New Jersey Board of Bar Examiners

February 2018 Questions and Sample Answers

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MPT-1

State of Franklin v. Clegane

FILE

Memorandum to Examinee

Guidelines for persuasive briefs

Newspaper article from The Franklin City Post

Excerpt from transcript of client interview

Defendant’s motion to exclude victim statements and deny restitution

LIBRARY

Excerpts from the Franklin Crime Victims’ Rights Act

State v. Jones, Franklin Court of Appeal (2006)

State v. Berg, Franklin Court of Appeal (2012)

State v. Humphrey, Franklin Court of Appeal (2008)

FILE

Selmer & Pierce LLP

Attorneys at Law

412 Valmont Place

Franklin City, Franklin 33703

MEMORANDUM

To: Examinee

From: Anna Pierce

Date: February 27, 2018

Re: State of Franklin v. Clegane

We represent Sarah Karth. Sarah Karth’s sister, Valerie Karth, was physically injured and

incapacitated last summer when an unsupervised teenager set off fireworks at a neighborhood

Fourth of July party. The teenager, a minor, was also injured. Valerie Karth was struck by the

fireworks and also suffered economic injury because sparks from the fireworks started a fire that

burned her garage to the ground.

The man who sold the fireworks to the teenager, Greg Clegane, was convicted of the felony of

unlawful sale of fireworks to a minor. Clegane’s sentencing hearing is in two weeks. Sarah Karth

wishes to read victim-impact statements at the sentencing hearing both on her own behalf and on

Valerie’s behalf. She has also submitted a request that Clegane pay restitution for the losses she

and her sister have sustained because of his actions.

Last week the prosecution notified Sarah that Clegane’s counsel has filed a motion to (1) exclude

the proposed victim-impact statements at the sentencing hearing, arguing that Sarah and Valerie

are not victims within the meaning of the Franklin Crime Victims’ Rights Act (FCVRA); and (2)

deny their restitution requests. A copy of Clegane’s motion is attached.

I intend to file a brief in opposition to this motion on behalf of Sarah asking that the court

include Sarah’s and Valerie’s victim-impact statements and order Clegane to pay restitution to

both of them. Please draft the argument section of our brief. In drafting your argument, be sure to

follow the attached guidelines. Make the most persuasive argument possible under the FCVRA

and relevant case law.

Selmer & Pierce LLP

OFFICE MEMORANDUM

To: Associates

From: Managing Partner

Date: July 8, 2012

Re: Guidelines for Persuasive Briefs in Trial Courts

The following guidelines apply to persuasive briefs filed in support of motions in trial courts.

I. Captions

[omitted]

II. Statement of Facts

[omitted]

III. Legal Argument

Your legal argument should make your points clearly and succinctly, citing relevant

authority for each legal proposition. Do not restate the facts as a whole at the beginning of your

legal argument. Instead, integrate the facts into your legal argument in a way that makes the

strongest case for our client.

Use headings to separate the sections of your argument. Your headings should not state

abstract conclusions, but rather integrate factual detail into legal propositions to make them more

persuasive. An ineffective heading states only: “The court should not admit evidence of the

victim’s character.” An effective heading states: “The court should refuse to admit evidence of

the defendant’s character for violence because the defendant has not raised a claim of selfdefense.”

In the body of your argument, analyze applicable legal authority and persuasively argue

how both the facts and the law support our client’s position. Supporting authority should be

emphasized, but contrary authority should also be cited, addressed in the argument, and

explained or distinguished.

Finally, anticipate and accommodate any weaknesses in your case in the body of your

argument. If possible, structure your argument in such a way as to highlight your argument’s

strengths and minimize its weaknesses. Make concessions if necessary, but only on points that do

not involve essential elements of your claim or defense.

The Franklin City Post

Illegal Fireworks Injure Two and Destroy Garage

July 5, 2017

FRANKLIN CITY, Franklin—The quiet neighborhood of Fair Oaks became a nightmare of

exploding shells after a 17-year-old set off illegal, professional-grade fireworks during a Fourth

of July celebration in a friend’s backyard. The fireworks, called Little Devil Shards, sent

exploding shells spraying through the yard, striking and injuring a bystander and setting a nearby

garage on fire. The minor was also seriously injured.

The minor set off the fireworks to surprise his friends, Franklin City Detective Ralph Guerra said

early this morning. It appears that the minor obtained the fireworks the day before the party from

Greg Clegane, the proprietor of Starburst Fireworks, which sells fireworks and other party

supplies from a storefront in the Third Ward of Franklin City. Clegane has three similar retail

operations spread throughout the eastern part of the state. The sale of such powerful fireworks to

a minor is a felony in Franklin, punishable by up to five years in prison and a $50,000 fine. The

minor’s name has not been released. He is a Franklin City resident.

Lena Harley, a local resident, saw the minor igniting the fireworks in the middle of a crowd of

guests at the party. She watched as a spray of sparks and exploding shells flew through the air.

“It was like a war zone,” said Harley.

The victims were transported to an area hospital. Several shells also struck a neighbor’s garage,

setting it afire. The garage was totally destroyed before firefighters could control the blaze.

Franklin City police are encouraging anyone with information about the incident to contact them.

(Franklin City Associated Press contributed to this report.)

Excerpt from Transcript of Client Interview with Sarah Karth

February 26, 2018

Att’y Pierce: Good afternoon, Ms. Karth.

Sarah Karth: Good afternoon.

Pierce: Can you describe what brings you to the office today?

Karth: Yes. Are you familiar with the fireworks incident over in Fair Oaks last summer?

Pierce: I remember hearing about it on the news right after it happened.

Karth: My sister, Valerie Karth, was one of the people injured that day. Her house is next

door to the yard where the fireworks went off, and she was attending the party.

Sparks from the fireworks caused her garage to burn down.

I was at the criminal trial of Greg Clegane, who was convicted of the felony of

selling dangerous fireworks to a minor. During the trial, the arresting officer testified

that Clegane admitted selling the fireworks and that the boy had told him, “I can’t

wait to show these to my friends—I’m going to give everyone a big surprise.”

Clegane told the officer that the minor “looked like he was at least in his twenties”

and that the boy’s statements “didn’t raise any red flags.”

I want to read victim-impact statements at Clegane’s sentencing hearing, one on

my own behalf and one on my sister Valerie’s. I also want restitution on behalf of

both Valerie and myself. Last week, I heard from the prosecutor’s office that

Clegane’s lawyer had filed a motion asking the court to keep me from making the

statements and seeking restitution.

Pierce: What do you want to say? What are you asking for?

Karth: I want to make it clear to the judge, and to Clegane, that his illegal sale of dangerous

fireworks to a 17-year-old had very personal and life-altering consequences for me

and my family.

Pierce: Tell me more.

Karth: Clegane needs to understand that his actions have irrevocably affected our lives and

that I am also a victim of his crime. I want to look him in the eyes and tell him that. I

want the court to understand how Clegane’s actions have ruined my sister’s life.

Valerie was attending the party when the fireworks went off. She was hit by

fireworks and was rushed to the hospital for emergency care. Valerie was seriously

injured and was in a coma for several months. She has just come out of the coma and

is still incapacitated. She remains in stable condition in the hospital but cannot come

to court.

Pierce: What else do you want to tell the court about Valerie?

Karth: Valerie has always loved life and lived it to the fullest. She is bright, athletic,

independent, and strong. She was the first person in our family to graduate from

college. She is a rock. She is someone whom you can count on and trust. My father

died five years ago, and my mother has been so traumatized by Valerie’s injuries that

she is too frail to participate in any court proceedings.

Pierce: And what about restitution for Valerie?

Karth: Valerie’s out-of-pocket medical expenses so far total $22,000—we’ve got the bills

and receipts to prove it. Her medical providers have concluded that she will incur at

least an additional $40,000 in out-of-pocket medical expenses. By the time she is able

to return to work, she will have lost $120,000 in salary. The fireworks also destroyed

her garage; rebuilding it has cost $17,000.

Pierce: And you want to make a victim-impact statement on your own behalf?

Karth: Yes, I truly believe that I am also a victim of Clegane’s crime. Valerie and I are very

close and always have been. I’m 35 and she is two years older. The day she was

injured was the worst and most shocking day of my life. I spent endless days in the

hospital waiting for her to come out of the coma. If not for Clegane, that teenager

could not have caused me the trauma that he did. I want the court to give Clegane the

maximum sentence possible—five years—so that he knows how many people his

actions have harmed and will be held accountable. People think that fireworks are no

big deal, but this reckless sale of fireworks has really devastated my family.

Pierce: And are you requesting restitution on your own behalf?

Karth: Yes, I have incurred $1,500 in out-of-pocket medical bills myself as a result of

Clegane’s criminal behavior. I’ve been so depressed and distraught about Valerie’s

future and how she will be taken care of that I’ve been seeing a therapist twice a

month for the past six months. My insurance has a high deductible, so I’ve had to

bear the cost of the therapist myself. I think Clegane should pay that cost, not me.

We’ve suffered enough.

STATE OF FRANKLIN

DISTRICT COURT OF GLENN COUNTY

STATE of FRANKLIN,

Plaintiff,

GREG CLEGANE,

Defendant.

Case No. 2017-CR-238

DEFENDANT’S MOTION TO EXCLUDE VICTIM STATEMENTS

AND DENY RESTITUTION

Defendant Greg Clegane hereby moves the Court to deny the request of Sarah Karth (acting

on behalf of Valerie Karth and in her own capacity) to make victim-impact statements at

Defendant’s sentencing hearing in this case. In addition, Defendant requests that the Court deny

the Karths’ requests for restitution. In support of this motion, Defendant states:

1. After a jury trial on February 2, 2018, Defendant was convicted of the felony crime of

unlawful sale of fireworks to a minor, Franklin Criminal Code § 305. Sentencing is scheduled for

March 14, 2018.

2. Pursuant to the Franklin Crime Victims’ Rights Act (FCVRA) §§ 55 and 56, Ms. Karth

has submitted proposed victim-impact statements regarding injuries she and Valerie Karth

suffered as a result of fireworks that were set off at a party in Franklin City on July 4, 2017.

3. It is undisputed that Defendant was not present on that occasion and had no part in the

decision to ignite fireworks in an unsafe manner.

4. The fireworks were ignited by a 17-year-old male, who was using them contrary to the

instructions on the fireworks’ packaging.

5. At the time Defendant sold said fireworks, he had no reason to believe that the 17-yearold

was not an adult, or that the fireworks would be ignited under unsafe conditions.

6. Defendant’s only connection to the injuries suffered by the Karths is that the minor who

set off the fireworks had bought them from Defendant. The Karths do not qualify as crime

victims under the FCVRA because they were not “directly and proximately harmed as a result of

the commission” of the offense of which Defendant stands convicted: the sale of fireworks to a

minor. FR. CRM. CODE § 305.

7. In addition, because the Karths cannot be deemed crime victims under FCVRA § 55(b),

the Court must deny their restitution requests. See FCVRA § 56.

8. Even assuming that the Karths could be considered crime victims under the statute, the

restitution they seek is not supported by the evidence and is excessive, and Defendant does not

have the resources to pay the amounts requested. FCVRA § 56(d).

WHEREFORE Defendant asks the Court to deny the victim-impact statements and restitution

requests made by the Karths and to grant such other relief as the Court deems just and proper.

Filed: February 19, 2018 Karen Pine

LAW OFFICES OF PINE, BRYCE & DIAL, LLP

Attorney for Defendant Greg Clegane

LIBRARY

Excerpts from the Franklin Crime Victims’ Rights Act

§ 55. Rights of Crime Victims

(a) A crime victim has the following rights:

(1) The right to be reasonably protected from the accused.

(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or

any parole proceeding, involving the crime, or of any release or escape of the accused.

(3) The right not to be excluded from any such public court proceeding, unless the court,

after receiving clear and convincing evidence, determines that testimony by the victim

would be materially altered if the victim heard other testimony at that proceeding.

(4) The right to be reasonably heard at any public proceeding in the district court

involving release, plea, or sentencing, or at any parole proceeding.

(5) The reasonable right to confer with the prosecution in the case.

(6) The right to full and timely restitution under section 56 of this Act.

(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the victim’s dignity and

privacy.

(9) The right to be informed in a timely manner of any plea bargain or deferred

prosecution agreement.

(b) Definitions—Crime Victim

(1) In general—As used in this Act, the term “crime victim” means a person directly and

proximately harmed as a result of the commission of a Franklin criminal offense.

(2) Minors and certain other victims—In the case of a crime victim who is under 18 years

of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or

the representatives of the crime victim’s estate, family members, or any other persons

appointed as suitable by the court may assume the crime victim’s rights under this Act,

but in no event shall the defendant be named as such guardian or representative.

§ 56. Restitution

(a) The court, when sentencing a defendant convicted of an offense, shall order that the

defendant make restitution to any victim of such offense.

(b) The order may require that such defendant

(1) in the case of an offense resulting in damage to or loss or destruction of property of a

victim of the offense,

(A) return the property to its owner or someone designated by the owner; or

(B) if return of the property under subparagraph (A) is impossible, impractical, or

inadequate, pay an amount equal to the repair or replacement cost of the property.

(2) in the case of an offense resulting in physical, psychiatric, or psychological injury to a

victim,

(A) pay an amount equal to the cost of necessary medical and related professional

services and devices relating to physical, psychiatric, and psychological care,

including nonmedical care and treatment;

(B) pay an amount equal to the cost of necessary physical and occupational

therapy and rehabilitation; and

offense.

the inability to pay by a preponderance of the evidence.

(d) In determining the amount of restitution, the court shall consider (1) public policy that favors

requiring criminals to compensate for damage and injury to their victims; (2) the financial burden

placed on the victim and those who provide services to the victim as a result of the criminal

conduct of the defendant; and (3) the financial resources of the defendant and the nature of the

burden the payment of restitution will impose on dependents of the defendant.

State v. Jones

Franklin Court of Appeal (2006)

The issue in this appeal is whether the trial court erred when it held that the girlfriend of

the defendant’s cocaine customer was not a “victim” entitled to provide a victim-impact

statement at sentencing pursuant to the Franklin Crime Victims’ Rights Act (FCVRA). We

affirm.

For approximately two years between 2004 and 2006, defendant Iggy Jones was engaged

in a conspiracy with others to manufacture and distribute cocaine. Based on information

conveyed to an undercover law enforcement officer, the police executed a search warrant of the

defendant’s home, discovering the remnants of a cocaine manufacturing operation and related

paraphernalia. Jones was arrested and subsequently pled guilty to conspiracy to possess cocaine

with intent to distribute in violation of the Franklin Criminal Code.

After Jones pled guilty, Gina Nocona, the former girlfriend of one of the defendant’s

regular cocaine customers, filed a motion claiming that she was a “victim” under the FCVRA

and therefore entitled to make a victim-impact statement at Jones’s sentencing hearing. She

claimed that her former boyfriend, a cocaine user who regularly bought drugs from Jones,

“physically, mentally, and emotionally abused” her and that her former boyfriend’s “poor

judgment was in large part attributable to the drugs Jones had illegally sold him.” Nocona

asserted that her boyfriend’s behavior typically became abusive only when he was under the

influence of cocaine. The trial court denied Nocona’s motion, ruling that Nocona did not have

standing as a “victim” under the FCVRA. Nocona appealed.

Often crime victims do not feel that their voices are heard or that their concerns are

properly considered in the judicial process. The Franklin legislature attempted to address these

concerns when it passed the FCVRA in 2004. Among the rights this statute specifically gives

victims is the right to “be reasonably heard at any public proceeding in the district court

involving . . . sentencing.” FCVRA § 55(a)(4). Only a “crime victim” is afforded these rights.

The FCVRA defines “crime victim” as “a person directly and proximately harmed as a result of

the commission of a Franklin criminal offense.” Id. § 55(b)(1).

In applying this definition, Franklin courts have held that a purported “crime victim”

under the FCVRA must demonstrate (1) that the defendant’s conduct was a cause in fact of the

victim’s injuries and (2) that the purported victim was proximately harmed by that conduct.

In State v. Hackett (Fr. Ct. App. 2003), the Franklin Court of Appeal interpreted “cause in

fact” and affirmed the trial court’s order that defendant George Hackett, who pled guilty to

aiding and abetting methamphetamine manufacture, pay restitution to an insurance company for

property damage. The damage had been caused when one of Hackett’s codefendants started a

fire by placing a jar of chemicals used to manufacture methamphetamine on a hot plate. The

court found that Hackett had procured the supplies his codefendants used to manufacture

methamphetamine, and that he had “knowledge and understanding of the scope and structure of

the enterprise and of the activities of his codefendants.” The court held that even though there

were “multiple links in the causal chain,” Hackett’s conduct was a cause in fact of the resulting

property damage.

In the current case, the facts do not support the same conclusion. Nocona asserts that her

former boyfriend was abusive only when he was under the influence of cocaine. If true, such a

statement might meet the cause-in-fact prong of the standard, although the court acknowledges

that the contention raises complex questions relating to the causes of domestic violence. Nocona

offered no expert testimony to support her assertion regarding causation.

Nocona’s motion also fails the second prong of the definition of a crime victim under the

FCVRA, which requires that this court determine whether the defendant’s criminal act

proximately harmed Nocona. The concept of foreseeability is at the heart of “proximate harm.”

The closer the relationship between the actions of the defendant and the harm sustained, the more

likely that a court will find that proximate harm exists. See State v. Thomas (Fr. Ct. App. 2002).

Nocona is unable to demonstrate that her alleged injuries were a foreseeable consequence

of the defendant’s drug conspiracy. She has not provided the court with evidence that the drug

conspiracy led to her injuries or that the defendant knew about the impact of the drugs on

Nocona’s former boyfriend. Moreover, while we deplore the many undesirable social effects of

drug trafficking, we do not think that the asserted abusive conduct of Nocona’s boyfriend toward

Nocona falls within the range of reasonably foreseeable harms resulting from the defendant’s

conspiracy. Nocona is not a “victim” under the FCVRA because she is not a person “directly and

proximately harmed” by the criminal act committed by the defendant.

Affirmed.

State v. Berg

Franklin Court of Appeal (2012)

The defendant, Leon Berg, contends that the trial court violated his constitutional rights

and the Franklin Crime Victims’ Rights Act (FCVRA) in allowing the parents of Carly Appleton

to make victim-impact statements at his sentencing hearing. We find that the trial court did not

err, and affirm.

The defendant’s girlfriend, Sheila Greene, was driving herself and Berg back from

Franklin Beach to Franklin State College (FSC) in Berg’s car. They offered a ride to Carly

Appleton, another FSC student. Greene and Appleton were 19 years old; Berg was 22. The

drinking age in Franklin is 21. They stopped at a gas station, where Berg bought a quart of vodka

and a six-pack of beer. Berg and Greene drank some of the vodka and then got back into the car.

Appleton did not drink anything. Berg knew that Greene had been previously arrested and fined

for driving under the influence, but he allowed her to drive anyway. In fact, Berg admitted that

he handed Greene a beer while she was driving. Not long after, Greene, driving considerably

over the speed limit, crashed the car into a tree. Berg sustained minor injuries; Greene was killed

instantly; Appleton died at the hospital four hours later. Greene’s postmortem blood alcohol level

was well over the legal limit for operating a motor vehicle in Franklin.

Berg pleaded guilty to the felony crime of providing alcohol to a minor resulting in death.

Berg was sentenced to six months in prison followed by two years of extended supervision.

Appleton’s parents each petitioned the court to make victim-impact statements at Berg’s

sentencing hearing as representatives of their daughter, who they claimed was a victim of the

defendant’s offense.

We begin with an analysis of who constitutes a “victim” within the meaning of the

FCVRA, which defines a “victim” as one who has been “directly and proximately harmed” by a

Franklin criminal offense. § 55(b)(1). The FCVRA provides a victim with the right to “be

reasonably heard at any public proceeding in the district court involving . . . sentencing.”

§ 55(a)(4). The legislative history of the statute indicates that the term “crime victim” should be

interpreted “broadly.” (Citation omitted.)

Carly Appleton’s life was tragically cut short as a result of the drunk driving and the car

crash that occurred. It seems obvious to this court that the defendant’s actions caused Greene’s

intoxication, which affected her ability to handle the car in the conditions leading to the crash.

But for the defendant’s buying alcohol and furnishing it to Greene, the Appletons’ daughter

would still be alive. Thus, there is a direct causal connection between Berg’s conduct and

Appleton’s death. This satisfies the condition that the defendant’s action be a cause in fact of the

person’s injury. See State v. Jones (Fr. Ct. App. 2006).

This court must also decide whether Berg’s crime proximately harmed Carly Appleton

for purposes of the FCVRA. The concept of “proximate harm” is a limitation that courts place

upon an actor’s responsibility for the consequences of the actor’s conduct; it is a means by which

courts limit the scope of the actor’s liability. The concept reflects ideas of what justice demands

or what a court finds administratively possible and convenient. Foreseeability is at the heart of

determining if an actor’s conduct proximately harmed a victim. See Jones. In determining

whether the harm was foreseeable, the court looks to whether the resulting harm was within the

zone of risks resulting from the defendant’s conduct for which the defendant should be found

liable.

We conclude that, on these facts, it was reasonably foreseeable to Berg that if he bought

alcohol and distributed it to his girlfriend, who he was aware had a history of driving drunk, then

his girlfriend might drive drunk, and that her drunk driving might lead to a car crash. There is a

natural and continuous sequence of events without which Appleton’s death would not have

occurred. In other words, there is an intuitive relationship between Berg’s conduct and the

resulting harm. Berg could reasonably have foreseen that he, Greene, or Carly Appleton could be

seriously injured or killed as a result of Greene’s drunk driving. Thus, the harm to Appleton that

resulted was within the risk of Berg’s actions. The loss suffered by Appleton clearly falls within

the scope of Berg’s conduct. Accordingly, we find that Carly Appleton was a crime victim under

the FCVRA.

The trial court correctly allowed Appleton’s parents to make victim-impact statements at

the defendant’s sentencing hearing, as they were the approved representatives of their daughter,

see § 55(b)(2), who the trial court found was a “crime victim” under the FCVRA.

Affirmed.

State v. Humphrey

Franklin Court of Appeal (2008)

Two issues are raised in this appeal: (1) whether the trial court erred in finding that a

mother, acting as the representative for her two sons, whose father had been killed, was qualified

to seek restitution on behalf of her sons under the Franklin Crime Victims’ Rights Act (FCVRA);

and (2) whether the court erred in ordering the defendant to pay restitution under FCVRA § 56.

The trial court held that the mother was an appropriate representative for the sons, who were

“victims” entitled to restitution from the defendant for the loss of child-support income. We

affirm with respect to the first issue and remand for further proceedings on the second.

On April 12, 2006, defendant Ted Humphrey was driving home from a party. He was

texting while driving and lost control of his car. The car then skidded into the adjacent bicycle

lane and hit Connor Benton, who was riding his bike home from work. Although Humphrey was

able to stop his car and call 911, the first responders were unable to revive Benton, who had

suffered a traumatic head injury. Humphrey was unharmed.

Humphrey was charged with one count of involuntary manslaughter, to which he pled

guilty on October 30, 2006. Connor Benton’s ex-wife, Kate Gove, sought restitution from

Humphrey for the loss of child-support income on behalf of her two minor sons, then ages 6 and

10. Gove appeared at the defendant’s sentencing hearing and testified that Connor Benton had

provided critical financial support to her family before his death. The court sentenced Humphrey

to 18 months in prison and ordered restitution for the lost child support provided by Connor

Benton, citing the FCVRA. The defendant appeals from that decision.

One purpose of the FCVRA is to force offenders to pay full restitution to the identifiable

victims of their crimes. The act applies to any “crime victim” and defines that term as “a person

directly and proximately harmed as a result of the commission of a Franklin criminal offense.”

FCVRA § 55(b)(1). The act goes on to provide that “[i]n the case of a crime victim who is under

18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim

or the representatives of the crime victim’s estate, family members, or any other persons

appointed as suitable by the court may assume the crime victim’s rights . . . . ” Id. § 55(b)(2). It

is undisputed that Gove, as the mother of Benton’s minor children, is their appropriate

representative under the Act.

We find that Benton’s two young sons are “crime victims” in part because of the loss of

financial support from their father. The FCVRA requires only that a person be “directly and

proximately harmed” by an offense. The term “harm” embraces physical, financial, and

psychological damage. See FCVRA § 56(b)(2).

We now turn to whether the court properly ordered the defendant to pay restitution in

the amount of $15,200. Section 56(c) of the FCVRA creates a rebuttable presumption that the

defendant is financially capable of paying restitution and places the burden of rebutting the

presumption on the defendant.

The defendant did not present any evidence to establish that he was incapable of paying

restitution. Apparently relying on § 56, the court ordered $15,200 in restitution for the value of

lost child support without any inquiry into the defendant’s financial situation and without any

findings to justify the restitution order. On appeal, the defendant argues that the restitution statute

requires the court to make express findings justifying a restitution order. The defendant’s reading

of the statute is correct. Section 56(d) identifies three factors that the court must take into

account in determining the amount of restitution: (1) public policy that favors requiring criminals

to compensate for damage and injury to their victims; (2) the financial burden placed on the

victim and those who provide services to the victim as a result of the criminal conduct of the

defendant; and (3) the financial resources of the defendant.

Before imposing restitution, the sentencing judge must make a “serious inquiry” into all

three factors. See State v. Schmidt (Fr. Sup. Ct. 2003). While the statute places the burden of

proof on the defendant to show inability to pay, the court should inquire into the additional

factors. This case will be remanded with instructions to the trial court to conduct that inquiry.

Affirmed in part and remanded for further findings consistent with this opinion.

Sample Answer

III. Legal Argument

A. Sarah Karth is entitled to make victim-impact statements on her and Valerie Karth's behalf because they are both victims of Defendant Greg Clegane's crime, and Sarah Karth is a suitable representative for her incapacitated sister.

Under the Franklin Crime Victims' Rights Act ("FCVRA"), "[a] crime victim has the following rights ... [t]he right to be reasonably heard at any public proceeding in the district court involving ... sentencing." FCVRA § 55(a)(4). This includes the right to make a victim-impact statement. See State v. Berg (Fr. Ct. App. 2012). The legislative purpose of this part of the Act is to address the concerns of "crime victims [who] do not feel that their voices are heard or that their concerns are properly considered in the judicial process." State v. Jones (Fr. Ct. App. 2006).

"In the case of a crime victim who is ... incapacitated, ... any other persons appointed as suitable by the court may assume the crime victim's rights under [the FCVRA]." FCVRA § 55(b). Despite Defendant Greg Clegane's ("Clegane") contention to the contrary, because the Karths are both victims of his crime, and Sarah Karth is a suitable representative for Valerie, Sarah Karth is entitled to make the at-issue victim-impact statements. The Karths deserve to exercise their right to have their voices heard and properly considered in the judicial process of Clegane's sentencing.

1. Sarah and Valerie Karth are victims of Clegane's felony.

Under the FCVRA, "crime victim" is "a person directly and proximately harmed as a result of the commission of a Franklin criminal offense." Id. § 55(b). This requires a purported crime victim to "demonstrate (1) that the defendant's conduct was a cause in fact of the victim's injuries and (2) that the purported victim was proximately harmed by that conduct." State v. Jones (Fr. Ct. App. 2006). Clegane's criminal conduct is the cause in fact and proximate cause of the Karth's injuries.

A. Clegane's felonious conduct is the cause in fact of Valerie Karth's injuries.

"Cause in fact" requires merely a direct causal connection bewteen the defendant's conduct and the victim's injuries. Even where there are "multiple links in the causal chain," cause in fact may be found. See State v. Jones (Fr. Ct. App. 2006) (quoting State v. Hackett (Fr. Ct. App. 2003)). As such, Franklin Appellate Courts have held that cause in fact is statisfied where:

An insurance company had to pay for property damage as a result a defendant procuring the supplies his codefendants used to manufacture methamphetamine, and having "knowledge and understanding of the scope and structure of the enterprise and the activities of his codefendants," State v. Hackett (Fr. Ct. App. 2003); and
A passenger of a vehicle was killed as a result of another passenger providing alcohol to the underage driver. State v. Berg (Fr. Ct. App. 2012).

The Franklin Appellate Court's even held that cause in fact may be satisfied where the defendant is a drug dealer and the purporter victim is the former girlfriend of a user of the defendant's drugs who suffered domestic violence when the user used his drugs, if the purported victim offered evidence that the drugs caused her ex-boyfriend to be abusive. State v. Jones (Fr. Ct. App. 2006).

Here, Clegane's conduct is clearly the cause in fact of Valerie's njuries. Like in State v. Berg, Clegane's criminal conduct involved providing a dangerous product (in this case, fireworks) to a minor. Although the minor's use of the fireworks may be viewed as an additional link in the causal chain, the same could be said of the driver in Berg drinking the alcohol that was provided to her. Moreover, like in Hackett, Clegane had "knowledge and understanding of the scope and structure" of the minor's plans with the fireworks. As an initial matter, there was only reasonable conclusion that Clegane could have reached concerning the minor's plans for fireworks purchased near the Fourth of July. Moreover, the minor told Clegane as he purchased the fireworks, "I can't wait to show these to my friends--I'm going to give everyone a big surprise." Excerpts from Transcript of Client Interview with Sarah Karth. As such, Clegane knew that the minor's plans for the fireworks he illegally sold to the minor was to set them off around other people. Thus, his actions are clearly a cause in fact of Valerie's injuries.

B. The Karths were proximately harmed by Clegane's criminal conduct.

Proximate harm "reflects ideas of what justice demands or what a court finds administratively possible and convenient. Foreseeability is at the heart of determining if an actor's conduct proximately harmed a victim. See Jones. In determining whether the harm was foreseeable, the court looks to whether the resulting harm was within the zone of risks resulting from the defendant's conduct for which the defendant should be found liable." State v. Berg (Fr. Ct. App. 2012). In State v. Berg, the appellate court found that "it was reasonably foreseeable to [defendant] Berg that is he bought alcohol and distributed to his girlfriend, who he was aware had a history of driving drunk, then his girlfriend might drive drunk, and that her drunk driving might lead to a car crash. There is a natural and contiuous sequence of events without which [the victim]'s death would not have occurred. In other words, there is an intuitive relationship between Berg's conduct and the resulting harm." Id.

Likewise, here, by selling a minor dangerous fireworks near the Fourth of July, it was reasonably foreseeable that the minor may set off those dangerous fireworks near people. It was within the zone of risks resulting from Clegane's conduct for which he should be liable. Clegane's actions set off a natural and contiuous sequence of events without which Valerie's injury would not have occurred. Although Clegane was not aware of the minor having a history of reckless fireworks use like Berg had of his girlfriend, Clegane did know that the minor was going to set off the fireworks near people, as evidenced by the minor telling Clegane, "I can't wait to show these to my friends--I'm going to give everyone a big surprise" and the fact that the minor purchased them shortly before the Fourth of July. Excerpts from Transcript of Client Interview with Sarah Karth. Thus, because Clegane's conduct directly and proximately harmed Valerie, she is a victim within the FCVRA.

C. Clegane's conduct is the direct and proximate cause of Sarah Karth's injuries.

Clegane's actions are also the cause in fact of Sarah's injuries. As a direct result of Valerie's injuries, Sarah has suffered from depression and has been so distraught that she has needed to see a therapist twice a month for the past six months. The Franklin Appellate Court considered similar injuries in State v. Humphrey. There, the court considered whether two sons of a father who was killed by the defendant's criminal conduct were victims under the FCVRA. In affirming the trial court's conclusion that they were, the court stated, "[w]e find that [the father]'s two young sons are 'crime victims' in part because of the loss of financial support from their father. The FCVRA requires only that a person be 'directly and proximately harmed' by an offense. The term 'harm' embraces physical, financial and psychological damage." State v. Humphrey (Fr. Ct. App. 2008) (citing FCVRA § 56(b)(2)).

Here, Sarah's harm is purely psychological, which falls under the FCVRA. Like in Humphrey, it stems from the injuries the defendant caused to a close loved one (in this case, her sister). Thus, because Clegane's conduct is the direct and proximate harm of Sarah's injuries, she is a victim within the FCVRA.

2. Sarah is a suitable representative for Valerie.

As explained above, the court may appoint any suitable person to assume an incapacitated crime victim's rights unde the FCVRA. See FCVRA § 55(b). In State v. Humphrey, it was undisputed that the mother of two minor children was an appropriate representative for them. Here, Valerie remains incapacitated. Sarah is Valerie's loving sister who has been depressed and distraught by the injuries that befell Valerie as a result of Clegane's actions. Sarah would undoubtedly represent Valerie'e interests to the best of her abilities. Thus, she is a suitable representative for Valerie.

B. The Karths are entitled to restitution.

"The court, when sentencing a defendant convicted of an offense, shall order that the defendant make restitution to any victim of the offense." FCVRA § 56(a). In the case of damaged, lost or destroyed property, this includes paying "an amount equal to the repair or replacement cost of the property" Id. § 56(b)(1). In the case of phsyical, psychiatric or psychological injury, this includes requring the defendant to "pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment; pay an amount equal the cost of necessary physical and occupational therapy and rehabilitation; and reimburse the victim for income lost by such victim as a result of such offense." Id. § 56(b)(2). Here, Valerie has incurred $22,000 in medical bills, which Sarah expected will reach $40,000; lost $120,000 in salary; and will have to spend $17,000 to rebuild her garage, which was destroyed by the fireworks. See Excerpts from Transcript of Client Interview with Sarah Karth. Likewise, Sarah has incurred $1,500 in medical bills for her therapist. Id. Because they are both crime victims of Clegane's conduct, they are entitled to a total of $178,500 as restitution under this portion of the statute.

However, "[a] defendant is presumed to have the ability to pay restitution unless the defendant established the inability to pay by a preponderance the evidence," FCVRA § 56(c), "[i] determining the amount of restitution, the court shall consider (1) public policy that favors requiring criminals to compensate for damage and injury to their victims; (2) the financial burden placed on the victim and those who provide services to the victim as a result of the criminal conduct of the defendant; and (3) the financial resources of the defendant and the nature of the burden the payment of restitution will impose on dependents of the defendant." Id. § 56(d).

Clegane has merely stated that he "does not have the resources to pay the amounts requested." Motion, at ¶ 8. He has offered no evidence to overcome the presumption against him. Nevertheless, "the sentencing judge must make a 'serious inquiry' into all three factors." See State v. Humphrey (Fr. Ct. App. 2008) (citing State v. Schmidt (Fr. Sup. Ct. 2003)). In Humphrey, the court remanded because of the trial court's failure to make such an inquiry. Here, the public policy clearly favors payment to the Karths. In addition, the Karths have experienced signifcant financial hardship, to the tune of $178,500, purely as a result of Clegane's criminal conduct. Finally, although Clegane has stated he does not have the resources to pay this restitution, Clegane is a successful business owner who operates four fireworks stores throughout the eastern part of Franklin. See Illegal Fireworks Injure Two and Destroy Garage, The Franklin City Post (July 5, 2017). He has offered no evidence to the contrary. Thus, the serious inquiry in these factors that is required by Humphrey reveals that Clegane should be required to pay the Karths the entire $178,500 in restitution.

Sample Answer

III. Legal Argument

i. Valerie Karth and Sarah Karth are victims of a criminal offense under the FCVRA because they were directy and proximately harmed as a reult of the Commission of the unlawful sale of fireworks to a minor perpetrated by Greg Clegane.

The Franklin Crime Vitims' Right Act, hereinafter FCVRA, defines a crime victim as "a person directly and proximately harmed as a result of the commission of a Franklin criminal offense", FCVRA § 55(b). Both Valerie and Sarah Karth are victims of crime under this statute because they were directly and proximately harmed by Defendant Greg Clegane's unlawful sale of firework's to a minor.

The actions of Defendant caused the minor in this instance to have possession of professional grade fireworks. If Defendant had not supplied the fireworks to the minor, Valerie and Sarah's injuries would not have happened. The Franklin Court of Appeal has stated that a direct causal connection between Defendant's conduct and the victim's injuries satisfy the condition that a defendant's action are a cause in fact of a victim's injury, thereby making a victim's injury a direct harm of a defendant's conduct. State v. Jones (Fr. Ct. App. 2003). Valerie was directly harmed when the fireworks sold illegaly by the Defendant were set off in an unsafe manner, striking and injuring Valerie and also setting her garage on fire. In State v. Berg, (Fr. Ct. App. 2012), defendant illegally supplied alcohol to a friend under the legal drinking age, who then drove under the influence and crashed, killing herself and another passenger. In Berg Defendant was found to be a direct cause of the passenger victim's harm because he supplied alcohol to the driver who then drove intoxicated. Had the driver been able to obtain alcohol legally this case may have had a different outcome. Here, as in Berg, but for Defendant's conduct, Valerie's injuries would not have happened. If not for Defendant's action supplying the professional grade fireworks illegally to a minor, the minor would not have had access to the fireworks and without the fireworks being set off Valerie would not have been injured.

Sarah Karth's injuries are directly attributable to Defendant as well. The FCVRA allows for restitution "in a case of an offense resulting in physical, psychiatric, or psychological injury to a victim". FCVRA § 56(b)(2). Sarah Karth's injuries are psychological and she is capable of recovering under the FCVRA. Defendant's actions were a direct cause of Valerie's injuries, and Valerie's injuries were a direct cause of Sarah's psychological injuries. But for Defendant's actions, Valerie would not have been hurt. But for Valerie's serious injuries, Sarah would not have been depressed and distraught and have a need to seek help from a therapist. The Franklin Court of Appeals in State v. Hackett (Fr. Ct. App. 2003) found that despite "multiple links in the causal chain", Hackett's conduct resulted in property damage and was a cause in fact to the injury in that case. In Hackett the Defendant procured supplies to codefendants to use in the manufacturing of methamphetamine. Defendant has knowledge of what the codefendants' plans to use the supplies were, and even though Defendant did not start the fire causing injury to a victim, but for his supplying the products the fire would not have happened. The Court has found that even though there were multiple acts leading up to the fire, the Defendant's conduct was a cause in fact of the property damage. Here, as in Hackett, there were multiple links in the causal chain, but they lead back to Defendant. The Defendant supplied the fireworks, the fireworks injured Valerie, Valerie's injuries are serious and cause stress to her family, causing her sister Sarah to be injured psychologically and to seek medical help. Defendant is a direct cause of Sarah's unjuries, and Sarah should be classified as a victim per the FCVRA.

The second part of the causal analysis here is whether Defendant's conduct was a proximate cause of the victim's injuries. Proximate cause deals with the idea of equity and fairness, whether it would be equitable and fair to find Defendant's actions a proximate cause of victims' injuries. The Court finds that foreseeability is at the heart of proximate cause. Jones. In Berg, the court states that a harm is foreseeable then is is "within the zone of risks resulting from the defendant's conduct for which the defendant should be found liable." In this case, Defendant could have reasonably foreseen that sale of professional grade fireworks to a minor could result in physical injury to others and also to injury to members of that victims family. Valerie's harm was foreseeable. Sarah's harm was foreseeable. Defendant is in a business that sets standards for sale of his goods. Fireworks are dangerous, and anyone in that business should know of the dangers. Defendant runs three (3) other firework retailers, a reasonable person running four fireworks stores will have knowledge of the dangers, and also will comply with laws regarding the sale of said fireworks. Defendant should have known to check the customer's identification to ensure proper sale of his product. Defendant should have known of the foreseeable risks when the minor told him he was going to show his friends, and also that the fireworks would be a surprise. Even if Defendant did not know that the customer was a minor, he should have checked identification as any reasonable person dealing in goods of this manner would. Fairness and equity require the Court to hold Defendant responsilbe for his felony, and also responsible to the victim's of the felony. What is also foreseeable is a family members anguish when dealing with a traumatic injury. Sara Karth must helop with the care of her incapacitated sister. This is a sister who was independant up until her injuries. This is a sister who was in a coma for months, and is still incapacitated in the hospital. The stress and anxiety caused to Sarah by her sister's injuries are a foreseeable injury in this situation. Both Karth sisters deserve justice, and both Karth sisters were proximately harmed by Defendant's felonous sale of fireworks.

II. The Court must allow Sarah Karth to read both Valerie Karth's and her own victim impact statement at Defendant's sentencing because the FCVRA Act extends that right to victims of criminal offenses.

Sarah Karth should be allowed to read her own victim impact statement at Defendant's sentencing because she is considered a victim of Defendant's crime. The FCVRA gives crime victim's rights to be reasonably heard at proceedings in disctrict court involving sentencing. FCVRA § 55(a)(4). Sarah Karth has the right as a victim to read her impact statement, one that she has submitted to the Court ahead of time. Her request is reasonable and should be allowed.

Even if the Court finds that Sarah is not a victim under the FCVRA, her sister Valerie is. Valerie is incapacitated in a hospital at this point and is unable to read her own victim impact statement. The FCVRA allows for incapacitated victims to be represented in Court by family members. FCVRA § 55(b)(2). Sarah is the proper representative to read Valerie's impact statement because she is a family member, and Valerie's father has passed away and her mother is too frail to perform this function. Public policy favors allowing victims of criminal offenses to be heard.

III. The Court must require Defendant to pay restitution to the victims because they are victims of the felony committed by Defendant, and Defendant has the ability to pay.

The FCVRA finds that a court "shall order that the defendant make restitution to any victim of such offense." FCVRA § 56(a). State v. Humphrey, (Fr. Ct. App. 2008) interprets this statute as applying to any "crime victim" and a purpose of the statute is forcing Defendant to pay restitution. In this case the victims have suffered physical and psychological injury, as well at property damage. These are all categories the FCVRA requires an able Defendant to make restitution on. The act further qualifies medical and related professional services as well as loss of income under reasonable costs to be repaid. The FCVRA sets forth a rebuttable presumption that Defendant cannot pay, as well as considerations of the Court. The Defendant has not proved by a preponderance of the evidence that he cannot pay. The total damages set forth by the victims are $200,500.00. These damages include medical bills, therapist's bills, and loss of income to the victims. Defendant has not shown that he cannot afford to pay, as required by the statute. As per Humphrey the Court must make a serious inquiry into the factors set forth by the FCVRA. The first of these is the public policy favoring restitution to victims. The public policy does favor restitution and the Court should consider the victim's damages. The second factory is financial burden placed on the victim and those providing services. There has been a great financial burden placed on Valerie, from thousands of dollars of out of pocket medical expenses to loss of income. There has also been a financial burden placed on Sarah due to her care of Valerie, and her psychologist expenses should be considered as well. The third and dinal factor is financial resources of the Defendant. The Defendant has not shown that he is unable to make restitution. Defendant owns four (4) different fireworks retailers. Defendant cannot claim that he is insolvent and unable to pay. The Court must order Defendant to pay restitution. The victims should not be forced to suffer further because of his actions.

MPT-2

In re Hastings

FILE

Memorandum to Examinee

Transcript of client interview

Marin County Board of Elections position descriptions

LIBRARY

State of Franklin Constitution Article XII

Excerpts from the Franklin Election Code

Attorney General of Franklin, Opinion No. 2003-9, March 17, 2003

Attorney General of Franklin, Opinion No. 2008-12, February 6, 2008

Attorney General of Franklin, Opinion No. 2010-7, September 5, 2010

FILE

Belford & Swan S.C.

Attorneys at Law

6701 San Jacinto Avenue, Suite 290

Marin City, Franklin 33075

MEMORANDUM

To: Examinee

From: Emily Swan

Date: February 27, 2018

Re: Danielle Hastings inquiry

A friend of mine from college, Danielle Hastings, has asked me to look into a legal

matter for her. Danielle currently serves on the board of directors for Municipal Utility District

No. 12 (MUD 12). MUDs are local government entities, authorized by the Franklin constitution,

that provide public water, sewer, drainage, and other services to suburban neighborhoods not

served by a city.

Danielle has always been civic-minded, and she is very involved in her community. In

addition to being a director for MUD 12, she volunteers at the local library and is a volleyball

coach at the local YMCA. She is interested in getting involved in election and voting activities in

her community. There are two election-related positions available in her voting precinct: county

election judge and precinct chair.

Both positions sound interesting to Danielle. She is not sure which position she would

want. Before making any decision, she needs our advice as to whether she is allowed to serve as

a county election judge or precinct chair while at the same time remaining a MUD 12 director.

I have attached several opinions by the Attorney General of Franklin, which discuss the

applicable law.

Please draft a memorandum to me analyzing whether Danielle can apply for and hold the

county election judge position or the precinct chair position while simultaneously serving as a

member of the board of directors for MUD 12. Address the question for both the county election

judge and precinct chair positions. Make sure to discuss all legal issues relating to each position.

Do not prepare a separate statement of facts, but be sure to incorporate the relevant facts and

legal authorities into your analysis.

Transcript of Client Interview with Danielle Hastings

February 26, 2018

Att’y Swan: Hi, Danielle, it’s great to see you. Gosh, it’s been a while!

Danielle Hastings: Yes, it has. I think the last time we ran into each other was a couple of years

ago at our college class reunion.

Swan: How is everything going? I got your phone message indicating that you wanted

my advice on a legal problem, but you didn’t say what the problem was.

Hastings: Well, as I think I mentioned at our class reunion, in addition to my day job as a

graphic artist, I’m also a member of the board of directors for Municipal Utility

District No. 12, which provides water, sewer, and drainage services to my

neighborhood, Eagle Springs.

Swan: Yes, I remember your saying you were active on a MUD board in your

community. How is that going?

Hastings: Everything is fine. And I love the work I do as a MUD director. But I’m always

looking for opportunities to get involved in my community, and frankly, I have

higher political ambitions. Recently, I heard about two open positions that sound

really interesting and would further my political career.

Swan: Tell me more.

Hastings: Well, a friend of mine who’s active in local politics and highly involved in our

political party mentioned that there is an open position for county election judge,

which would involve supervising elections in my precinct. He also said that our

political party is looking for precinct chairs to help reach out to voters and educate

them about the candidates in our political party who are running for office.

Swan: What’s the process for becoming an election judge or precinct chair?

Hastings: The county election judge is an appointed position, but the precinct chair is an

elected position within the political party, which means that I would have to run

as a candidate for precinct chair and be elected to the position.

Swan: And both of these positions are for the voting precinct that you live in?

Hastings: Yes. My precinct includes Eagle Springs as well as a handful of adjacent

neighborhoods.

Swan: What else do you know about the two positions?

Hastings: Well, I’ve printed out some information from the Marin County website that

compares the two positions. [Printout from website attached.] It’s my

understanding that if I’m appointed as a county election judge, then I would be

the chief election judge for my precinct since the governor is from my political

party.

Swan: Do you have a preference between the two positions?

Hastings: No, both sound very interesting, and either position would provide an opportunity

to get more involved in the election process, which is something that I’ve been

wanting to do. If you tell me that I can hold either position while remaining on the

MUD board, then I would have to decide which of the new positions to pursue.

On the other hand, if you tell me that I can’t hold either of the positions while

simultaneously serving on the MUD board, then I won’t need to choose because

my decision will be made for me.

Swan: Tell me more about the MUD board. I think that it is important to understand

what you do as a MUD director in order to evaluate whether you could hold the

position of county election judge or precinct chair while simultaneously serving

on the MUD board.

Hastings: As you know, MUDs provide public water, sewer, drainage, and other basic

services to suburban residents who are not served by a city. MUD 12 provides

these services to residents of Eagle Springs, about 1,500 homes in all. Basically,

the MUD owns, operates, and maintains all the facilities necessary to supply

water to Eagle Springs residents, collect and treat wastewater from their homes,

and collect, store, and drain storm water from land within the MUD’s boundaries.

This includes a water plant, a wastewater treatment plant, and drainage ditches, all

located within Eagle Springs. In addition, the MUD provides trash collection

service for our residents, and we also own and operate two public parks within the

Eagle Springs community.

Swan: MUDs are political subdivisions of the State of Franklin, right?

Hastings: Correct. MUDs operate independently of county government. I’ve heard them

described as being one of the most fundamental forms of local government

because they provide municipal-level services, have elected officials who live in

the MUD, and are authorized to charge fees to their residents, assess and collect

taxes, and sell bonds in order to pay the costs of constructing and operating the

facilities that provide services to their residents.

Swan: Can you tell me more about the MUD board of directors election process? Are

your elections handled by Marin County?

Hastings: No. Under state law, MUDs conduct their own elections, which are held in May.

MUDs also appoint their own election judges for the MUD elections. The partisan

or political elections, like those for governor and state assembly, are held in

November, and those are the ones the Marin County election judges oversee.

Swan: So if you were appointed as a county election judge for your precinct, you

wouldn’t be involved in overseeing any MUD elections?

Hastings: Right, MUD elections are totally separate. MUD boards really aren’t all that

political in the party sense—they’re nonpartisan. Nobody runs for a MUD

position as a “Democrat” or “Republican.” They run for the MUD board because

they live in the MUD, they care about the basic services that are being provided,

and they want to be involved in their community and make a difference.

Swan: How long have you served on the MUD 12 board?

Hastings: This is my second four-year term on the board. Our last election was in May

2016, so I am midway through my current term. I want to remain on the MUD

board for at least another term or two.

Swan: Okay, I think I have enough basic information to start looking into this issue. I

should have answers for you within a week or two, which will give you plenty of

time to weigh your options.

Hastings: Great. Thanks.

Printout of

Marin County Board of Elections

Position Descriptions

Source: www.marincountyfranklin.gov

COUNTY ELECTION JUDGE [Summary prepared based on state election law]

What is a county election judge?

County election judges conduct the city, county, state, and federal elections in a precinct during the

year. Election judges are the head officials in charge of election-day activities.

What does an election judge do?

County election judges administer the election procedures set forth in the Franklin Election Code to

help ensure that elections are secure, accurate, fair, and accessible to all voters. Responsibilities

include handling and securing election equipment and ballots, locating and retaining election clerks

to work at their polling location, organizing the setup of the election equipment and the operation of

the election, handing out and collecting ballots, setting up and closing down the polling site, and

certifying the polling site results.

Election judges also serve on a panel to resolve any voting-related challenges that may arise.

Election judges are responsible for following the Franklin Election Code and conducting a fair

election. Although each judge is nominated by his or her political party, no display of any party

affiliation is allowed during the election.

How do you get to be an election judge?

Election judges are nominated by their respective parties and are appointed by the Marin County

Board of Commissioners to two-year terms. If possible, election judges reside in the precinct.

What is a chief election judge?

Two judges, one from each major political party, are appointed for each precinct. The chief election

judge is from the party that received more votes in the last governor’s election. The second judge

works closely with the chief election judge and is responsible for conducting the election in the

chief judge’s absence. Both judges are required to attend training.

Is election judge a paid position?

Election judges are volunteers. They are reimbursed for the cost of any training, supplies purchased,

or other expenses incurred, but are otherwise not compensated.

PRECINCT CHAIR [Summary prepared based on party bylaws]

What is a precinct chair?

A precinct is the smallest political subdivision in Franklin. Franklin counties are divided into

individual precincts, each consisting of a collection of adjacent neighborhoods. Precinct chairs are

political positions created by their political parties and not by statute. They are the primary political

agents for the Democratic and Republican parties in their precincts. They are responsible for

contacting, guiding, and organizing voters from their respective political parties in their precincts.

Precinct chairs also represent their home precincts on their party’s Executive Committee (EC),

which conducts the local business of that political party.

What does a precinct chair do?

In addition to serving on his or her party’s EC, each precinct chair is the contact person for his or

her respective political party in his or her precinct. Organizing and campaigning are important

duties of a precinct chair. Precinct chairs are responsible for working with others to mobilize and

organize voters and get them to the polls, bridging the gap between voters and elected officials, and

promoting their party’s candidates and events. This includes organizing phone banks to place

telephone calls to voters, organizing block walks (going door-to-door) to distribute campaign

materials, and encouraging neighbors to vote in upcoming primary and general elections.

What is the Executive Committee?

Marin County has two Executive Committees: a Democratic EC and a Republican EC. Each party’s

EC is the governing body of that political party in Marin County and conducts all official party

business. Each party’s EC usually meets three times a year, sometimes more in election years.

Precinct chairs are voting members of their ECs.

How do you get to be a precinct chair?

Candidates for precinct chair are elected to serve two-year terms by voters in their precincts in the

respective Democratic or Republican primary election every two years.

Is precinct chair a paid position?

Precinct chairs are volunteers and are not compensated for their service.

LIBRARY

STATE OF FRANKLIN CONSTITUTION

ARTICLE XII

§ 25. HOLDING MORE THAN ONE OFFICE; EXCEPTIONS

(a) No person shall hold or exercise, at the same time, more than one civil office of

emolument, except for justices of the peace, county commissioners, and officers and enlisted

men and women of the United States Armed Forces, the National Guard, and the Franklin State

Guard, or unless otherwise specially provided herein.

(b) Exceptions: . . .

(4) a public schoolteacher or retired schoolteacher may receive compensation for

serving as a member of a governing body of a municipal utility district (MUD).

Excerpts from the Franklin Election Code

§ 465. Appointment of Election Judges for Each Election Precinct. Election judges shall be

appointed by each county for each election precinct in which an election is held.

* * *

§ 471. General Responsibility of County Election Judges.

(a) The chief judge is in charge of and responsible for the management and conduct of the

election at the polling place of the election precinct that the judge serves.

(b) The chief judge for each election precinct shall appoint election clerks to assist the

judge in the conduct of an election at the polling place served by the judge.

performed by the election clerks serving under the judge.

. . .

(f ) The chief judge shall preserve order and prevent breaches of the peace and violations

of this code in the polling place and in the area within which electioneering and loitering are

prohibited. In performing duties under this subsection, the chief judge may appoint one or more

licensed persons to act as special peace officers for the polling place.

. . .

(h) An election judge may administer any oath required to be made at a polling place.

* * *

§ 480. Ineligibility of Candidate for Office. A person who is a candidate in an election for a

contested public or party office is ineligible to serve, in an election to be held on the same day as

that election, as an election judge or clerk in any precinct in which the office sought is to be

voted on.

* * *

§ 492. Judges for Elections of Other Political Subdivisions. The governing body of a political

subdivision other than a county shall appoint the election judges for elections ordered by the

political subdivision.

ATTORNEY GENERAL OF FRANKLIN

Opinion No. 2003-9

March 17, 2003

Re: Whether Franklin Constitution article XII, section 25 prohibits a constable from

simultaneously serving as a commissioner of an emergency services district

The issue presented is whether article XII, section 25 of the Franklin Constitution

prohibits a constable from serving as a commissioner of an emergency services district (ESD) in

the same county. We must examine each of the offices at issue.

Article XII, section 25(a) provides that “[n]o person shall hold or exercise, at the same

time, more than one civil office of emolument.” The constitutional dual-officeholding

prohibition applies if both positions (1) qualify as “civil offices” and (2) are entitled to an

“emolument.”

First, we have previously determined that a constable holds a civil office of emolument.

Franklin Att’y Gen. Op. No. 1999-8 (1999); see also FRANKLIN LOCAL GOV’T CODE § 453

(defining a constable as a “peace officer” and mandating that constables be paid on a salary

basis).

Next, we must examine whether the position of ESD commissioner is also a civil office

of emolument subject to article XII, section 25. The determinative factor distinguishing an

officer from an employee is “whether any sovereign function of the government is conferred

upon the individual to be exercised by the individual for the benefit of the general public largely

independent of the control of others.” Morris Indep. Sch. Dist. v. Lehigh (Franklin Supreme Ct.

1965).

ESDs independently exercise various governmental powers for the benefit of the public,

including the power to appoint agents and employees, enter into contracts, purchase and sell

property, borrow money, sue and be sued, impose and collect taxes, and perform other necessary

acts relevant to providing emergency services. FRANKLIN LOCAL GOV’T CODE § 752. ESD

commissioners serve as the ESD’s governing board. Based on the broad, independent authority

granted to ESDs, we conclude that ESD commissioners meet the Morris test and are thus civil

officers.

Next we determine whether an ESD commissioner holds an office of “emolument.” An

emolument is “a pecuniary profit, gain or advantage.” State v. Babcock (Franklin Ct. App. 1998).

If an officeholder is entitled to compensation, his or her office is an “office of emolument” even

if the person refuses to accept any compensation. However, the term “emolument” does not

include the legitimate reimbursement of expenses. While the reimbursement of actual expenses

does not constitute an emolument, any amount received in excess of actual expenses is an

emolument. Id. Likewise, an amount received as compensation for each meeting (e.g., a fixed per

diem amount) is also an emolument. Id.

By statute, an ESD commissioner “is entitled to receive compensation of $50 for each

day the commissioner attends a commission meeting,” and additionally “may be reimbursed for

reasonable and necessary expenses incurred in performing official duties.” FRANKLIN LOCAL

GOV’T CODE § 775. The $50 per diem compensation qualifies as an emolument.

Because an ESD commissioner receives compensation for his or her services and holds a

civil office of emolument, he or she cannot hold another civil office of emolument—here,

constable.

SUMMARY

Article XII, section 25 of the Franklin Constitution prohibits a person from

simultaneously serving as a constable and an ESD commissioner. Because we conclude that

article XII, section 25 prohibits dual service in this circumstance, we need not consider whether

simultaneously holding the positions of constable and ESD commissioner would implicate the

common law doctrine of incompatibility.

ATTORNEY GENERAL OF FRANKLIN

Opinion No. 2008-12

February 6, 2008

Re: Whether an individual may simultaneously serve as director of a municipal utility district

and member of the city zoning commission

The issue presented is whether an individual who serves as a member of the board of

directors for Montgomery County Municipal Utility District No. 6 (MUD 6) may also serve as a

member of the Planning and Zoning Commission (PZC) for the City of Waterford. We conclude

that one person is barred from holding both offices by the common law doctrine of

incompatibility.

Civil office of emolument

Article XII, section 25(a) of the Franklin Constitution provides that “[n]o person shall

hold or exercise, at the same time, more than one civil office of emolument,” subject to

exceptions that are not relevant in this situation. MUD directors are entitled to receive

compensation for serving on the MUD board—specifically, a $150 per diem payment as

compensation for attending MUD board meetings or engaging in other MUD-related activities.

FR. WATER CODE § 46. In contrast, members of the PZC serve without compensation. Because

PZC commissioners do not receive compensation, they are not civil officers of emolument.

Therefore, article XII, section 25 of the Franklin Constitution does not bar a person from serving

on the PZC and holding another office.

Common law doctrine of incompatibility

The common law doctrine of incompatibility may, however, prevent this dual service,

whether or not a member of the PZC receives compensation for that position, because

compensation is not relevant to determining whether offices are incompatible. The common law

doctrine of incompatibility bars one person from holding two civil offices if the offices’ duties

conflict. Spencer v. Lafayette Indep. Sch. Dist. (Franklin Ct. App. 1947). The doctrine has three

aspects: self-appointment, self-employment, and conflicting loyalties. Self-appointment and

self-employment are only implicated if the responsibilities of one position include appointing or

employing the second position. Here, the MUD does not appoint or employ members of the PZC

and vice versa. Therefore, the only inquiry is whether the two positions involve conflicting

loyalties.

The opinion in Spencer held that the offices of school trustee and city council member

were incompatible because the boundaries of the school district’s and city’s jurisdictions

overlapped, and the city council had authority over health, quarantine, sanitary, and fire

prevention regulations applicable to school property. The court reasoned that if a person could be

a school trustee and a member of the city council at the same time, school policies could be

influenced or even controlled by the city council instead of the school trustees. Id.

As a threshold matter, in order for the conflicting-loyalties prong to apply, each position

must constitute a “civil office.” Therefore, we must first consider whether directors of MUDs

and members of the PZC are civil officers. The Franklin Supreme Court has articulated the

following test for determining whether an individual holds a civil office: “The determining factor

which distinguishes a civil officer from an employee is whether any sovereign function of the

government is conferred upon the individual to be exercised by the individual for the benefit of

the general public largely independent of the control of others.” Morris Indep. Sch. Dist. v.

Lehigh (Franklin Supreme Ct. 1965).

Municipal utility districts provide water, sewer, drainage, and other services to suburban

communities. They are local (as opposed to state or county) government entities authorized

under the Franklin Constitution and are subject to the Franklin Water Code. They are governed

by a board of directors, who are elected to four-year terms. FRANKLIN WATER CODE § 35. A

MUD board is responsible for “the management of all the affairs of the district” (id. § 37) and

may levy and collect a tax for operation and maintenance purposes, charge fees for provision of

district services, issue bonds or other financial obligations to borrow money for its purposes, and

exercise various other powers set out in the Franklin Water Code (id. § 39). A director of a MUD

is a civil officer within the test stated by the Franklin Supreme Court in Morris based on the

number of independent functions delegated to MUD boards under the Water Code, several of

which are discussed above.

We next consider whether members of the Waterford PZC are civil officers. Cities such

as Waterford have zoning authority and are authorized to appoint a zoning commission. If the

Waterford PZC exercises governmental powers delegated by the city council, its members will

be civil officers.

The Waterford PZC consists of nine citizens of Waterford who are appointed by the city

council for a term of two years. The Waterford PZC is responsible for final approval of plats for

residential development in the City. In our opinion, members of the Waterford PZC exercise a

sovereign function of the government “for the benefit of the general public largely independent

of the control of others” within the Morris test and are therefore civil officers.

Our next consideration is whether members of the Waterford PZC have powers and

duties that are incompatible with the powers and duties of a MUD director. During the plat

approval process, the PZC requires submission of preliminary utility plans identifying the nature

and location of water and sewer services such as water and sewer plants. A PZC member who is

also a director of a MUD may have divided loyalties when the proposed development is located

within the MUD on whose board the PZC member serves. In this situation, the PZC is able to

control and impose its policies on the MUD by determining the manner and placement of the

MUD’s facilities.

We conclude that the two civil offices are incompatible, and that a member of the PZC

who also serves on a MUD would have divided loyalties in facing decisions that affected his or

her MUD. We conclude that the common law doctrine of incompatibility prevents a member of

the Waterford PZC from serving simultaneously as a director of a MUD with territory within the

zoning authority boundaries of Waterford.

SUMMARY

A MUD director holds a civil office, as does a member of the PZC of the City of

Waterford. Because the duties of those two offices are in conflict where the offices have

overlapping jurisdictions, the common law doctrine of incompatibility bars one person from

simultaneously holding both offices.

ATTORNEY GENERAL OF FRANKLIN

Opinion No. 2010-7

September 5, 2010

Re: Whether a member of a school district board of trustees may simultaneously hold the

office of county treasurer

The issue presented is whether a trustee of an independent school district may

simultaneously hold the office of county treasurer. For the reasons explained below, we conclude

that she may do so. In the situation presented, the individual was elected for a three-year term on

the board of trustees of Winfield Independent School District. Subsequently, she was appointed

by the Board of Commissioners of Winfield County to fill the balance of a four-year term as the

Winfield County Treasurer.

Civil office of emolument

When we consider article XII, section 25 of the Franklin Constitution and our Opinion

No. 2003-9, we conclude that an individual is not barred by article XII, section 25 from

simultaneously holding the offices of school trustee and county treasurer. Section 384 of the

Franklin Education Code requires that trustees of an independent school district “serve without

compensation.” Because the office of school trustee is therefore not an “office of emolument,” it

follows that an individual is not barred by article XII, section 25 from simultaneously holding the

offices of school trustee and county treasurer.

That does not end our inquiry, however.

Common law doctrine of incompatibility

Common law incompatibility is independent of article XII, section 25. The three aspects

of the doctrine are self-appointment, self-employment, and conflicting loyalties. Selfappointment

and self-employment are not implicated here because the county treasurer neither

appoints nor employs members of the school board of trustees. Nor does the school board of

trustees appoint or employ the county treasurer.

The third aspect of common law incompatibility, conflicting loyalties, bars the holding of

simultaneous civil offices that would prevent a person from exercising independent and

disinterested judgment in either or both positions. It most often arises when one person seeks to

be a member of two governing boards with overlapping jurisdictions. If, for example, two

governmental bodies are authorized to contract with each other, one person may not serve as a

member of both.

Conflicting loyalties

Based on these principles, we must determine whether there are any duties ascribed to the

office of county treasurer that would render its holding incompatible with that of school district

trustee. The county treasurer is the chief custodian of county funds and is responsible for

accounting for and managing all money belonging to the county, including depositing funds

received by the county and disbursing county funds to pay county debts as required by law.

FRANKLIN LOCAL GOV’T CODE § 411.

A number of statutes peripherally relate to the duties of the county treasurer with respect

to school funds, but all of these appear to prescribe purely ministerial duties or duties that do not

apply in this circumstance, such as collecting debts and maintaining the original financing

records for schools in counties that do not have any independent school district. In this case,

Winfield County has its own independent school district (i.e., Winfield Independent School

District). The school district is a separate, distinct governmental entity with separate authority to

acquire and hold real and personal property, sue and be sued, and maintain its own funds.

FRANKLIN EDUC. CODE § 1251.

Conceivably, a county treasurer could initiate actions to recover funds owed to Winfield

County by the Winfield Independent School District. However, the county treasurer’s authority

is not exclusive. The Board of Commissioners, as the executive head of the county, is vested

with authority to determine when suits or other actions should be instituted to recover funds

belonging to the county and can separately sue to collect debts owed to the county. If it were

determined that funds were owed to Winfield County by the Winfield Independent School

District, the Board of Commissioners would be the proper party to sue to recover those funds.

Therefore, in our opinion, the county treasurer’s non-exclusive authority to sue to recover funds

owed by the school district to the county does not rise to the level of incompatibility

contemplated by the common law doctrine of incompatibility.

Because a county treasurer’s authority to sue an independent school district is limited to

the recovery of funds owed by the school district to the county, and because even that limited

authority is not exclusive, we conclude that conflicting-loyalties incompatibility is not, as a

matter of law, a bar to an individual’s simultaneously holding the offices of county treasurer and

trustee of an independent school district located within his or her county.

SUMMARY

A county treasurer is not, as a matter of law, barred either by article XII, section 25 of the

Franklin Constitution or by the common law doctrine of incompatibility from simultaneously

holding the office of trustee of an independent school district located within her county.

Sample Answer

Belford & Swan S.C.

Attorneys at Law

6701 San Jacinto Avenue, Suite 290

Marin City, Franklin 33075

MEMORANDUM

To: Emily Swan

From: Examinee

Date: February 27, 2018

Re: Danielle Hastings Inquiry

STATEMENT OF FACTS

[Omitted]

LEGAL ANALYSIS

Directors of MUD (DMUD) are civil offices of emolument therefore, Article XII applies

Our client Danielle Hastings wishes to maintain her position as a directoer for the Municipal Utility District (MUD). Article XII of the Franklin Consitution provides that no person shall hold or exercise, at the same time, more than one civil office of emolument...unless otherwise specially provided herein. In Opinion 2003-9 the attorney general layed out the test for determining if an office is a "civil office of emolument" There are two elements: 1) qualify as a civil office 2) are entitled to emolument. "The determinative factor distinguishing an officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by the individual for the benefit of the general public largely independent of the control of others" See Morris. Here, under the Morris test DMUD are civil officers, the attorney general of franklin in Opinion 2008-12 found that a DMUD is a civil officers because of the number of independent functions delegated to MUD boards under the water code See Opinion 2008-12. State v. Babcock defines emolument as a pecuniary profit, gain or advantage. In Opinion 2003-9 the attorney general determined that while reimbursement of actual expenses does not constitute an emolument, any amount recieved in excess of actual expenses is an emolument; compensation in per diem form for attending meetings is an emolument. Here, DMUDs are given a $150 payment for attending meetings therefore, they are a civil office of emolument. As a civil office of emolument, under Article XII they cannot hold another civil office of emolument except under specific statutory exceptions.

County Election Judge (CEJ) are not civil offices of emolument therefore Article XII does not prohibit Danielle from holding both roles.

CEJ are civil offices under the Morris test. "The determinative factor distinguishing an officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by the individual for the benefit of the general public largely independent of the control of others" See Morris. Here, they are responsible for management, conduct of election polling places, can appoint election clerks, designate working hours, and assign duties to election clerks. These duties are sovereign functions See Opinion 2008-9. Additionally, these functions are generally done without the control of others. Therefore, CEJ are civil officers. CEJ do not have an emolument. Election judges are volunteers. They are reimbursed for the cost of any training, supplies but are not otherwise compensated. In Opinion 2003-9 the attorney general determined that while reimbursement of actual expenses does not constitute an emolument, any amount recieved in excess of actual expenses is an emolument. Therefore, CEJ are not civil officers subject to an emolument and article XII does not prevent a DMUD from holding the CEJ position.

The common law doctrine of incompatibility does not prevent Danielle from being MUD and CEJ

The CEJ position is not incompatible with DMUD. As discussed above, CEJ is a civil office under the Morris test. The rule is that a civil office cannot self-appoint or self employ. Here, a DMUD nor CEJ has the right to employ or appoint the other. Typically, there is only incompatibility if the boundaries of the duties overlap. Here, the boundaries do overlap so we look to the specific duties to see if there is incompatibility. The only inquiry is whether under Spencer common law prevents one person from holding both offices if duties conflict. Duties that conflict prevent a person from excervising independent and disinterested judgement in either position See Opinion 2010-7. Here, the duties of the DMUD to administer the water and utilities of the district do not prevent Danielle from exercising independent judgement. The MUD does not have any power over Elections and the Elections position does not have any power over the MUD because MUD holds a seperate independent election outside the control of the CEJ. Therefore, there is no risk that the policies of the MUD or the election will be unduly influenced or controlled by the other See Opinion 2008-12. Therefore, CEJ is not a common law incompatible role to DMUD.

Precint Chair (PC) are not civil offices of emolument therefore Article XII does not prohibit Danielle from holding both roles.

PC are not civil officers. "The determinative factor distinguishing an officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by the individual for the benefit of the general public largely independent of the control of others" See Morris. Here, PC are political positions created by their political parites and not by statute. They do campaigning type of activities therefore they are not civil officers. Additionally, they are fully volunteer so even if the attorney general reads in a sovereign function they are not subject to emolument therefore article XII does not prevent a DMUD from being a PC.

The common law doctrine of incompatibility does not prevent Danielle from being MUD and PC

PC is a political position and not one of sovereign duties. As discussed above they are not civil offiers. Therefore, the common law doctrine of incompatibility does not apply.

CONCLUSION

Danielle can apply and hold the positions of both CEJ or PC while maintaining her role as DMUD. This is because neither position is an civil office with an emolument or incompatible with her role as DMUD.

Sample Answer

MEMORANDUM

To: Emily Swan

From: Examinee

Date: February 27, 2018

Re: In re Hastings

1. County election judge

A. Prohibition against dual office holding

In determining whether Danielle can apply for and hold the county election judge position while simultaneously serving as a member of the board of directors for MUD 12, Article XII of the Franklin Constitution will apply. Article XII states that "no person shall hold or exercise, at the same time, more than one civil office of emolument," with a few enumerated exceptions. Thus, the issue will turn on whether serving as a member of the board of directors for MUD 12 and serving as a county election judge are considered civil offices of emolument.

MUD directors are civil officers, as distinguished from employees. The determining factor in making this distinction is "whether any sovereign function of the government is conferred upon the individual to be exercised by the individual for the benefit of the general public largely independent of the control of others (Morris v. Lehigh 1965). Here, MUD 12 operates independently of county government and exercises sovereign functions for the benefit of the general public, such as providing municipal-level services, charging fees to the residents, assessing and collecting taxes, and operating the facilities that provide services to the residents. Furthermore, MUD directors are entitled to receive compensation for serving on the MUD board, thus they are civil officers of emolument (Opinion No. 2008-12).

The position of county election judge is held by volunteers who are reimbursed for expenses incurred. They may be considered civil officers because under the Morris test, they exercise a sovereign function of government for the benefit of the general public largely independent of the control of others, as their duties include administering elections and enforcing the Franklin Election Code (Opinion No. 2008-12). However, the term "emolument" does not include the legitimate reimbursement of expenses (Opinion No. 2003-9). Because county election judges are reimbursed only for their actual costs of training, supplies, and other expenses, they are not otherwise compensated. Thus, although they are civil officers, they do not receive emolument, and therefore, a county election judge is not a civil officer of emolument and Article XII would not bar Danielle from serving as county election judge and as a MUD director.

B. Common law doctrine of incompatibility

However, Danielle may be prevented from holding both offices due to the common law doctrine of incompatibility. Under this doctrine, compensation for holding a position is not relevant. Rather, a person is barred from holding two civil offices if the offices' duties conflict (Spencer v. Lafayette 1947). The doctrine considers three factors: self-appointment, self-employment, and conflicting loyalties (Opinion No. 2008-12). Self-appointment and self-employment are only implicated if the responsibilities of one position include appointing or employing the second position. Id. Here, MUDs conduct their own elections and appoint their own election judges for MUD elections. Thus, a county election judge would not be involved in overseeing any MUD elections. Further, MUDs are not involved in appointing or employing county election judges, as their duties are solely to provide water, sewer, and drainage services.

Furthermore, there is no issue of conflicting loyalties here. The responsibilities of a county election judge are to administer election procedures, a function sufficiently distinct from MUDs function in providing water, sewer, and drainage services. Because MUDs conduct their own elections and appoint their own election judges, there would be no overlap between the two positions that would prevent Danielle from "exercising independent and disinterested judgment in either or both positions (Opinion No. 2010-7). Additionally, although county election judges are nominated by his or her political party, MUDs are generally nonpartisan, and are motivated by their interest in providing services to their community. Therefore, the common law doctrine of incompatibility would not bar Danielle from holding both positions simultaneously.

C. Franklin Election Code

§480 of the Franklin Election Code states that a person who is a candidate in an election for a contested public or party office is ineligible to serve, in an election to be held on the same day as that election, as an election judge or clerk in any precinct in which the office sought is to be voted on. Thus, if Danielle were to serve as an election judge, her eligibility may be limited by this provision.

2. Precinct chair

A. Prohibition against dual office holding

As established above, MUD directors are civil officers of emolument for purposes of Article XII. However, precinct chairs are not civil officers within the meaning of the Morris test. Precinct chairs are responsible for contacting, guiding, and organizing voters from their repsective political parties in their precincts and represent their home precincts on their party's Executive Committee. These are not sovereign functions exercised by individuals for the benefit of the general public largely independent of the control of others. Rather, precinct chairs serve to benefit their respective political parties and their home precincts. Thus, they are not civil officers. Furthermore, precinct chairs are volunteers and receive no compensation, thus they do not receive any emolument. Therefore, precinct chairs are not civil officers of emolument, and Article XII would not bar Danielle from serving as the precinct chair and as a MUD director.

B. Common law doctrine of incompatibility

Similarly, Danielle may be prevented from holding both offices of MUD director and precinct chair due to the common law doctrine of incompatibility. As neither MUDs nor precinct chairs are involved in the appointing or employing of each others' positions, the factors of self-appointment and self-employment are not present. Additionally, because precinct chairs are not civil officers, the conflicting-loyalties prong does not apply (Opinion No. 2008-12). As such, the common law doctrine of incompatibility would not be a bar.

If precinct chairs are deemed to be civil officers, however, the duties involved in each position still would not be incompatible with each other. Precinct chairs are primarily involved in the political process, as agents for the Democratic and Republican parties in their precincts. As mentioned above, MUDs are nonpartisan and generally uninvolved in the political process, and their primary function is to provide the precinct with water, drainage, and sewer services. Thus, because there would be no overlap of functions, there would be no conflicting loyalties and therefore no incompatibility.

Accordingly, under either analysis, Danielle would not be barred from holding both offices simultaneously.

Conclusion

As a matter of law, Danielle is not barred by either Article XII or the common law doctrine of incompatibility from simultaneously being a MUD officer and holding either the election judge or precint chair position.

MEE Question 1

In 2012, David and Meg had a baby girl, Anna. At the time of Anna’s birth, David and Meg were both 21 years old. For the next four years, they lived separately. David and Anna lived with David’s mother (Anna’s grandmother). The grandmother cared for Anna while David worked. David cared for Anna most evenings and weekends. During this period, Meg attended college in a distant city; she called weekly but visited Anna only during school breaks and for one month each summer.

In 2013, David bought an auto repair business with money he had saved. The grandmother continued to care for Anna while David was working in his auto repair business.

In 2016, David and Meg were married in a small wedding held at the grandmother’s house. One week before their wedding, David surprised Meg by asking her to sign a premarital agreement prepared by his attorney. The agreement provided that, in the event of a divorce,

1. all assets owned by each spouse at the time of the marriage would remain the sole property of that spouse;

2. neither spouse would be entitled to alimony; and

3. the spouses would have joint physical custody of Anna.

Attached to the proposed agreement was an accurate list of David’s net assets (his personal possessions, the auto repair business, a used car, and a small bank account), a list of his liabilities, and his tax returns for the past three years.

David told Meg that he would not proceed with the marriage unless she signed the agreement. Meg believed that the marriage would be successful, and she did not want to cancel or postpone the wedding. She therefore signed the agreement and appended a list of her own debts (student loans); she correctly indicated that she had no assets other than her personal possessions.

Since the wedding, David, Meg, and Anna have lived together and the grandmother has continued to provide child care while David and Meg are at work. Meg has worked full-time as a computer engineer, and David has continued to work full-time in his auto repair business. Their incomes are relatively equal.

They have the following assets: (a) the auto repair business (owned by David); (b) stocks (owned by Meg, which she inherited last year); and (c) the marital home (purchased by David in his name alone shortly after the wedding). The down payment and all mortgage payments for the marital home have come from the couple’s employment income.

Last month, David discovered that Meg had been having an affair with a coworker for the past year.

David wants a divorce. He also wants to obtain sole physical custody of Anna; he believes that Meg’s adultery should disqualify her as a custodial parent. His plan is to live with the grandmother, who would provide child care when he is unavailable.

This jurisdiction has adopted a statute modeled after the Uniform Premarital Agreement Act.

1. May either spouse successfully enforce the premarital agreement in whole or in part? Explain.

2. Assuming that the premarital agreement is not enforceable, what assets are divisible at divorce? Explain.

3. Assuming that the premarital agreement is not enforceable, may David obtain sole physical custody of Anna based on (a) Meg’s adultery or (b) other factors? Explain.

Sample Answer

I. Enforcement of the Premarital Agreement

Under the UPA a premarital agreement is valind and enforceable if it is entered into voluntary and is done so with full disclosure. The UPA also states that the premarital agreement must be fair. Fairness is determined, in most jurisdictions, at the time of execution. Very few jurisdictions determine fairness at the time of enforcement. Further, a premarital agreement may be considered unfair if it is executed under duress, fraud, or coercion. Typically fairness requires the opportunity to see another attorney as counsel on whether to sign the agreement.

Here, The premarital agreement was presented to Meg one week before the mariage, and David told meg that the he would not continue with the marriage unless she signed the agreement. While this appears to be duress, courts have held that holding a marriage as a condition to get a party to sign a premarital agreement is valid and is not considered coersion. Further, giving the party one week would allow time to schedule an appointment with an attorney to review the document. The premartial agreement was given with full disclosure of Davids assets, liabilities and income. Meg signed the premarital agreement voluntarily thinking that the marriage would not fail.

The premarital agreement was entered into adequately and will be enforceable. However, courts do not recognize child custody or support in the premarital agreement. For this reason the court is likely to strike the provision issuing joint custody as the court will have to make its own finding of the best interest of the child.

One defense Meg may have to enforcement of the premarital agreement is that it was created by David's attorney and that she was not told that she has the right to see an attorney to determine whether to sign the agreement. Some courts hold that without being informed of that right the contract may be held unenforceable.

However, considering the circumstances the court should hold the premarital agreement enforceable when it comes to parts division of property and the decision of spousal support.

II. Marital Assets v. Non Marital Assets

Marital assets are assets that are acquired during the course of the marriage with marital funds. Marital funds are funds that are earned during the course of the marriage. Assets that are obaind prior to marriage are non marital assets. Assets acquired by devise or inheritance in the name of only one spouse are considered non marital property.

Here, the assets that both parties have include the auto repair business, stocks, and the marital home.

The auto repair business was acquired before the couple was married and living togethor. These assets that are acquired before marriage are non marital assets. For this reason the autorepair business is a non marital assets. However, any growth in the business of that asset during the course of the marriage using marital funds may be considered to be marital assets. For example, of David spent marital money on advertising or improvements to the business during the marriage. Those improvements or increase in goodwill are likely to be considered a marital asset.

The stocks are owned by Meg. She inherited them during the course of the marriage. As stated above assets that are aquired by inheritance or devise during the marriage are considered non marital assets.

The marital home was purchased during the course of the marriage. Courts do not consider if the deed has one or both names when determining whether the home is a marital asset. The downpayment and the mortgage payments have come from both Meg and David's income. Their income during the course of their marriage is considered a marital asset along with anything that is purchased with the marital income. For this reason the home is a marital asset.

III.Child custody determination based on fault and other factors

a) fault

The child custody determination based on a divorce for fault typically does not affects the courts decision on whether the best interest of the child are served by issuing custody to the party who is not at fault. Courts will consider the conduct if the conduct does make the parent less responsible or puts the child at increasing risk.

David is considering a fault based divorce due to Meg's adultry during the marriage. The adultery may be considered in determining whether granting Meg custody is in the best interest of the child; however, the court will not determine that Meg will lose her right as biological parent becuase of the adultery alone.

b) other factors

The court is allowed to take into account whatever extrinsic factors it deems relevant in determining best interest of the child during custody. This can include time the parent can spend, the parental misconduct, the parents history with the child, the care the child would receive with each parent, etc. In determining whether sole custody is correct courts will have to determine whether a parent is unfit to serve as legal guardian (in making decisions for the child) and as phsycial guardian.

Here there are several factors a court will consider when issuing custody and determining whether either parent is unfit. Meg's adultery will be considered but will likely not affect the decision greatly. Income of both parents is considered. Here, both parents earn about the same amount of income. The fact that Meg did not spend much time with Anna when she was born due to educaiton. The fact that Meg works as a computer engineer who typically works 9-5 while David operates his own business which could take substantially more time away from parenting. Neither parent has demonstrated any reason to be adjudicated unfit to be a parent. For this reason a court should not issue sole custody to either parent unless other determinations of fact are found that make the parent unfit.

Sample Answer

(1) The issue is whether either spouse may enforce the premarital agreement. Under the UPAA, parties are free to agree, prior to marriage, to the distribution of assets in the event of a divorce. Premarital agreements are presumed valid where they are entered into knowingly and voluntarily. Absent a showing of unconsciounability or lack of disclosure of assets, the court will likely find an agreement valid.

Here, David surprised Meg with the premarital agreement a week before the wedding. Although this was close to their wedding date, the facts do not suggest that Meg did not have time to consider the agreement or to consult an attorney if she desired. Meg decided to sign the agreement based on her belief that the marriage would be successful and that she did not want to cancel or postpone the wedding. Based on the short timeframe and Meg's reasons for signing, a finding of unconscionability is possible if additional factors are present, such as onerous terms especially considering the agreement was drafted by David's attorney. The agreement included a full disclosure of David's assets. Meg also disclosed her assets (none) and her loan debt. Based on the full-disclosure and absent additional circumstances showing unfairness, the agreement is likely valid. With regard to the specific provisions:

(a) Assets: parties are free to agree that assets prior to marriage will remain that party's sole property. This agreement will be enforceable.

(b) Alimony: parties are free to forego alimony in a premarital agreement. This portion will be enforceable.

(c) Custody: the court will need to determine the best interests of the child in making a custody determination. This portion of the agreement will not be enforceable.

The court will likely uphold the agreement, absent the agreement regarding custody of Anna, because the agreement was entered into voluntarily and with full disclosure of assets.

(2) Assuming the premarital agreement is not enforceable, the issue is how the court will divide their assets.

a) The auto repair business was purchased by David prior to their wedding. As such, it is presumed to be separate property. However, the growth of the business attributable to David's labor is divisible as a martial asset. Growth of the business due to market factors will remain David's separate property.

b) The stocks Meg inherited will remain her separate property unless she took steps indicating an intent to transfer them to the marital estate such as comingling the inheritance money with martial assets with the intent that the inheritance become part of the martial property.

c) The marital home was purchased during the marriage and is presumed to be a marital asset regardless of the fact that David purchased it in his name alone. If David could trace the purchase to his separate assets he could overcome the presumption. However, here, the downpayment and mortgage payments were from the couple's joint income so the home is a martial asset.

(2) The issue is whether David may obtain sole custody of Anna based on Meg's adultery or other factors. The court will look to Anna's best interests in determining custody. Parental contact and joint custody are preferred where possible and when in the best interests of the child. Courts no longer give preference to one parent based on gender. Here, David was the primary custodian of Anna for the first four years of her life. Anna saw Meg only on school breaks and during a month of the summer. However, since finishing school, Meg has lived in the same home as Anna. Meg and David both work full time and likely have similar ability to provide for Anna and similar time to spend with her. The court is unlikely to consider Meg's adultery unless it had a direct impact on her care of Anna. The court may consider that David's mother has played a large role in Anna's life as a caregiver. The grandmother's present role as a caregiver does not necessitate that David be granted sole custody however. She could continue to care for the child regardless of who had custody. The court will likely award joint custody based on Anna's best interests.

MEE Question 2

A defendant, age 25, is charged in State A with armed robbery. According to the indictment, on June 1, the defendant went into a store, pulled out a gun, and said to a cashier, “Give me all your money or I’ll shoot you!” The cashier gave the defendant $5,000. The police arrived as the defendant was driving away. The police car followed the defendant, who was driving over 80 mph. The defendant crashed his car into a tree and suffered a serious head injury, losing consciousness. He was taken by ambulance to a hospital, where he regained consciousness on June 8. On June 15, he was discharged from the hospital. On July 1, he was arraigned on the armed robbery charge and released on bail. Over the next few months, the defendant recovered full physical mobility, but he continued to show symptoms of cognitive impairment resulting from brain trauma suffered during the car crash.

Police interviews with the defendant’s family and friends have revealed that, in the months preceding the robbery, the defendant had experienced financial and emotional difficulties. According to the defendant’s best friend, the defendant had recently started a new business, which was struggling. A month before the robbery, the defendant told his best friend, “I cannot attract customers because the United Nations has organized a secret boycott of my new business.” On the day before the robbery, the defendant texted his best friend: “I’ve been a victim for too long. I’ve decided to start making up for my losses. If you read about me in the papers tomorrow, I’ll already be far away, so delete this text and tell the police you never knew me.”

In December, as the state began preparing for trial, two court-appointed psychiatrists evaluated the defendant and prepared the following joint report to the court:

Before the robbery, the defendant had a slightly above-average IQ. The defendant had completed a community college program in business administration and had recently opened his own business, which he owned and managed at the time of the robbery. A few months before the robbery, the defendant’s business was struggling, and he began experiencing some mental health difficulties. His mental health difficulties apparently did not impair his relationships with his family and friends or his ability to manage his everyday life and operate his business. The defendant never sought mental health treatment.

On the day of the robbery, during the crash, the defendant sustained brain trauma that has impaired his cognitive functioning. The defendant has not returned to work, and there has been no cognitive improvement to date. When questioned about the pending criminal charge, the defendant typically responds, “My mother told me I did something bad, but I can’t remember what.” He is unable to remember anything about the robbery. When asked about his appointed counsel, the defendant usually says, “She’s nice” or “She comes to see me and helps me.” He describes the judge as “the guy in charge,” but when asked to explain what happens in court he responds, “I don’t know what they are talking about.” During repeated interviews, we have seen no evidence that the defendant currently understands abstract language and concepts. We have also seen no evidence that he is feigning or exaggerating his cognitive impairment.

State A uses the M’Naghten not guilty by reason of insanity (NGRI) test and requires that the affirmative defense of NGRI be proved by a preponderance of the evidence.

Defense counsel has requested a hearing to determine whether the defendant is competent to stand trial (in some jurisdictions, this is called “fitness to stand trial”) and has informed the court that, if the trial proceeds, the defendant will argue that he is NGRI.

Based on all the information presented above, including the information in the psychiatrists’ report:

1. Should the prosecution be suspended because the defendant is currently incompetent to stand trial? Explain.

2. If the defendant is found competent to stand trial and the prosecution proceeds, will the jury likely find that, with respect to each element of the M’Naghten test, the defendant has met his burden of proof? Explain.

1. The prosecution should be suspended because the defendant is incompetent. The issue is whether the judge should proceed with trial if the defendant is incompetent to stand trial.

Sample Answer

In regards to the competence of a defendant, if the defense states that their client is incomptent to stand trial, the judge has the authority and duty to analyze whether the defendant is in fact competent enough to stand trial. The judge has the duty of making sure that the defendant understands the charges that the defendant faces, as well as the consequences of his conduct. A defendant will be deemed to be incompetent to stand trial if the defendant: (1) cannot confer and communicate to his attorney about his charges or the case procedure itself and (2) if the defendant doesnt understand the charges he faces and the result that he faces if found guilty of the crimes he has been charged with. If the judge deems that the defendant is incompetent to stand trial, the judge must not proceed with the trial and must wait until the defendant regains competency for him to stand trial.

Here, the facts indicate that during the defendant's armed robbery, while trying to get away from the police trailing him, he crashed his car into a tree and suffered a serious head injury. Additionally, the facts demonstrate that after the crash he was taken to the hospital and that although he has recovered physically, he hasnt recovered cognitively. Additionally, the defendant has showed continued signs of symptoms of cognitive impairment resulting from brain trauma suffered during the car crash. The defendant would be considered incompetent because he cannot confer or communicate with his attorney about his charge nor the case itself. This is demonstrated because the facts establish that when he is asked about his appointed counsel, he describes her by saying "she is nice or she comes to see me and helps me." Furthermore, the defendant describes the judge as the guy in charge but when asked to explain what happens in court, he states that he doesnt know what they're talking about, establishing that he doesnt understand the case itself. Moreover, the facts dmeonstrate that the defendant doesnt understand abstract language and concepts, which further establishes that he would be unable to communicate with his attorney or understand the procedure in regards to his trial. In addition, the facts indicate that the defendant is not exaggerating his cognitive impairment and because he doesnt understand abstract language and concepts, he fails to truly understand the charges he faces and the result of his actions. The defendant states that his mother told him that he did something bad but that he cannot remember what it was, further dmeonstrating that he cannot understand the charges he faces. Therefore, since the defendant would be deemed incompetent, the judge would have to suspend the prosecution and wait for the defendant to regain competence by having psychological evaluations.

2. If the defendant is found competent to stand trial, the jury will not likely find that the defendant would meet the burden of proff is establishing that he was insane under the M'Naghten test.

As a general rule, the prosecution has the burden of proving each element of a crime beyond a reasonable doubt. Typically the defendant has no burden of proof to establish any element of a crime, however, if the defendant pleads insanity, the defendant will have the burden of proving the elements of insanity by a preponderance of the evidence. Under the M'Naughten Rule for insanity, the defendant will be aquitted of a crime if he dmeonstrates that he suffered from a disease of the mind at the time the crime was committed and the he doesnt understand the criminality of his conduct and that he doesnt understand that his conduct violates the law.

Here, the defendant would not be able to prove the elements of the m'Naughten test because he was not "insane" at the time of the crime. The facts indicate that when the defendant committed the crime of armed robbery, he was an owner and manager of his own business, he completed a community college program in business in administration and that he suffered from mental health difficulties, it did not impair his relationships with his family or his business, which demonstrates that he was not insane at the time of the armed robbery. Furthermore, although the defendent may argue or want to admit the statement of him telling his best friend that he cannot attract customers because of the UN organizing a secret boycott of his new business, would not be deemed insane, nor would it estaablish that he didnt have the knmowledge to appreciate his conduct nor does that show that he didnt know that armed robbery was a violation of the law. In fact, the defendant's statment to his best friend the day before his armed robbery, showed that he understood that armed robbery was a criminal offense. The defendant stated " ...If you read about me in the papers tomorrow, I'll already be far away. so delete this text and tell the police you never knew me." This demonstrates that he planned on committing armed robbery the next day, and that he knew that armed robbery was a criminal offense in which he can served time for. Moreover, the defendant may argue that he currently is unable to understand abstract language and concepts, however, insanity must be proven at the time of the charged crime, meaning that the defendant must have been insane while committing the crime. The facts indicate that the defendant suffered psychological impairment after the crime, when he was attempting to flee th scene of his armed robbery, when he crashed into a tree. Therefore, the defendant would not be able to show both elements elements of the M'Naughten test.

Sample Answer

1) The issue is whether the defendant is competant enough to stand trial after suffering brain damage from the car accident.

Generally, almost anyone can be competent to stand trial. This even includes children and the elderly because it is a very low threshold to meet. Competency requires that the defendant understand the nature of the crime and the proceedings against him or her, and must be able to help his or her counsel prepare for trial. If a defendant is competent, the trial can proceed. If the defendant is not competant, the eighth amendement prevents the trial from proceeding because it is considered cruel and unusual punishment.

Here, the defendant crashed his car into a tree and suffered a serious head injury, losing consciousness. According to the court appointed experts, the defendant is unable to remember anything about the robbery. However, when questioned about the pending criminal charge, the defendant typically responds, "My mother told me I did something bad, but I can't remember." Moreover, when asked about his appointed counsel, the defendant usually syas, "She's nice" or "She comes to see me and helps me." Further, the defendant describes the judge as the "guy in charge." Each of these statements support the conclusion that he is competent enough to stand trial because he understands the nature of the criminal action (that he did something bad and is being prosecuted) and that he can sufficiently assist his counsel (he has conversed with her enough to formulate an opinion about her).

Conversly, when the defendant is asked to explain what happens in court he responds, "I don't know what they are talking about." Further, the experts have found that there is no evidence defendant understands abstract language and concepts. While these facts weigh against competency, they are likely not enough to find that the defendant is incompetent. Indeed, the defendant need not understand each precise legal concept, nor understand the specifics of court room procedure. All that is required is the understanding of the nature of the crime and the proceedings against him, and must be able to help his counsel prepare. Defendant has demonstrated this capability especially given that the defendant has been released from the hospital, which only took one week. As such, the defendant is likely competent.

2) The issue is whether the jury will find that the defndant has satisfied each elemnt of the M'Naughten test by a proponderence of the evidence. Like an incomptent defendant, defendants who are egally insane may not be prosecuted or convicted to the fullest extent of the law. There are several tests that courts apply, including the irresistable impulse test, the durham test, the MPC test, and the M"Naughten test. State A uses the M'Naghten test to determine legal insanity.

The M'Naghten test requires the defendant to prove that he could not understand the nature of his conduct or determine what is right and wrong because of a mental illness. This mental illness must be the cause of defendants conduct.

Here, the jury will likely find that the defendant cannot satisfy this burden for several reasons. First, the defendant planned his robbery with the knowledge that it was wrong. Second, he understood that commiting an armed robbery was against the law.

Police interviews with the defendant's family and friends have revealed that, in the months preceding the robbery, the defendant had experienced financial and emotional difficulties. According to the defendant's best friend, the defendant had recently started a new business, which was struggling. On the day before the robbery, the defendant texted his best friend: "I've been a victim for too long. I've decided to start making up for my losses. If you read about me in the papers tomorrow, I'll already be far away, so delete this text and tell the police you never knew me." This text demonstrates that the defendant knew what he was going to do was wrong because he was prepared to run from the consequences. Moreover, he was aware of the nature of his conduct because he wanted his friend to cover it up by deleting the text.

Additionally, the defendant had a slightly above-average IQ, recently completed a community college program in business administration, and had recently opened his own business, which he owned and managed at the time of the robbery. Further, the defendant never sought mental health help.These facts indicate that the defendant was not insane, just desperate.

Conversly, a month before the robbery, the defendant told his best friend, "I cannot attract customers because the United Nations has organized a secret boycott of my new business." This indicates that the defendant may not have fully understood the nature of his conduct because he was hollucinating. However, this will likely no be enough to counter the overwhelming evidence discussed above. Therefore, a jury will likely find that the defendant cannot meet his burden for a NGRI.

MEE Question 3

A woman whose hobby was making pottery wanted to improve her pottery skills both for her own enjoyment and to enable her to create some pottery items that she could sell. Accordingly, she entered into negotiations with an experienced professional potter about the possibility of an apprenticeship at his pottery studio.

The negotiations went well, and after some discussion, the woman and the professional potter orally agreed to the following on May 1:

• The woman would be the potter’s apprentice for three months beginning May 15. During the apprenticeship, the potter would provide education and guidance about the artistry and business of pottery. The woman would pay the potter $4,000 for the right to serve as the potter’s apprentice, payable on the first day of the apprenticeship.

• The potter would supply the woman with equipment and tools that she would use during the apprenticeship and would be entitled to take with her at the conclusion of the apprenticeship. On or before May 8, the woman would pay the potter $5,000 for the equipment and tools.

• The woman would be provided with a private room in the potter’s studio in which to stay during the apprenticeship.

On May 2, the woman and the potter signed a document titled “Memorandum of Agreement.” It contained the terms orally agreed to the day before, except that it did not refer to the woman’s living in a private room in the potter’s studio. The last sentence of the document stated, “This is our complete agreement.”

On May 8, the woman went to the potter’s studio and paid him the $5,000 called for in the agreement for the equipment and tools. While she was there, the potter said that he had decided that the $4,000 price was too high for the right to serve as his apprentice and proposed lowering it to $3,500. The woman happily agreed, and they shook hands on this new arrangement.

On May 15, the woman arrived at the potter’s studio to begin the apprenticeship and move into the room she would occupy during that time. The potter refused to let her move in, however, and said that their deal did not require him to provide lodging for the woman. When the woman protested that they had agreed to the lodging arrangement, the potter took the signed Memorandum of Agreement out of his pocket and pointed out to her that it contained no reference to the woman’s living in his studio. He then said, “If it’s not in here, it’s not part of the deal.”

The woman then said, “At least you were reasonable in agreeing to change the price for the apprenticeship to $3,500. Saving that extra five hundred dollars means a lot to me.” In response, the potter pointed to the Memorandum of Agreement again and said to the woman, “That’s not what this says. This says that you’ll pay me $4,000 today. Even if I agreed to lower the price, I didn’t get anything for that, so why should I be bound by it?”

The woman is quite angry about this turn of events and is considering suing the potter.

1. If the woman sues the potter about the disputes relating to the apprenticeship, will those disputes be governed by the common law of contracts or by Article 2 of the Uniform Commercial Code? Explain.

2. Assuming that the common law of contracts governs, is the oral agreement concerning the woman’s lodging binding on the parties? Explain.

3. Assuming that the common law of contracts governs, is the oral agreement lowering the price for the apprenticeship binding on the parties? Explain.

Sample Answer

1. The issue is whether the common law of contracts or Article 2 of the Uniform Commercial Code governs the disputes between the woman and the potter.

Article 2 of the the Uniform Commercial Code (UCC) governs contracts relating to the sale of goods. The common law of contracts governs service contracts and all other types of contracts not involving the sale of goods. When a contract appears to involve both the sale of goods and some other subject matter that is normally not governed by the UCC, the predominant purpose test is used to determine whether the UCC or the common law of contracts governs the contract. Under this test, the court will determine whether the sale of goods or the other subject matter of the contract predominates, and the court will apply the appropriate law accordingly. Courts will only apply both the UCC and the common law to a single contract if the contract is clearly divisible into separate parts.

Here, the court will probably apply the common law of contracts to all of the disputes between the woman and the potter. While a portion of the contract deals with the potter supplying pottery equipment and tools to the woman for $5,000 (which constitutes a sale of goods), the predominant purpose of the entire contract appears to be unrelated to a sale of goods. Rather, the predominant purpose of the contract is so that the woman can improve her pottery skills at the instruction of the experienced professional potter. Moreover, one of the disputed clauses of the contract, pertaining to the price of serving as the potter's apprentice, has nothing to do with the sale of goods. The other disputed part of the contract, the provision concerning the woman's lodging, also does not concern the sale of goods. The aforementioned sale of the pottery equipment appears to be merely incidental to the rest of the contract, which was entered into for the purpose of the woman becoming a better potter. As such, the predominant purpose of the contract is not the sale of goods, and the common law of contracts will likely apply to the entire agreement.

2. The issue is whether the oral agreement regarding the woman's lodging is binding on the parties.

If a contract is in writing, the parol evidence rule will generally bar evidence of any prior and contemporaneous extrinsic evidence relating to the terms of the agreement, with certain limited exceptions. If the agreement is the parties' complete agreement it is considered fully integrated, and no extrinsic evidence is allowed regarding the terms of the agreement. If the agreement is not the parties' complete agreement, it is considered partially integrated and extrinsic evidence of additional contract terms might be allowed, as long as they are not contradictory of the written terms. Extrinsic evidence clarifying an ambiguity is always admissible, as is evidence to prove a condition precedent to the contract, and evidence pertaining to a defense to contract formation (i.e. fraud, duress),

Here, the oral agreement regarding the lodging agreement is probably inadmissible and will be barred by the parol evidence rule. The oral agreement was made prior to execution of the written contract, and so it is prior extrinsic evidence to which the parol evidence rule applies. The "Memorandum of Agreement" is fully integrated, as it contains a clause that says "This is our complete agreement". As such, the oral lodging agreement will not be admitted unless it proves a condition precedent or pertains to a defense to contract formation. As the lodging agreement is not a condition precedent to the contract and it does not pertain to a contract formation defense, evidence of the lodging agreement is barred by the parol evidence rule and is therefore not binding on the parties.

3. The issue is whether the oral agreement lowering the price for the apprenticeship is binding on the parties.

At common law, modifications to contracts must be supported by new consideration to be valid. Consideration is a bargained-for exchange between the parties to a contract. There must be a benefit and a legal detriment suffered by the parties in order for there to be consideration. A gift is not consideration. An agreement by one party to accept less money to satisfy a future debt is only considered valid consideration if the other party agrees to pay the debt early (or agrees to accept some other legal detriment).

Here, the oral agreement lowering the price for the apprenticeship from $4,000 to $3,500 is not binding on the parties because it was not supported by new consideration. When the oral agreement was made on May 8 purportedly modifying the written contract, the woman already had a pre-existing duty to pay the man $4,000 on May 15. The man's offer to lower the price of the apprenticeship from $4,000 to $3,500 was entirely gratituitous. The woman did not suffer any new legal detriment in exchange for his agreement, such as agreeing to pay the lower amount at an earlier date. As such, the woman gave no consideration in exchange for the man's agreement to lower the price. The purported oral modification to the contract was therefore invalid, and this agreement is not binding on the parties.

Sample Answer

If the woman decides to sue the potter the dispute will be governed by common law of contracts because the predominant purpose of the contract was to provide a service to the woman.

The common law of contracts governs contracts relating to services, while the UCC governs contracts relating to goods. When one single contract has elements of both goods and services, the determination of governing law is the predominant purpose test. The predominant purpose test states that whatever the predominant purpose of the contract is determines what the law that governs the contract is. As such, courts look to whether the parties actually bargained for services or goods within the contract.

In this case, the contract entered into by the woman and the potter have elements of both goods and services. The elements of the goods are the equipment and tools provided to use during the apprenticeship. The elements of the service is the potter teaching the woman how to improve her pottery skills for the woman's enjoyment and to create items to sell. The woman predominant purpose in contracting with the potter for the potter's services is to teach her how to improve her skills, which is a service. The equipment and tools used during the apprenticeship are supplemental to the contract to which the potter will provide services to the woman.

Therefore, because the predominant purpose of the contract entered into by the potter and woman is for services provided by the potter, the contract is governed by the common law of contracts.

The oral agreement regarding the lodging is not binding on the parties because the parol evidence rule provides that the evidence of the oral agreement cannot be used to add terms into the parties written agreement.

The parol evidence rule functions to bar admission of evidence of prior oral agreements when the parties enter into a subsequent written agreement concerning the same topic. Parol evidence cannot be admitted when the agreement is fully integrated, meaning a complete agreement and understanding of the parties terms. Full integration is presumed when the common law governs the contract, and can be shown by an integration clause at the end of a document stating that the written agreement is the parties' full and complete agreement. Exceptions apply to allow parol evidence when the evidence helps the court interpret an ambiguous term in the contract, or displays the existence of a condition precedent. If the contract is a full integration and the oral agreement does not fall under one of the exceptions, then the parol evidence rule prevents evidence of a prior oral agreement when there is a subsequent written agreement on the matter.

In this case, the terms of the prior oral agreement would not be allowed as evidence to the subsequent written agreement because of the parol evidence rule. In the contract, the parties disclosed that this "is our complete agreement." Such a clause in the contract makes the contract a full integration of the parties' agreement. As such, subsequent evidence of a prior agreement cannot be admitted to add or subtract the provisions entered into by the parties. Further, the common law provides that contracts are presumably fully integrated. The oral agreement also does not fall under any exception for when the oral agreement would be admitted. Because the contents of the written contract did not include the provision of the private room, the evidence of the oral agreement that provides the contrary will not be admitted in court, and thus would not be binding on the parties.

Therefore, because the parol evidence rule would serve to prevent the evidence of the oral agreement to the parties' written contract and because the parties' contract was fully integrated, the woman's lodging provision in the oral agreement is not binding on the parties.

The oral agreement lowering the price for the apprenticeship is not binding on the parties because no subsequent consideration was given and the parties did not rescind their agreement and execute a new agreement.

Under the common law, any modification to a current contract requires subsequent consideration in order to be effective. Consideration is a legal benefit or detriment given by one party to the other. The evidence subsequent to the execution of a written document can be admitted as evidence of a valid modification. The agreement governed by the common law of contracts can, however, be modified if each party releases an obligation, or the parties rescind the prior contract and execute a new contract with each party providing or refraining to provide at least one item different from the original contract.

In this case, the modification to the contract is not valid because the woman did not give the potter any consideration in order to validate the modification. Each party willingly agreed to the price reduction, but in order for the modification to be valied, the woman must provide some sort of consideration for the modification. However, the woman did not provide any additional legal benefit or detriment to the potter. The parties are also able to rescind the agreement and execute another agreement by the terms they wish to be bound, but that has not happened in this case. Although the evidence of the modification is admissible in court, despite the evicence being oral, the modification to the parties' written agreement is not supported by additional consideration and would not be binding on he parties.

Therefore, because the woman gave no new consideration to the potter in exchange for the modification of the contract, the modification under the common law of contracts is invalid and the woman nevertheless owes the potter the full $4,000 as provided in the parties' written agreement.

MEE Question 4

A developer acquired a 30-acre tract of land zoned for residential use. The developer thereafter marked out 60 building lots. The developer granted various utility providers appropriate easements to install underground sewer and utility lines. These utility easements were promptly and properly recorded.

Subsequently, the developer contracted with a man to build a home for the man on one of the 60 lots. The contract provided that, at closing, the developer would convey the home and lot to the man by a warranty deed excepting all easements and covenants of record. The home was completed nine months later.

At the closing, the developer conveyed the home and lot to the man by a valid warranty deed containing the six title covenants. Notwithstanding the language in the contract, the deed contained no exceptions to these six covenants. The deed was promptly and properly recorded.

Two months later, following a heavy storm, the man discovered rainwater in the basement level of his home. Three bedrooms were located on this level, and the influx of rainwater made all of them unusable. An expert determined that the cause of the rainwater influx was a defect in the construction of the home’s foundation.

The man contacted the developer, who denied any responsibility for the influx. Rather than argue with the developer, the man contacted a plumber, who concluded that the problem could be solved by installing a sump pump in the basement. The plumber accurately told the man that the usual cost of installing a sump pump was $750, but that the location of the sewer lines coming into the home created more work, raising the installation cost to $1,500. The man told the plumber to install the pump.

Thereafter, the man sued the developer for $5,000 in damages for the cost of the sump pump, its installation, and damage to the floors and carpeting in the basement. He also sought additional damages for breach of one or more title covenants.

1. Which present title covenants, if any, did the developer breach with respect to the utility easements? Explain.

2. Assuming that there was a breach of one or more of the present title covenants, can the man recover damages from the developer for the breach? Explain.

3. May the man force the utility company that installed the underground sewer lines to remove them from the land? Explain.

4. May the man recover the $5,000 in damages from the developer? Explain.

Sample Answer

1) Present Title Covenants

The first issue is whether the developer breached any present title covenants with respect to the utility easements. A warranty deed--like the one issued here--contains three present covenants: the covenants of seisen, covenant against encumbrances, and the covenant of warranty. In actual English, a seller who grants a warranty deed presently represents that he is the owner of the property he is purporting to sell, that he has the right to sell the property, and that the property itself is unencumbered by other claimants--including easements.

Here, the only applicable covenant is the covenant against encumbrances, which provides that a seller is warranting that the property is not subject to competing interests. Here, it is likely that the seller did breach the warranty against encumbrances. There was an easment granted over the property that the seller did not disclose. However, it is unclear that the buyer shouldn't have been on notice that a utility easement would have been granted. Presumably, the buyer made sure that there was plumbing and electricity in the house before purchase, and could have reasaonbly concluded that it came from somewhere, putting him on inquiry notice. Moreover, the easments were recorded, putting him on constructive notice.

The seller's first defense would likely be that the contract for sale excepted all easements and covenants of record. However, under the doctrine of merger, any promises made in the contract for sale merge into the deed at the time of closing, such that promises in the contract not reflected in the deed at closing are unenforceable through the deed. Accordingly, the purported exception to easments is inapplicable, and the covenants in the deed will be enforceable.

2) Damages

The second issue is whether the man can recover damages from the developer for any present covenant breaches. Assuming that there was in fact a breach, damages are calculated as the purchase price last the price of the property actually acquired. That is, the seller would be required to reimburse the buyer for the price of the property had the easment been disclosed. In that sense, it is unclear the buyer has any actual damages related to the title to the property. Presumably he knew the sewer lines ran somewhere, and would have actually paid less for a property without plumbing.

3) Removal of Sewer Lines

The third issue is whether the man may force the utility company to remove the underground sewer lines from the land. It seems quite unlikely he may be able to do that. Whatever the man's claims, the utility company properly validly recorded its easement before the man purchased the property at issue. Accordingly, their easement will take priority over the man's deed to the property--regardless of which recording statute the jurisdiction follows, if any.

Moreover, forcing the removal of the sewer lines would require an equitable order from a court. Equitable damages are appropriate where money damages are not. The man's damages here are easily quantifiable, if there are any real damages at all. They are the increased cost of installing a sump pump based on the odd location of the sewer lines coming into the home--$750. Moreover, the increased cost of the sump pump would wildly outweigh the cost of tearing up the sewer lines and installing new ones. No court in America is going to order such a removal over $750 of increased costs. The man's claim, if at all, is against the developer, not the utility company.

4) Money Damages from Developer

The final issue is whether the man may recover $5,000 in damages from the developer. A valid warranty deed contains six present covenants and six future covenants, warranting that the seller will protect against future lawsuits based on a defective title, and the like. The salient detail is that all covenants are related to defects in title. No warranty in any deed requires a seller to pay for damages sustained in the future for a defect in the building. However, the man may be able to sue the developer based on the idea of suitability of new construction. Some courts are willing to hold developers responsible to subsequent buyers where a newly contructed building is unfit for the purposes purchased--such as when a new home has problems with flooding.

Here, the home appears to be no more than two months old, as it was specifically constructed by the developer for the man. The man could have a reasonable expectation that a newly constructed home would not flood during a storm, heavy or otherwise. And while it may be reasonable to suspect that a home's basement may sometimes flood, it is likely that the developer knew the exact use the man would have for the basement--that is, for a finished basement with three bedrooms. The developed contracted with the man specifically to build a home for that man. Since the home is so new, and since the developer likely knew the man's purposes for the basement and expectations for it, he may be able to recover his $5,000 in damages from the developer.

Sample Answer

(1) The issue is if the mistake in the deed for failure to except the easements is a recoverable breach of one of the title covenants warrantied to the man.

When a contract is made on real property and the real property later results in a conveyence such as a deed the documents merge into the deed. One of the warranties provided is that the property is being transfered free of encumbrances on the property. The man can attempt to cover for breach of the warranties against encumbrances since the property did in fact have an easement on it which was not excepted out. However, to claim a breach the buyer must have taken the property without knowledge or notice of the encumbrance. The warranty protects the buyer against future harm from facts that the buyer does not know or could not have known at the time of the purchase. The buyer can have actual knowledge such as the deed says there are easements on the land. The buyer could have constructive knowledge that there easements if the easements are recorded and are able to be searched a looked up. The buyer could also have inquiry notice of easements if the buyer upon reasonable inspection would have discovered the easement. Since the easement was for sewer pipes under the ground the man likely did not have inquiry notice as to the easement. However, the buyer was told in the contract that easements would be excepted from the warranty so it is arguable that the buyer had actual knowledge. Additionally, the easement to the sewer company was recorded after it was received by the sewer company. The recording gives all future owners of the property constructive knowledge that the easement exists.

Since the buyer had notice of the easements the developer is likely not in breach of any title covenants.

(2) Is a buyer entitled to property damages as a result of breach of warranty deed containing six title covenants.

The warranty deed containing the six title covoenants is to protect the buyer from future litigation between the buyer and unknown third parties that bring claim against the buyer or property. Damages are entitled to the buyer resulting from a breach of warranty deed when the damages are a result of the future litigation. In this case the thirdy party that the buyer claims to be unaware of is the sewer company. While there are questions about the buyers true awareness the damages sustained are more clear. The damages are not steming from litigation between the buyer and the sewer company, rather the buyers damages are property damages due to the defective foundation. The water damage and the need for the installation of the sump pump both stem from water getting into the house by the defective foundation. The man likely has a claim against the developer for breach but not for breach of one of the six covenants in the warranty relating to the deed.

(3) The issue is whether the buyer had notice of the sewer line and if not can he seek an equitable injunction to have the lines removed.

The buyer can have actual knowledge such as the deed says there are easements on the land. The buyer could have constructive knowledge that there easements if the easements are recorded and are able to be searched a looked up. The buyer could also have inquiry notice of easements if the buyer upon reasonable inspection would have discovered the easement. Since the easement was for sewer pipes under the ground the man likely did not have inquiry notice as to the easement. However, the buyer was told in the contract that easements would be excepted from the warranty so it is arguable that the buyer had actual knowledge. Additionally, the easement to the sewer company was recorded after it was received by the sewer company. The recording gives all future owners of the property constructive knowledge that the easement exists. Since the buyer had notice either constructive or possible actual notice of the easement to the sewer company, the buyer cannot compel the sewer company to removed the sewer lines.

(4) Is the developer liable for damages to the man once the contract has been merged into the deed.

When a contract is made on real property and the real property later results in a conveyence such as a deed the documents merge into the deed. The parties to the contract are still liable to the buyer for performance and any warranties associated with the performance of the contract. The developer was the builder of the stucture for the man. They entered into an agreement to build a home on one of the lots. After closing the contract merged into the deed but the developer is still liable for any damages associaited with the contract performance. Accordingly, the water damage is from the defective construction of the structure. The need for the sump pump likewise arose out of the defective foundation of the structure. Therefore the developer can be liable to the man for the $5,000.

MEE Question 5

While speeding down a rural highway in State A, the driver of a moving van lost control of the van and struck a car. A passenger in the car was seriously injured.

The passenger filed suit in the federal district court for the district in State A where the accident had taken place. She sought damages for her injuries from the driver of the van and the moving company that employed him. Among other allegations, the complaint alleged that

• the driver and the moving company are citizens of State A;

• the driver resides in the federal judicial district where the suit was brought;

• the accident occurred in the federal judicial district where the suit was brought;

• the passenger is a citizen of State B;

• the amount in controversy exceeds $75,000;

• venue is proper in the federal judicial district where the suit was brought;

• the driver was employed by the moving company and was acting in the course of his employment at the time of the accident;

• the driver of the moving van was negligent; and

• the passenger suffered serious injuries as a result of that negligence.

The defendant driver and the defendant moving company were both represented by an attorney who was a partner in a 30-lawyer law firm. The attorney was retained and received a copy of the complaint only four days before an answer was due. The attorney was conducting another trial at the time. Rather than ask another lawyer in the firm to answer the complaint, the attorney personally prepared and filed a timely answer to the complaint on behalf of the defendants.

The answer to the complaint, which was signed by the attorney, read simply: “General Denial: Defendants Hereby Deny Each and Every Allegation in the Complaint.”

Two months later, the plaintiff (the passenger) properly served Requests for Admission on the defendants, requesting admission of each allegation in the complaint. Responding to the Requests for Admission, the defendants (still represented by the attorney) denied the allegations concerning the driver’s negligence and the plaintiff’s injuries, but admitted all other alleged facts.

The plaintiff then served on the defendants’ attorney a motion for sanctions on the ground that the general denial in the answer was inappropriate. The plaintiff requested that the defendants withdraw their original answer and file an amended answer admitting the allegations that the defendants had admitted in their response to the Requests for Admission.

One month later, after the defendants had failed to withdraw or amend their answer, the plaintiff filed the motion for sanctions in court. The plaintiff’s lawyer submitted evidence that his customary billing rate is $300 per hour and that he had spent seven hours preparing the motion and corresponding with the defendants’ attorney about the answer, for a total of $2,100.

1. May the court properly grant the plaintiff’s motion for sanctions? Explain.

2. If the court grants the plaintiff’s motion for sanctions, (a) what sanctions are appropriate and (b) against whom should the sanctions be ordered? Explain.

Sample Answer

1) Sactions are governed by Federal Rule of Civil Procedure ("FRCP") 11. Under that rule, a party that wishes to move for sanctions must first serve its motion for sanctions on the opposing party and give the opposing party 20 days to correct the conduct for which the first party believes sanctions are appropriate. Only after the expiration of this safe harbor period may the party file its motion for sanctions with the court. If the party seeks attorneys' fees and costs as part of its sanctions, it must provide evidence specifying the reasonable fees spent on the motion. This typically includes the amount of time the attorney spent on the motion and his or her reasonable hourly rate. The court may then grant it.

Here, the plaintiff complied with the requirements of FRCP 11. The plaintiff first served its motion for sanctions on the opposing party without filing it with the court, which triggered the safe harbor period. After a month had passed (which was more time than the safe harbor period) and defendants had still not corrected their inappropriate conduct, the plaintiff filed its motion for sanctions with the court, and included an affidavit stating with specificity the attorneys' fees incurred in preparing the motion. The court may then grant plaintiff's motion for sanctions.

2) The appropriate sanctions for the court to order would be plaintiff's reasonable attorneys' fees in preparing her motion for sanctions, and striking the defendants' improper papers for which sanctions were appriopriate. Here, the plaintiff included with her motion for sanctions evidence that the motion cost $2,100 in attorneys' fees. Thus, plaintiff should be entitled to that amount as monetary sanctions from the defendants. Additionally, the rectify the defendants' misconduct, the court should strike the defendants' inappropriate answer.

The monetary sanctions explained above should be awarded against the attorney. Under FRCP 11, whenever an attorney signs a document that he or she submits to the court, he or she verifies, inter alia, that he or she conducted a good faith investigation of the facts, and that the contents of the submission are true and accurate to the best of the attorney's knowledge after its good faith investigation. The attorney clearly violated this rule by generally denying (which, in and of itself, is improper) allegations in the complaint which the attorney knew, or should of known, were true. The attorney failed to conduct a good faith investigation and/or attested to facts (or, in this case, denial of facts) that it knew or should have known were untrue. Thus, the attorney should be ordered to pay the plaintiff's reasonable attorneys' fees. Further, to correct the misconduct, the striking of the defendants' answer would have to be ordered against the defendants.

Sample Answer

1. The court may grant Plaintiff's motion for sanctions. The issue is whether there is a violation of Rule 11.

Pursuant to Federal Rule of Civil Procedure 11, by signing and filing a document with the court, an attorney certifies that all information contained therein is true and accurate and presented to the court in good faith. This is a personal attestation of the part of the attorney, not the party, pursuant to his own ethical obligations. Where an attorney has acted in bad faith or failed to comply with the opposing party, a motion for sanctions may be appropriate. Before filing any such motion, the opposing party should first make all good faith efforts to rectify the situation with counsel outside of the courts.

Here, a motion for sanctions is appopriate based on defense counsel's conduct. The first issue arose with respect to the answer he filed to the complaint. General denials are not permissible under the Federal Rules, as they do not meet the pleadings filed by the claimant and do not put the claimant on notice of any relevant information or defenses that the defendant may advance. Although timely-filed, the attorney clearly did not give a good faith effort in the preparation of the answer while distracted with other matters. He should have sought an extension of time to file the answer pursuant to Rule 7, since he was retained relatively late and had other matters for trial pending. Additionally, these specific denials were not made in good faith. Many concerned basic facts of the court's jurisdiction, the parties' domiciles, the appropriateness of the venue, etc. By generally denying each and every allegation, he was essentially challenging the court's subject matter jurisdiction and proper venue---but failed to file an actual motion seeking such relief. By making this general denial and then signing and filing it with the court, he violated his Rule 11 obligations and the answer was not submitted in good faith, nor were its contents true pursuant to the attorney's knowledge.

The second issue arises with respect to the conflict between this general denial and the responses to the requests for admissions. Because the attorney prepared an answer with a general denial to all allegations, but then admitted all alleged facts other than the actual fact of negligence and plaintiff's injuries, these documents are in direct conflict. Together, they once again imply that they were not filed in good faith and de facto that one of the filings had to include false or untruthful statements.

On balance, the attorney's conduct warrants sanctions for violations of Rule 11.

2. The court will likely award sanctions in the cost of attorney's fees in filing the motion and attempted negotiations.

(a) Appropriate sanctions are monetary sanctions, denial of a motion, or in extreme circumstances, dismissal of a case. The court typically awards sanctions based on the egregiousness of a party's conduct, but is reluctant to take such extreme measures. Monetary sanctions are usually compensation for work required by counsel to handle a situation, attempt negotiations with opposing counsel, and then the costs incurred in filing the motion for sanctions. In situations where the movant requests specific relief, such as an amended filing, an appearance, or the production of documents, the court may also approve that request as sanctions, provided it is reasonable in the circumstances.

(b) Such sanctions are typically enforced on counsel directly, rather than the party for counsel's failure to cooperate with legal processes and impose a burden. Additionally, where the conduct forming the basis for the sanctions is under Rule 11, it applies directly to the attorney and his conduct before the court on behalf of the party, thus warranting direct sanctions on the attorney himself.

Here, the only three-four months have passed since this action was filed, and this conduct would likely not be considered so egregious to warrant denying a pending motion or dismissing the action. The court would likely grant the motion and award the costs incurred by plaintiff's counsel in filing the action---$2,100. The court would also likely require the court to file an amended answer and response to the request for admissions that would adequately put the plaintiff on notice of their defenses and positions with respect to the alleged facts. Again because early on in the life of the and because this is conduct the defendants themselves might not be aware of, the court would likely impose these sanctions directly on counsel in lieu of on the parties.

In sum, if the court grants this motion, it will award sanctions, to be paid by the defendants' attorney and require the refiling of an amended answer and response to request for admissions.

MEE Question 6

A man and a woman were equal partners in a neighborhood natural-foods store. The store had been at the same location for many years and had developed a loyal following. Under their informal arrangement, the man had managed the business and the woman had supplied capital to the business as needed.

They leased the building in which the store was located and had regularly sought to purchase the building for the partnership, but the landlord had always refused. Six months ago, however, the landlord called the man and said, “I thought you would want to know that I’m planning to sell the building.” The next day, the man sent the woman an email: “I am leaving our partnership. I will wind up the business and send you a check for your half share.” Without informing the woman, the man then contacted the landlord and offered to buy the building. The landlord accepted, and the two entered into a binding purchase agreement. One month later, the man took title to the building.

Three months ago, the man sent the woman a check for half of the store’s inventory and other business assets. Instead of cashing the check, the woman sent the man an email stating that she regarded the partnership as still in existence and demanded that the man convey title to the building to the partnership. The man replied that their partnership was dissolved and that he had moved on. He then began to operate the store as a natural-foods store with a name different from that of the original store, but with the same product offerings and the same employees.

The woman has sued the man for withdrawing from the partnership and for breaching his duties by buying the building from the landlord.

1. Did the man properly withdraw from the partnership? Explain.

2. Assuming that the man’s withdrawal was not wrongful, what was the legal effect of the man’s withdrawal from the partnership? Explain.

3. What duties, if any, did the man breach by purchasing the building? Explain.

Sample Answer

I. Proper Withdraw From Partnership

The issue here is whether the man properly withdrew from the partnership.

A partnership is an association of two or more people for the purposes of operating a business for profit. General partnerships are business organizations that may be created informally. A partner in a general partnership has the right to manage the partnership, and share in its profits according to his contributions. A partner may rightfully withdraw (or dissociate) from a partnership if: (1) there is nothing contrary as agreed to in partnership aggrement; (2) the partnership was not created for the completition of a specific purpose; and (3) the partnership was not created for a specific duration of time. If this is true, a partner may withdraw from the partnership by amnfiesting his intent to the other partner(s) that he no longer wishes to be a part of the business association.

Here, there is nothing to indicate that the partnership entered into between the man and the woman were created for a specific purpose or for a specific duration. Instead, the facts indicate that the partnership was an "informal arrangement," thus indicating that there was no parternship agreement with written terms that prevented the man for withdrawing. Furthermore, the man manifested his intent expressly to the woman when he emailed her that he was "leaving our partnership." Therefore, the man's withdraw from the partnership was proper.

To conclude, because there was no formal agreement that prevented the man from withdrawing, nor was the partnership created for a specific time or purpose, the man properly withdrew from the partnership when he manifested his intent to do so to the other partner.

II. Legal Effect of Man's Withdrawal

The issue here regards the legal effect of the man's withdrawal from the partnership, assuming the withdrawal was proper.

If a partner properly withdrawals, he may request that the partnership dissolve. Dissolution is the process of ending the partnership. After withdrawal and during dissolution, the partnerhsip exists so that it can properly wind up. During the winding up process, liabilities must be paid of, and any remaining assets are distributed to all partners, according to the share of profit they have as it relates to the initial cotnributions made at the beginning of the partnership. During winding up, partners still ow one another fiduciary duties of loyalty and care, and are jointly and severally liable for the actions commited before dissolution, and actiosn committed by other aprtners reasonably related to the winding up of the partnership.

Here, upon the man's proper withdraw, the partnership commencedbut still existed for the purposes of winging up. During this process, liabilities must be paid, and the remaining assets must be given to all partners, which occured when the man sent the woman a check. Also during this process, the only actions that can be taken are those that are reasonably related to the winding up of the partnership.

To conclude, upon the man's proper withdraw, the legal effect was to commence dissolution and winding up of the partnership.

III. Man's Breach of Duties

The final issue here is what duties, if any, did the man breach by purchasing the buidling.

All aprtners in a general partnership owe fiduciary duties to all other partners. The fiduciary duties include the duty of loyalty and the duty of care. Included in the duty of loyalty is the duty to avoid self-dealing and the duty to prevent taking business opportunities. Self-dealing ocurs when a partner persoanlly benefits due to his association with a business. A business opportunity is a financial opportunity that is closely connected with a business organzation, such that a partner would not have been able to take advantage of the opportunity without his association with a business. Both the duty against self-dealing and business opportunities may be avoided if all other partners are given information of the matter and approve of the deal, or if the business dealing is beneficial to the partnership, or if the partnership would not be able to take advantage of the business opportunity. Even during the process of dissolution and winding up, partners owe each the same fiduciary duties.

Here, the man received a call from the landlord of the building used by the partnership while the man was still a partner. Thus, the man received a busines opportunity while he was still a partner. Even after the man commenced dissolution of the partnership the next day, the man still owed the woman fidicuary duties of loyalty. In not giving the woman information about buying the building, the man commited an act of self-dealing and took away a business opportunity from the partnership. Furthermore, although the man sent a check to the woman 3 months after commencing dissolution, the partnership still existed.

To conclude, because the man still owed fiduciary duties to the woman during dissolution and did not offer the business opportunity to the partnership and gained personally from the dealing, he breached his duty of loyalty.

Sample Answer

1. The issue is whether the man's withdrawal from the partnership was proper.

A partnership is an agreement between two or more persons to carry on a business as co-owners for profit. A partner can withdraw (or dissociate himself) from the partnership by giving notice to the other partner(s) in accordance with the terms of the partnership agreement. If the partnership is a partnership for a definite term or undertaking, the partner's dissociation must occur according to the terms of the partnership agreement. A partner in a partnership for a definite term or undertaking who does not adhere to the partnership agreement in withdrawing from the partnership is said to have wrongfully dissociated, and can owe damages to the partnership resulting from such wrongful dissociation. If the partnership is instead a partnership at will (i.e. a partnership not for a definite term or undertaking), a partner can generally withdraw from the partnership by simply giving notice to the other partners.

Here, there is no indication that the man and woman were part of a partnership for a definite term or undertaking. Rather, the man and woman had informally agreed that the man would manage the business and the woman would supply capital to the business, all "as needed". This evidences a partnership at will. As such, it does not appear that the man was required to follow any particular process or rules in order to dissociate from the partnership. His email from six months ago informing the woman that he was leaving the partnership was therefore sufficient for him to withdraw from the partnership. As a result, the man's dissociation was not a wrongful dissociation.

2. The issue is what the legal effect was of the man's withdrawal from the partnership.

Termination of a partnership has two steps: 1) dissolution and 2) winding up. After a partner dissociates, the other partners can continue to operate the business and if they do so, they will have to buy out the dissociating partner. If the partnership only consists of two partners, however, the dissociation of one partner will result in dissolution of the entire partnership. At this stage, the only thing left for the partnership to do is to wind up, i.e. pay off its creditors and distribute any remaining assets to the former partners.

Here, when the man dissociated from the partnership six months ago, the partnership was automatically dissolved because the partnership only consisted of two people, the man and the woman. There was at this point no remaining partner with whom the woman could agree to continue the partnership. As such, the only remaining task for the man and woman was to wind up the partnership.

3. The issue is whether the man breached any duties by purchasing the building.

Partners in a partnership owe fiduciary duties of care and loyalty to each other and to the partnership as a separate entity. The duty of care encompasses each partner's duty to act as an ordinary person in like circumstances would act when conducting partnership business. The duty of loyalty requires each partner to act solely for the benefit of the partnership, and not for a partner's own personal benefit. The duty of loyalty also requires that each partner not take action that adversely impacts the partnership's business or actions that usurp a business opportunity. Importantly, a dissociated partner still owes the partnership these fiduciary duties if he is winding up the partnership's business.

Here, while it does not appear that the man necessarily breached the duty of care, the man did breach his duty of loyalty to the partnership. While the man had appropriately withdrawn from the partnership, he proceeded to wind up the partnership business himself. Prior to completing the winding up process three months ago (when he sent the woman a check for the store inventory and business assets), the man still owed the partnership a duty of loyalty. Rather than acting in the best interest of the partnership, however, the man acted for his own personal benefit. He purchased the building from the landlord in order to start his own natural-foods store, without the woman. Since the man still owed a fiduciary duty of loyalty to the partnership, the man should have presented the opportunity of purchasing the building to the woman so that the partnership could have taken advantage of this opporunity. The opportunity to purchase the building was an opportunity in which the partnership would have been interested, since the man and woman had been seeking to purchase the building for many years and since they already ran their partnership store out of the building. By taking the opportunity to buy the building for himself instead of offering it to the partnership, the man breached his duty of loyalty to the partnership.

NEW JERSEY BOARD of BAR EXAMINERS

February 2018 Questions and Sample Answers