
Archive for the 'Courts' Category
October 29th, 2009, 2:26 pm by Le Templar
Metadata (met-uh day-ta): Data about data. Metadata describes how and when and by whom a particular set of data was collected, and how the data is formatted. Metadata is essential for understanding information stored in data warehouses and has become increasingly important in XML-based Web applications. (www.webopedia.com)
The Arizona Supreme Court has blazed new ground today for government transparency and access to public records in a case about information that’s created as part of electronic records but often is not seen when those records are printed out.
In Lake v. the city of Phoenix, the Supreme Court unanimously ruled that metadata should be treated just like the underlying document and is covered by Arizona’s open records law. This means government agencies won’t be able to withhold key details about an electronic file, such as when it was created, who had access to the record and if there’s any hidden information used by government officials that “disappears” when you click the print button.
The lawsuit is about Phoenix police officer David Lake, who claims he was wrongly demoted by the city. Among the evidence produced in the case are some personnel evaluations that reflect poorly on Lake’s performance. Lake suspects the evaluations were written after his demotion and were falsely backdated.
Since the evaluations were written on city computers using a standard word-processing program, Lake’s lawyers demanded to see the electronic originals including the metadata that would show when the documents were first created, if they were ever changed, and who might have edited them over time. You can type any date you want at the top of a letter, and you can go back and edit that letter weeks or months later to completely change its message. But only a few computer experts can hack into word-processing programs and change the metadata to hide their tracks.
Phoenix lawyers denied Lake’s request, and argued in court that the open records law only applied to parts of a document typed in by a city official that could be printed off. Since metadata often is automatically created by the software outside of the user’s control, it can’t be considered a public record, the city also argued.
A trial judge and the Arizona Court of Appeals agreed with Phoenix’s position. That’s when several media/freedom of information groups took an interest in the case, including the First Amendment Coalition of Arizona. Full disclosure: I’m on the coalition’s board of directors.
Lake and Phoenix were arguing over several issues in different stages of their appeals, and the First Amendment Coalition worried that the fundamental, open government concern involving metadata wouldn’t receive the proper attention before the Supreme Court. So the coalition’s lawyer, Dan Barr, filed a “friend of the court” brief to explain how metadata works and why that information shouldn’t be viewed differently from other parts of a public document.
Part of that presentation came from Steve Doig, a journalism professor at Arizona State University who previously participated in Pulitzer Prize winning investigations with the Miami Herald. Doig explained in writing for the Supreme Court how there are times when you can’t even make sense of an electronic file (especially if it’s created in a spreadsheet like Excel) unless you have the corresponding metadata.
The Supreme Court agreed with the arguments from Lake and the media groups. The court even recognized that governments can avoid the time-consuming hassle of isolating and printing off metadata by simply turning over the original electronic file (usually referred as its “native format”). That’s what most people seeking public records from computers want these days anyway.
But a lot of Arizona governments refuse to release the electronic version of records, claiming state law doesn’t require them to do so. Typically, governments insist on printouts to discourage public record seekers or to limit what they will get to review.
This Supreme Court decision should provide a new incentive for governments to release complete public records in a manner consistent with 21st century technology.
Posted in: Arizona State University • Arizona government • Courts • Freedom of Information • Public records • Arizona First Amendment Coalition • Arizona Supreme Court • Dan Barr • Steve Doig | 2 Comments »
July 27th, 2009, 3:14 pm by Le Templar
 John Paul Mitchell
Early voting for Arizona’s state primaries is about a year away, but a candidate for governor scheduled to hold the first public event is already looking ahead to the November 2010 general election.
John Paul Mitchell hopes to qualify for the state ballot as an independent, which would allow him to bypass the primaries and go head-to-head against the Republican and Democratic nominees (and the Libertarian and Green alternatives, if those parties decide to get into the race).
I have written before about Mitchell, who is a manager at a Phoenix credit card call center. I continue to be impressed with the energy that Mitchell is throwing into what has to be a long-shot campaign. He’s got a robust Web site, is active on social media and has taken on some campaign staff. Now on Thursday, Mitchell will hold his first public forum before the Republican incumbent and the most likely Democratic challenger have even become candidates.
Mitchell is striving to run an unconventional campaign that uses rapidly evolving social technology to appeal to voters who are not longtime activists in the two major parties. In keeping with this theme, Mitchell will hold a two-hour online town hall to answer questions from the public. The chat, or liveblog, will feature Web software from Scribblelive, which allows users immediate access to such events through existing social media accounts such as Facebook, Twitter and Flickr.
Now, it’s hard to see how Mitchell will have a major impact on next year’s election. After all, a central tenet of his politics is running government without any taxes and the 16th Amendment never was legally ratified. The latter position tends to held by extreme, anti-tax protesters who sometimes wind up in prison.
But Ron Paul surprised a lot of people with his 2008 success in fundraising, if not with the popular vote, and pioneered some Internet techniques that Mitchell will try to expand upon. So it will be worth watching to see what Mitchell does.
Posted in: Congress • Courts • Election issues • Governor • 2010 elections • John Paul Mitchell | Post a Comment »
July 24th, 2009, 11:58 am by Le Templar
Here’s a quick look at some interesting news items to wrap up the week:
More budget cutting unravels – The state Supreme Court ruled today the Legislature illegally took $7 million in interest from a special program created by a 2006 initiative to fund early childhood education and health-care programs. Lawmakers knew they couldn’t touch the money raised directly from cigarette taxes assessed as part of 2006 law. But they hoped they could use the bank interest collected on the paid taxes waiting to be spent. The Supreme Court says “no.”
This becomes the latest setback for the Legislature in a series of lawsuits that have challenged various efforts to reduce a multi-billion dollar budget deficit. The courts have said the Legislature can’t force cities to pay back state funds; it can’t take funds paid by farmers and ranchers for specialized research and marketing; and it might not be able to cut programs that serve the disabled. Other challenges still waiting resolution include the removal of funding from Science Foundation of Arizona and the Arizona Industrial Commission. One would wonder if the Legislature has any budgeting authority left, except the courts did rule in favor of the state’s right to reduce wages and layoff employees.
The sales tax question — Many political activists have wondered if Gov. Jan Brewer or anyone else has a clear sense of what the general public wants for potential budget solutions. A new poll released Thursday by the state Realtors’ association suggests that Brewer is on the right track to support a temporary sales tax hike while opposing the Democrats’ proposal to lower the sales tax rate but expand the list of goods and services that are covered (which would ultimately bring in more tax revenue). The survey seems to be reliable (trustworthy polling outfit, statewide and randomly selected participants, tightly worded questions). The only fallacy I noticed is that the poll underrepresented independent voters (only 22 percent of the total questioned vs. 30 percent of all voter registrations). But the huge margins on the two main questions (two-thirds favoring a temporary sales tax increase but opposing a broader tax base with a lower rate) imply that one disparity didn’t affect the results.
But I’m not sure the poll results actually help Brewer’s cause with the Legislature. Democrats want permanent tax reform, not a temporary solution. And some Republicans have been reluctantly coming around to sending Brewer’s proposal to the ballot under the assumption that it would get defeated. Those Republicans might vote against Brewer now on philosophical grounds if there’s a good chance that voters would support the sales tax hike.
The push for ‘racinos’ — At the beginning of the week, the state’s horse and dog tracks launched a publicity campaign to convince lawmakers to allow slot machines and other forms of banned gambling at racetracks, as a alternative way to balance the budget (More taxes would be collected on gaming revenues). The effort includes an online ad appearing at several political news sites featuring the words, “Mine that bird” and “Mine that budget jockey.”
I have no idea what that’s supposed to mean. I didn’t make any connection to the ‘racino’ campaign, not even with the annoyingly loud sound at the start of the ad that’s apparently a combination of coins dropping and the starting bell of a horse race. But maybe the wording served its purpose, as after seeing it the ad a couple of times I clicked on it to see where the link sent me. I traveled here, a Facebook page called the Race for Revenues where the tracks are making their case with testimonials and fact sheets.
Posted in: Arizona Legislature • Arizona government • Courts • Election initiatives • Governor • Arizona Supreme Court • First Things First • Racinos • Realtors | Post a Comment »
July 22nd, 2009, 2:18 pm by Le Templar
The Goldwater Institute is claiming it won big Wednesday in its bid to prompt more government transparency in possible taxpayer giveaways to a major-league sports franchise. The institute went to court to compel Glendale to turn over any records related to that city’s attempts to convince a future owner of the Phoenix Coyotes hockey team to stay at Jobing.com Arena. But the ruling isn’t quite as sweeping as the institute’s news release implies.
Maricopa County Superior Court Judge Edward Burke said Glendale gets to keep secret any documents that touch on the city’s actual negotiations with a potential Coyotes owner, including any possible tax incentives or sweetheart lease deals for use of the hockey arena. Burke has demanded that Glendale bring him those records the city wants to keep secret, so he can make sure the city isn’t trying to hide documents that really should be public now. But I doubt the records released at this point will give outsiders any idea of what Glendale has been up to in these private negotiations.
The best part of Burke’s ruling is Glendale has to release all negotiation documents as soon as the city schedules a proposal for the council to publicly consider, or when any ownership bids are filed in U.S. Bankruptcy Court. That means the judge will protect negotiation privacy only until the talks appear to be over, and then the public gets immediate access to records that might shed more light on what has been going on. Even then, Glendale won’t have to turn over records that reveal how much the city was willing to spend to complete a deal.
The outcome isn’t perfect, but at least a variety of records likely will be available for review in time for taxpayers to influence what Glendale does before the city signs any final agreement with the Coyotes.
Posted in: Courts • Freedom of Information • Goldwater Institute • Maricopa County Superior Court • Phoenix Coyotes | 1 Comment »
July 14th, 2009, 3:41 pm by Le Templar
Perhaps one of the most difficult decisions anyone might face is what to do if a loved one has slipped into a coma and doctors expect no recovery. Even when you believe know your loved one’s wishes, the choice to shut off feeding and hydration tubes is downright uncomfortable. The doctors say the person won’t feel any pain, but what if they are wrong? And for every Terri Schavio out there, someone else can point to people such as Jesse Ramirez, a Chandler man who regained consciousness two years ago after his family fought to restore his food and water. Ramirez’s wife had moved him to a hospice center and directed medical staff to let him fade away.
Ramirez’s story inspired a new state policy signed into law Monday by Gov. Jan Brewer that had been promoted by pro-life groups. Essentially, HB2616 seeks to tilt tough situations toward keeping patients alive.
The law will apply if the coma patient didn’t write a living will or health care directive, and a judge appoints a guardian to make health care decisions for that person. The guardian will be required to notify the court if he or she wants to withhold food and water, and the guardian must seek to contact family members who might not know about the patient’s condition. If any family member protests the guardian’s decision, the court will be required to override it and keep the patient supplied with food and water, unless the judge is convinced such measures will do more harm than good or that the patient wouldn’t want to be kept alive in this manner.
Even if the judge agrees to withhold food and water over a family member’s opposition, such action will be automatically delayed so that family member can pursue appeals.
As the result of this statute, without a living will or health care directive, it will far easier for family members who believe in miracles (or whose beliefs reject assisted suicide in any form) to stop the withholding of food and water.
The law goes into effect Sept. 30.
Posted in: Arizona Legislature • Courts • Governor • Center for Arizona Policy • end-of-life decisions • Jesse's Law • Terri Schavio | 4 Comments »
June 23rd, 2009, 5:01 pm by Le Templar
Phoenix Republican Jim Deakin believes he represents the real mainstream of his party, and so he’s aiming to upset Sen. John McCain, R-Ariz., in next year’s state primary. But I hope most party activists understand our country’s geography and history better than Deakin apparently does.
In a news release today, Deakin seeks to weigh in on racial politics and President Barack Obama’s nomination of appellete judge Sonia Sotomayor to the Supreme Court. Deakin goes about it in an odd way, by suggesting Sotomayor’s family is from the foreign country of … Puerto Rico.
First off, Sotomayor was born in the Bronx, as in New York City, as in the first national capital of the United States. So any attempt to somehow taint her homegrown nationality by tossing around the word “emigrate” is in of itself insulting.
Yes, her parents were from Puerto Rico. While not one of the 50 states, Puerto Rico has been a fully functioning U.S. territory or commonwealth since 1917. Every native is a full-blooded U.S. citizen and moving to or from Puerto Rico is nearly as easy as spending the summer in San Diego.
Sure, in prior centuries, Puerto Rico was subject to the rule of several foreign countries and Spanish is prominently spoken on the island. But that’s the history of more than one U.S. state as well.
Republicans are debating this summer among themselves just hard to challenge Sotomayor’s appointment, given her easy confirmations to the federal bench in the past and the fact that Obama will insist on liberal credentials for any potential replacement.
Deakin’s comments (as you can see below) add little that’s constructive to that debate:
If Jim Deakin were the Senator from the great State of Arizona he would have one question for Judge Sonia Sotomayor.
In several of your speeches over the years you have said that a Latino Woman would make better decisions than an Old White Man.
Your family emigrated to the United States of America from Puerto Rico.
Why did your family migrate from a country where the laws are written by Latino Men and Women to the United States of America where the US Constitution was written by a bunch of OLD WHITE GUYS?
Jim Deakin is a candidate for US Senate from Arizona in the 2010 Elections.
For the record, the U.S. Constitution generally is in effect in Puerto Rico as well. And many Puerto Ricans moved to the New York and other American cities shortly after U.S. annexation because the island was dirt-poor with few jobs early in the 20th century, sort of like what happened in the 1930s in Oklahoma.
Posted in: Courts • Election issues • Barack Obama • Jim Deakin • John McCain • Puerto Rico • Sonia Sotomayor | 2 Comments »
June 16th, 2009, 10:38 am by Le Templar
Wow! Gov. Jan Brewer must be mad. On Monday, she summoned the media to tell state Senate President Bob Burns, R-Peoria, he had until 5 p.m. today to send to her desk the package of budget bills recently adopted by the Republican majority of the Legislature. If he didn’t, Brewer promised to go to court to force the delivery of those bills under the state constitution. But now Brewer has called another press conference at 11 a.m. today, this time inside the building that houses the Arizona Supreme Court. I guess she’s not going to bother to wait until the end of the day to request that the high court intervene. There’s only 14 days left until a possible government shutdown, after all.
Arizona Chief Justice Ruth McGregor is scheduled to retire from the Supreme Court on July 1. The courts have been wrestling with a number of lawsuits challenging specific budget cuts already imposed by the Legislature and governor. But I can’t imagine McGregor expected her final weeks to include mediating a high-level fight between the other two branches of state government over the fundamental responsibility of adopting a state budget.
UPDATE: The Associated Press is reporting that Gov. Brewer did file a special-action motion with the Supreme Court. Brewer says Republican legislative leaders appear willing to wait to send the budget bills until June 30 (last day of the fiscal year), trying to force her to sign the package without any substantial changes to avoid a government shutdown.
SECOND UPDATE: Capitol Media Services is reporting the state Supreme Court will hear arguments in this case on June 22 (next Tuesday). Does that push the countdown clock fast-forward to eight days left?
Posted in: Arizona Legislature • Arizona government • Courts • Governor • Bob Burns • Jan Brewer • Ruth McGregor | 3 Comments »
May 15th, 2009, 5:51 pm by Le Templar

I’ve been away from this blog for a while because I spent much of the week serving as juror No. 1 in the state of Arizona v. Sara Byron, a criminal trial before Maricopa County Superior Court in downtown Phoenix. Being called to jury duty is quite common these days, as at least one of every four adults in this county receives a summons in a single year. Perhaps that’s why so many people who came to the courthouse last week were visibly upset at the idea of getting picked for a trial, even if it lasted only a few days.
On the other hand, it’s still rare for daily news journalists to actually be sworn in. Too often, we know about the case at hand, or we know some of the court officials and law enforcement investigators involved, or we simply can’t be trusted to avoid news reports as the trial progresses.
So I had never been in a jury pool before, which disappointed me because I have long considered jury service to be one of the two basic duties of every U.S. citizen (the other duty is voting). I did have some idea how a Maricopa County jury works, thanks to a 2002 ABC television series called “State v.” But I always wanted to experience this firsthand. Juries from a cross-section of the community are an essential check on the power of a potentially overzealous government, an issue that came up in this particular trial.
Nervous about working with complete strangers who didn’t want to be there, I was pleasantly surprised by what happened. The five women and three men (and two alternates) were normal people with interesting lives who strove in small ways to make our task less onerous – from holding the elevator door for each other to sharing lunch bills to bringing donuts and other treats for the jury deliberation room. It also helped that all of us wanted to follow the rules as outlined by Judge John Hannah. And we shared the same views about the criminal case as soon as the closing arguments were over.
Sara Byron co-owned a dental office in Sun City West, and she was locked in a bitter legal dispute with another co-owner, the dentist, who claimed he actually controlled the business. About a year ago, someone went into the office in the middle of the night, poured gasoline around various pieces of the expensive equipment and started several fires which eventually burned themselves out.
Suspicion fell on Byron because the arsonist got into the building without breaking any door locks or windows. Her alleged motives were revenge against the dentist who dragged her into court, or to obtain insurance money to buy the business outright. But Byron pointed to her roommate and close friend Donavan Bering. After a series of interviews, Bering eventually confessed to the detective that she arranged for the arson with another roommate, Zachary Proctor, who was the one who entered the building and set the fires. Bering and Proctor both pleaded guilty to felony arson.
At this point, you’re probably wondering why Byron as the co-owner was on trial. Well, the roommate Bering said she actually planned the crime with Byron, who handed over a key to the office to make it happen. But Byron insisted the roommate was lying. Bryon told a sheriff’s detective she never would want the business destroyed; that’s why she had fought so hard with the dentist to keep it. Assistant Maricopa County Attorney Jon Wendell didn’t buy Byron’s story, and took the case to trial.
Unfortunately for the prosecutor, Bering was the only person to claim that Byron was part of the conspiracy, and Bering was a terrible witness. Her explanations changed wildly over time. She couldn’t reconcile her story that Byron expected the fire to be disguised as an accident for the insurance money, with how the arson actually was carried out in such an obvious manner. Byron’s defense lawyer, Justin Beresky, called a litany of witnesses who testified that Bering constantly lied about events in her life to manipulate other people.
Finally, Bering’s accomplice, who came across as far more credible, testified for the defense that he wasn’t given any reason to believe Byron was involved.
Once we jurors gathered in our windowless conference room, one woman didn’t even want to bother with deliberations. Quoting from the judge’s instructions, she argued for an immediate vote of not guilty, “The state has the burden of proving its case beyond a reasonable doubt, and this is not even close!”
But Carol the forewoman said we owed it to the state (and county taxpayers) to review all of the evidence and be confident in our final decision. That required about 45 minutes of discussion. As we kept identifying more holes in the prosecution’s case, several of us wondered why there was a trial in the first place. Wendell’s explanation in his closing argument, and again to the jurors after the verdict was read, was that Byron had to be guilty “because she was the only one who benefited” if the business was destroyed.
And that’s the ultimate beauty of including citizen jurors in the administration of justice. If you believe in the concept of innocent until proven guilty, then we never should convict someone simply because a government prosecutor or judge wants to believe that person did wrong. Jurors apply common sense and a diversity of experiences to test whether the accused really deserves to lose her freedom and reputation.
Sara Byron cried and whispered “thank you” as the jurors walked past after the judge had read our verdict. It was our reward for doing our duty as citizens in a country that values liberty so deeply.
Posted in: Courts • Journalism • Maricopa County • Maricopa County sheriff | 4 Comments »
April 1st, 2009, 12:44 pm by Le Templar

MARICOPA COUNTY ATTORNEY ANDREW THOMAS (Tribune file photo)
The media (neither mainstream or Internet era) usually don’t take the time to remark or offer praise when a politician simply does his or her job. But Maricopa County Attorney Andrew Thomas has been a lightning rod of controversy in the past two years, and he has brought at least some of his troubles upon himself. So a source made a good point today when I was asked if anyone was going to recognize the work of Thomas and his staff in obtaining multiple death penalty sentences for one of the high-profile killers in the Serial Shooter case. Even if Dale Hausner could somehow prevent state execution, he’s never going to leave prison as a free man.
Thomas and the Phoenix Police Department took some risks when they investigated and then arrested Hausner and partner Samuel Dieteman. Uncertain if they had collected enough evidence yet to get murder convictions, Thomas and Phoenix officials agreed to get the two off the street only a few days after they became suspects in order to prevent additional random killings that had terrorized the entire Valley.
Not only did Thomas’ office build a strong case, some prosecutor managed to convince Dieteman to plead guilty to two murders and then to testify against Hausner, and even though Dieteman can still get the death penalty as well. (Dieteman’s sentencing was delayed until after Hausner’s). In fact, I assume Thomas’ prosecutors will push for a second execution, given that Dieteman was an active, willing participant in the serial shootings who was stopped only by the police handcuffs and jail bars.
I’m impressed these prosecutions didn’t fall victim to Thomas’ re-election campaign last year, his various clashes with the judiciary, or his out-and-out dog fight with the county Board of Supervisors. These two cases proceeded without any unnecessary drama and there was little doubt that Hausner would receive the justice he deserved. This is the kind of attention to safety that the public expects and deserves from a county attorney.
There are many ways that I am concerned about Thomas’ management of the county attorney’s office, the latest being I simply don’t understand how Thomas can argue he has no conflict of interest in prosecuting county Supervior Don Stapley (and by effect, seeking to have Stapley removed from office) while still offering legal advice on other matters to Stapley and the rest of the board.
But when it comes to the Serial Shooter case, Thomas and his staff have done an excellent job.
Posted in: Courts • Andrew Thomas • Don Stapley • Serial Shooter | 2 Comments »
March 13th, 2009, 2:27 pm by Le Templar

TODD LANG, ARIZONA CITIZENS CLEAN ELECTIONS COMMISSION
The top administrator of Arizona’s system of campaign public funding has responded to a post I wrote a week ago that predicted a slow demise of Clean Elections after a federal judge voids future matching funds as unconstitutional. Here is Todd Lang’s full commentary:
Le Templar’s latest piece on Clean Elections deserves some praise. After all, the Tribune’s editorial staff has been consistently calling for the end of Clean Elections for more than a decade now, and Templar manages to stay on message despite the overwhelming success of Clean Elections in Arizona.
Some measures of that success: More than 65 percent of all candidates were participating candidates in 2008. At a time when Arizonans disagree on numerous issues, 80 percent of voters surveyed by Behavior Research say that Clean Elections is somewhat or very important. In addition, 70 percent of all currently sitting officeholders used Clean Elections for at least one race. Many of the legislators who no longer participate used Clean Elections to get into office.
As Templar observes, once in office, incumbents have no problem raising money from lobbyists. The important thing is that even opponents of campaign finance reform are able to run for office because of Clean Elections.
Clean Elections lets good candidates run, regardless of their viewpoint. It gives voters real choices and a real opportunity to vote for candidates with which they agree.
Some argue that we should return to the time when interest groups like the chamber of commerce or newspaper editorial boards decided who wins the primary. We believe that the people are the most qualified to choose who will represent them. In other words, our democracy is run by the voters, not special interest groups. That some newspapers and other organizations resent this success is no surprise.
What does come as a surprise is that Templar believes that matching funds are a problem. After all, matching funds let the voters hear “both sides of the story” — something most editorial boards value.
The complaint about matching funds boils down to a simple principle: The plaintiffs would prefer that their political speech stand alone without any form of rebuttal.
Of course we would all prefer to speak with no possibility of rebuttal — debates are much easier to win that way. But the foundation of the First Amendment and our democracy is a robust “marketplace of ideas” in which voters can hear all points of view and all sides of the debate.
Matching funds allow candidates to respond to their opponents — so that voters are exposed to both sides of the debate and, as such, can make a meaningful choice at the ballot. Matching funds also provide a candidate the opportunity to respond to the nasty, misleading attack ads by unknown independent expenditure committees that we all see on occasion.
Thus, matching funds result in more information and better information for the voters. The First Amendment and our democracy is well-served by matching funds.
Templar’s reference to the trio of candidates who misspent funds in 2004 is an obvious red herring. Templar fails to mention that the Citizens Clean Elections Commission caught those candidates, obtained repayment agreements, and the leader of the trio is currently in jail. Because of strict enforcement of the Citizens Clean Elections Act over the years, these sorts of problems have not recurred.
The commission works closely with candidates in order to help them comply with the statutes and rules and to help identify and eliminate possible abuses. Candidates and voters find that Clean Elections is important, effective, helpful and successful.
The commission will continue to implement rules and policies that improve the act, and it welcomes public suggestions, comments, and participation. Clean Elections will continue to serve Arizona and provide opportunities for candidates to run for office and for voters to receive complete information and be encouraged to participate in the political process.
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Todd Lang is executive director of the Citizens Clean Elections Commission.
Posted in: Arizona government • Courts • Election issues • Clean Elections • Todd Lang | Post a Comment »
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