia Senate?

        How will you demonstrate to the Court that the Georgia Senate encroached upon your constitutional rights, and that the only way to remedy that encroachment is with an order declaring certain parts of the Rules of the Georgia State Senate unconstitutional; and enjoining those rules from being enforced?

    • Rambler1414 says:

      Will you promise never to post here again if Olens tells you you’re wrong, or are unsuccessful in your legal challenge?

  5. Charlie says:

    1) Everyone is a liberal RINO.

    2) Debbie, you’ve been threatening legal action for some time. To file a case as a plaintiff, you have to have standing to sue. Please tell me how you believe any court, much less the GA Supreme Court, will grant you standing to sue on how the Senate is run.

  6. The Last Democrat in Georgia says:

    “The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution [emphasis added]….”

    Todd, thanks for clearing that up for us.

    Well, for most of us.

  7. Doug Deal says:

    I agree almost completely with Todd, but it is written in such an unnecessarily condescending way, it makes me want to take the other side on principle.

    • bowersville says:

      Zell Miller is known for taking exception to the “Snuffy Smith” cartoon character. Exception in this case being adverse criticism. In other words for all you flat land dwellers reading along, “Don’t pee on our leg and tell us it’s raining.” It’s condescending. Turn about is fair play.

  8. debbie0040 says:

    The fact Todd’s answer was condescending, egotistical and pompous was not lost on me. I am very deliberative in deciding the best course of action in dealing with things like that. I don’t just jump the gun and start slinging insults back. It accomplishes nothing and I would rather deal with situations like that in a much more substansive fashion.

    I will say that the attitude of Todd and his co-horts is one reason voters have become thoroughly disgusted with incumbents in general and have been voting them out of office in record numbers…

    • Charlie says:

      2) Debbie, you’ve been threatening legal action for some time. To file a case as a plaintiff, you have to have standing to sue. Please tell me how you believe any court, much less the GA Supreme Court, will grant you standing to sue on how the Senate is run.

    • Todd Rehm says:

      Debbie-

      I’ll take condescending, egotistical and pompous over willingly ignorant any day. As for being deliberative and not jumping the gun, your very first post here was an ad hominem attack. Give me a break.

      As for the “voting [incumbents] out of office in record numbers,” you clearly have lost touch with mother earth, at least as relates to Georgia politics.

      I fear that the willful ignorance of the entire rest of the Constitution as well as the established body of law that that you are displaying here will be part of the reason the organization to become just another lost soul on the internet.

      And if you can’t even keep your promise that “I am not going to waste my time and respond further…” why would we expect you to follow through on your folly of a lawsuit or on active opposition to sitting politicians?

  9. debbie0040 says:

    I just want clarity on what the Constitution allows . There are differing views. The Senate should be run according to the Constitution . Are you saying citizens have no option to file a complaint if they believe a government body is doing something un-Constitutional?

    The Senators could settle this once and for all by asking Attorney General Sam Olens for an official opinion, but they seem to be skirting the issue hoping people will ignore what they do..

    • Charlie says:

      I’m saying if you don’t understand what having standing to sue means, or that you have inquired to an actual attorney to determine if there is any strategy for you to claim standing, then you haven’t gotten very far, and are unlikley to.

      You are not a member or the Senate nor are you the Lt. Governor. More than likely, a court will say you don’t have the standing to file a lawsuit, as it is either the Senate or the Lt. Governor who have standing. “Having differing views” is not grounds for a suit.

    • Todd Rehm says:

      I’m saying that you have to have legal standing to file a lawsuit. In short, you have to demonstrate that you have personally been harmed, or are in imminent danger of being harmed, and the harm is caused by the statute you are challenging.

      I’d be surprised if anyone would be able to demonstrate that they have standing to challenge the Senate Rules except a sitting Senator or someone who is expressly regulated by them, such as Senate employees. Even then, you’d face serious hurdles to getting to court on the merits of the claim.

      And a Senate employee, as an example, might be able to challenge the portions of the Senate Rules that regulate their conduct. For example, an aide or other employee in a wheelchair or electric scooter might have standing to challenge the rule that only Senators may use the center aisle on the basis of the ADA. But that would not suffice to allow the employee to challenge any aspect of whatever power sharing arrangement the Senate adopts except to the extent that it impacts them individually as a person protected under the ADA.

      (That’s theoretical, and I wouldn’t be surprised if state government or legislative bodies are exempt from the ADA.)

      Simply having a political or ideological disagreement with an action of the legislature does not grant a private citizen legal standing to challenge the constutionality of that action.

      For instance, if Georgia outlawed handguns, a private citizen probably would not be able to sue the government based solely on the fact that they believe the statute violates the Second Amendment to the US Constitution. That citizen would probably have to get arrested in possession of a handgun in order to challenge the constitutionality of the statute in the context of the criminal proceedings.

      Likewise, when we were discussing TPP’s objection to Mayor Reed’s actions in allowing those hippies to occupy Woodruff Park, I don’t think you have standing just because you object to it. As I discussed in a thread here, I believe you would have to submit a valid application for a permit to have an overnight event in the Park and be turned down in order to have standing to sue.

      Or go out there and occupy the park yourselves and challenge it when you get arrested. But I don’t think that’s TPP’s style.

      And if you have a logical basis for why everything I wrote above, tracing over 100 years of legal theory in the state of Georgia, and addressing the contention that Senate Rules granting the Lt. Gov. greater administrative functions is unconstitutional, then I will happily read anything you write and if you’re correct, I will admit it. When I write something and am later shown to be wrong, I try to correct that.

      But seriously, there’s a a great legal argument above that Senate Rules granting more administrative power to the Lt. Gov. is constitutional. Until you can address that legal argument and the 100+ years worth of Georgia jurisprudence upon which it is based, you’re nowhere near ready to go to court on a separation of powers theory. And you’re not making a cogent argument as to why I’m wrong.

      As far as getting an AG’s opinion, here’s what you do: go find a legislator to draft a letter to the AG asking for his opinion on the issue. Better yet, include a copy of the rules when Casey had greater power and have the legislator ask the AG’s opinion on whether adopting such rules again would violate the state constitution.

      According to the AG’s website, “The Attorney General will also provide opinions to other state officers, such as legislators, judges or district attorneys. ” He might not be willing to opine on Senate rules to a judge or DA, but he might very well be willing to research and write an opinion if a legislator, especially a Senator, writes him asking for one.

      http://www.georgia.gov/00/channel_title/0,2094,87670814_87670957,00.html

  10. Howard Roark says:

    Debbie,

    I laugh every time you trot out the GOP Senators are going to vote with democrats to oust Tommie Williams. My sides are hurting from laughing so hard in fact.

    That story was told on the Lt. Governor early in the last session (there was no logic to the story then) and now you trot the same old story about “RINO Liberal Senators” consorting with democrats and the story still has no logic.

    You story is almost as crazy as the entire “Beth (AKA Cecil Staton) Merkleson” affair where a member of leadership was attacking GOP caucus members.

    Just a wild thought Debbie, are you Beth Merkleson? If you are 99% of the people reading this blog probably owe Cecil Staton an apology.

  11. Cloverhurst says:

    Debbie and the Georgia Tea Party should go away and focus on federal issues- where there is real trouble, real constitutional violations etc

  12. The Last Democrat in Georgia says:

    I can’t necessarily see why this is even an issue as the Senate is not giving Cagle more power per se, but are only RESTORING back to him the same power that he once had as President of the Senate.

    To say that the Lt. Governor has no business being President of the Senate when it is written right there in the Georgia Constitution as clear as day makes absolutely no sense whatsoever and pushes this entire dialogue to being quite possibly one of the dumbest and most idiotic conversations ever had.

    Again just to make sure that we are all on the same page:

    “The Lieutenant Governor shall be the President of the Senate and shall have such executive duties as prescribed by the Governor and as may be prescribed by law not inconsistent with the powers of the Governor or other provisions of this Constitution [emphasis added]….”

    After reading that sentence, just what in the hell is there to challenge?

  13. seekingtounderstand says:

    Todd….actually Debbie adds to your blog. Other views besides smugness brings a enjoyable read where one can learn.
    You can hate the Tea Party all you want, it is the “Tee’d off” party which will be voting in mass.
    And the agenda of the Georgia Legislature is sure to give them more reasons.

    • Todd Rehm says:

      She would add a lot more if she would argue using reason and logic and be respectful of other people rather than making ad hominem attacks simply because she disagrees with a writer. That’s her pattern and it’s abusive behavior.

      And her veiled references to conspiracies and co-horts [sic] makes her look crazy and alienates many of us who would agree with her on 90% or more when it comes to ideology.

      And smugness is righteous when you are correct and can articulate why that is so.

  14. Doug Grammer says:

    Good job Todd. I didn’t find it condescending at all. For those seeking clarity on what the Constitution allows, it says “except as herein provided.”

  15. Salmo says:

    Kudos on this entire thread. Highly entertaining read.

    It is amazing that someone who claims to be a highly principled conservative can go on such a quixotic quest by threatening to file lawsuits that would throw the Senate into complete disarray and likely cost the state millions of dollars if it was allowed to move forward simply because of a personal vendetta. Not a single person in either thread about this topic has actually endorsed Casey Cagle. Many of them, however, are lucid enough to realize that he was duly elected and, therefore, is constitutionally obligated to serve as the President of the Senate. If someone has a serious problem with that, they either need to recruit someone to run against him (which didn’t happen for some reason last year) or run against them herself.

    I wonder if this same threat would be coming forward from the TPP if Tommie Williams was the LG and Cagle was the President Pro Tem? Besides, I don’t understand why Williams is even someone to stand up for to begin with. His speech in the Sunday sales debate was a perfect caricature of his politics to me. He spent the first 2/3 of the debate explaining how he understood why people would support the bill, then spent the rest of the time saying that he was still going to vote against it anyway. Plus, as a politician, he’s as interesting as watching paint dry.

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