FSM SUPREME COURT APPELLATE DIVISION
Cite as Hashiguchi v. Lambert 24 FSM R. 101 (App. 2023)
MYRON HASHIGUCHI,
Petitioner,
vs.
AUSEN LAMBERT,
Respondent.
_____________________
PERPETUA SAPPA KONMAN,
Real party in interest.
APPEAL CASE NO. C1-2023
OPINION
Argued: May 1, 2023
Decided: May 8, 2023
BEFORE:
Hon. Beauleen Carl-Worswick, Associate Justice, FSM Supreme Court
Hon. Larry Wentworth, Associate Justice, FSM Supreme Court
Hon. Dennis L. Belcourt, Associate Justice, FSM Supreme Court
APPEARANCES:
For the Petitioner: Salomon M. Saimon, Esq.
P.O. Box 911
Kolonia, Pohnpei FM 96941
For the Respondent:
Jeffrey S. Tilfas, Esq.
Assistant Attorney General
FSM Department of Justice
P.O. Box PS-105
Palikir, Pohnpei FM 96941
For the Real Party in Interest:
Daniel J. Rescue, Jr., Esq.
Ramp & Mida Law Firm
P.O. Box 790
Weno, Chuuk FM 96942
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A person appearing at any polling place to vote must report his or her full name to the election board members, and, if the person has been issued a voter identification card, he or she must present that voter identification card to the election board members in order to vote. A voter identification card is an identification card issued under the National Election Director's authority to a registered voter that contains the registered voter's name, registration number, state, congressional election district, municipality, date of birth, sex, signature, and other identifying information, and that provides a means of indicating whether that registered voter has already cast a ballot in each national election. Hashiguchi v. Lambert, 24 FSM R. 101, 105 (App. 2023).
The National Election Director may issue a Voter Identification Card to any registered voter at or after the time of registration, and a registered voter who has been issued a voter identification card must present that card before being issued a ballot at his or her polling place. Hashiguchi v. Lambert, 24 FSM R. 101, 105-06 (App. 2023).
A voter with a valid voter identification card may vote at any special polling place designated for his or her congressional election district without submitting a written request, but, if a person has not been issued a voter identification card, then he or she must present other proof of identity as required, and, on election day, an election board member must check the signature list to determine whether or not the person appearing is a registered voter for that congressional election district and municipality, and if so, must announce the name appearing on the signature list. Hashiguchi v. Lambert, 24 FSM R. 101, 106 (App. 2023).
Once the person's identity has been established and entry has been found on the signature list, the voter must sign his or her full name next to his or her entry on the signature list. An election board member must then issue the person an official ballot, and, if the person has presented a voter identification card, will mark the person's voter identification card so as to indicate that he or she has voted in that national election. Hashiguchi v. Lambert, 24 FSM R. 101, 106 (App. 2023).
No one may cast a ballot in a national election at a polling place unless his or her name appears on the signature list for that polling place and he or she signs the signature list unless that person presents a valid voter identification card for that polling place which indicates that he or she has not yet voted in that national election; or the voter's name lawfully appears on the national voter registry but is not listed on the signature list of the polling place in the state, congressional election district or municipality in which he or she resides and has voted in at least one prior national election, and is not listed on the signature list of any other polling place, or a voter's name lawfully appears on the national voter register and is placed on the signature list of a polling place in a state, congressional election district or municipality in which the voter does not reside and the voter has not applied to vote absentee ballot. Hashiguchi v. Lambert, 24 FSM R. 101, 106 (App. 2023).
If a candidate believes that there was fraud or error committed in the canvassing, casting or return of votes in a national election which cannot be corrected by recount, a candidate may petition for a revote, either in a congressional election district as a whole, or in the portion thereof where the fraud or error took place. Hashiguchi v. Lambert, 24 FSM R. 101, 106 (App. 2023).
The National Election Director must grant the petition for a revote when he or she determines that the petitioner has shown by a preponderance of the evidence that it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred. Hashiguchi v. Lambert, 24 FSM R. 101, 106, 108 (App. 2023).
When the National Election Director decides to grant or deny a petition for a revote, he or she must record the reasons for such decision in writing and provide a copy to the petitioner. An aggrieved candidate may appeal that decision to the FSM Supreme Court appellate division, which shall review the appeal to determine if the National Election Director's decision was a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; b) in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right; c) without substantial compliance with the procedures required by law; or d) unwarranted by the facts. Hashiguchi v. Lambert, 24 FSM R. 101, 107 (App. 2023).
The parties in an election appeal will be required to file an agreed record before filing any briefs. Hashiguchi v. Lambert, 24 FSM R. 101, 107 (App. 2023).
The court's review of appeals of National Election Director decisions is limited to determining if the National Election Director's decision is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or unwarranted by the facts. There is no FSM Code provision that provides for the court to conduct a de novo review of election appeals. Hashiguchi v. Lambert, 24 FSM R. 101, 107 (App. 2023).
Although FSM Administrative Procedures Act provides for de novo review of appeals of administrative determinations under certain circumstances, that provision is not applicable to election appeals because the court's jurisdiction over election contests rests solely on the Constitution and the election statutes and the FSM Election Code does not provide for a de novo review (or trial) of the National Election Director's decisions. Hashiguchi v. Lambert, 24 FSM R. 101, 107-08 (App. 2023).
Although the provision of Title 9 does not mandate that a voter list be alphabetized, it is an error to provide an unusable list of voters for the poll workers to manage on election day because an unusable list is the equivalent to having no list at all. Hashiguchi v. Lambert, 24 FSM R. 101, 108 (App. 2023).
While Title 9's provisions entrust the Director with addressing a petition for a revote, those same provisions do not mandate that the Director hold any proceedings to clarify and resolve a candidate's factual assertions that errors or fraud occurred during an election, including hearing testimony from witnesses. To not do so, however, suggests that such a subsequent decision denying a requested revote may, possibly, border on an abuse of discretion. Hashiguchi v. Lambert, 24 FSM R. 101, 108 (App. 2023).
Voter identification cards may be issued at any time. This includes the very day that an election is held. Hashiguchi v. Lambert, 24 FSM R. 101, 108 (App. 2023).
A candidate may designate more than two poll watchers at a special polling place, but that candidate may have only two poll watchers at any one time, as the law allowed. Hashiguchi v. Lambert, 24 FSM R. 101, 108 (App. 2023).
The National Election Director's decision denying a petition for a revote will be upheld when, even if all 65 of the individuals who provided their statements – sworn or unsworn – had voted, it does not appear that this could have resulted in another's election since even double, triple, or quadruple that number could not have changed the outcome. Hashiguchi v. Lambert, 24 FSM R. 101, 109 (App. 2023).
In petitioning for a revote, a petitioner must demonstrate that not only were there errors or fraud that occurred in connection with an election, but that it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred. Hashiguchi v. Lambert, 24 FSM R. 101, 109 (App. 2023).
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BEAULEEN CARL-WORSWICK, Associate Justice:
This case came to be heard by the Court on May 1, 2023. FSM App. R. 34 (oral arguments). Appearing on behalf of the Petitioner, Myron Hashiguchi, was Salomon Saimon, Esq. Appearing on behalf of the Respondent, FSM National Election Director Ausen Lambert, was Assistant Attorney General Jeffrey Tilfas, Esq., of the FSM Department of Justice. Appearing on behalf of the Real Party in Interest, Dr. Perpetua Sappa Konman, was Daniel Rescue, Esq., of the Ramp & Mida Law firm.
This case arises from the March 7, 2023 national election for Chuuk State's Third Congressional District. At issue in this appeal is a decision by the FSM National Election Director denying Hashiguchi's administrative petition for a revote for the special polling places in Guam and Honolulu. For the reasons stated below, we affirm the decision by the National Election Director denying the petition for a revote of the special polling places in Guam and Hawaii in the March 7, 2023 election in Chuuk's Third Congressional District. Accordingly, this appeal is hereby dismissed.
A. BACKGROUND
1. March 7, 2023 Election
The candidates for Chuuk's Third Congressional District election held on March 7, 2023, were Myron Hashiguchi and Perpetua Konman, the latter of whom is the incumbent. Konman was declared the winning candidate. She received a total of 3,572 votes. Hashiguchi, by contrast, received 3,280 votes. This is a difference of 292 votes. Hashiguchi timely petitioned the National Election Director for a revote for the special polling places in Guam and Honolulu. In Honolulu, Konman received a total of 443 votes, while Hashiguchi received 274 votes. This is a difference of 169 votes. In Guam, Konman received a total of 563 votes, while candidate Hashiguchi received 429 votes. This is a difference of 134 votes. Together, for both Guam and Honolulu, there is a difference of 303 votes between these candidates. Thus, Guam and Honolulu provided Konman's winning margin.
2. Petition for Revote
In his petition for a revote, Hashiguchi claimed that many voters in both Guam and Honolulu were turned away at the polls because their names were not included on the lists of eligible voters that were used by the poll workers on election day. Hashiguchi included both affidavits and unsworn statements from numerous individuals from both Guam and Hawaii claiming that they were turned away on the day of the election for this reason. Hashiguchi maintains that this error came about because the voter lists – which were hundreds of pages in length – were not alphabetized, which, in turn, purportedly hampered the efforts of the poll workers to find the names of the voters in question. In addition, according to Hashiguchi, late in the day on March 7, 2023, an alphabetized voter list was eventually used by the poll workers. Hashiguchi argues that this alphabetized list should have been produced by the National Election Director 20 days prior to the election, as required by Title 9 of the FSM Code.
Hashiguchi further argued that voter identification cards were randomly issued at the special polling places at issue here on the day of the election, and, further, that some of these voter identification cards were either not valid, or were used – "recycled" is the terms used by Hashiguchi's counsel at oral argument before the Court – by more than one voter. In addition, Hashiguchi maintains that Konman was allowed to have multiple poll watchers, while he was only allowed a single poll watcher at the special polling places.
Lastly, Hashiguchi requested that the National Election Director hold a hearing so that testimony about the alleged errors cited in his petition for a revote could be provided by aggrieved voters, along with testimony from others such as the acting Election Commissioner in Chuuk State.
3. Director's Decision Denying Revote
In his decision denying Hashiguchi's requested revote, the National Election Director found that the voter signature lists – both unalphabetized and alphabetized – were prepared and provided at least 20 days prior to the March 7, 2023 election. The Director explained that both alphabetized and unalphabetized lists were used as "some voters preferred to sign the signature lists for their villages . . . instead of the alphabetical . . . signature lists." The Director further found that the names of some of the voters who submitted statements on Hashiguchi's behalf, claiming to have been denied the right to vote, were not included on the voter signature list. Thus, to the Director, these individuals were properly turned away at the poll on election day. The Director further found that the names of other individuals who similarly provided statements in Hashiguchi's support, were included on the voter signature lists. Thus, the Director concluded that these individuals simply did not turn up to vote on election day.
With regard to the voter identification cards, the Director confirmed that voter identification cards were issued on the day of the election. The Director explained that a total of 150 individuals in Guam used voter identification cards during the March 7, 2023 election. Of these, 141 voter identification cards were issued on March 7, 2023. According to the Director, the voter identification cards were prepared by his office in Palikir, Pohnpei, and sent to the poll workers in Guam for distribution to voters. Thus, the Director found no error with regard to the issuance or use of any voter identification cards, nor did he find any error with regard to the poll watchers who were on duty that day. The Director explained that a candidate was required to notify the Director of the identity of his or her poll watchers – which were not to exceed more than two individuals at any one time at the poll – at least seven (7) days prior to the election, and that here, Hashiguchi had not issued any such notice.
Lastly, the Director found that the alleged errors cited by Hashiguchi would not have resulted in a change in the outcome of the election, even with a difference of 292 in votes. As such, the Director, without providing for any hearing, denied Hashiguchi's request for a revote.
B. DISCUSSION
Under the FSM Code, a person appearing at any polling place to vote shall report his or her full name to the election board members. 9 F.S.M.C. 704. If the person has been issued a Voter Identification Card, he or she must present that voter Identification Card to the election board members in order to vote. Id.
A "Voter Identification Card" is an identification card issued under the authority of the National Election Director to a Registered Voter that contains the Registered Voter's name, registration number, State, Congressional Election District, Municipality, date of birth, sex, signature and other identifying information, and that provides a means of indicating whether that Registered Voter has already cast a ballot in each National Election. 9 F.S.M.C. 102(23). The National Election Director may issue Voter Identification Cards to all Registered Voters at or after the time of registration. 9 F.S.M.C. 404(5) (emphasis added). A Registered Voter who has been issued a Voter Identification Card must present that card before being issued a ballot at his or her Polling Place. 9 F.S.M.C. 404(5).
A voter with a valid Voter Identification Card may vote at any special Polling Place designated for his or her Congressional Election District without submitting a written request. 9 F.S.M.C. 605. If a person has not been issued a Voter Identification Card, then he or she must present other proof of identity as required under the rules and regulations promulgated pursuant to Title 9. 9 F.S.M.C. 704(1).
In any event, on election day, an election board member must check the Signature List to determine whether or not the person appearing is a Registered Voter for that Congressional Election District and Municipality, and if so, must announce the name appearing on the Signature List. 9 F.S.M.C. 704(2). Once the person's identity has been established and entry has been found on the Signature List, he or she shall sign his or her full name next to his or her entry on the Signature List. Id. An election board member must then issue the person an official ballot, and, if the person has presented a Voter Identification Card, will mark the person's Voter Identification Card so as to indicate that he or she has already voted in that National Election. Id.
No person is permitted to cast a ballot in a National Election at a Polling Place unless his or her name appears on the Signature List for that Polling Place and he or she signs the Signature List. But a person shall be permitted to cast a ballot after signing a supplemental Signature List if:
(a) a person whose name does not appear on the Signature List but who presents a valid Voter Identification Card for that Polling Place which indicates that he or she has not yet voted in that National Election;
(b) a voter's name lawfully appears on the National Voter Registry but is not listed on the Signature List of the Polling Place in the State, Congressional Election District or Municipality in which he or she resides and has voted in at least one prior national election, and is not listed on the Signature List of any other Polling Place, or
(c) a voter's name lawfully appears on the National Voter Register and is placed on the Signature List of a Polling Place in a State, Congressional Election District or Municipality in which the voter does not reside and the voter has not applied to vote absentee ballot pursuant to chapter 6 of this title.
9 F.S.M.C. 704(3).
Any election board member, poll watcher or Registered Voter may challenge the identity or eligibility to vote of any person appearing at the Polling Place to vote on Election Day in accordance with Title 9, section 708. 9 F.S.M.C. 704(4). An election board member shall record in the official log book for the Polling Place the full name, date of birth, sex and municipality of registration of any person not allowed to cast a ballot as a result of subsections (3) or (4) of section 704. 9 F.S.M.C. 704(5). The election board member shall also record in the official log book the reason for disallowing the person to vote. Id. The person not allowed to vote shall then sign the log book next to his or her entry. 9 F.S.M.C. 704(5).
That aside, pursuant to Section 801 of Title 9 of the FSM Code, if a candidate believes that there was fraud or error committed in the canvassing, casting or return of votes in a National Election which cannot be corrected by recount, a candidate may petition for a revote, either in a Congressional Election District as a whole, or in the portion thereof where the fraud or error took place. The National Election Director must grant a petition for a revote where he or she determines that the petitioner has shown by a preponderance of the evidence that it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred. 9 F.S.M.C. 803(2).
Under Section 804 of Title 9 of the FSM Code, if the National Election Director decides to grant or deny a petition for a revote, he or she shall record the reasons for such decision in writing and provide a copy to the petitioner. An aggrieved candidate may appeal the decision to the Appellate Division of the Supreme Court of the Federated States of Micronesia, which shall review the appeal to determine if the decision by the National Election Director was: "(a) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (b) in excess of statutory jurisdiction, authority, or limitations, or a denial of legal right; (c) without substantial compliance with the procedures required by law; or (d) unwarranted by the facts." 9 F.S.M.C. 804.
1. Record on Appeal
As an initial matter, we note that the record on appeal in this case is incomplete. Indeed, none of the parties included a copy of the voter signature lists that were actually signed by the voters who were able to cast their votes in the March 7, 2023 election in either Guam or Hawaii. Instead, Hashiguchi submitted an unalphabetized voter signature list, that bears no signatures by any voters. However, and as noted above, in issuing his decision in this case, the Director apparently reviewed the voter signature list that bears the signatures of the voters, as he concluded that the names of some of the individuals who submitted statements in support of Hashiguchi's cause were included on that list, but without any corresponding signature. To the Director, this meant that the person in question never tried to vote on March 7, 2023.
Similarly, none of the parties submitted a logbook showing the names of any voters who were denied a ballot in connection with the March 7, 2023 election, as provided for under Section 704(5) of Title 9 of the FSM Code. In addition, no party submitted copies of any voter identification cards, nor a list of any voters who were issued voter identification cards in connection with the March 7, 2023 election. Without these documents, the record on appeal in this case is incomplete. FSM App. R. 10 (burden of preparing record on appeal falls on parties). In the future, the parties in an election appeal will be required to file an agreed record before filing any briefs.
2. Request for de novo review on appeal
In addition, and as we explained from the bench on May 1, 2023, we will not conduct a de novo review of this case, including, as Hashiguchi sought, the presentation of testimony from witnesses who purportedly observed what transpired at the special polling places in Guam and Hawaii. As noted above, our review of appeals from decisions by the National Election Director is limited to determining if the decision by the National Election Director is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or unwarranted by the facts. There is no provision in Title 9 of the FSM Code that provides for the Court to conduct a de novo review of the matter. Kony v. Mori, 6 FSM R. 28, 30 (Chk. 1993) (by statute an aggrieved candidate in an election contest can only appeal to the Court's appellate division after his petition to the National Election Commissioner has been denied).
While Hashiguchi is correct that the provisions of the FSM Administrative Procedures Act, 17 F.S.M.C. 101 et seq., provide for de novo review of appeals of administrative determinations under certain circumstances, that provision of the FSM Code is not applicable here. Moroni v. Secretary of Resources & Dev., 6 FSM R. 137, 138 (App. 1993) (the Administrative Procedures Act provides for judicial review of administrative acts and applies to all agency actions unless explicitly limited by a Congressional statute; it mandates the trial court to "conduct a de novo trial of the matter," and to "decide all relevant questions of law and fact"). Moreover, and in any event, the de novo review provided for under the Administrative Procedures Act is undertaken by a trial court, rather than an appellate panel. Hadley v. Bank of Hawaii, 7 FSM R. 449, 452 (App. 1996) (an appellate court cannot substitute its judgment for that of the trial court, in part because the trial court had the opportunity to view the witnesses and the manner of their testimony).
Our jurisdiction over election contests rests solely on the Constitution and the election statutes. See Nelson v. FSM Nat'l. Election Dir., 16 FSM R. 414, 419 (App. 2009). The FSM Election Code (Title 9) does not provide for a de novo review (or trial) of the National Election Director's decisions.
3. Alleged errors in the March 7, 2023 election
Unlike the National Election Director, we are not convinced that the March 7, 2023 election was without error. Indeed, from what we can discern from the record here, there appeared to be some need by the Director's Office for a voter signature list that was maintained, or produced, in a useable format. Even before election day, some of the communications between officials at the Director's Office show that the voter list in question should have been alphabetized. Nonetheless, the record shows that at some point on election day the poll workers apparently used a voter list that was not alphabetized, or organized in some similar manner that would provide for easy use, other than reviewing the list page by page, in the hopes of locating a voter's name. The record, however, shows that towards the end of the election day, the poll workers were able to use an alphabetized list of the registered voters. This may have resulted in voters not being turned away, or simply choosing to not vote due to the delay in finding their name on the unalphabetized list. In any event, although the provision of Title 9 of the FSM Code does not mandate that a voter list be alphabetized, we consider it an error to provide an unusable list of voters for the poll workers to manage on election day. An unusable list is the equivalent to having no list at all.
We are also troubled by the Director's issuance of a written decision without first holding some type of proceeding to take testimony from witnesses in connection with his role as a fact finder. The Director's determination to issue a decision without holding any type of hearing in the face of both the affidavits and unsworn statements from allegedly aggrieved voters that Hashiguchi submitted, undercuts the Director's role in addressing a petition for a revote. Again, while Title 9's provisions entrust the Director with addressing a petition for a revote, those same provisions do not mandate that the Director hold any proceedings to clarify and resolve a candidate's factual assertions that errors or fraud occurred during an election, including hearing testimony from witnesses. To not do so, however, suggests that a subsequent decision denying a requested revote may, possibly, border on an abuse of discretion.
That aside, we cannot, based upon the record before us, conclude that there was any error in the March 7, 2023 election with regard to the issuance of voter identification cards or the placement by a candidate of poll watchers. As noted above, Title 9 provides that voter identification cards may be issued at any time. 9 F.S.M.C. 404(5). This includes the very day that an election is held. Similarly, while it is alleged that candidate Konman had more than two poll watchers at the special polling places here, there is no indication in the record that she requested to do so. At most, it appears that candidate Konman had only two poll watchers at any one time, as the law allowed; while there may have been other individuals at the special polling places on the election day, they cannot, without further evidence in the record, be considered to be the official poll watchers whom she advised the Director would be present on March 7, 2023.
4. Impact of errors on election of candidate
As noted above, under Title 9 of the FSM Code, the Director must grant a petition for a revote when he or she determines that the petitioner has shown by a preponderance of the evidence that it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred. 9 F.S.M.C. 803(2). Here, in his decision denying a revote, the Director found that a "revote should be reserved only for situations where election irregularities were so widespread as to likely result in a change of the election result." The Director further noted that a "[r]evote is not available where evidence given in support of a petition is false." This is apparently in reference to the Director's finding that some of the individuals who offered affidavits or statements about not be allowed to vote could have actually voted if they wanted to, as their names were included on the voter signature list.
The record here shows that the total number of votes cast at the Guam and Hawaii special polling places for both the candidates in Chuuk's Third Congressional District election was 1,709. Of this, 1,006 votes were cast for Konman (443 in Hawaii and 563 in Guam), while 703 votes were cast for Hashiguchi (274 in Hawaii, and 429 in Guam). This is a difference of 303 votes. In the record before us, Hashiguchi's initial request to the Director for a revote, includes statements from 30 voters in Guam and 35 voters in Hawaii, all of whom maintained that they were not allowed to vote because their names were not included in the voter list.
In his decision denying a revote, however, the Director found that 12 of the 30 voters from Guam, and 11 of the 35 voters from Hawaii, were included in the voter list, but that they did not cast their votes. It is unclear, however, if these voters did not vote because they gave up waiting as their names could not be quickly found on the unalphabetized version of the voter list. As noted above, the record before us does not include a log sheet of voters who were turned away at the polls, including the reason why they were not allowed to vote. In any event, even if all 65 of the individuals who provided Hashiguchi with their statements – sworn or unsworn – had voted, it does not appear that this could have resulted in Hashiguchi's election.
In this regard, we cannot conclude that the Director's decision to deny a revote for the special polling places in Guam and Hawaii on this basis was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Even double, triple, or quadruple that number could not have changed the outcome. Nor do we find that the Director's decision was unwarranted by the facts. Moreover, in petitioning for a revote, a petitioner must demonstrate that not only were there errors or fraud that occurred in connection with an election, but that it is more likely than not that the fraud or error complained of could have resulted in the election of a candidate who would not have won had the fraud or error not occurred. 9 F.S.M.C. 803(2) (emphasis added). It is the second prong of this two-part analysis that leads us to affirm the Director's decision at issue in this appeal. Judgment shall be entered by the Clerk of Court accordingly.
C. CONCLUSION
In conclusion, and for the reasons stated above, we affirm the decision by the National Election Director denying the petition for a revote of the special polling places in Guam and Hawaii in the March 7, 2023 election in Chuuk's Third Congressional District. Accordingly, this appeal is hereby dismissed.
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