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IN Administrative Law

Topics & Tips

I. Overview
a. Heavily tested; But statutory based so accessible. (18/24 past exams).
b. Topics
i. Administrative rulemaking: The Quasi-Legislative Function
ii. Administrative adjudication: The Quasi-Judicial Function
iii. Judicial review of Administrative Decision
iv. Procedural DP
v. Public Information About Administrative Decisions: The Indiana Open Door
Law and Indiana Access to Public Records Act

IN Administrative Law
Introduction

I. What is administrative law?


a. Governs the actions and decisions of government officials within administrative
agencies created by enabling statutes.
II. What are the various powers of Administrative agencies?
a. An agency can engage in (i) rulemaking; (ii) adjudication; (iii) and
Investigation.
b. Example. BMV empowers to adopt and enforce the rules necessary to carry out
statutes relating t motor vehicles. Maximum speeds also statutorily defined, but A
sets the rules and regulations RE points.
i. Assessing points for various speeding violations, acting in its quasi-legislative
role.
1. Rulegovern prospectively, applying all persons or entities subject to
jurisdiction of agency.
ii. Deciding whether particulars license should be suspended acting in quasi-
judicial role.
1. Orderoperate retrospectively on only those persons or entities that
are parties to the proceeding (has no general applicability).
III. Key question in administrative law: Can the agency action pass judicial review?
a. A court will consider if the agency action is in compliance with:
i. State statutory standards (this includes consideration of substantive
constitutional rights)
ii. US Constitutional procedural due process
iii. The Indiana Open Door Law (ODL) and Indiana Access to Public Records Act
(PRA).

IN Administrative Law Admin. Rulemaking: The Quasi-


leg. function

I. Valid Rules must:


a. Be statutorily authorized,
i. Example. BMV promulgates ruel allowing points to be assessed for speeds 1
mile below; would be invalid for it exceeds legislative authority.
b. Have ascertainable standards, and
i. Must provide ascertainable standard upon which regulated parties may rely in
determining rules effect.
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c. Be promulgated properly.
i. See III.
II. Constitutional NoteDelegation DoctrineThe legislature may constitutionally
delegate to administrative agencies the power to promulgate rules without violating
the principle of separation of powers. BUT in delegating rulemaking authority,
legislature must provide reasonable and feasible standards which are consistent
with the agencys statutory purpose.
III. Rule Promulgation: 12 Step process. (The Administrative Rulemaking and
Procedures ActARPA).
a. When Rules are to be Made
i. Earliest date: Before statutes effective date;
ii. Latest date: Must begin within 60 days of effective date of the statute
authorizing the rule.
iii. Exception: Must notify the Rules Oversight Committee, stating reasons for
noncompliance, if cannot comply with 60 day requirement; So long as
provides notification, untimely initiation of promulgation process will not
invalidate rule.
b. The Notice of Intent
i. Notice of intent to adopt a rule must be published by an agency in the
Indiana Register at least 28 days prior to rules preliminary adoption.
1. The Indiana Register is a government publication in which all admin.
agencies publish items as notices, proposed rules and final rules.
c. $500,000 Notice
i. If A believes rule will have a fiscal impact greater than 500k, the A must
provide fiscal analysis to the Rules Oversight Committee after preliminary
adoption.
d. Preliminary Rule Adoption: Publication & Notice
i. Preliminary adoption is completed by
1. Publishing (i) the preliminary rule in the Indiana Register AND (ii)
notice of public hearing on rules adoption in a general newspaper (at
least 21 days bf hearing).
e. Public Hearing and Opportunity to Comment
i. At hearing, public has opportunity to make both written and oral comment.
ii. May also accept comments any time after hearing.
f. Agency Consideration of and Response to Comments
i. Following hearing, A must consider all comments and respond in writing
available to public.
1. Though failure to respond to each comment will not invalidate the rule.
g. Final Rule Adoption
i. A may change rule prior to final adoption in response to public comments,
BUT final version cannot substantially differ from preliminary rule,
unless changes are a logical outgrowth of comments received by the A at
the hearing.
ii. Final version then adopted by the As final authority.
h. Attorney General Approval
i. Authority. The AG may only disapprove for cause if the rule:
1. Does not comply with the rule promulgation process;
2. Rule substantially differs from preliminary version and such
differences are not a logical outgrowth; or
3. Rule violates the law.
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ii. If the rule is a Takings AG must advise governor and the head of the
agency. (Advice is confidential attorney-client communication).
iii. Approval. If no cause for disapproval, the AG affirmatively approves OR
the rule is deemed approved by 45 days of inaction.
i. Governors Approval
i. Authority. The Governor may approve or disapprove a rule with or
without cause .
ii. Approval. Normally, Governor has 15 days to review rule. May take
additional 15 days after providing notice to the secretary of state. The
Governor may affirmatively approve OR have rule deemed approved by
his inaction within given review period.
j. Filing with Secretary of State
i. Sec. of State must review the rule for acceptable form within 3 days.
k. Recall of a Rule
i. Before filing with the Sec. of State, an agency may recall a rule.
l. One-year deadline
i. Entire process must be completed within one year.
IV. Openness
a. Rulemaking must comply with INs public information law (See below).
V. De novo. Judicial Review of Administrative Rulemaking
a. The validity of Administrative Rulemaking is subject to de novo judicial review.
i. [not mentioned in class] On judicial review, court must consider whether
administrative rule: (i) lies within scope of authority conferred by
governing statute; (ii) is consistent with and reasonably necessary to
carry out the purposes of the statute; and (iii) is reasonable. Charles A.
Beard Classroom Teachers Association (Ind. 1996).
ii. Cf. Judicial review of an Administrative Adjudication is as an appeal. (See
below).
VI. [not mentioned in class] Emergency rules
a. May be adopted by A if specifically authorized to do so; NOT subject to same notice,
public hearing, approval requirements; and effective for only 90 days with one 90
day extension, unless additional extensions expressly permitted by statute.

IN Administrative Law Admin. Adjudication: The Quasi-jud.


function

I. AOPA (9/24)
a. General rule. Administrative Adjudications are subject to the Indiana
Administrative Orders and Procedures Act (AOPA).
b. Application. AOPA
i. Applies only to state executive branch,
ii. Creates statutory exceptions for certain state administrative agencies
and actions, and
iii. Sets minimal procedural rights.
1. A may adopt informal procedural rules consistent with AOPA.
II. Administrative Law Judges (ALJ) (4/24)
a. Basic Ground for ALJ Qualification: impartiality.
i. Note: An administrative adjudication may be made by one individual or by a
multi-member panel designated by the As final authority to act as the
ALJ(s)

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ii. [Not covered in class]ALJ subject to disqualification for: (i) bias, prejudice, or
interest in outcome (ii) failure to dispose of the subject of a proceeding in
orderly and prompt manner after written request of a party (iii) making public
comments, except as to hearing schedules or procedures, about pending or
impending proceedings (iv) Engaging in financial or business dealings that
reflect adversely on ALJs impartioaility, interfere with perofemenace of ALJ
duties, exploit ALJ position, or involve ALJ in frequent business dealings with
person who are likely to come before the ALJ, such as attorneys; or (v) Any
cause for which judge of a court may be disqualified.
iii. [Not covered in class] ALJ who believes own impartiality may be reasonably
questioned must either (i) w/draw as ALJ or (ii) inform parties of potential
basis for DQ, place brief statement of basis on record, and allow parties to
petition for DQ.
1. Party may petition for DQ upon discovering facts establishing grounds
for DQ.
b. Prohibited Ex Parte Communications
i. ALJ may not engage in ex parte communications, directly or indirectly,
with an individual who is a (P.I.P.P.)
1. Party to the proceedings,
2. Interested, directly or indirectly in the outcome,
3. Presided at previous state of proceedigns or
4. Prohibited from assiting the ALJ (ex. investigator, prosecutor,
advocate in the proceeding or subordinate of such individuals, RE any
issue in a proceeding wwhile pending unless authorized via statute).
a. May communicate with own staff assistance.
ii. An ex parte communication occurs when a
1. A prohibited individual communicates with the ALJ:
a. Without notice and opportunity for participation provided to
all parties and
b. An issue relevant to the pending proceedings is the subject of
the communication (critical).
iii. What action, if any, must ALJ take if receives ex parte communication?
1. Must: (i) Place on the record all written and oral information RE the
ex parte communication and (ii) Advise all parties that these matters
have been placed on the record.
iv. What action, if any, may party take after ex parte communication?
1. May petition for the ALJs disqualification.
III. Administrative Hearing Procedures
a. Key distinction. The normal rules of evidence do not apply.
i. Example. Hearsay.
1. ALJ can sustain the hearsay objection but nevertheless admit the
testimony.
2. However, the resulting order in hearing cannot be based solely
upon hearsay evidence if properly objected to and does not fall
within recognized exception.
ii. [Not covered in class]Exclusion of evid. Upon proper objection, ALJ must
exclude evidence that is irrelevant, immaterial, unduly repitious, or
excludable on constitutional or statutory grounds.
iii. Any e vid. May be received in written form if will expedite proceedings.
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b. [Not covered in class]
i. ALJ must
1. keep a record of the proceeding
2. Set time and place for hearing and reasonable written notice to
parties and pet. for int.
a. A must give at least 5 days notice of the hearing.
b. Notice to include: Copies of prehearing orders; names and
addresses of everyone given notice, including counsel appearing
on behalf of A; Official file/reference number; statement of time,
place, nature; statement of legal authority and jurisdiction;
contact info of ALJ; statement of issues involved and matters
known to be asserted; statement that party who fails to
participate may be held in default or have proceeding dismissed.
3. Issue findings of fact that are (i) based on evid. in the record and
on matters officially noted in the proceeding, and (ii) based on kind
of evid. that is substantial and reliable.
4. Issue order in writing within 90 days after hearing concludes or
after submission of proposed findings of fact by the parties unless
period waived by parties.
ii. Finality of decisionIf ALJ is ultimate authority of A, ultimate authoritys
order disposing of proceeding is final order. If not ultimate authority, ALJ
decision not final order unitl affirmed by the ultimate authority of the A.
1. If ALJ not, ultimate authority or its designee must issue final order
affirming, modifying, or dissolving ALJ order. OR may remand to ALJ
with or without instruction, subject to review after remand.
c. [Not covered in class] Other misc. matters
i. Intervention
1. At least 24 hours b/f hearing ALJ must issue order granting/denying
pet. for intervention in proceeding.
2. ALJ must grant if (i) petition (mailed to all parties) states facts
demonstrating petitioner has an unconditional right to intervene; or
(ii) submitted writing to ALJ (mailed to all parties) at least 3 days
before hearing, stating facts that demonstrate pet. is aggrieved or
adversely affected by order or that governing statute gives a
conditional right to int.
ii. DiscoveryALJ must at request of party/A issue subpoenas, discovery
orders, and protective order in accordance with Indiana Rules of Trial
Procedure.
iii. SJat any time after matter is assigned to ALJSJ on fewer than all issues
involved in proceeding or RE fewer than all claims or parties is not a final
order.
d. [Not covered in class] Administrative Review
i. Purpose is to correct errors at lower stages of admin. decisionmaking, while
judicial review is concerned with final level admin. action.
e. [Not covered in class] Petition ultimate authority for rehearing.
i. May be granted only if party demonstrates not in default, newly discovered
material evid. exists, and that evid. could not, by due diligence, have been
produced at hearing.

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IN Administrative Law Judicial Review of Administrative
Adjudications

I. Scope of Review of Admin. Adjudications


a. The Judicial Review of an administrative Adjudication is an appeal.
i. Recall: of an administrative Rulemaking is de novo.
b. Reviewable decisions are: Final administrative orders. (see above).
i. Example. Even if an at-will employee, any party aggrieved by an
administrative order or determination is entitled to judicial review; here,
termination occurred after provided admin. hearing pursuant to provsiiosn set
out in Dept. handbook.
ii. Example 2. Threatened administrative action is NOT subject to judicial
review.
II. [Not covered in class] Stay of Agency Order
a. Petitioner for judicial review may file verified petition for stay of effectiveness of the
A order pending decision of court in jud. review.
b. Court may grant the petition for state if (i) court finds pet. for review and stay show
reasonable probability that A action is invalid or illegal; and (ii)a bond in
amount of no less than $500 filed conditioned upon prosecution of the proceeding
for review and that pet. will pay all court costs and abide by A order if not set aside.
III. Factual Review: Limited to Existing Admin. Record
a. General Rule. Judicial Review is limited to review of the agency record.
i. Exception (narrow) (3 components). A court may receive additional evid. if:
1. Necessary to reviewing the challenge administrative action;
2. Not previously discoverable using due diligence; and
3. Relevant to a charge of:
a. Improper decisionmaking body constitution (i.e. makeup) or
grounds for disqualification; or
b. Unlawfulness of procedures or decisionmaking process.
b. Example. Requests order to disclose evidence A considered in deciding. Court may
not grant as long as admin. action supported by the record; court may not
substitute its judgment on the merits. (deference).
IV. Issue Review: Limited to Legal Claims Brought During Proceedings
a. General Rule. Judicial review is limited to legal claims brought during the
administrative proceedings.
i. Waiver: If legal issue is not raised during admin. proceedings it is
considered waived.
ii. Exception: when
1. There is insufficient notice; or
2. The interest of justice are severed by judicial resolution of an issue
arising from a change in controlling law after the agency action (i.e.
confusing exists).
b. Example. Issue of imparitiality; trying to determine if were impartial. Plaintiff
waived the issue of impartiality. To preserve should have challenge during admin.
procedure.
V. Limitations on Judicial Review (SET)
a. In order to seek judicial review party must also demonstrate: (i) Standing (ii)
Exhaustion of admin. remedies; and (iii) Timeliness.
i. Note: As with all judicial matters, party seeking jud. review, must also
establish juris. and venue.
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b. Standing
i. Individual Standing. Personal standing is established for a person:
1. (i) to whom the action was specifically directed;
2. (ii)who was a party to the admin. proceeding;
3. (iii) otherwise eligible for standing under applicable law; or
4. (iv) otherwise aggrieved or adversely affected.
a. This required personalized harm, more than feeling of concern or
a disagreement about policy. May be pecuniary, property, or
personal. Must have suffered or likely to suffer in immediate
future.
5. Example. Person owning one unit of Corp. land and is also managing
member has standing in pollution case if can show health was affected;
Her standing is not based upon being a SH. Corporation has standing
to represent its own interests.
ii. Agency Standing
1. IN SC has held that A that is party to a proceeding has standing to
seek jud. review of final order issues by an ALJ who authorized as the
ultimate authority for the A
2. Example. Can create an Ironic result.
c. Exhaustion of Administrative Remedies
i. General Rule. Party must exhaust all administrative remedies prior to
filing for judicial review.
ii. Exceptions to exhaustion exist for:
1. Refusal of an A to dispose of the admin. claim.
2. Futility of exhausting admin. remedies or
3. Purely constitutional issues are raised. (This includes not abridging
constitutional right to jury in CL actions) (narrowly read; As do not
have jurisdiction here then).
4. Example. Futility Exception. FDoctor received final order RE non-
authorization of Medicaid reimbursement, would be futile for Hospital
to then to seek reimbursement for exact claim that had been denied.
d. Timeliness
i. To preserve the right to jud. review, a person must object in a timely manner
to:
1. Order or timely petition for review of an order.
ii. Petition for review must be filed within 30 days after notice of agency actin is
served.
VI. Standard of Judicial Review: A. C.AD. CONned the JURI. PRO. S.E. [Note: Judicial review
is initiated by filing a petition for review in the appropriate court, must set forth, in part,
specific facts that demonstrate that petitioner has been prejudiced by an A action
on one or more of the following grounds:]
a. An individual seeking jud. review of administrative action must successfully
demonstrate that the A action was:
i. ACAD. Arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance w/ the law;
ii. CON. Against a constitutional right, power, privilege, or immunity;
iii. JURI. In excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
iv. PRO. Without observance of procedure required by law; or
v. S.E. The agency action was unsupported by substantial evidence.
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b. Example. Basis on which R may seek judicial review? (Listing the possibilities). F
Requested IHSAA to recognize transfer was not athletically motivated. Denied and
affirmed in hearing. During hearing shown does not consistently apply restrictions to
children of divorced parents.
i. A rules are being enforce in an ACAD manner.
ii. CONA decision unreasonably burden right of Rs parents to make child
rearing decisions, violating sub. DP rights.
iii. CONviolated Rs equal protection right by discriminating against children of
divorced parents.

IN Administrative Law Procedural


Due Process

I. Basis of Procedural Due Process is the 14th Amendment


a. Warning! State action is required. [Need to show in a DP violation (i) deprivation
of (ii) a protected life, liberay or property interest and (iii) state action].
II. Procedural Due Process Guarantees the right to notice and hearing.
III. Procedural DP Application in Admin. law is to administrative adjudication NOT
rulemaking.
a. Recall: Rulemaking actions subject to procedural challenge for violating the ARPA
statutory notice and comment procedures (see above).
IV. Two Basic Procedural DP Questions
a. Is there a protected interest at stake?
b. If yes, were the procedures sufficient?
i. Remember: Procedural DP Challenge is a challenge to the adequacy of the
process, NOT the substance of the decision.
1. Substantive Challenges exist independently (CON, etc.)
V. Breaking Down the Two Basic Procedural DP Questions
a. Question one. Is there a protected interest at stake? (i.e., deprivation of life,
liberty or property?)
i. Liberty interest may be created by numerous federal or state sources (Core
interests include right to travel, marry, and raise a family).
ii. Property interest must involve a legitimate claim of entitlement.
b. Question two. If yes, were the protections sufficient?
i. 3 Part balancing test.
1. (i) Individual harm caused by denial/lack of process [balanced
against]
2. (ii) Government interest and
3. (ii) considering value of additional process. Mathews v. Eldridge.
c. Example. Fireman suspended without pre-suspension hearing for refusing to work
pending appeal of denial of disability. But post-hearing suspension is available.
i. Property interest. This property interest is fact specific. Not merely an at
will employee, ut entitlement created by certain terms and conditions of his
employment. (Key is entitlement).
ii. Outweighed by gov. interest, availability of post-process, likely accuracy.
iii. Lesson learned: Balance!

IN Administrative Law Public Information About


Admin. Decisions

I. Two statutes require public information:


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a. The Indiana Open Door Law (ODL)
b. The Indiana Access to Public Records Act (PRA)
II. The Indiana Open Door Law (ODL) (2/24)
a. Purpose. Access to Agency meetings
b. Scope. Agencies subject to the ODL are all bodies exercising executive,
administrative, or legislative power in state or local government.
i. Note: ODL does NOT include the judiciary. [PRA does include the judiciary].
c. General Rule. Meetings of the Governing Bodies of public agencies must be
open.
d. What is a Meeting? Is a gather of a majority of the governing body for the
purpose of taking official state action.
i. Note: As of 2007, seriel meetings which in the aggregate comprise a
majority of the governing body are also meetings. See Dillman v. IU.
e. Exceptions to Meeting:
1. Caucuses (i.e., gathering of political party for political purpose)
2. On-Site Inspections
3. Betterment Meetings (i.e., meetings of organizations dedicated to
government betterment)
4. Social Gatherings, or
5. Executive Sessions
a. Criteria for establishing Executive Sessions (F.I.N.S.):
i. Final Action must be public.
ii. Intent not to Circumvent. Cannot convene an
Executive Session during a meeting.
iii. Notice. Must provide 48 hours notice of Exec. Session,
citing specific statutory reason and
iv. Specific Statutory Reasons are basis for calling the
executive session.(Ex. include Litigation strategy
meetings and employee hiring decisions).
f. What Constitutes Compliance with the ODL?
i. Notice requirements
1. Time and Form. At least 48 hours b/f meeting, public notice of the
date, time and place of any meeting must be given.
2. Type of notice.
a. General Public: Office posting. Copy of notice must be posted
at principal office of the public agency conducting the meeting;
and
b. Media: Mailed notice. Notice shall be mailed to all news media
which requested notice by January 1 of that year.
ii. Agendas, Memoranda, and Minutes
1. Agendas. IF used a copy must be posted at meeting location.
2. Memoranda. ARE required and must provide basic details RE
meetings Logistics, Attendance, Voting and Substance.
3. Minutes. IF taken, must be made publicly available for inspection and
copying.
g. Actions for Violation of Open Door Rule
i. Remedies. A court may issue a declaratory judge, injunction, or declare
void any policy, decision, or final action of a public agency which violates the
ODL. (Pretty significant remedies).

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ii. Standing.NO individualized injury required. An individual DOES NOT need to
demonstrate any injury different than that suffered by public at larged.
iii. Attorneys fees are discretionary for the plaintiff if the P prevails.
1. Exception. No initial filing with the Public Access Counselor
(responsible for ensuring knowledge of and compliance with the ODL)
2. For Defendant/Agency if prevails and action was frivolous or
vexatious.
3. Note: Recent statutory amendmentODL standard not prevails
instead of substantiall prevails; and RE P, no longer required to show
Ds violation knowing and intentional.
a. PRA standard remains substantially prevails for both sides, but
P need not should Ds violation knowing and intentional to
receive attorney fees.
iv. Example. Violating the Spirit of the ODL/Knight Challenge/Serial meeting.
1. Found no meeting b/c majority of Board of Trustees did not
simultaneously convene.
2. In 2007, IN legislature enacted legislation deeming this type of serial
meeting in which a majority attends to conduct official business
on a particular subject within a seven day period to constitute
a meeting.
v. Example. Violating the ODL b/c NOT an Executive session exception b/c
exception (i) requires 48 hour notice and citation to statutory basis and (ii)
cannot occur during an open meeting.
1. Can P get decision voided? ONLY IF can demonstrate violation of ODL
substantiall affect the substance of the boards final action.
(??)
2. If upholds decision, despite ODL violation, may P recover attorney
fees? Yes, in the courts discretion may be awarded in order to
discourage further violations of the ODL. (??)
III. The Indiana Access to Public Records Act (1/24)
a. Purpose. To ensure all person entitled to full and complete access to information RE
workings of gov.
b. Scope. A Public Agency subject to PRA includes any body exercising executive,
legislative, administrative or judicial duties. (PRA does include Judiciary; ODL
does not)
c. General Rule. There is a right to inspect and copy public records.
d. A Public Record is Broadly Defined to include any material created, received,
retained, maintained, or filed by the public agency.
e. 12 Mandatory Exceptions. An A shall not disclose public records which fall
within 12 statutory exceptions.
i. Examples. Records declared confidential by state or federal law, records
contining trade secrets, grade transcripts or license examination scores
(including IN Bar), and autopsy photographs.
f. 21 Discretionary Exceptions. In its discretion, and A may refuse to disclose
public records which fall within 21 statutory exceptions
i. Examples. Investigatory records of law enforcement agencies, diaries, and
test question used in licensing examinations.
g. Form of Requests for Public Records: Particular in Substance and Form. In
requesting public info. must:
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i. Identify the record with reasonable particularity and
ii. At the agency discretion, place the request in writing or on form provided.
h. What constitutes a Denial?
i. Oral. Upon official denial or after 24 hours of denial by any agency employee.
ii. Written. Within 7 days by detailed writing.
i. Actions for Violation of Public Records Act
i. Remedy. A court may compel inspection.
ii. Attorney fees. Discretionay
1. For P: IF substantially prevails.
2. Exception: No initial filing by P with Public Access Counselor.
3. For D/Agency: If D substantially prevails AND action was
frivolous or vexatious.
4. Recall amendments noted above.
j. Example. Public Record? No, affidavit is not a public record b/c not received by the
court. To be received within meaning of PRA, court must have taken possession
and control of the document.
i. Note: Without a public record, the PRA is inapplicable. Therefore, PRA
requirement of response in writing within 7 days also inapplicable. STOP at
threshold question.

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