ELLIS v. CITY OF LA MESA Nos. 92-55086, 92-55087 and 92-55093.
990 F.2d 1518 (1993)
James ELLIS, Plaintiff-Appellee, v. CITY OF LA MESA, et al., Defendants-Appellants. Philip PAULSON, Howard T. Kreisner & Society of Separationists, Inc., Plaintiffs-Appellees, v. CITY OF SAN DIEGO, Defendant-Appellant. John MURPHY, Plaintiff-Appellee, v. Brian BILBRAY, George Bailey, Susan Golding, Leon Williams, and John MacDonald, in their official capacities as members of San Diego County Board of Supervisors and the County of San Diego, Defendants-Appellants.
United States Court of Appeals, Ninth Circuit.
Decided March 23, 1993.
Mary Kay Jackson, Deputy City Atty., San Diego, CA, for defendants-appellants.
John S. Meyer, Knutson & Meyer, La Mesa, CA, for defendants-appellants.
Michel B. Poynor, Deputy County Counsel, San Diego, CA, for defendants-appellants.
Marcellee E. Mihaila, Gray, Cary, Ames & Frye, San Diego, CA, amicus curiae Mt. Soledad Memorial Ass'n, for defendants-appellants.
Arlington Ray Robbins, Robbins & Keehn, APC, San Diego, CA, amicus curiae In Pro Se, for defendants-appellants.
Anthony Caso, Pacific Legal Foundation, Sacramento, CA, amicus curiae Pacific Legal Foundation, for defendants-appellants.
Thomas F. Gede, Special Asst. Atty. Gen., Sacramento, CA, amicus curiae State of Cal., for defendants-appellants.
John L. Romaker, San Diego, CA, Amicus Curiae Committee to Save the Crosses, an unincorporated Ass'n, and the San Diego County Republican Party, for defendants-appellants.
Keith A. Fournier, Virginia Beach, VA, amicus curiae American Center for Law & Justice, for defendants-appellants.
John W. Vinson, Society of Separationists, Inc., Austin, TX, for plaintiff-appellee.
Michael L. Crowley, Betty Wheeler, American Civil Liberties Foundation of San Diego & Imperial Counties, San Diego, CA, for plaintiff-appellee.
Dan Bacal, El Cajon, CA, for plaintiff-appellee.
David Ira Berman, San Diego, CA, amicus curiae Anti Defamation League of B'Nai B'rith, for plaintiffs-appellees.
Steven Green, Silver Springs, MD, amicus curiae Americans United For Separation of Church and State, for plaintiff-appellee.
Peter Irons, Earl Warren Bill of Rights Project, San Diego, CA, for plaintiff-appellee.
Before: TANG, SCHROEDER and BEEZER, Circuit Judges.
BEEZER, Circuit Judge:
We consider three crosses. A 36-foot cross stands atop Mt. Helix in a county park. Another hilltop cross, the 43-foot Mt. Soledad Cross, stands in a city park. The third cross, a depiction of the Mt. Helix Cross, provides the focal point for one of the City of La Mesa's official insignia.
As to each, a lawsuit ensued. After consolidating the cases, the district court heard motions and cross-motions for summary judgment. Relying primarily on Hewitt v. Joyner,
A. The Mount Helix Cross
In the mid-1920's, Cyrus Carpenter Yawkey and Mary Yawkey White placed a 36-foot Latin cross
In 1929, Yawkey conveyed about 3.2 acres, including the cross and an amphitheatre, to San Diego County for uses and purposes specified in the deed. This county park is known as the Mt. Helix Nature Theatre. The conveyance obligates the County to maintain the cross, allows no other monuments to be erected in the park, and requires that "annually, on each and every Easter Sunday forever, religious services of a strictly non-sectarian character and appropriately suitable for commemorating the resurrection of the Lord Jesus Christ, as taught by the Christian churches of the world, shall be held at Sunrise" at the park. Although an Easter sunrise service has been held in the park every year since, the County stresses that it never enforced this provision against an applicant desiring to use the park for an alternative purpose on Easter morning.
The deed also established a trust fund, with the County as trustee, to maintain the cross and to contribute towards the Easter celebration. County employees administer the trust fund. Public fund contribute to the maintenance of the Nature Theatre as a whole.
The deed further requires that "[t]he Cross on the summit of Mount Helix shall be lighted" on several specific nights each year, including Christmas Eve and the evening before Easter. The County illuminates the cross every night of the year; the trust fund currently pays for the lighting, but county funds had been used for this purpose in the past.
Subsequent to the filing of this case, the County Board of Supervisors designated the Mt. Helix Nature Theatre and the cross within it as a historical landmark.
B. The Mount Soledad Cross
In 1913, private citizens placed a redwood cross atop Mount Soledad on a 170-acre parcel of land owned by the City of San Diego. The city council dedicated the property as a public park in 1916. Vandals destroyed the redwood cross in 1923; someone replaced it with a wood and stucco cross in 1934. A wind storm destroyed that cross in 1952. Subsequently, the city council granted permission to the Mt. Soledad Memorial Association, a private organization, to place another cross on Mt. Soledad. The Association solicited private contributions and, without municipal funding, supervised and paid for the construction of the current 43-foot concrete cross. On some maps and in the local parlance, it is known as the "Soledad Easter Cross." The Mt. Soledad and Mt. Helix crosses have both provided a backdrop for weddings and baptisms.
The Soledad Cross can be seen from a substantial distance, including a portion of the interstate highway. The district court's summary judgment order states that the cross functions as the most important geodetic marker in San Diego County.
In 1954, at an Easter Sunday religious service, the cross was dedicated as a tribute to veterans of World War I, World War II and the Korean Conflict. The Association maintains the cross and, since its dedication, obtains a permit each year to conduct a sunrise service on Easter Morning. Although primarily maintained through private funds, the district court found some public funds have been expended to maintain the cross.
In its summary judgment order, the district court erroneously stated that the Mt. Soledad Cross, like the Mt. Helix Cross, is illuminated nightly. The parties agree that the Mt. Soledad Cross used to be illuminated, but that the practice ended after vandals repeatedly broke the lights.
On January 30, 1991, after this action was filed, the City of San Diego Historical Site Board designated the cross and the surrounding park as historical sites.
C. The La Mesa Insignia
The City of La Mesa's official insignia depicts a cross atop the highest of several
At the time of this lawsuit, the insignia appeared on police vehicles and on the shoulder patches attached to police, fire fighter, and animal control personnel uniforms, and was used in official literature distributed by the city. The city maintains an official seal which does not depict a cross.
Appellants argue that the district court should have exercised abstention pursuant to the doctrine announced in Texas Railroad Comm'n v. Pullman Co.,
Pullman abstention is appropriate where the state's constitution contains a provision unlike any in the federal constitution and state court construction of its unclear or ambiguous clause might make a federal ruling unnecessary. Reetz v. Bozanich,
Appellants argue that the California courts' interpretation of the state constitution's religion provisions remains unclear or, if relatively clear, poised for change. See Pearl Inv. Co. v. City and County of San Francisco,
The legal landscape presented here differs dramatically from that presented in Reetz by Alaska's unique and uninterpreted constitutional provisions regarding fishing rights. Here, we have interpretive caselaw. See Fox v. City of Los Angeles,
We perceive no "special circumstances" warranting Pullman abstention. Kusper v. Pontikes,
Standing is a question of law we review de novo. See Bruce v. United States,
We recently followed other circuits in holding that "when a plaintiff alleges that the government has unconstitutionally aligned itself with religion, standing may be based on finding that the plaintiff has been injured due to his or her not being able to freely use public areas." Hewitt, 940 F.2d at 1564 (citing ACLU of Illinois v. City of St. Charles,
In ACLU of Illinois, the court found that the plaintiffs had standing where they departed from their usual route to avoid observing a government-owned, lighted cross. 794 F.2d at 267-69. In ACLU of Georgia, the court found that the plaintiffs had standing where they stopped using a state park which included a large illuminated cross. 698 F.2d at 1107-08.
John Murphy, a Catholic San Diego resident and taxpayer, challenges the constitutionality of the Mt. Helix Cross. Murphy attests that he "is offended by the use of public property and the expenditure of public money to display and illuminate the cross on Mt. Helix." Although he "otherwise would visit the [Mt. Helix Nature] Theatre and take out-of-town guests there to enjoy the panoramic view it offers, [he instead] avoids visiting the Theatre because of the large cross."
Philip K. Paulson and Howard T. Kreisner challenge the constitutionality of the Mt. Soledad Cross. Both Paulson and Kreisner are atheists, Vietnam combat veterans, San Diego residents, and taxpayers. They say that they are "deeply offended" by the presence of the cross on Mt. Soledad. Both attest that they would like to take in the spectacular views of San Diego from the park on Mt. Soledad but avoid doing so because of the cross' dominance of the hilltop.
Paulson and Kreisner are both members of the Society of Separationists, another plaintiff in the action contesting the maintenance of the Mt. Soledad Cross on public property. The Society, which is licensed to do business in California, is "dedicated to the complete and absolute separation of state and religion/church."
James Ellis, an Episcopalian, La Mesa resident, and taxpayer challenges the La Mesa insignia. He maintains that he is "deeply offended" by the expenditure of taxes for the purchase and use of insignia depicting a religious symbol. In order to avoid offending business clients or embarrassing himself, he has declined to invite business clients to his home when, but for the presence of the cross on the insignia, he would have invited them.
In all three of these cases, the district court properly determined that a plaintiff "has been injured due to his or her not being able to freely use public areas." Hewitt, 940 F.2d at 1564. Murphy, Paulson, and Kreisner avoid two public parks in San Diego which they would otherwise use. Ellis curtails his activities to lessen contact with the insignia displayed in his city. The Society of Separationists has standing through its members, co-plaintiffs Paulson and Kreisner. The district court properly held each of the named plaintiffs had standing to bring this case before the court. See Kreisner v. City of San Diego,
We review de novo both the district court's grant of summary judgment,
Federal constitutional issues should be avoided when the alternative ground is one of state constitutional law. Id. Thus, although the plaintiffs' suits allege both federal and state constitutional violations, we turn first to the California Constitution.
The California Constitution guarantees the "[f]ree exercise and enjoyment of religion without discrimination or preference." Cal. Const. art. I, § 4. This provision is known as the "No Preference" Clause. See Okrand, supra.
In Fox, supra, the California Supreme Court affirmed an order enjoining the thirty-year practice by the City of Los Angeles of illuminating a cross on City Hall during the Christmas holidays, and enjoining the eight-year practice of illuminating the cross on Easter Sundays, both Latin and Eastern Orthodox. The Court considered the "location, size, and visibility of the Los Angeles cross," noting in particular that the cross was illuminated on City Hall and was visible for many miles in many directions. 150 Cal.Rptr. at 869, 587 P.2d at 665. The court also pointed out that the illumination of only the Latin cross seemed "preferential when comparable recognition of other religious symbols is impracticable." Id. When viewed in its factual context, the court held the display of the cross violated the No Preference Clause of the California Constitution.
A more recent California case follows Fox's context specific approach. In Okrand, the court considered whether the display of an unlit menorah in the rotunda of the Los Angeles City Hall violated the No Preference Clause. 254 Cal.Rptr. at 921.
The Okrand court identified four circumstances which materially distinguished the menorah from the cross display in Fox. First, the Okrand display included religious symbols of comparable religious significance to other religions. Id. at 921. Second, the menorah was less conspicuous than the lighted, outdoor cross in Fox. Id. Third, a menorah is less religiously symbolic than a Latin cross. Id. at 922. Fourth, the Katowitz Menorah, which was crafted in a distinctive style and had been rescued from the Nazi Holocaust, had a "unique historical background [which rendered it] ... much more a museum piece than a symbol of religious worship." Id. Based on these factors, the Okrand court concluded "that in the context in which it allowed the Katowitz Menorah to be displayed, the city exhibited no preference for the Jewish religion nor promoted it." Id.
We have also had occasion to interpret California's No Preference Clause. In Hewitt, we considered whether San Bernardino County's ownership and maintenance of a public park that contained religious statutes violated the California Constitution.
Analyzing California case law, we interpreted Fox and Okrand to stand for the proposition that "not only may a government body not prefer one religion over another, it may not appear to be acting preferentially." 940 F.2d at 1567. We then applied this standard to the historical and physical context surrounding the County park.
San Bernardino county, after taking ownership of the park, had dedicated it "Desert Christ Park," and "printed brochures which identif[ied] each of the statuary scenes by reference to Bible passages." Id. at 1563. This official brochure also described the statuary located on church property adjoining the park, and described these statues as being part of the park. Indeed, the largest of the park's statues, the Last Supper, straddled the property line of the church and the park.
Given these facts, we found "[t]he effect and message of the park is a religious one." Id. at 1568. Viewing the historical and physical context of the park as a whole, we held the County's ownership of the park "depicts a government-endorsement of the Christian faith" in violation of article I, section 4 of the California Constitution. Id. at 1569.
Various factors can be distilled from Fox, Okrand, and Hewitt that are
A. The Mt. Helix Cross
1. Public Property
As a threshold consideration, we must determine if the display is on public property. When the district court issued its order in this case, the Mt. Helix Cross stood on land which the Yawkeys had conveyed to the County for the use and benefit of the public.
Had the Yawkeys kept the land as private property, there would be no issue, no question of government involvement. However, they transferred the cross and surrounding land to the County. Pursuant to the conditions of the transfer, the County maintains the park and acts as trustee, responsible for fulfilling the terms of the trust document. As with the religious statuary in Hewitt, prior construction with private funds does not negate the message of subsequent maintenance on public land.
The County points out that removing the cross might trigger the reversionary clause in the deed that conveyed the park to the County. Reversionary clauses, however, are hidden from the public view and cannot themselves mitigate an appearance of religious preference. Whatever the effect of our decision today on the ultimate disposition of the cross and the surrounding property, such considerations are irrelevant to determining whether public involvement with the cross, as it stands, violates the No Preference Clause of the California Constitution.
For the same reason, the fact that the cross also serves as a navigational aid, or stands as a prominent landmark and tourist attraction, does nothing to ameliorate a violation of article I, section 4. If anything, such facts underscore the formidable nature of the display and increase the likelihood of an impermissible appearance of religious preference.
2. Religious Significance
The displayed item in this case, as in Fox, is a Latin cross. Appellants argue that the cross has been secularized to the point that it now functions as a general, secular memorial.
The Supreme Court of California has held that the Latin cross carries a greater degree of religious significance than Santa Claus or the Easter Bunny. See Fox, 150 Cal.Rptr. at 870, 587 P.2d at 666 ("Easter crosses differ from Easter bunnies, just as Christmas crosses differ from Christmas trees and Santa Claus."). Indeed, the Latin cross "is the preeminent symbol of many Christian religions and represents with relative clarity and simplicity the Christian message of the crucifixion and resurrection of Jesus Christ, a doctrine at the heart of Christianity." Okrand, 254 Cal.Rptr. at 922. This symbolism is evidenced by the cross' use as a backdrop for Christian celebrations such as baptisms, weddings, and Easter sunrise services.
We find unpersuasive the fact that the cross was built and dedicated as a memorial to a private individual before being conveyed, in trust, nevertheless, to the County. This alone cannot transform the cross into a secular memorial. As the plaintiff's counsel observed, "[t]he people who go to Mt. Helix for annual Easter services are
3. Size and Visibility
The district court found that the religious symbolism of the Mt. Helix Cross is further amplified by its sheer size and visibility. Indeed, the 36-foot cross stands alone at the summit of a high hill and is illuminated nightly. It dominates the area, as did the statues in Hewitt. See Hewitt, 940 F.2d at 1568.
4. Inclusion of Other Religious Symbols
The Mt. Helix Nature Theatre includes no other religious symbols. Indeed, the deed itself prohibits the display of any other religious symbols. Thus, the appearance of preference is not neutralized, as it was in Okrand, by the inclusion of symbols associated with other religions. Okrand, 254 Cal.Rptr. at 918 (display with menorah included, among other objects, a Christmas tree).
The County urges us to look at the entire park system for representation of other religions. The County points specifically to San Diego's first synagogue, Temple Beth Israel, a designated historic site and part of a county park. Although this speaks to an inclusive approach by the park system as a whole, it does nothing to ameliorate the appearance of preference in this particular park. The California courts have not looked beyond the immediate area of the display in determining whether other religions are sufficiently represented. We also decline to do so.
5. Historical Significance
The cross atop Mt. Helix has stood there since the 1920's as a prominent county fixture associated with an annual Easter sunrise service. Article I, section 4, however, requires more than mere longevity; a display's historical significance must be independent of the display's religious content. Even a purely religious symbol may acquire independent historical significance by virtue of its being associated with significant non-religious events. In Okrand, for instance, the Menorah had been saved from the Holocaust and was "much more a museum piece than a symbol of religious worship." Okrand, 254 Cal.Rptr. at 922.
In this case, the County provides no historically significant facts independent of the cross' inherently religious nature. Indeed, it appears the most historically significant aspect of the cross is its long-standing use as the site of annual Easter services. This kind of historical significance simply exacerbates the appearance of governmental preference for a particular religion.
The Mt. Helix Cross is not located on an explicit government edifice as were the city hall displays challenged in Fox and Okrand. Moreover, this cross is not associated with neighboring church property, as was the statuary in Hewitt.
The mere fact that the display stands on public property is not enough to call into play the particular locational concerns of Fox and Okrand. In those cases it was the conjunction of religious symbolism with the institutions of government that enhanced the appearance of government endorsement of religion.
No one factor, however, necessarily produces or prevents an appearance of religious preference. The court must look to the particular facts in each case in order to determine if the No Preference Clause has been violated. In this case, the size and religious significance of the cross, along with the lack of other religious symbols or independent historical significance, creates an appearance of religious preference. This is so despite the cross' distance from city hall.
B. The Mt. Soledad Cross
The Mt. Soledad Cross suffers from the same constitutional infirmities as does the Mt. Helix Cross. Accordingly, we summarize those infirmities while focusing on the ways in which the City of San Diego asserts the cross on this hilltop is different from the one atop Mt. Helix.
As discussed above, the Latin cross is the preeminent symbol of Christianity. As was the case with the Mt. Helix Cross, this symbolism is further evidenced by its use as a backdrop for Christian celebrations such as baptisms, weddings, and Easter sunrise services. As was also the case with the Mt. Helix Cross, the Mt. Soledad Cross stands as the focal point of the park, visible to those looking at the hill from a substantial distance.
The historic background of this cross differs from the Mt. Helix Cross. Since 1913, a cross has stood on public property in the area where the Mt. Soledad Cross now stands. Built in 1954, the current cross was dedicated to veterans of World Wars I & II and the Korean War. According to the city, the cross has taken on a secular commemorative meaning as a veterans memorial and historical landmark.
The district court considered this argument and concluded that "the evidence indicates that the city's purported commemorative objective is a pretext." The 1913 and 1934 crosses had no memorial associations. The current cross was dedicated on Easter morning in a Christian religious ceremony, even though Memorial Day falls not long after Easter.
The City and the Association challenge the court's identification of this Easter dedication as the only occasion before the filing of this lawsuit at which the cross site has ever been recognized as a war memorial. In support of this claim, the City and the Association have submitted for our consideration documents which suggest the American Legion identified the cross as a war memorial and considered installing a commemorative plaque. The documents also include several newspaper articles, particularly from the 1950's, which refer to the site as a war memorial and indicate that at least two ceremonies honoring veterans took place at the site in the decades before this suit was filed. Finally, the articles suggest that the Easter services have included memorial aspects. For example, in past services organizers stood empty mortar shells at either side of the podium and representatives from military organizations took part in the celebration.
We note as an initial matter that these documents were not before the district court and therefore cannot be considered part of the record on appeal. However, even if we were to agree that the cross has always been explicitly recognized and referred to as a war memorial, that would not obviate the appearance of preference.
A sectarian war memorial carries an inherently religious message and creates an appearance of honoring only those servicemen of that particular religion. See Jewish War Veterans of the United States v. United States,
While not commenting on whether such memorials violate the federal Constitution, we hold that the mere designation of a display as a "war memorial" is not enough to satisfy the more separationist No Preference Clause of the California Constitution. See Hewitt, 940 F.2d at 1567 (noting that religion clauses of California Constitution are read more broadly than their counterparts in the federal Constitution).
C. The La Mesa Insignia
The district court accepted as reasonable the City of La Mesa's explanation that "the cross on the city's insignia is intended to represent a well-known local feature identifiable with La Mesa and, in so doing, to render the city's property and personnel more readily identifiable." We also accept this as the purpose for adoption of the insignia. This secular purpose does not, however, lessen the preference the insignia exhibits for Christianity.
The cross is the focal point of this insignia. It is larger than it would be if drawn to scale, and it occupies the center of the design. Although the insignia also includes clouds and hills, the cross stands out. Whatever the intent, the insignia's design draws particular attention to the cross.
The use of the insignia is particularly troubling. It is attached to uniforms, included on official correspondence, and prominently displayed on police motor vehicles. A design that focuses attention on the cross, when affixed to the uniforms of government officials, creates the appearance of religious preference. We do not hold that any depiction of a cross on an official insignia in California violates the No Preference Clause; we hold only that this particular design violates article I, section 4.
Pursuant to its holding, the district court issued a permanent injunction "forbidding the permanent presence of each cross on the public property or imprimatur where it currently appears." The court further granted the defendants three months "within which to comply with its order." The court did not state what actions the defendants must take in order to comply with the injunction.
On February 24, 1992, the City of San Diego voted to authorize the sale of a 15-foot square parcel of land underneath the Mt. Soledad Cross to the Mt. Soledad Memorial Association for $14,500. On June 2, the voters authorized the sale. This sale, however, has not yet taken place.
On February 25, San Diego County voted to give the San Diego Historical Society the Mt. Helix Cross and a 30-foot diameter parcel of land beneath the cross. This transfer has been effected.
These questions relate not to the validity of the injunction before us for review, but to how compliance with that injunction may be effected. Any issues concerning compliance with the injunction should be decided in the first instance by the district court.
BEEZER, Circuit Judge, specially concurring:
The writer of the court's opinion deems it necessary to complete the record in order to point out why, in writing for the court, he said nothing about the injunctive relief contained in the district court's summary judgment order.
The district court correctly declared that the permanent presence of the disputed crosses on public property violates the No Preference Clause of the California Constitution. However, San Diego County claims that the Mt. Helix Cross has been transferred to the San Diego Historical Society. Likewise, the City of San Diego claims it is authorized to transfer the Mt. Soledad Cross. The plaintiffs claim that both actions thwart the injunctive relief granted by the district court.
These matters involve enforcement of the injunction and must first be considered by the district court. The district court, however, did not explicitly state the manner in which its injunction was to be enforced.
A. The Mt. Helix Cross Conveyance
The original 1929 Yawkey deed that conveyed the land and the Mt. Helix Cross to the County contained a reversionary clause.
As an initial matter, it is unclear whether the County validly took title of the land in the first place. A municipal corporation cannot ordinarily act as trustee of property to be devoted solely to religious uses. See Eugene McQuillin, 10 The Law of Municipal Corporations, § 28.31 (3rd ed. 1990). If the County cannot act as trustee under the Mt. Helix conveyance, then either the reversionary clause of the conveyance applies, or the court may prevent the trust from failing by appointing a private trustee. See id. at § 28.36.
The reverter clause may no longer be applicable.
Although the district court noted that "San Diego County is the trustee" of the "funds left in trust ... for the purpose of maintaining the Mt. Helix Nature Theatre,"
The injunction forbids "the permanent presence of each cross on the public property ... where it appears," and gives the defendants three months to comply with the court's order.
B. The Mt. Soledad Cross
The voter authorization to transfer ownership of Mt. Soledad Cross has no effect on the court's determination today that the status quo violates the California Constitution. As the opinion points out, a challenge to any future transfer should be brought first before the district court.
A more difficult question is whether all parties who have a legal interest in the Mt. Soledad Cross were before the district court when it issued its injunction. The City argues that the Mt. Soledad Cross is owned by the Mt. Soledad Memorial Association and that the interests of the Association were not considered by the district court. According to the City, removing the cross would violate the Association's property rights under state and federal law. Plaintiffs argue that the Association has no legal interest in this litigation because the cross was given to the City as a gift.
Under Federal Rule of Civil Procedure 19(a), a just adjudication requires, if feasible, the joinder of those parties that have "a legally cognizable interest in the suit, and [whose] interest will be impaired or impeded by the suit...." Makah Indian Tribe v. Verity,
In this case, absent a finding by the district court as to who actually owns the cross, it remains unclear whether all "interested parties" were before the district court when it issued its injunction. As with the Mt. Helix Cross, this is a question of state law and may require the joinder of additional interested parties.
When the mandate issues, proceedings to enforce the injunction may be initiated in the district court. The district court, of course, has continuing power to modify or vacate its decree. See System Fed'n No. 91, Ry. Employes' Dep't, AFL-CIO v. Wright,
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