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Public Act 096-0381
Public Act 0381 96TH GENERAL ASSEMBLY
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Public Act 096-0381 |
HB0869 Enrolled |
LRB096 09114 RLC 19258 b |
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| AN ACT concerning criminal law.
| Be it enacted by the People of the State of Illinois,
| represented in the General Assembly:
| Section 5. The Capital Crimes Litigation Act is amended by | changing Sections 10 and 15 as follows:
| (725 ILCS 124/10)
| Sec. 10. Court appointed trial counsel; compensation and | expenses.
| (a) This Section applies only to compensation and expenses | of trial
counsel appointed by the court as set forth in Section | 5,
other than public defenders, for the period after | arraignment and so long as
the
State's Attorney has not, at any | time, filed a certificate indicating he or she
will not seek | the death penalty or stated on the record in open court that | the
death penalty will not be sought.
| (a-5) Litigation budget.
| (1) In a case in which the State has filed a statement | of intent to seek the death penalty, the court shall | require appointed counsel, including those appointed in | Cook County, after counsel has had adequate time to review | the case and prior to engaging trial assistance, to submit | a proposed estimated litigation budget for court approval, | that will be subject to modification in light of facts and |
| developments that emerge as the case proceeds. Case budgets | should be submitted ex parte and filed and maintained under | seal in order to protect the defendant's right to effective | assistance of counsel, right not to incriminate him or | herself and all applicable privileges. Case budgets shall | be reviewed and approved by the judge assigned to try the | case. As provided under subsection (c) of this Section, | petitions for compensation shall be reviewed by both the | trial judge and the presiding judge or the presiding | judge's designee.
| (2) The litigation budget shall serve purposes | comparable to those of private retainer agreements by | confirming both the court's and the attorney's | expectations regarding fees and expenses. Consideration | should be given to employing an ex parte pretrial | conference in order to facilitate reaching agreement on a | litigation budget at the earliest opportunity.
| (3) The budget shall be incorporated into a sealed | initial pretrial order that reflects the understandings of | the court and counsel regarding all matters affecting | counsel compensation and reimbursement and payments for | investigative, expert and other services, including but | not limited to the following matters:
| (A) The hourly rate at which counsel will be | compensated;
| (B) The hourly rate at which private |
| investigators, other than investigators employed by | the Office of the State Appellate Defender, will be | compensated; and
| (C) The best preliminary estimate that can be made | of the cost of all services, including, but not limited | to, counsel, expert, and investigative services, that | are likely to be needed through the guilt and penalty | phases of the trial. The court shall have discretion to | require that budgets be prepared for shorter intervals | of time.
| (4) Appointed counsel may obtain, subject to later | review, investigative,
expert or other services without | prior authorization if necessary for an adequate defense. | If such services are obtained, the presiding judge or the | presiding judge's designee shall consider in an ex parte | proceeding that timely procurement of necessary services | could not await prior authorization. If an ex parte hearing | is requested by defense counsel or deemed necessary by the | trial judge prior to modifying a budget, the ex parte | hearing shall be before the presiding judge or the | presiding judge's designee. The judge may then authorize | such services nunc pro tunc. If the presiding judge or the | presiding judge's designee finds that the services were not | reasonable, payment may be denied.
| (5) An approved budget shall guide counsel's use of | time and resources by indicating the services for which |
| compensation is authorized. The case budget shall be | re-evaluated when justified by changed or unexpected | circumstances and shall be modified by the court when | reasonable and necessary for an adequate defense. If an ex | parte hearing is requested by defense counsel or deemed | necessary by the trial judge prior to modifying a budget, | the ex parte hearing shall be before the presiding judge or | the presiding judge's designee.
| (b) Appointed trial counsel
shall be compensated upon | presentment and
certification by the
circuit court of a claim | for services detailing the date, activity, and time
duration | for
which compensation is sought. Compensation for appointed | trial counsel may be
paid at
a reasonable rate
not to exceed | $125 per hour. The court shall not authorize payment of bills | that are not properly itemized. A request for payment shall be | presented under seal and reviewed ex parte with a court | reporter present.
| Beginning in 2001, every January 20, the statutory rate | prescribed in this
subsection shall
be automatically increased | or decreased, as applicable, by a percentage equal
to the
| percentage change in the consumer price index-u during the | preceding 12-month
calendar
year. "Consumer price index-u" | means the index published by the Bureau of Labor
Statistics of | the United States Department of Labor that measures the average
| change in
prices of goods and services purchased by all urban | consumers, United States
city
average, all items, 1982-84=100. |
| The new rate resulting from each annual
adjustment
shall be | determined by the State Treasurer and made available to the | chief
judge of
each
judicial circuit.
| (c) Appointed trial counsel may also petition the court for | certification of
expenses for
reasonable and necessary capital | litigation expenses including, but not limited
to, | investigatory and other assistance, expert, forensic, and | other
witnesses, and mitigation specialists.
Each provider of | proposed services must specify the best preliminary estimate | that can be made in light of information received in the case | at that point, and the provider must sign this estimate under | the provisions of Section 1-109 of the Code of Civil Procedure. | A provider of proposed services must also specify (1) his or | her hourly rate; (2) the hourly rate of anyone else in his or | her employ for whom reimbursement is sought; and (3) the hourly | rate of any person or entity that may be subcontracted to | perform these services. Counsel may not petition for | certification of expenses that may have been
provided or | compensated by the State Appellate Defender under item (c)(5) | of
Section 10 of the State
Appellate
Defender Act. The | petitions shall be filed under seal and considered ex parte but | with a court reporter present for all ex parte conferences. If | the requests are submitted after services have been rendered, | the requests shall be supported by an invoice describing the | services rendered, the dates the services were performed and | the amount of time spent. These petitions shall be reviewed by |
| both the trial judge and the presiding judge of the circuit | court or the presiding judge's designee. The petitions and | orders shall be kept under seal and shall be exempt from | Freedom of Information requests until the conclusion of the | trial, even if the prosecution chooses not to pursue the death | penalty prior to trial or sentencing. If an ex parte hearing is | requested by defense counsel or deemed necessary by the trial | judge, the hearing shall be before the presiding judge or the | presiding judge's designee.
| (d) Appointed trial counsel shall petition the court for | certification of
compensation and expenses under this Section | periodically during the course of
counsel's representation. | The petitions shall be supported by itemized bills showing the | date, the amount of time spent, the work done and the total | being charged for each entry. The court shall not authorize | payment of bills that are not properly itemized. The court must | certify reasonable and necessary expenses of the petitioner for | travel and per diem (lodging, meals, and incidental expenses). | These expenses must be paid at the rate as promulgated by the | United States General Services Administration for these | expenses for the date and location in which they were incurred, | unless extraordinary reasons are shown for the difference. The | petitions shall be filed under seal and considered ex parte but | with a court reporter present for all ex parte conferences. The | petitions shall be reviewed by both the trial judge and the | presiding judge of the circuit court or the presiding judge's |
| designee. If an ex parte hearing is requested by defense | counsel or deemed necessary by the trial judge, the ex parte | hearing shall be before the presiding judge or the presiding | judge's designee. If
the court determines that the compensation | and expenses should be paid from the
Capital
Litigation Trust | Fund, the court shall certify, on a form created by the State
| Treasurer, that all or a designated portion of the amount | requested is
reasonable, necessary, and appropriate for | payment from the Trust Fund.
The form must also be signed by | lead trial counsel under the provisions of Section 1-109 of the | Code of Civil Procedure verifying that the amount requested is | reasonable, necessary, and appropriate. Bills submitted for | payment by any individual or entity seeking payment from the | Capital Litigation Trust Fund must also be accompanied by a | form created by the State Treasurer and signed by the | individual or responsible agent of the entity under the | provisions of Section 1-109 of the Code of Civil Procedure that | the amount requested is accurate and truthful and reflects time | spent or expenses incurred. Certification of compensation and | expenses by a court in any county other than
Cook County shall
| be delivered by the court to the State Treasurer and must be | paid by the State
Treasurer
directly from the Capital | Litigation Trust Fund if there are sufficient moneys
in the | Trust Fund to pay the compensation and expenses. If the State | Treasurer finds within 14 days of his or her receipt of a | certification that the compensation and expenses to be paid are |
| unreasonable, unnecessary, or inappropriate, he or she may | return the certification to the court setting forth in detail | the objection or objections with a request for the court to | review the objection or objections before resubmitting the | certification. The State Treasurer must send the claimant a | copy of the objection or objections. The State Treasurer may | only seek a review of a specific objection once. The claimant | has 7 days from his or her receipt of the objections to file a | response with the court. With or without further hearing, the | court must promptly rule on the objections. The petitions and | orders shall be kept under seal and shall be exempt from | Freedom of Information requests until the conclusion of the | trial and appeal of the case, even if the prosecution chooses | not to pursue the death penalty prior to trial or sentencing.
| Certification of
compensation and expenses by a court in
Cook
| County shall be delivered by the court to the county treasurer | and paid by the
county treasurer from moneys granted to the | county from the Capital Litigation
Trust Fund.
| (Source: P.A. 94-664, eff. 1-1-06.)
| (725 ILCS 124/15)
| Sec. 15. Capital Litigation Trust Fund.
| (a) The Capital Litigation
Trust Fund is
created as a | special fund in the State Treasury. The Trust Fund shall be
| administered by
the State
Treasurer to provide moneys for the | appropriations to be made, grants to
be awarded, and |
| compensation and expenses to be paid under this Act.
All | interest earned from the investment or deposit of moneys | accumulated in the
Trust Fund shall, under Section 4.1 of the | State Finance Act, be deposited
into the Trust Fund.
| (b) Moneys deposited into the Trust Fund shall not be | considered general
revenue of the State of Illinois.
| (c) Moneys deposited into the Trust Fund shall be used | exclusively for the
purposes of
providing funding for the
| prosecution
and defense of capital cases and for providing | funding for post-conviction proceedings in capital cases under | Article 122 of the Code of Criminal Procedure of 1963 and in | relation to petitions filed under Section 2-1401 of the Code of | Civil Procedure in relation to capital cases as provided in | this Act and shall not be
appropriated, loaned, or in any
| manner
transferred to the General Revenue Fund of the State of | Illinois.
| (d) Every fiscal year the State Treasurer shall transfer | from the General
Revenue Fund to the Capital Litigation Trust | Fund an amount equal to the full
amount of moneys appropriated | by the General Assembly (both by original and
supplemental
| appropriation), less any unexpended balance from the previous | fiscal year, from
the Capital Litigation Trust Fund for the | specific
purpose of making funding available for the
| prosecution and defense of capital cases and for the litigation | expenses associated with post-conviction proceedings in | capital cases under Article 122 of the Code of Criminal |
| Procedure of 1963 and in relation to petitions filed under | Section 2-1401 of the Code of Civil Procedure in relation to | capital cases. The Public Defender and State's
Attorney in Cook | County, the State Appellate Defender, the State's Attorneys
| Appellate Prosecutor, and the Attorney General shall make | annual requests for
appropriations from the Trust Fund.
| (1) The Public Defender in Cook County shall
request | appropriations to the State Treasurer for expenses | incurred by
the Public Defender
and for funding for private | appointed defense counsel in Cook
County.
| (2) The State's Attorney in Cook County
shall request | an appropriation to the State Treasurer for expenses | incurred
by the State's
Attorney.
| (3) The State Appellate Defender shall request a direct | appropriation
from the Trust Fund for expenses incurred by | the State Appellate Defender in
providing assistance to | trial attorneys under item (c)(5) of Section 10 of the
| State Appellate Defender Act and for expenses incurred by | the State Appellate Defender in representing petitioners | in capital cases in post-conviction proceedings under | Article 122 of the Code of Criminal Procedure of 1963 and | in relation to petitions filed under Section 2-1401 of the | Code of Civil Procedure in relation to capital cases and | for the representation of those petitioners by attorneys | approved by or contracted with the State Appellate Defender
| and
an appropriation to the State Treasurer for payments |
| from the Trust Fund for
the defense of cases in
counties | other than Cook County.
| (4) The State's Attorneys Appellate Prosecutor
shall | request a direct appropriation from the Trust Fund to pay | expenses
incurred by the State's Attorneys Appellate | Prosecutor and an appropriation to
the State Treasurer
for | payments from the Trust Fund for expenses incurred by | State's Attorneys in
counties other than Cook County.
| (5) The Attorney General shall request a direct
| appropriation from the Trust Fund to pay expenses incurred | by the Attorney
General in assisting
the State's Attorneys | in counties other than Cook
County and to pay for expenses | incurred by the Attorney General when the
Attorney General | is ordered by the presiding judge of the Criminal Division | of
the Circuit Court of Cook County to prosecute or | supervise the prosecution of
Cook County cases and for | expenses incurred by the Attorney General in representing | the State in post-conviction proceedings in capital cases | under Article 122 of the Code of Criminal Procedure of 1963 | and in relation to petitions filed under Section 2-1401 of | the Code of Civil Procedure in relation to capital cases.
| The Public Defender and State's Attorney in Cook County, | the State Appellate
Defender, the State's Attorneys Appellate | Prosecutor, and the Attorney General
may each request | supplemental appropriations from the Trust Fund during the
| fiscal
year.
|
| (e) Moneys in the Trust Fund shall be expended only as | follows:
| (1) To pay the State Treasurer's costs to administer | the Trust Fund. The
amount
for this purpose may not exceed | 5% in any one fiscal year of the
amount otherwise | appropriated from the Trust Fund in the same
fiscal year.
| (2) To pay the capital litigation
expenses of trial | defense and post-conviction proceedings in capital cases | under Article 122 of the Code of Criminal Procedure of 1963 | and in relation to petitions filed under Section 2-1401 of | the Code of Civil Procedure in relation to capital cases
| including, but not limited
to, DNA testing, including DNA | testing under Section 116-3 of the Code of
Criminal | Procedure of 1963, analysis, and expert testimony, | investigatory and
other assistance, expert, forensic, and | other witnesses,
and mitigation specialists,
and grants | and aid
provided to public
defenders, appellate defenders, | and any attorney approved by or contracted with the State | Appellate Defender representing petitioners in | post-conviction proceedings in capital cases under Article | 122 of the Code of Criminal Procedure of 1963 and in | relation to petitions filed under Section 2-1401 of the | Code of Civil Procedure in relation to capital cases or | assistance to attorneys who have been appointed by the | court to
represent
defendants who are charged with capital | crimes. Reasonable and necessary capital litigation
|
| expenses include travel and per diem (lodging, meals, and | incidental expenses).
| (3) To pay the compensation of trial attorneys, other | than public
defenders or appellate defenders, who
have
been | appointed by the court to represent defendants who are | charged with
capital crimes or attorneys approved by or | contracted with the State Appellate Defender to represent | petitioners in post-conviction proceedings in capital | cases under Article 122 of the Code of Criminal Procedure | of 1963 and in relation to petitions filed under Section | 2-1401 of the Code of Civil Procedure in relation to | capital cases.
| (4) To provide State's Attorneys with funding for | capital
litigation expenses and for expenses of | representing the State in post-conviction proceedings in | capital cases under Article 122 of the Code of Criminal | Procedure of 1963 and in relation to petitions filed under | Section 2-1401 of the Code of Civil Procedure in relation | to capital cases including, but not limited to, | investigatory and other
assistance and expert,
forensic, | and other
witnesses necessary to prosecute capital cases.
| State's Attorneys
in any county other than Cook County | seeking funding for
capital litigation expenses and for | expenses of representing the State in post-conviction | proceedings in capital cases under Article 122 of the Code | of Criminal Procedure of 1963 and in relation to petitions |
| filed under Section 2-1401 of the Code of Civil Procedure | in relation to capital cases including, but not limited to,
| investigatory and other assistance
and expert, forensic, | or other witnesses under this
Section may request that
the | State's Attorneys Appellate Prosecutor or the Attorney | General, as the case
may be, certify the expenses as | reasonable,
necessary, and appropriate for payment from | the Trust Fund, on a form created
by the State Treasurer. | Upon certification of the expenses and delivery of the
| certification to the State Treasurer, the Treasurer shall | pay the expenses
directly from the Capital Litigation Trust | Fund if there are sufficient moneys
in the Trust Fund to | pay the expenses.
| (5) To provide financial support through the
Attorney | General pursuant to the Attorney General Act for the
| several county State's Attorneys outside of Cook County, | but shall not be used
to increase personnel for the | Attorney General's Office, except when the
Attorney | General is ordered by the presiding judge of the Criminal | Division of
the Circuit Court of Cook County to prosecute | or supervise the prosecution of
Cook County cases.
| (6) To provide financial support through the State's | Attorneys Appellate
Prosecutor pursuant to the State's | Attorneys Appellate Prosecutor's
Act for the several | county State's Attorneys outside of Cook County, but shall
| not be used to increase personnel for the State's Attorneys |
| Appellate
Prosecutor.
| (7) To provide financial support to the State Appellate | Defender pursuant
to
the State Appellate Defender Act.
| Moneys expended from the Trust Fund shall be in addition to | county
funding for Public Defenders and State's Attorneys, and | shall not be used to
supplant or reduce ordinary and customary | county funding.
| (f) Moneys in the Trust Fund shall be appropriated to the | State Appellate
Defender, the State's Attorneys Appellate | Prosecutor, the Attorney General,
and
the State Treasurer. The | State Appellate Defender shall receive an
appropriation from | the Trust Fund to enable it to provide assistance to
appointed | defense counsel and attorneys approved by or contracted with | the State Appellate Defender to represent petitioners in | post-conviction proceedings in capital cases under Article 122 | of the Code of Criminal Procedure of 1963 and in relation to | petitions filed under Section 2-1401 of the Code of Civil | Procedure in relation to capital cases throughout the State and | to Public Defenders in
counties other than Cook.
The State's
| Attorneys Appellate Prosecutor and the Attorney General shall | receive
appropriations from the Trust Fund to enable them to | provide assistance to
State's Attorneys in counties other than | Cook County and when the Attorney
General is ordered by the
| presiding judge of the Criminal Division of the Circuit Court | of Cook County to
prosecute or supervise the prosecution of | Cook County cases.
Moneys shall be appropriated to the State |
| Treasurer to enable the Treasurer (i)
to make grants
to
Cook | County, (ii) to pay the expenses of Public Defenders, the State | Appellate Defender, the Attorney General, the Office of the | State's Attorneys Appellate Prosecutor, and State's
Attorneys | in counties other than Cook County, (iii) to pay the expenses | and
compensation of appointed defense counsel and attorneys | approved by or contracted with the State Appellate Defender to | represent petitioners in post-conviction proceedings in | capital cases under Article 122 of the Code of Criminal | Procedure of 1963 and in relation to petitions filed under | Section 2-1401 of the Code of Civil Procedure in relation to | capital cases in counties other than Cook County,
and (iv) to | pay
the
costs of
administering the Trust Fund. All expenditures | and grants made from the Trust
Fund shall be subject to audit | by the Auditor General.
| (g) For Cook County, grants from the Trust Fund shall be
| made and administered as follows:
| (1) For each State fiscal year, the
State's Attorney | and Public Defender must each make a separate application | to
the State Treasurer for capital litigation grants.
| (2) The State Treasurer shall establish rules and | procedures for grant
applications. The rules shall require | the Cook County Treasurer as the grant
recipient to report | on a
periodic basis to the State Treasurer how much of the | grant has been
expended, how much of the grant is | remaining, and the purposes for which the
grant has been |
| used. The rules may also require the Cook County Treasurer | to
certify on
a periodic basis that expenditures of the | funds have been made for expenses
that are reasonable, | necessary, and appropriate for payment from the Trust
Fund.
| (3) The State Treasurer shall make the grants to the | Cook County Treasurer
as soon as possible after the | beginning of the State fiscal year.
| (4) The State's Attorney or Public Defender may apply | for supplemental
grants during the fiscal year.
| (5) Grant moneys shall be paid to the Cook County | Treasurer in block
grants and
held in separate accounts for
| the State's Attorney, the Public Defender, and court | appointed defense counsel
other than the Cook County Public | Defender, respectively, for the designated
fiscal year, | and are not subject to county appropriation.
| (6) Expenditure of grant moneys under this subsection | (g) is subject to
audit by the Auditor General.
| (7) The Cook County Treasurer shall immediately make | payment from the
appropriate separate account in the county | treasury for capital litigation
expenses to the State's | Attorney, Public Defender, or court appointed defense
| counsel other than the Public Defender, as the case may be, | upon
order of the State's Attorney, Public Defender or the | court, respectively.
| (h) If a defendant in a capital case in Cook County is | represented by
court appointed counsel other than the Cook |
| County Public Defender, the
appointed counsel shall petition | the court for an order directing the Cook
County Treasurer to | pay the court appointed counsel's reasonable and necessary
| compensation and capital
litigation expenses from grant moneys | provided from the Trust Fund.
The petitions shall be supported | by itemized bills showing the date, the amount of time spent, | the work done and the total being charged for each entry. The | court shall not authorize payment of bills that are not | properly itemized. The petitions shall be filed under seal and | considered ex parte but with a court reporter present for all | ex parte conferences. The petitions shall be reviewed by both | the trial judge and the presiding judge of the circuit court or | the presiding judge's designee. The petitions and orders shall | be kept under seal and shall be exempt from Freedom of | Information requests until the conclusion of the trial and | appeal of the case, even if the prosecution chooses not to | pursue the death penalty prior to trial or sentencing. Orders | denying petitions for
compensation or expenses are final.
| Counsel may not petition for expenses that may have been | provided or
compensated by the State
Appellate Defender under | item (c)(5) of Section 10 of the State Appellate
Defender Act.
| (i) In counties other than Cook County, and when the | Attorney General is
ordered by the presiding judge of the | Criminal Division of the Circuit Court of
Cook County to | prosecute or supervise the prosecution of Cook County cases,
| and excluding capital litigation
expenses or services that may |
| have been provided by the State Appellate
Defender under item | (c)(5) of
Section 10 of the State Appellate Defender Act:
| (1) Upon certification by the circuit court, on a form | created by the
State Treasurer, that all or a portion of | the
expenses are reasonable, necessary, and appropriate | for payment from the Trust
Fund and the court's delivery of | the
certification to the Treasurer, the Treasurer shall pay | the certified
expenses of Public Defenders and the State | Appellate Defender from the money appropriated to the | Treasurer for
capital litigation
expenses of Public | Defenders and post-conviction proceeding expenses in | capital cases of the State Appellate Defender and expenses | in relation to petitions filed under Section 2-1401 of the | Code of Civil Procedure in relation to capital cases in any | county other than Cook County, if there are
sufficient | moneys in the Trust Fund to pay the expenses.
| (2) If a defendant in a capital case is represented by | court appointed
counsel other than the Public Defender, the | appointed counsel shall petition
the court to certify | compensation and capital litigation expenses including,
| but not limited to, investigatory and other assistance, | expert, forensic, and
other witnesses, and mitigation | specialists as reasonable, necessary, and
appropriate for
| payment from the Trust Fund. If a petitioner in a capital | case who has filed a petition for post-conviction relief | under Article 122 of the Code of Criminal Procedure of 1963 |
| or a petition under Section 2-1401 of the Code of Civil | Procedure in relation to capital cases is represented by an | attorney approved by or contracted with the State Appellate | Defender other than the State Appellate Defender, that | attorney shall petition
the court to certify compensation | and litigation expenses of post-conviction proceedings | under Article 122 of the Code of Criminal Procedure of 1963 | or in relation to petitions filed under Section 2-1401 of | the Code of Civil Procedure in relation to capital cases.
| Upon certification
on a form created by the State Treasurer | of all or a portion of the
compensation and expenses | certified as reasonable, necessary, and appropriate
for | payment
from the Trust
Fund and the court's delivery of the | certification to the
Treasurer, the State Treasurer shall | pay the certified compensation and
expenses from the money
| appropriated to the Treasurer for that purpose, if there | are sufficient
moneys in the Trust Fund to make those | payments.
| (3) A petition for capital litigation expenses or | post-conviction proceeding expenses or expenses incurred | in filing a petition under Section 2-1401 of the Code of | Civil Procedure in relation to capital cases under this | subsection shall
be considered under seal and reviewed ex | parte with a court reporter present. Orders denying | petitions for compensation or expenses
are final.
| (j) If the Trust Fund is discontinued or dissolved by an |
| Act of the General
Assembly or by operation of law, any balance | remaining in the Trust Fund shall
be returned to the General | Revenue Fund after deduction of administrative
costs, any other | provision of this Act to the contrary notwithstanding.
| (Source: P.A. 93-127, eff. 1-1-04; 93-605, eff. 11-19-03; | 93-972, eff. 8-20-04; 94-664, eff. 1-1-06.)
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Effective Date: 1/1/2010
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