9th Circuit Punts On Perry Prop 8; Certifies Standing To California

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Liberty & Justice by Mirko Ilic

We have unexpectedly quick news out of the 9th Circuit Court of Appeals on the Perry v. Schwarzenegger Proposition 8 marriage equality appeal. As you will recall, the case is in the 9th on appeal from the three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The current appeal had oral argument less than a month ago, on Monday December 6th.

Now we have the surprisingly fast first decision, if you can call it a “decision”. It is really a disguised punt. The main opinion is in docket No. 10-16696, where the effective docket order reads:

Filed Order for PUBLICATION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) for certification to California State Supreme Court. Before this panel of the United States Court of Appeals for the Ninth Circuit is an appeal concerning the constitutionality under the United States Constitution of Article I, § 7.5 of the California Constitution (“Proposition 8”). Because we cannot consider this important constitutional question unless the appellants before us have standing to raise it, and in light of Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (“Arizonans”), it is critical that we be advised of the rights under California law of the official proponents of an initiative measure to defend the constitutionality of that measure upon its adoption by the People when the state officers charged with the laws’ enforcement, including the Attorney General, refuse to provide such a defense or appeal a judgment declaring the measure unconstitutional. As we are aware of no controlling state precedent on this precise question, we respectfully ask the Supreme Court of California to exercise its discretion to accept and decide the certified question below. (See order for full text).

….

The case is withdrawn from submission, and further proceedings in this court are stayed pending final action by the Supreme Court of California. The parties shall notify the Clerk of this Court within three days after the Court accepts or rejects certification, and again within three days if the Court renders an opinion. The panel retains jurisdiction over further proceedings. IT IS SO ORDERED.

Now, as you will also recall, there were two cause numbers consolidated for oral argument and that, really, comprise the same effective case. In the second one, Docket No. 10-16751, the part of the action initiated by Imperial County attempting to intervene and provide governmental cover for standing on appeal, the effective corollary docket order reads:

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MICHAEL DALY HAWKINS and N. RANDY SMITH) AFFIRMED; DISMISSED. The district court order denying the motion to intervene is AFFIRMED. Movants’ appeal of the district court order concerning the constitutionality of Proposition 8 is DISMISSED for lack of standing. The deadline for filing a petition for panel rehearing or rehearing en banc is hereby EXTENDED until the deadline for such petitions in No. 10-16696, which will be 14 days after an opinion is filed in that appeal. The Clerk is DIRECTED to stay the issuance of the mandate in this case until the mandate issues in No. 10- 16696. AFFIRMED in part; DISMISSED in part. FILED AND ENTERED JUDGMENT.

In the second cause number, 10-16751, the court issued a 21 page per curiam (by the whole panel collectively) opinion addressing the Imperial county attempt at intervention. the court held:

None of the Imperial County movants has demonstrated a “significant protectable interest” at stake in this action, as it was brought by Plaintiffs, and we affirm on that basis alone.

The court effectively laughed at the attempt to use Deputy County clerk Isabel Vargas as a mule for intervention, wondering why the hell a minion would be used instead of, you know, the actual County Clerk. A real valid question, and the court found no good answer. The court similarly found that the Imperial County Board of Supervisors was not a proper vehicle, stating “…the Board plays no role with regard to marriage, which is “a matter of ‘statewide concern’ rather than a ‘municipal affair'”. The court rounded out the fisking as follows:

Moreover, the duties of the Supervisors themselves are not directly affected by this litigation, so they lack a significant protectable interest.

Second, the County itself has failed to demonstrate any interest of its own, apart from those claimed by Vargas or the Board of Supervisors.

So, in a nutshell, the argument by Imperial County that they were entitled to intervene as a matter of right was denied in full. Oh, and the 9th also found that Vaughn Walker was correct in finding no necessary basis for permissive intervention by Imperial County as well, and affirmed that denial. So Imperial County, unless they get some appellate relief, which is unlikely, is toast.

And, so that completes the fun today, right? Oh no! We have more! The estimable Judge Stephen Reinhardt lodged a concurring opinion that is a little, shall we say, more interesting. I will excerpt a few key quotes, but this one is only ten pages long and is well worth the read. I think you will quickly understand why I have said Reinhardt is such a wonderful treasure as a judge.

Today’s two orders involve a procedural question known as “standing.” The public may wonder why that issue is of such great importance, and what the significance of our standing decisions is. For that reason, while I agree entirely with our two dispositions, both of which are filed in the names of all three of us who are considering the appeals and both of which represent our unanimous views, I believe it desirable to set forth a few explanatory remarks of my own.

The standing problem arises out of a trend in our judicial system over the past few decades. It is a trend that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves.

Reinhardt’s disdain for the avoidance of meritorious claims on technical standing issues just drips off the pages. Indeed he cites his own previous tomes on just this subject in a prominent footnote (See footnote 3 for the cites). But as to the instant case, Reinhardt acidly remarks:

All I can say now is that the issues concerning standing were wholly avoidable in this case.

He goes on to take a crystal clear shot directly at the broadside of Ted Olson and David Boies for filing their action, and obtaining their relief, against one two of the 58 counties in California:

Whether Plaintiffs are correct or not, it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.

Ouch. Reinhardt then goes on to blast Schwarzenegger and Jerry Brown, the Governor and Attorney General at the time respectively, for not giving the intervenors appellate cover (as I have consistently carped about as well) and Imperial County for the incredibly lame effort of trying to appear through a common deputy clerk. Reinhardt is spot on in each of these regards.

The last paragraph from Steve Reinhardt’s concurring opinion summarizes where the case stands, and is likely to do so better than I could, so I am going to let him speak:

None of this means that ultimately there is no standing in this case. Because of a United States Supreme Court ruling regarding the availability of standing to proponents of initiatives, Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), we have certified to the Supreme Court of California the question of an initiative proponent’s authority and interests under California law. Although that matter must be decided by the Supreme Court of California, Proponents advance a strong argument on this point. Thus, in the end, there may well be standing to maintain this appeal, and the important constitutional question before us may, after all, be decided by an appellate court – ours, the Supreme Court, or both – and may apply to California as a whole, instead of by being finally decided by a trial court, or by default, in only two counties or in none. As a result, the technical barriers and the inexplicable manner in which the parties have conducted this litigation may in the end not preclude an orderly review by the federal courts of the critical constitutional question that is of interest to all Americans, and particularly to the millions of Californians who voted for Proposition 8 and the tens of thousands of same-sex couples who wish to marry in that state. In the meantime, while we await further word from the Supreme Court of California, I hope that the American public will have a better understanding of where we stand today in this case, if not why.

The one last parting thought I have is that this California Supreme Court certification process is likely to take some time. Six months would be a miracle, a year is far more likely. First off, the California Supreme Court does not have to accept consideration, and there will be a briefing process on whether they even should do that. Assuming they then accept consideration on the merits, and I do think it extremely likely they will, there will then be a full briefing schedule on the merits before any decision.

It would have been expected that the Court under Chief Justice Ron George (very nice article here) would take this up, but he just left and the new Chief Justice, Tani Cantil-Sakauye, literally was just sworn in yesterday. She is known as being cautious and moderately conservative, but fair and open minded. Which, really, is probably a fair description of Ron George, so there may not be that much of a change at the top of the California Supremes.

I still look for the California Supreme Court to certify this issue, and my best guess is they will find standing, the case will be sent back to the 9th Circuit for a merits decision and the 9th will uphold Vaughn Walker. Assuming all that is the case and plays out accordingly, it will sure eviscerate much of the ability of the US Supreme Court to avoid the merits on standing (which I think they otherwise would do). The bad news is this is going to take well over a year, and could easily be two years if there is an en banc process as well in the 9th. An attempt to repeal Proposition 8 will almost certainly be on the ballot for the 2012 election and if it gets repealed, this case is moot. That would not be so bad, as it would reinstate marriage equality in California. However if it fails, and Barack Obama loses in 2012, and there is a very early opening on the Supreme Court, the resulting extreme rightward shift would be very detrimental. There are a lot of ways this could go in the future, stay tuned!

UPDATE: Here is Judge Reinhardt’s collateral final order on the earlier motion to disqualify him that he previously denied long before oral argument.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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Merry Christmas

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I was going to post on boring depressing things. But instead I’m kibbitzing as my cousins play Fable 3. They suggested I post this YouTube instead.

Maybe I’ll get around to those boring depressing posts after Santa comes.

In the meantime, Merry Christmas to you all! Thanks for being such an integral part of this joint all year.

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“Austerity” Merriam-Webster’s Word of 2010

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Merriam-Webster has made “austerity” it’s word of the year for 2010.

Topping the list is austerity, defined as “enforced or extreme economy.” Lookups for austerity peaked dramatically several times throughout the year, as people’s attention was drawn to global economic conditions and the debt crises in Europe, but lookups also remained strong throughout the year, reflecting widespread use of the word in many contexts. “Austerity clearly resonates with many people,” said Peter Sokolowski, Editor at Large at Merriam-Webster, who monitors online dictionary searches. “We often hear it used in the context of government measures, but we also apply it to our own personal finances and what is sometimes called the new normal.”

I’m so cynical my first response was to wonder whether Pete Peterson had bought off the dictionary company like he did the Washington Post. But M-W says the list is based off of top online dictionary searches. Which is why some of the other words are perhaps more interesting:

4) socialism

5) bigot

7) shellacking

9) dissident

Remember, these reflect actual searches of the online dictionary. That suggests a significant proportion of the people still inclined to actually look things up in the dictionary chose (or needed) to refer to the dictionary to figure out what socialism actually is. And did Obama’s use of the term “shellacking” send journalists and Obama fans to the dictionary to find out just how badly Democrats got whupped at the mid-terms?

Use this thread to predict what words will make up next year’s list.

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Teh Gay Are Stealing the Rainbows! Who Will Protect Richie Blackmore?

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Alright, this is a quick hit because it is so freaking absurd. And it flat out cracks me up. Do these dogmatic conservative religious nutjobs ever stop to think how completely insane they sound? No.

Via Jillian Rayfield at TPM:

Becky Yeh of right-wing American Family News Network’s OneNewsNow, a product of the American Family Association, writes that Morse says “the rainbow is a sign of God’s covenant with man.” Morse told ONN: “Proposition 8 was passed by a great grassroots coalition that included people from all across the religious traditions, and also people of every race and color. We are the real rainbow coalition. The gay lobby does not own the rainbow.”

Morse continued: “We can’t simply let that go by. Families put rainbows in their children’s nurseries. Little Christian preschools will have rainbows…Noah’s Ark and all the animals…. Those are great Christian symbols, great Jewish symbols.” She also described how she wore a rainbow scarf to the Prop 8 hearings to show that anti-gay marriage activists still own the symbol.

You know, I don’t recall them specifically citing the theft of rainbows, but this is literally about the same kind of stupid shit argued by Charles Cooper, Andy Pugno and their battery of genius bigots attorneys in and around the Perry v. Schwarzenegger Prop 8 trial.

They’re all ripping off Richie Blackmore.

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Wal-Mart Hikes Toy Prices Just as Congress Gives the Waltons Huge Tax Breaks

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If there was ever any illusion that the super-rich would start acting nicer after Congress gave them both income and estate tax breaks, I present Wal-Mart’s thanks for Congress’ willingness to make the Walton family even richer: (h/t Consumerist)

Wal-Mart managers in the U.S. received instructions to mark up an average of 1,800 types of toys per store, according to a company e-mail dated Nov. 30 obtained by Bloomberg News. The e- mail didn’t disclose specific increases.

[snip]

“In previous years Wal-Mart has come out and hammered everyone with unbelievably low toy prices,” said Eric Johnson, director of the Center for Digital Strategies at the Tuck School of Business at Dartmouth in Hanover, New Hampshire. “They stepped away from that this year, and after Thanksgiving their prices have crept back up.”

In a year when kids keep begging Santa for bare necessities for Christmas, the Walton family has been made even richer by Obama and Congress. And the thanks Congress and the American people get is higher prices for toys.

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Perry v. Schwarzenegger 9th Circuit Oral Argument Liveblog Primer

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Liberty & Justice by Mirko Ilic

Emptywheel and Firedoglake have covered the groundbreaking marriage equality civil rights litigation in Perry v. Schwarzenegger from the outset. today is the critical appeal in the 9th Circuit and it is being televised on CSPAN live. In a separate dedicated post, Marcy Wheeler will be liveblogging and I will be assisting with color commentary both through her and in comments.

The case was filed by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo in response to the passage of an amendment to California’s constitution by Proposition 8 providing “Only marriage between a man and a woman is valid or recognized in California.”

There was a three week long evidentiary trial in the Northern District of California last January in front of Judge Vaughn Walker with closing arguments made on June 16 (summary of EW live coverage here) and Judge Walker’s opinion finding such marriage discrimination unconstitutional was issued on August 4th. The appeal being argued today is from that decision by Judge Walker.

The oral argument is being televised live by CSPAN, will be carried by live feed on numerous internet sites, and will likely be on several other television networks as well. Here is a page with links and viewing information.

Here is Firedoglake’s dedicated Proposition 8 Resource Page containing just about everything you could possibly want to know about the case from start to finish including links to all of our coverage of the trial, closings, and judgment process, as well as the lead up to today’s argument, and nearly every important document, filing and brief in the case.

An article yesterday by Maure Dolan in the Los Angeles Times hit the nail on the head as to where to focus watching the oral argument:

When a federal appeals court meets in San Francisco on Monday for arguments on Proposition 8, legal analysts will be closely watching Judge Michael Hawkins, a moderate Democratic appointee whose vote is expected to be critical in the same-sex marriage case.

The randomly chosen three-judge panel of the U.S. 9th Circuit Court of Appeals also includes Judge Stephen Reinhardt, a California liberal appointed by President Carter, and Judge N. Randy Smith, a conservative from Idaho appointed by President George W. Bush.

“It’s a very favorable panel for the challengers to Proposition 8,” said Arthur Hellman, a University of Pittsburgh law professor and expert on the 9th Circuit.

Hawkins, an Arizonan appointed by President Clinton, “is the one to watch most closely,” Hellman said. He has sided with liberals in some key cases and will probably cast the decisive vote in the case if there is a split decision, Hellman and other analysts said.

Having spent my legal career practicing in the 9th Circuit, I can tell you Dolan is spot on here. Reinhardt is Read more →

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The Chicken Shit in Your Neighborhood

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Like Mark Bittman, I have rather obsessively been playing with this interactive map, showing where all the factory farms are in this country, broken out by county. In my case, the interest is personal. I moved from the hippie-Ag area around Ann Arbor, MI, to west MI, where much of the bigger Ag is located (the biggest skyscraper in the area is a soy processing plant). I’ve driven a lot in the backroads around here and seen lots of blueberry plantations, some diverse crop farms, and the long sheds housing some kind of unhappy  industrially raised animals. This map provides a census of those unhappy animals.

I learned, for example, that there are 2.6 million egg-laying hens in the county, second only in the state to Allegan County, just south of here, which has 3.6 million layers.

It’s overcast today. Which means when I walked the dog in the beautiful snowy day, the smell of chickenshit (from the farms some distance to the east) hung in the air. It’s the first I noticed it so close to town, though there’s one gorgeous park where the adjoining chickenshit farm (which is upriver of town) makes the park pretty unusable.

Anyway, have “fun” with the map (and related factoids). Let us know in comments what kind of shit farm you’re living downriver from!

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Prop 8 Judge Tells H8ters to Get Lost; Denies Motion to Disqualify

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Liberty & Justice by Mirko Ilic

As you know from my report Monday when the three member appellate panel in the 9th Circuit was announce for the Prop 8 case of Perry v. Schwarzenegger, one of the judges assigned was Judge Stephen Reinhardt. Steve Reinhardt is one of the finest judges you will find anywhere, and he is an old school principled and unabashed liberal whose veins carry the lifeblood of social justice, fundamental fairness and equal protection for all citizens.

So, of course the hating bigots that comprise the pro-Proposition 8 Defendant-Intervenors filed a motion last night to disqualify Reinhardt. Here is the full motion to disqualify brief, it is only 18 pages (10 of text) long and gives a very good glimpse of just how the haters tried to attack Reinhardt here because – gasp! – his wife has spent her career at the ACLU who -gasp! – actually is in favor of marriage equality. In a nutshell, D-Is argue:

Judge Reinhardt is married to Ramona Ripston, the long-time Executive Director of the ACLU of Southern California (hereinafter, “ACLU/SC”). As Executive Director, Ms. Ripston is “responsible for all phases of the organization’s programs, including litigation, lobbying and education.” Under Ms. Ripston’s leadership, “ACLU/SC has taken a lead role” in what it calls “the fight to end marriage discrimination” in California.
…
The facts of this case would plainly lead a reasonable person to conclude that Judge Reinhardt’s impartiality might reasonably be questioned. His wife and the organization she leads have not only been active in seeking to redefine marriage in California and active in opposition to Proposition 8, but they have been active participants in this very lawsuit…
…
It is thus plain that Ms. Ripston has an avowed interest in seeing Proposition 8 invalidated, an interest that unquestionably will be substantially affected by the outcome of this proceeding.

The D-I argument is, of course, ginned up baloney. Reinhardt’s wife, Ramona Ripston, was never an Read more →

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Crist’s Morrison Pardon: 21st Century Fox In A Lizard King’s Henhouse

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Hey, being pretty much a sentient life long Doors aficionado, I am all in with pardoning Jim Morrison, which there has been a flurry of scuttlebutt emanating, cool and slow, with a backbeat narrow and hard to master, out of the instant swamps of Florida, regarding.

Oh, and when I heard the subject brought up by the patently unhip, plodding Blue Dog, holier than thou, I’m a better Democrat than you, scold Larry O’ Donnell on his craptastic bloviathon MSNBC show, that was just too fucking much. The backdoor rumor is Charlie Crist, who may or may not have eaten more chicken that a man has eve seen, is pondering giving the Big Scooter Libby Get Out Of Jail Free card to the Most Right Reverend Snake King Jim Morrison.

Outstanding. And long over due. Because if some fucking little germ boy, bear cage child threatening, functionally traitorous subservient to Cheney blank like I. Lewis “Scooter” Libby can get a walk from a complicit President of the United States in order to mask apparent criminal behavior, then why not a posthumous hall pass for James Douglas Morrison? Seriously.

If you are comparing and contrasting facts and circumstances, one was an entertainer who may or may not have, for a fleeting moment, exposed himself in 1969 to a Miami audience at the end of a Doors concert that truly could not only have cared less, but were bummed they had not done so earlier. The other, Cheney’s toy Scooter, conspired to expose and out a classified top CIA clandestine agent working on the most critical issue of the day, the existence of nuclear and/or weapons of mass destruction in Iraq and/or Iran. You know, the fraudulent reason the very same Mr. Cheney and wooden operated mouthed George Bush relied on to affirmatively, aggressively and illegally start a war against Iraq for the sins of 9/11 that Iraq not only did not commit, but had actual avarice for the people who did.

That Scooter Libby.

So, if Scooter Libby can skate and, in the process, serve as a firewall for the immorality and illegality of the Bush/Cheney Administration, there is no reason the Lizard King should not be posthumously exculpated.

No tears, no fears, but a lot of ruined years. Charlie Crist made clear intimations he wanted to do this when he took office. Being a gutless politician at heart he, of course, never did it as Governor of the rockin state of Florida. Instead he cowered to the perceived sensabilities of the people in rockin chairs. And lost his ass, soul and electability in the process. Douchebag. Crist is toast. But if he wants to belatedly clean up the halls of the Morrison Hotel, well then I am all for that. Mr. Mojo is rising; Charlie Crist is not. Lizard Kings rule; political blanks drool.

We have constructed pyramids in honor of this escaping. Let the spirit of Mr. Mojo fly Mr. Charlie Crist. It is about the only thing of merit, morals and guts you can do at this point. Get on with it you ineffectual political chameleon stale fish.

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The Obama Disconnect: Arlington, Korea and Catfood

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Marcy wrote earlier this morning about David Axelrod’s despicable announcement of Obama’s capitulation to the oligarchs on tax cuts (another lead balloon the Obama White House incompetently tried and failed to walk back). Later this morning, however, were a couple of events that put an even starker gloss on this pig.

First, was this from The Oval:

President Obama is in Seoul, South Korea, where today he said lawmakers in the United States should hold off on comments about his fiscal commission’s proposals to slash the federal budget deficit through spending cuts, ending tax breaks, and a revamping of the Social Security system.

“Before anybody starts shooting down proposals, I think we need to listen, we need to gather up all the facts,” Obama told reporters.

He added: “If people are, in fact, concerned about spending, debt, deficits and the future of our country, then they’re going to need to be armed with the information about the kinds of choices that are going to be involved, and we can’t just engage in political rhetoric.”

So, Barack Obama is in Korea lecturing Americans to suck it up and embrace the catfood he and the wealthy elite have deemed necessary to feed us in order to pay for their grotesque largesse. Notably, at the same time Vice President Biden was left to be the White House representative at the traditional Arlington National Cemetery ceremony to honor America’s Veterans, where Presidents usually pay their respects and appreciation to veterans and the military. Especially during a “time of war”. Obama couldn’t make it to Arlington for the Memorial Day Ceremony either.

But Mr. Obama could not be present at Arlington this time because he was in Korea. And just what was so pressing in Korea? As Jane Hamsher points out, it is the desire to press for a horribly conceived US-Korea free trade deal:

It would be a truly horrific blow to whatever is left of American manufacturing at a time when unemployment is rampant. But from a political standpoint, fighting for another so-called “free trade” agreement right now has got to represent some kind of death wish for the Democratic party.

Yes indeed, but thus is what we are constantly served by Barack Obama. As Paul Krugman today rightfully termed it, Mush From the Wimp.

You know, it is not just that the arrogant and cluelessly detached President Pangloss is steaming toward a one and done Presidency, it is that he is literally destroying the Democratic Party and liberal ideology in the process and leaving them in his wake.

UPDATE: I guess Obama couldn’t even sell crack free trade to Charlie Sheen the Koreans.

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