I agree with the majority that the “express advocacy” standard does not fully capture the limitations on the public funding of communication in connection with political campaigns. I also agree with the majority that the City of Salinas’s expenditures in the present case were lawful. I write to further analyze the relationship between the relevant statute and case law. I also write to explain why the majority’s holding, based on Stanson v. Mott (1976) 17 Cal.3d 206 [130 Cal.Rptr. 697, 551 P.2d 1] (Stanson), a case that preceded dramatic changes in the structure of government financing that have occurred over the last 30 years, may not be the final word on the issue.
As suggested by the majority, and by the court in Stanson, there are broadly speaking two types of limitations on public funding of government communications in connection with ballot initiative campaigns: (1) limitations on the content of communications that government agencies may fund; and (2) limitations on the means used by local governments to disseminate their communications.
Government Code section 54964 (section 54964) is concerned with the first type of limitation—the contents of the communication. Section 54964, subdivisions (a) and (b) prohibit the “payment of local agency funds that is used for communications that expressly advocate the approval or rejection of a clearly identified ballot measure, or the election or defeat of a clearly identified candidate, by the voters.” (§ 54964, subd. (b)(3), italics added.) Section 54964, subdivision (c), provides that “[t]his section does not prohibit the expenditure of local agency funds to provide information to the public about the possible effects of a ballot measure on the activities, operations, or policies of the local agency, if both of the following conditions are met: [][] (1) The informational activities are not otherwise prohibited by the Constitution or laws of this state, [f] (2) The information provided constitutes an accurate, *42fair, and impartial presentation of relevant facts to aid the voters in reaching an informed judgment regarding the ballot measure.” Therefore, read as a whole, section 54964 permits expenditures for communications that do not expressly advocate passage of a ballot measure and are informational in nature. As the majority correctly notes, the Legislature considered and rejected a prohibition on advocacy “by implication.” (Maj. opn., ante, at pp. 30-31.)
As an initial matter, I note that plaintiffs would interpret section 54964 to require that the government limit itself to “undisputed factual information” and not weigh in on “debatable questions.” But section 54964, subdivision (c) does not say that the government is obliged to inform the public regarding all sides of the debate about a given ballot measure, or that it must view all sides with equal favor. Rather, it is authorized to inform the public about the “possible effects of a ballot measure on the activities, operations, or policies of the local agency.” A government agency’s analysis and discussion of that topic may be controversial or not universally agreed upon, and it cannot be the case that section 54964, subdivision (c) would for that reason prohibit it. “[Ajccurate, fair, and impartial” implies a certain kind of objective and factual approach, not necessarily a noncontroversial outcome, rather like a judicial opinion that is firmly grounded in the facts and the law and established methods of legal reasoning, but which may be contested by a dissent similarly grounded. On the other hand, the “undisputed factual information” standard would mean that the government could not communicate any information unless there was complete agreement about its truth, no matter how unreasonable the contrary position is—a virtually impossible standard and doubtless not what the Legislature intended. I therefore agree with the majority’s implicit rejection of plaintiffs’ interpretation of section 54964, subdivision (c).
Although section 54964 regulates the contents of the communications a government agency may fund in the course of a political campaign, it does not address the second prong discussed above, the means by which such communication can be disseminated. This topic is covered substantially in Stanson. Indeed, in its pivotal distinction between “improper ‘campaign’ expenditures” and “proper ‘informational’ activities” (Stanson, supra, 17 Cal.3d at p. 221), Stanson focused in large part on the methods by which the government’s messages are communicated: “With respect to some activities, the distinction is rather clear; thus, the use of public funds to purchase such items as bumper stickers, posters, advertising ‘floats,’ or television and radio ‘spots’ unquestionably constitutes improper campaign activity [citations], as does the dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure. [Citations.] On the other hand, it is generally accepted that a public agency pursues a proper ‘informational’ role when it simply gives a ‘fair presentation of the facts’ in response *43to a citizen’s request for information [citations] or, when requested by a public or private organization, it authorizes an agency employee to present the department’s view of a ballot proposal at a meeting of such organization. [Citations.]” (Ibid., fn. omitted.) Stanson also critically refers to the “style, tenor and timing” of communications to determine whether they constitute improper campaign activity. (Id. at p. 222.)
I agree with the majority that the fact that section 54964 addressed only the permissible content of government-funded communications about ballot measures does not mean that it was intended to supersede Stanson’s statements circumscribing the means of disseminating the communications. Such a repudiation or modification of Stanson is neither evident in the language of the statute nor, as the majority points out, in the legislative history. (Maj. opn., ante, at p. 30.) Thus, in addition to the legislative command pursuant to section 54964 that local government agencies not engage in “express advocacy” and that they fund only those communications about ballot measures that are informational in nature, such communications must also pass the Stanson test of not using methods that constitute campaign activity.
With respect to those methods, it is noteworthy that today’s decision makes clear, in a way that Stanson did not, that a government agency’s informational activities with respect to ballot measures are not limited to responses to citizen requests, but can also entail proactive measures to inform citizenry about the probable effects of a ballot measure. Municipalities are statutorily authorized to gather information about the impacts of proposed ballot measures (Elec. Code, § 9212) and are often uniquely well positioned to disseminate such information. Nor do I understand the various methods used by the city in the present case, which the majority correctly concludes are lawfhl, to necessarily represent the outer limits of permissible publicly funded communications. Precisely where such outer limits are to be drawn awaits other cases.
It also remains to be seen whether the concept of prohibited “campaign activity” set forth in Stanson, and reaffirmed by the majority meets the current needs of governance. Since Stanson was decided over 30 years ago, local government finance in California has undergone a sea change. One aspect of that transformation is that after the passage of Proposition 13 in 1978 and subsequent measures, the power to raise local revenues has shifted from the local legislatures—the city councils, boards of supervisors, school boards and boards of directors of special agencies—to the electorate, which now must approve all revenue increases and increases in bonded indebtedness at the ballot box, usually by a supermajority vote. (See Cal. Const., arts. XIIIA, XIIIC.) In other words, the local government legislative power to finance government projects and services no longer resides with the local *44legislative body as it did when Stanson was written, but with the local electorate. Thus, for example, whereas in the 1978 general election, one ballot initiative relating to local taxes and none to local bond issues was reported in Los Angeles County, in the 2008 general election 11 local tax initiatives and 21 bond initiatives were reported. (County of L.A., Off. of Registrar-Recorder, Official Election Returns, Gen. Elec. (Nov. 7, 1978); County of L.A., Dept. of Registrar-Recorder/County Clerk, Final Official Election Returns, Gen. Elec. (Nov. 4, 2008).)
In this context, local and regional agencies sometimes have been specially charged with the task of sponsoring ballot propositions to raise revenue to fund various infrastructure improvements and services that are deemed necessary. The critical role of local governments in such sponsorship is illustrated by the recent case of Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments (2008) 167 Cal.App.4th 1229 [84 Cal.Rptr.3d 714] (Santa Barbara County). By statute, the county transportation authority (SBCAG), was “specifically empowered to impose a retail transaction and use tax of up to 1 percent to fund transportation improvements and services in its county. (Pub. Util. Code, § 180202.) Before a sales tax may be imposed, however, the authority must adopt a ‘transportation expenditure plan’ for revenues ‘expected to be derived from’ the tax, approve an ordinance imposing the tax, and obtain approval of the ordinance by ‘a majority of the electors voting on the measure ... at a special election called for that purpose by the board of supervisors, at the request of the authority . . . .’ (Pub. Util. Code, §§ 180201, 180206.)” (Santa Barbara County, supra, 167 Cal.App.4th at pp. 1239-1240.)
SBCAG proposed a ballot proposition, Measure A, for the November 2008 ballot seeking to extend the 0.5 percent countywide sales tax to fund various transportation projects and services. (Santa Barbara County, supra, 167 Cal.App.4th at p. 1234.) It was opposed by the Santa Barbara County Coalition Against Automobile Subsidies, a nonprofit corporation. Plaintiff corporation filed a complaint against SBCAG, claiming it was engaging in illegal campaign activity. As the court explained: “SBCAG retained a private consultant to survey voter support for an extension of the sales tax. The consultant determined the arguments in favor of extension that were received most favorably by the voters polled, potential arguments in opposition, and the best strategy to maximize voter support. In addition, SBCAG staff and committee members attended public meetings with civic groups during which staff presented information regarding the transportation expenditure plan, and the importance of extending the 1989 sales tax to satisfying the county’s transportation needs.” (Ibid.)
*45The Court of Appeal upheld the trial court’s grant of SBCAG’s motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16, holding there was no probability of plaintiff’s prevailing on the merits. The Court of Appeal’s conclusion that SBCAG’s actions did not constitute unlawful campaign activity largely turned on the fact that all the activity at issue had occurred before the measure was placed on the ballot. As the court explained: “SBCAG was performing its legislative duty to obtain financing for county transportation needs. [][] Governments must provide facilities and services that require funding through taxation. The SBCAG is permitted and even required to expend public funds to determine the cost of the county’s transportation needs and propose ordinances calling for elections to obtain the necessary revenue. When a government agency’s activity represents its “. . . judgment of what is required in the effective discharge of its responsibility, it is not only the right but perhaps the duty of the body to endeavor to secure the assent of the voters thereto.” ’ ” (Santa Barbara County, supra, 167 Cal.App.4th at pp. 1240-1241.)
Although the court’s decision rested on the fact that SBCAG’s activity preceded placement on the ballot, the case highlights the tension between on the one hand statutorily authorizing government agencies to propose revenue raising ballot initiatives (see also Elec. Code, §§ 9140, 9222 [authorizing boards of supervisors and city councils to submit ballot questions to voters]), and on the other hand forbidding them from campaigning for those initiatives. Under these circumstances, it would seem a government agency has a special role to play in informing the electorate about the reasons for enacting the measure it has proposed. That information must be, to be sure, “an accurate, fair, and impartial presentation of relevant facts” (§ 54964, subd. (c)(2)), but it necessarily will involve some degree of advocacy, since the agency is itself sponsoring the ballot measure based on its assessment of local needs.
The extent to which the funding of an active informational campaign to promote or defend a lawfully government-sponsored ballot measure would fit within Stanson’s and the majority’s informational/campaign activity dichotomy is not entirely clear. Yet as the majority reaffirms, courts are not necessarily the final word on the matter. Stanson’s and the majority’s holdings are limited to situations in which there is no “clear and unmistakable [legislative] language specifically authorizing a public entity to expend public funds for campaign activities or materials.” (Maj. opn., ante, at p. 24; see also Stanson, supra, 17 Cal.3d at pp. 219-220.) Indeed, one of the strengths of the majority opinion, and of Stanson, is that they leave room for the possibility of legislative innovation in this area to respond to new or unique circumstances.
*46Of course, any such legislation would have to conform to constitutional constraints so as to preserve “the integrity of the electoral process.” (Stanson, supra, 17 Cal.3d at p. 218.) At the very least, such legislation must follow Professor Tribe’s dictum that “government [may] add its own voice to . . . many ... it must tolerate, provided it does not drown out private communication.” (Tribe, American Constitutional Law (2d ed. 1988) § 12-4, p. 807.) But at a time when government sponsorship of revenue-raising ballot measures has become an integral part of local government finance, the blanket prohibition on government-funded “campaign activity” may be neither constitutionally required nor socially optimal. The Legislature may wish to clarify the extent to which an agency can engage in an active informational campaign decidedly in favor of or in defense of a measure it has been charged with sponsoring.
With these provisos in mind, I concur in the majority opinion.
Werdegar, L, concurred.
Appellants’ petition for a rehearing was denied June 17, 2009.
*47APPENDIX A
REPEAL OF THE UTILITY USERS TAX
0008^8
On November 5, 2002 Salinas’ voters will determine whether to-continue or elimiriate the City’s Utility Users Tax and the services provided by the tax. The Utility Users Tax was instituted in 1969 to provide police, fire library, parks, recreation and capital improvements for Salinas’ residents. This year, the City expects $8,060,000 in General Fund revenue or 1'3% of the City’s total General Fund budget from the Utility Users Tax.' On July 16, 2002, the Salinas City Council unanimously identified the services- that would be eliminated or reduced if the Utility Users Tax is repealed. These services would have to be eliminated or reduced in order to balance tbe City’s budget if the Utility Users Tax is repealed. If the Utility Users Tax is repealed, these program and service reductions will be completed by March 31,2003.
Facilities To Be Closed
Ereadbox Recreation Center El Dorado Park Recreation Center Hebbron Heights Recreation Center El Gabilan Library Cesar Chavez Library
Ooster Park Recreation Center Central Park Recreation Center Firehouse Recreation Center Municipal Pool
Programs / Services To Be Eliminated
Volunteer Services' School Crossing Guards Paramedic Seivices Graffiti Abatement Narcotics & Vice Unit
Neighborhood Services Hazardous Materials Control Water Conservation Planning Literacy Services
Community Funding To Be Eliminated
Rodeo Kiddie Kapers Parade Suicide Prevention / Crisis Center Oidfown Maintenance Cultivating Peace Initiative Community Human Services Project Sister City Association
Carnival California International Airshow ' Arts Council Second Chance Youth Program Sunrise Honse Chamber of Commerce Youth Commission
Programs / Services To Be Reduced
School Resource Officers Fire Prevention Park Maintenance Animal Control Services
Code Enforcement Facilities Maintenance Street Tree Maintenance
Detailed information about the elimination and/or reduction of these programs and services is contained to the June 24,2002 Report on the Impact of the Utility Users Tax Repeal Initiative. The report is available in City Hall and in all City libraries.- The report is also available on the City’s web site at www.ci.salinas.ca.us.
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*49APPENDIX B
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*50APPIINDIX B
UTILITY USERS TAX
ANSWERS TO FREQUENTLY ASKED QUESTIONS
Listed below ara frequently asked questions about the Utility Users Tax. Residente who would like more detailed information in regards to these questions can visit the City's web slfe at www.cl.salinas.ca.us or request a copy of the Utility Users Tax report from City Hall or any of the Clly libraries.
What is the Utility Users Tax? . The Utility Users Tax Is a 6% tax on the following utility charges: gas, electricity, cable television, water and telephone. The Utility Users Tax is the only one of the four major General Fund revenue sources that the Clly receives 100% of the tax collected. Al! Utility User Tax dollars stay in the community and are spent entirely for the benefit of City residents. The Utility Users Tax, unlike Ihe other three major General Fund revenue sources: sales tax, property taxes and vehicle license fees are not shared with Ihe state of California, other municipalities or special districts.
IV?ten did the City first begin collecting (he Utility Users Tax? The City began collecting the Utility Users tax fn 1069. The original tax rate v/as 5%. The lax was Increased to 6% In 1394.
Were Citizens ever given an opportunity to vote for the implementation of the Utility Users Tax? No, however, Ihe Salinas City Charter allows for Ihe repeal of any adopted ordinance by a majority of the voters. The residente of Salinas and their elected representatives on the City Council could have considered the repeal of this tax anytime during the last thirty-three years.
How much revenue is generated by the Utility Users Tax? This year, the Clly expects approximately $8 million In General Fund revenue or 13% at the City's total General Fund budget from the Utility Users Tax.
Ilow much does the average resident pay annually in Utility Users Taxes? It Is estimated that the average Salinas Household pays approximately $124.00 each year in Utility User Taxes. This is approximately .34 cents a day.
What docs the City do with the money collected from the Utility Users Tax? The Utility Users Tax dollars are deposited in Ihe City’s General Fund budget and it is used to provide funding for important government services Including Police, Fire, recreation programming, library services and park maintenance as well as the City's General Fund Capital Improvement Program. •
Do residents currently have a voice in how the Utility Users Tax revenue is spent? Yes, the Utility Users Tax is considered General Fund Revenue, Unlike revenue received from the federal or state government, the Satinas community determines how this money is spent each year. Residents are encouraged to participate in the annual budget process to determine what services are provided for the benefit of the community.
Is there any fixed income exemptions for the. Utility Users Tax? No, however, the City encourages low-income residents to apply for a variety of programs sponsored by utility companies that reduce utility bills. Examples of these programs Include: PQ&E's CARE Program, which provides low-income households a 20% discount on monthly energy bills; and Pacific Bell’s Universal Lifeline Telephone Service that provides discounted residential telephone service to Its customers who meet certain requirements.
Do Other Cities Collect a Utility Users Tax? Yes. .Many other cities in Monterey and Santa Cruz Counties as well as throughout the state have a utility users tax. Cities vritii utility users taxes Include Ihe City of Monterey, City of Santa Cruz, King City, Gonzales, Pacific Grove and Walsonville.
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*51APPENDIX B
006861
• CUTS TO POLICE SERVICES EXPECTED . ; IF MEASURE Ó ÍS APPROVED BY VOTERS ; .
I lie magnitude of budget reductions resulting from the potential passage of Measure O, the Initiative to repeal the Utility Users Tax, would force the City to cut programs arid services in the Police Department totaling $1.7 million. The $1.7 million in proposed service cuts include: elimination of the School Crossing Guard Program, reductions in Support Services, such as removal of abandoned vehicles from public sheets, elimination of the Narcotics and Woe Unit, reductions to the School Resource Officer Program, and reductions In the Animal Services Program. According to Police Chief Daniel Ortega, each of the programs to be eliminated or reduced significantly Impact Salinas' “community policing philosophy* and the Department's ability to tailor services to meet specific community needs.
The chart Illustrates the fiscal.impacts of the proposed cuts.
PROGRAM IMPACT DEBUDGET CUTS BUDGET REDUCTION School Crossing Guards Elimination of Program $163,000 Support Services Reduction in Services Such as VehtcleAbatement $109,000 Narcotics and Vice Elimination of Program $768,000 School Resource Officers Reduction In Number of Schools Served $565,100 Animal Control Reduction In Animal Shelter Services $11.1,200 - ■ TOTAL $1,737,300 Residents Interested in learning more about the potential Impacts to Police Services can visit the City's V&b Sito at mw.cteetinas.ca.us or pick up a copy of the City Manager's Utility Users Vox report atihá City Hall or at any of the three City tibiarles
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Methaaphetamins lab. The proposed eMnatfon oí the Narcotics and Vice Unit v/ill hamper Police Department's ability to promote the City Council's fit goal of maintaining a safe and peaceful community.
benefit of superdsed street crossing as a result 0fg,s ren6aj 0fp,s um usere Tax-
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*52APPENDIX B
600862
REPEAL OF 'ÜUT IMPACTS ON FIRE SERVICES
The Fire Department's budget, if ivisasure 0, ihe Utility Users tax Is repealed, will result In an annual budget reducán ol $1,036,000 ($1.036 million). This cut of approximately 10% of Ihe Department's $9.9 million budget will result In the elimination or reduction of Ihe fallowing programs.
PROGRAM V IMPACT OF BUOGET'GUTS BUDGET REDUCTION Paramedic Services " Elmlnation of Prograriri/Co.nysrsion of 21 :.....\ParamedraFlrefighterstoFfrefigh'teronlyposiuons $414,500 Paramedic Rescue Squad *■';v * Elimination of Pragrarn/Slowei:response tíme'-'*' • '..'y . ... • for emergency medical response call .. '..z $439,500 - .Hazanfous Materials Cqnholf • ] . Elimination of Prograni/Ellmlnates a Response , ' "./.ft first line defense against' Bfó/Cherplca! terrorism . ■ $69,100 Firo Prevention Slower construction pfen approval process/ Elimination of.' . * ' lire prevention school presentations forever 15,000 studentsjaiinually '$[12,900 .7 . " TOTAíry^i-y;; ..y . 'j-'$1,036:000 A detailed report of the potential impacts of Measure O en the City's Fire Qepaijrtient budget reductions are available ón line ai the City's Wab Site (mY/.dsolinas.cs. us). .Paper copies of the City Manpga/s Utifity Üsers Tax Beport are available at City Hall or at any of the. % three City Stories. ’ • • . ' •-: .<„ . - 7.. . ... i \
FINANCIAL IMPACTS; ELIMINATION OFIH'IÜTYUSERS TAX ON RECREATION-PARK SERVICES . " ,
The Mission of the Cl ty's Recreation-Park Department Is to enhance life through high quality recreation, educational, social and cultural programs, events and leisure activities which are responsive to a diverse population. The potential Impacts of the proposed repeal of the Utility Users Tax will make it difficult for the Recreation-Park Department to successfully carry out this mission.
.The Department's approved operating budget for fiscal yaar 2002-2003 lhat began July 1st is $3,791,700. The proposed Utility Users Tax repeal will result in budget cuts totaling $1,153,700,or 30% of the Department's total operating budget. The impacts of these cuts will result in Ihe closure ol the following facilities: Breadbox Recreation Center, Closter Park Recreation Center, Central Park Recreation Center, El Dorado recreation Center, Firehouse Recreation Center, Hebbran Heights Recreation Center and the Municipal Svrimming Pool,
More than 600,000 uses for Reereallon-Park programming and sendees are recorded annually, if the Utility Users Tax is repeated, the following programs will be eliminated:
* Senior Program at the Firehouse Recreation
* Tiny Tots Day Program for 3 to 5 years olds eliminated at Central Park, Closter Park and El Dorado Park •
■ Closure ol the City's Skateboard and BMX Facilities
* Elimination of drop-in programs at the Breadbox, Closter Park, Centraf.Parfq the Firehouse and Habbron Heights
■ Elimination of cultural, arts and athletic programs at all facilities scheduled for closure
* Closure of the City's only year round public swimming pool
A detailed report of the potential Impacts of Measure O on Recreation-Park is available by visiting the City's Web Site at VAVwcl.s3lines.ca. us or by picking up a copy of the City Managers UtlSiy Users Tax Report at City Hall or at any of ihe three •hity libraries.
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*53APPENDIX B
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*54APPENDIX B
Qj)0864
• - City CouñcilPromoieB Strong Neighborho od. Initiative.
The Salinas City Council In Its efforts to promote strong neighborhoods has developed the Neighborhood Problem Solver. The Neighborhood Problem Solver is a 70-page step-by-step ‘how to" guide that Is designed to assist residents in improving their neighborhood’s overall quality of life.
The Idea for the Neighborhood Problem Solver was developed by City Council at meetings held with concerned residents. City Council acknowledged that the City could not solve every resident’s concern through a telephone call to City Hall. However, City Council did promise residents that It would seek out new “tools" and resources to provide residents assistance in solving problems that extended beyond the City’s Jurisdiction or available resources,
City Council, as a result of these meetings, requested that the City Administration Identify new “tools" and resources that would assist residents:
* Experiencing a problem or series of problems lhat requires significant resources and time to resolve;
* Unable to determine where to find assistance in resolving a community problem; and
* Already involved In active neighborhood organizations but are In need of technical assistance.
The Neighborhood Problem Solver does Ibis and more. The Neighborhood Problem Solver and the optional technical training provided by the Neighborhood Services Coordinator are designed lo assist residente In creating solutions Siat meet specific community needs. The Neighborhood Problem Solver Is widen in English and Spanish
offering assistance in:
* Problem identification
■ Organizing and rallying the community around " a problem or set ot Issues
■ Conducting effective meetings
E Assistance in finding meeting room space
* Organizing a neighborhood cleanup
E Identifying community resources
E Dealing effectively with the media
The Neighborhood Problem Solver is not a “magic potion" or panacea for ending problems In Salinas. However, City Council Is confident that this new "tool" Is empowering and will assist Salinas residents In improving the quality of lile of their neighborhoods. The Neighborhood Problem Solver Is available on-line at www.cl.salinas.ca.us or at the reference counter of the City's three libraries. Salinas’ residents interested in learning more about the Neighborhood Problpm Solver and its related training can contact Anna Velazquez, Neighborhood Services Coordinator at 758-7229.
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Safes Kids House organized a community planting event on Ssiber Street- .
Jsdyn and Talda are grafillli abatement volunteers
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*55APPENDIX B
000865
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