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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Anchorage Baptist Temple v. Coonrad (08/31/2007) sp-6155

Anchorage Baptist Temple v. Coonrad (08/31/2007) sp-6155, 166 P3d 29

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 12421
Appellant, )
) Superior Court No. 3AN-06-8866 CI
v. )
) O P I N I O N
METCALFE; AMERICAN CIVIL ) No. 6155 - August 31, 2007
Appellees. )
and HAMILTON ACRES BAPTIST    )    Supreme Court No. S-12442
CHURCH,                       )
                              )    Superior Court No. 3AN-06-8943
          Appellants,              )    Superior Court No. 3AN-06-
8866 CI
     v.                       )
CLYDE BAXLEY, GRACE                )
and STATE OF ALASKA,          )
          Appellees.               )

          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Mark Rindner, Judge.

          Appearances:  Dan K. Coffey, The Law  Offices
          of  Ernouf  &  Coffey, P.C.,  Anchorage,  and
          Mathew D. Staver and Erik W. Stanley, Liberty
          Counsel,  Lynchburg, Virginia, for  Appellant
          Anchorage Baptist Temple.  Kevin G. Clarkson,
          Brena, Bell & Clarkson, P.C., Anchorage,  for
          Appellants  Valley  Baptist  Tabernacle   and
          Hamilton   Acres   Baptist   Church.    Jason
          Brandeis,    ACLU   of   Alaska   Foundation,
          Anchorage,  for Appellees Keith Coonrod,  Ray
          Metcalfe, and American Civil Liberties  Union
          of Alaska.  Richard W. Postma, Jr., Assistant
          Attorney  General, Anchorage,  and  David  W.
          M rquez,   Attorney  General,   Juneau,   for
          Appellee State of Alaska.

          Before:    Fabe,  Chief  Justice,   Eastaugh,
          Bryner,  and Carpeneti, Justices.  [Matthews,
          Justice, not participating.]

          EASTAUGH, Justice.

          When  citizens  filed  two  lawsuits  challenging   the
constitutionality  of  a statute, AS 29.45.030(b),  that  exempts
teachers   residences  owned  by  religious  organizations   from
property taxes, three churches sought to intervene.  The churches
were  initially permitted to intervene in one lawsuit,  but  were
ultimately  relegated  to  amicus curiae  status  after  the  two
lawsuits were consolidated.  They appeal, claiming that they have
a  direct  and substantial interest in the litigation,  and  that
their  interest is not being adequately represented by the  State
of Alaska.
          By  order  issued March 2, 2007 we ruled  that  it  was
error  to  deny the motions to intervene.  This opinion  explains
our reasons for that ruling.
          We  do  not  question the states ability to fairly  and
vigorously represent its citizens and the associations  to  which
they  belong,  including  religious associations  such  as  these
churches.  But we reverse because these churches have significant
financial  and potentially unrepresented constitutional interests
in  the litigation, because there may be actual adversity  as  to
one argument the churches seem to advance, and because the state,
by  suggesting  it cannot represent the churches  interests,  has
created  the  appearance of adversity of interest.  The  churches
are  therefore  entitled  under  Alaska  Civil  Rule  24(a)    to
intervene as of right.
          The Alaska Legislature recently amended AS 29.45.030(b)
to  create  a  mandatory  property tax  exemption  for  educators
residences owned by private religious or parochial schools.1  The
amendment became effective on August 23, 2006.2
          Before  the  amended  law took effect,  two  groups  of
citizen-taxpayers filed lawsuits against the State of  Alaska  to
challenge  the  amended statutes validity.   Keith  Coonrod,  Ray
Metcalfe, and the American Civil Liberties Union of Alaska  filed
the   first  lawsuit  on  June  12,  2006.3   We  refer  to  them
collectively  as  the  Coonrod plaintiffs or  Coonrod  appellees.
Clyde  Baxley  and  other Anchorage residents  filed  the  second
lawsuit  on  June  14, 2006.4  Although the  merits  of  the  two
lawsuits are not at issue in this appeal, the plaintiffs in  both
lawsuits  contended  that  the new  tax  exemption  violates  the
establishment   clauses   of  the  Alaska   and   United   States
          Anchorage  Baptist  Temple, Valley Baptist  Tabernacle,
and  Hamilton  Acres Baptist Church sought to intervene  in  both
lawsuits  as  parties aligned with the only named defendant,  the
State  of Alaska.5  Anchorage Baptist sought to intervene because
it  asserted  it will have to pay at least $23,000  per  year  in
property  taxes  if the law is struck down.  Hamilton  Acres  and
Valley  Baptist alleged that they own property that they plan  to
use  for  teacher housing in the future.  The Coonrod  plaintiffs
opposed  intervention;  the state and the Baxley  plaintiffs  did
not.   The  three  churches motions to intervene were  denied  by
Superior  Court Judge Mark Rindner in the Coonrod case, but  were
granted  by  Superior Court Judge Patrick J. McKay in the  Baxley
case.   Judge Rindner permitted the three churches to participate
as amici curiae.
          When  the  two  cases were consolidated at  the  states
request,  Judge McKay sua sponte vacated his earlier order,  thus
denying  the churches intervention motions, and allowed  them  to
participate  as  amici curiae instead.  The consolidated  lawsuit
was stayed pending this appeal.
          On  appeal,  the  churches  asked  us  to  reverse  the
superior  court orders denying their intervention motions.6   The
Coonrod  appellees asked us to affirm.  The Baxley appellees  did
not  file  briefs, and have not opposed the churches intervention
motions.   Appellee State of Alaska also asked us to reverse  the
orders denying intervention.
          We  heard oral argument on January 9, 2007 and on March
2  we  issued  an order holding that appellants were entitled  to
intervene  per Alaska Civil Rule 24(a).7  Our order reversed  the
orders  denying intervention and remanded.  We issued that  order
to  minimize delay in the superior court proceedings.  A copy  is
attached  as  Appendix A. This opinion explains our  reasons  for
that ruling.
          We  review  a denial of a timely Rule 24(a)  motion  to
intervene as of right using our independent judgment.8
          The  churches claim that they are entitled to intervene
          as of right under Rule 24(a).  Rule 24(a) provides:
          Upon  timely  application  anyone  shall   be
          permitted to intervene in an action when  the
          applicant claims an interest relating to  the
          property or transaction which is the  subject
          of   the  action  and  the  applicant  is  so
          situated  that the disposition of the  action
          may  as  a practical matter impair or  impede
          the   applicants  ability  to  protect   that
          interest,  unless the applicants interest  is
          adequately     represented    by     existing
          Because  we favor broad access to the courts,  we  will
liberally construe Alaska Civil Rule 24(a).10  We apply  a  four-
part  test  to determine whether a party is entitled to intervene
under Rule 24(a):
          (1)  the  motion  must  be  timely;  (2)  the
          applicant  must  show  an  interest  in   the
          subject   matter  of  the  action;  (3)   the
          applicant must show that this interest may be
          impaired as a consequence of the action;  and
          (4) the applicant must show that the interest
          is  not adequately represented by an existing
          Turning to the first part of the test, no party asserts
that  the motions were untimely.  We will not hold that a  motion
to  intervene  is  untimely if no party raises timeliness  as  an
          Under  the  second  part  of  the  test,  the  churches
interest  in  the  lawsuit  must  be  direct,  substantial,   and
significantly  protectable.13   The  churches  argue  that  their
interest in the lawsuit is direct, substantial, and significantly
protectable for four reasons.  First, they argue that they have a
financial  interest in the outcome of the litigation.  The  state
joins  them  in  this argument. Second, Anchorage Baptist  claims
that  the Coonrod plaintiffs conceded that it has an interest  in
the  litigation  by  arguing that the law was passed  to  benefit
Anchorage  Baptist.   Third, Valley Baptist  and  Hamilton  Acres
argue that the tax exemption is already vested in them by article
IX, section 4 of the Alaska Constitution.  Fourth, Valley Baptist
and  Hamilton  Acres  argue  that the  pre-amendment  tax  policy
violated their right to equal protection of the law because  non-
religious  private schools have been granted a tax exemption  for
teacher housing for decades.14
          The Coonrod appellees respond that neither the churches
financial  interests  nor  their  constitutional  interests   are
sufficiently  weighty  to  justify  intervention.   The   Coonrod
appellees  also  argue that Anchorage Baptist  does  not  have  a
legally cognizable individualized stake in the matter even if  it
was the intended beneficiary of the legislation.
          We  agree  with  the  Coonrod appellees  that  although
Anchorage Baptist may have been the intended beneficiary  of  the
legislation,  it  did not necessarily have a  legally  cognizable
interest  for  purposes of intervention.   Those  affected,  even
negatively, by a lawsuit may be significantly more numerous  than
those who are entitled to intervene under the four-part test.  We
also  agree that an indirect financial interest, standing  alone,
is  insufficient to secure intervenor status.  In Laborers  Local
942 v. Lampkin, we ruled in favor of a union seeking to intervene
in  a  lawsuit challenging a project labor agreement.15  We  held
that  the  union  was  entitled to intervene  because  it  helped
negotiate  the agreement, not because it was merely a beneficiary
of the agreement.16  Here, all three churches have asserted a much
more  direct  financial  interest   eligibility  for  a  valuable
property  tax exemption if the statute is valid  than  the  union
had  in  Lampkin.   Moreover, as discussed  below,  the  churches
interest is not merely financial.
          We  reversed  orders  denying intervention  under  Rule
24(a) in two prior cases in which the proposed intervenors raised
constitutional issues in conjunction with other legal  interests.
In  McCormick  v.  Smith, the superior court  enjoined  a  recall
election  and  voters who wished to recall a school board  member
sought  to  intervene to challenge the injunction that  the  city
chose  not to appeal.17  We held that the voters had a sufficient
interest  in the matter to intervene because the right to  recall
is  established in the Alaska Constitution.18  We also noted that
the  interest  of these particular voters was heightened  because
they  had  initiated  the recall.19  In  Alaskans  for  a  Common
          Language, Inc. v. Kritz, the sponsors of an initiative that the
governor had publicly criticized sought to intervene in an action
challenging  the initiatives constitutionality.20   We  concluded
that  the  sponsors  had sufficient legal interest  to  intervene
because the initiative process is constitutionally based, because
they  had  drafted  the  legislation, and  because  they  had  an
obligation  to  represent  the  other  sponsors  in  all  matters
concerning the initiative.21
          The churches meet the heightened standard discussed  in
Kritz  and  McCormick.  They have alleged that the  pre-amendment
practice of granting tax exemptions for teacher residences  owned
by  non-religious private schools would violate equal  protection
because  there  was  no similar exemption for religious  schools.
Even  if  the  legislature  had not  amended  the  tax  exemption
statute,  the  churches would be entitled to advance  this  equal
protection   challenge.22   When  their  financial  interest   is
considered in conjunction with constitutional arguments the state
is   unlikely  to  raise,  the  churches  interests  are  direct,
substantial, and significantly protectable.23
          Regarding  the  third part of the  test,  the  churches
interest  in  the tax exemption may be impaired as  a  result  of
these  lawsuits.   If the law is struck down as unconstitutional,
the   churches   will   be   unable  to  assert   their   alleged
constitutional  or  actual  financial  interests   in   the   tax
          Turning  to  the fourth part of the test, the  churches
argue   that  the  state  will  not  adequately  represent  their
interests.   We presume that the state will adequately  represent
the  interests  of  all of its citizens in  trying  to  uphold  a
statute against a constitutional challenge, because the state  is
charged by law with representing the interests of the people.25  A
proposed  intervenor  may  rebut this  presumption  by  making  a
showing   of   collusion,   adversity   of   interest,   possible
nonfeasance, or incompetence.26  We allowed intervention in Kritz
due to a possible appearance of adversity of interest,27 but only
in  a  rare case will the mere appearance of an adverse  interest
justify intervention.
          The  churches  argue  that there  is  actual  adversity
between  the states interests and theirs.  They assert  that  the
state  is  making different tactical decisions than the  churches
would,  that the state has competing obligations both  to  defend
the  statute  and to equalize the tax burden, and  that  a  state
official testified against the exemption.
          Whether  the  state  generally  has  an  obligation  to
equalize  the tax burden is irrelevant here.28  The record  below
contains  no indication that the state, in order to equalize  the
tax  burden, or for any other reason, will fail to defend its own
duly  enacted  law.  Regarding the states tactical decisions,  as
the  Coonrod appellees point out, [d]ifferences in trial strategy
do  not  establish  a right to intervention.29   Finally,  Valley
Baptist  and Hamilton Acres argue that a state assessor testified
against  the exemption; they compare this case to Kritz, where  a
member   of   the   Attorney  Generals  Office   questioned   the
constitutionality of the English-only initiative  before  it  was
placed  on the ballot.  This comparison is unconvincing  for  two
reasons.   First,  although  the  Attorney  Generals  Office  was
responsible for enforcing the challenged initiative and defending
it  in  court,  a  state  tax assessor  is  not  responsible  for
enforcing a tax exemption or defending it in court.  Second,  the
assessor  described the law as unfunded.  This  may  arguably  be
either a criticism or an accurate and neutral characterization of
the  laws  fiscal  underpinnings,  but  it  is  a  far  cry  from
          criticizing it as unconstitutional.
          Hamilton  Acres  and  Valley  Baptist  argue  that  the
practice  of  granting  tax exemptions to  private  non-religious
educational organizations while denying them to churches violates
equal  protection.  Although they advance this argument  to  show
that  they  have  a  substantial interest, this  incipient  equal
protection  argument is also relevant to determining whether  the
interests  of the state and the churches are adverse because  the
intervenors wish to raise an argument no existing party is likely
to make.  We think it is unlikely that the state, in arguing that
the  present  statute is constitutional, would contend  that  the
amendment    was    necessary   to   cure    any    pre-amendment
unconstitutionality, and there is no sign in the record that  the
state  has  raised  any  such contention  to  date.  Because  the
churches  make  an equal protection argument that  the  state  is
unlikely  to  raise,  we conclude that the  churches  and  states
interests are adverse.
          The   state  echoes  the  churches  broad  intervention
arguments,  and also asserts that there is an apparent  conflict,
both because it has a duty to equalize the tax burden and because
the  state  assessor publicly opposed the amendment.   We  remain
unconvinced by the equalization and state assessor arguments, but
we nonetheless conclude that there exists an apparent conflict.
          The  state contends that because the churches were  not
permitted  to  intervene, the state is now entangled  with  them,
creating  a  possible appearance of adversity of  interest.   The
state  seems  to argue that because it is defending  a  law  that
benefits religious organizations, it might appear to be using its
prestige,  coercive  authority, or resources  in  a  manner  that
violates  its  duty to remain neutral in religious disputes.   If
pursuing  a  lawsuit were to excessively entangle the state  with
religious  organizations, a violation of the  state  and  federal
establishment  clauses would result.30  There is no  such  danger
here.    The   state  is  charged  with  the  duty  of  neutrally
representing  the  interests  of all  of  its  citizens  and  the
associations  they  belong to, including churches,  by  defending
duly enacted laws.  The United States Supreme Court has held that
the  guarantee of neutrality is respected, not offended, when the
government,  following neutral criteria and evenhanded  policies,
extends  benefits to recipients whose ideologies and  viewpoints,
including  religious  ones,  are broad  and  diverse.31   In  its
capacity  as a party, the state is not here extending a  benefit,
but is instead executing its duty by represent[ing] the state  in
all  civil  actions  in which the state  is  a  party.32   It  is
appropriately  trying  to uphold a duly enacted  statute  against
constitutional  attack.  Because the state is not  violating  the
principle  of  neutrality, it is not violating the  establishment
clause.   Our  conclusion  is supported by  a  persuasive  United
States  Court  of Appeals for the Fifth Circuit decision  holding
that  a  state  could  assert the rights  of  all  Mississippians
affected  by the law, including the Free Exercise rights  of  the
Proposed  Intervenors, in constitutionally defending a  law  that
allowed for school prayer.33
          Although we are unpersuaded by the states establishment
          clause argument, we nonetheless perceive an appearance of
adversity.    The   state  has  actually   asserted    that   the
establishment clause impairs its ability to adequately  represent
the  interests of the churches in this establishment clause case.
That  contention  carries with it an appearance of  adversity  of
interest  that  might reasonably lead members of  the  public  to
doubt  that  the  state  will  be  able  to  defend  the  statute
vigorously  and effectively.  That contention therefore  confirms
the need to order intervention, so that the churches can directly
assert their arguments in the superior court.
          Because  the churches have an interest that  is  direct
and  substantial, because they may wish to raise an  argument  no
other  party is likely to raise, and because the states interests
are   both  actually  and  apparently  adverse  to  the  churches
interests, we have REVERSED the superior court orders denying the
three  churches motions for intervention as of right under Alaska
Civil  Rule  24(a),  and have REMANDED.  To  prevent  duplicative
litigation, the superior court may require the churches to  align
themselves with each other and submit consolidated briefs to  the
extent possible.
          In the Supreme Court of the State of Alaska

Anchorage Baptist Temple, et al.,              )
                                ) Supreme Court No. S-12421
                                   Appellants, )
                   v.           )            Order
Keith Coonrod, et al.,          )    Date of Order: 3/2/07
                                     Appellees.   )         Trial
Court Case # 3AN-06-08866CI
Valley  Baptist Tabernacle, et al.,              )        Supreme
Court No. S-12442
                                  Appellants,  )
                   v.           )
Clyde Baxley, et al.,           )
                                     Appellees.   )         Trial
Court Case # 3AN-06-08943CI


          Before:  Fabe,  Chief  Justice, Eastaugh,  Bryner,  and
          Carpeneti, Justices.
          [Justice Matthews, not participating.]

     Upon  consideration of the parties arguments in their briefs
and  at  oral  argument,  and  because  the  court  considers  it
desirable  that  the parties and the superior court  be  promptly
informed  of  the result so that the two consolidated  cases  can
proceed in the superior court,
     1.   The orders denying the churches motions to intervene as
of right under Alaska Civil Rule 24(a) are Reversed.
     2.    This  court will issue a written opinion at  a  future
date explaining the reasons for this result.
     3.    The  superior  court proceedings may go  forward  upon
entry  of  this  order, and need not await  publication  of  this
courts opinion.
     Entered at the direction of the court.
                                   Clerk of the Appellate Courts

                                   Peggy Vigoren, Deputy Clerk
     1    AS 29.45.030(b)(1), as amended by ch. 44,  1, SLA 2006,

          (b)   In  (a) of this section, property  used
          exclusively  for religious purposes  includes
          the  following property owned by a  religious
          (1)   the  residence  of  an  educator  in  a
          private  religious or parochial school  or  a
          bishop,  pastor, priest, rabbi, minister,  or
          religious  order  of  a recognized  religious
          organization; for purposes of this paragraph,
          minister means an individual who is
          (A)  ordained, commissioned, or licensed as a
          minister  according  to  standards   of   the
          religious organization for its ministers; and
          (B)   employed  by the religious organization
          to  carry  out  a ministry of that  religious
          organization . . . .
 (Emphasis added to amended text.)

     2     Ch. 44, SLA 2006 (stating that sections 1 and 2 become
effective on August 23, 2006).

     3    Superior Court Case No. 3AN-06-8866 CI.

     4    Superior Court Case No. 3AN-06-8943 CI.

     5     The  Bible  Baptist  Church of  Fairbanks,  Inc.,  was
initially a party to the lawsuit but subsequently withdrew.

     6    Valley Baptist and Hamilton Acres appealed together.

     7     Because  we conclude that appellants are  entitled  to
intervene  as  of  right,  it is unnecessary  to  consider  their
alternative contention that it was an abuse of discretion to deny
their Rule 24(b) motion for permissive intervention.

     8     Alaskans for a Common Language, Inc. v. Kritz, 3  P.3d
906,  91214,  916  (Alaska 2000) (holding that organization  that
sponsored  English-only initiative was entitled under Rule  24(a)
to intervene in lawsuit challenging initiatives constitutionality
while  organization that merely funded pro-initiative advertising
was not).

     9    Alaska R. Civ. P. 24(a).

     10    Kritz, 3 P.3d at 912.

     11    Id. at 911 (citing State v. Weidner, 684 P.2d 103, 113
(Alaska 1984)).

     12    Id. at 912 (stating that independent judgment standard
applies because timeliness not raised as issue).

          We determine whether a motion to intervene is timely by
applying  a four-part test.  We consider the length of the  delay
before the movant filed, the prejudice to existing parties if the
motion  is granted, the prejudice to the proposed intervenors  if
the  motion  is  denied,  and any idiocratic  circumstances  that
militate for or against intervention.  Scammon Bay Assn, Inc.  v.
Ulak, 126 P.3d 138, 143 (Alaska 2005).

          Although we are not deciding the timeliness issue here,
the  churches  filed their motions to intervene both  before  the
states  answer  was  due and before the state actually  answered.
The  Coonrod lawsuit was filed on June 12, 2006.  Because  Alaska
Civil Rule 12(a) gave the state forty days to answer, and because
the fortieth day was July 22, 2006, a Saturday, the states answer
was due Monday, July 24.  The churches filed their motions on  or
before  that  date  and  before the state answered.   The  United
States  Court of Appeals for the Ninth Circuit has held  that  an
intervention  motion filed on or before the date the  answer  was
filed and before the trial court made any substantive rulings was
timely.    Nw. Forest Res. Council v. Glickman, 82 F.3d 825,  837
(9th Cir. 1996).

     13    Weidner, 684 P.2d at 113.

     14     Although the second part of the test requires  us  to
consider  the  proposed  intervenors  asserted  interests,   when
discussing  their  arguments we do not mean  to  imply  that  any
particular contention is or may be meritorious.  We consider here
only the issue of intervention as of right.

     15     Laborers Local No. 942 v. Lampkin, 956 P.2d 422, 427,
43839 (Alaska 1998).

     16    Id. at 438.

     17    McCormick v. Smith, 793 P.2d 1042, 1043 (Alaska 1990).

     18    Id. at 1044 (citing Alaska Const. art. XI,  8).

     19    Id.

     20     Alaskans for a Common Language, Inc. v. Kritz, 3 P.3d
906, 910 (Alaska 2000).

     21    Id. at 91214.

     22     Stanek v. Kenai Peninsula Borough, 81 P.3d 268, 27072
(Alaska 2003) (discussing taxpayers equal protection challenge to
tax exemptions).

     23    Weidner, 684 P.2d at 113.

     24    Kritz, 3 P.3d at 913.

     25    Id.

     26    Id.

     27    Id. at 914.

     28     Moreover, Union Oil Co. of Calif. v. State, 804  P.2d
62,  65  (Alaska 1990), seems to establish a preference  for  the
states  interpretation of an exemption statute, and only mentions
the  duty to equalize the tax burden in passing.  Here, there  is
no  question  of a broader or narrower interpretation   the  only
question is whether the statute is constitutional on its face.

     29    See 7C Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane,  Federal Practice and Procedure 1909 (2d ed. 1986) (A  mere
difference   of  opinion  concerning  the  tactics   with   which
litigation  should  be  handled  does  not  make  inadequate  the
representation of those whose interests are identical  with  that
of  an  existing  party or who are formally  represented  in  the

     30     Cf.  Lemon  v. Kurtzman, 403 U.S. 602,  61213  (1971)
(holding  statute  must  have  neutral  purpose,  must  not  have
principal  or primary effect of advancing or inhibiting religion,
and  must  not  foster  excessive  government  entanglement  with
religion); Bonjour v. Bonjour, 592 P.2d 1233, 1242 (Alaska  1979)
(holding  that  statute  permitting  court  to  consider   childs
religious  needs when awarding custody is constitutional  because
it satisfies Lemon test).

     31     Rosenberger v. Rector & Visitors of Univ. of Va., 515
U.S.   819,   839  (1995)  (citations  omitted)  (holding   state
university  could not deny funding to religious publication  when
university funded non-religious publications).

     32    AS 44.23.020(b)(3).

     33     Ingebretsen v. Jackson Pub. Sch. Dist., 88 F.3d  274,
281  (5th  Cir.  1996)  (holding legal organization  representing
students   not  entitled  to  intervene  in  action   challenging
constitutionality  of  school  prayer  statute  because  attorney
general could adequately defend statute).

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