Bar Examination Sample Q&A - July 2004
Questions and Sample Answers
The National Conference of Bar Examiners (NCBE) is the copyright owner of the July 2004 MPT question administered in New Jersey. The NCBE has not authorized the verbatim publication of the question.
The problem is set in the fictitious state of Franklin, in the Federal District Court. The test materials include a file and a library. The file contains factual information about the case and may contain information that is not relevant.
The case concerns the petition of Joan Wells, who seeks permission from the Court to remove her son from Franklin to Columbia so that she may pursue a job opportunity. Fred Wells, the child’s father, opposes this petition.
The applicant is asked to draft a brief in support of Joan’s petition to the Court. The applicant must anticipate and refute Fred’s possible arguments.
Sample Answer MPT-A
In the Court of Franklin
July 29, 2004
Brief in Support of Petition In Re Joan Wells
I. Statement of Facts
Joan Wells and her husband Fred Wells divorced in 2002. Pursuant to the divorce agreement, Joan and Fred were given joint custody; Joan was designated as the primary physical custodian of their son Sammy. Sammy is a normal health 6-year old boy.
Joan Wells has been offered a teaching position at the prestigious Columbia State University in the State of Columbia. Joan is currently a professor at a community college and recently earned her Ph.D. This position will entail more money, better educational prospects for Sammy, a larger house to live in, and extensive recreational benefits to Sammy. As a result of these factors, Joan has petitioned the Franklin Court for a grant to remove Sammy from the State.
Frank Wells, Sammy’s father, objects. He objects on the grounds that he will lose contact with his son and, as a result, their current relationship will be diminished. Fred also alleges that Joan is moving to Columbia to take Sammy away from his new wife, Kathleen.
II. Joan’s move to Columbia should be granted because it serves a Legitimate Purpose, is not done in Bad Faith, and is in the best interest of Sammy.
A. Joan’s Move to Columbia is a legitimate reason due to the offer of a prestigious learning institution.
In Franklin, a court may grant leave to any party having sole legal custody or sub primary physical custody of a minor child from Franklin if it is in the best interest of the child (Franklin Dissolution of Marriage Act § 109). Franklin Courts have interpreted this statute as requiring that the moving party prove a “legitimate interest” (Marshall v. Marshall) This is done by balancing the bond derived from the parents move, the need for finality in custody decrees, the rights of both parents, and the interests of the child. (Marshall). Once the moving party establishes a legitimate reason, the burden shifts to the opponent to show Bad Faith or that it is not in the best interests of the child. (Marshall)
Franklin Courts have enumerated several legitimate reasons for moving: improved employment, improved educational opportunities, and new opportunities for a child. (Marshall). Joan Wells has clearly established a legitimate reason for moving. Joan will have a considerable increase in salary and reputation. This will afford her opportunities to provide a better, safer home for Sammy. In addition, Sammy will be afforded better educational opportunities because the Columbia school system is excellent. Additionally, Sammy would have the option of attending Columbia State at a significantly reduced rate. Finally, Sammy will have access to new recreational parks and services. These factors are identical to the Marshall enumerated factors. As a result, Joan has clearly established a legitimate reason for moving out of Franklin.
B. Joan’s Petition should be granted because Fred has failed to establish that the move was done in Bad Faith.
In Franklin, once a parent with physical custody establishes a legitimate reason to leave the State, a presumption is created favoring the parent who wishes to move. (Marshall) Rebutting this presumption falls to the opponent. One way in which the presumption can be overcome is by a showing Bad Faith. (Marshall) Bad Faith can be shown by proving that the desire to move is motivated with a desire to interfere with the relationship of the other (Marshall). Another reason is “bad influence on the child” (Feldman). In Davis v. Davis, the Court found dispositive evidence that one spouse had a history of attempted abduction. In addition Bad Faith may be shown by presenting evidence that the move is designed to ruin the relationship of the child and the non-moving party (Feldman). In Feldman, a father tried to establish this by showing a reduction in quality time. The Court found that the facts did not establish this. Specifically, the Court relied on extended visits during the summer, open communication through email and cell phones, and allowing the husband to visit the children at will.
In the present situation, Joan has offered email services, unlimited phone calls, visits during the summer, and an unlimited right to see Sammy if Fred will visit. While it is true that Fred has financial difficulties, he can still see his son alternatively by sending pictures, recording bed time stories, and most importantly Joan has offered to provide a live feed camera system that allows Fred to see and talk to Sammy on an unlimited basis. These factors are extremely persuasive and in fact, are dispositive to this issue. Joan has even stated under oath, that “(she) wants to be sure that Sammy stays in touch with his father. I would never come between (them).” (Deposition taken 7/28/04) As a result, Fred’s only other claim is that the move was predicated on Joan’s disapproval of his new wife. However, Fred has offered no proof on this other than a quotation in a deposition that elicited a response that “(Joan) and Fred should make decisions about Sammy without interference from Kathleen.” This clearly does not meet the burden of proof imposed on Fred. As a result, there can be no finding of bad faith.
C. The move to Columbia is in the best interests of Sammy because Fred has failed to prove that it is not in Sammy’s best interest.
In Franklin, a legitimate reason for moving may also be rebutted by showing that the move is not in the best interests of the child. The burden of proof is on the opponent to the move. (Marshall, Feldman). In determining the best interests of the child, the court looks to the following factors: (1) child’s health, (2) adjustment to new home environment, and (3) interaction with child and parents. (Franklin Dissolution of Marriage Act § 402)
(1) Sammy’s Health. Both partied have stipulated that Sammy is a normal, healthy, developmentally stable child. Fred has not established any evidence contrary to this. Consequently, there is no interest served under this factor; Sammy will not suffer any harm.
(2) Adjustment to New School/Community. Again, Fred has failed to meet his burden of proof; Fred has offered testimony of an unlicensed counselor of questionable qualifications. Additionally, Ms. Niro (the counselor) only testified that Sammy went through a “normal” adjustment period after Joan and Fred’s divorce. She also stated that she didn’t believe that Sammy needed professional counseling. Consequently, Fred has not proven that there would be a significant harm to Sammy in relocating, he has merely proven that Sammy is likely to undergo a “normal” adjustment period. As a result, this factor is dispositively favored toward Joan.
(3) Interaction with Fred/Joan. Sammy does spend a significant amount of time with Fred (40%). In addition, Fred spends a lot of time interacting wit Sammy by reading stories, going to little league, and helping him with his musical talent in the choir. There is no doubt that Fred loves Sammy. However, the issue is not how much he cares for Sammy, but how much this relationship would be diminished. The Feldman Court found reasonable communications to be an important factor in mitigating this loss. The Feldman Court also relied on the number and extent of in person visits.
Again, Fred has failed to meet his burden of proof. He has proven that the choir practice may cease until Joan is able to find a suitable replacement. However, Joan has offered unlimited contact via a video phone, email and the ability to record stories to play at bedtime. These communications allow Fred to remain involved and mitigate any loss that he may incur.
Finally Joan has agreed to let Fred come to visit whenever he wishes. While Fred may not be able to visit because of financial difficulties, the option exists. Moreover, Joan will send Sammy to Fred during the summer for weekends; this sort of contact was looked favorably on by the Feldman Court. As a result, Fred has not met his burden on this factor as well.
Since Fred has not proven any factor to a reasonable certainty, he has failed to prove that the move is not is Sammy’s best interest.
Because Fred cannot prove Bad Faith or that the move is not in Sammy’s best interest and Joan has a legitimate reason for moving, Joan’s …
Sample Answer MPT-B
Brief in Support of Joan Wells’ Petition to Relocate
Sammy Wells to the State of Columbia
I. Statement of Facts
Joan and Fred Wells were divorced in 2002. This court awarded joint custody to the parents and designated Joan as the primary physical custodian. They have one child, age six, named Sammy.
With respect to Sammy, the divorce was amicable. Both parents cooperate in making decisions, and Joan as the parent with primary physical custody, allows Fred ample time to spend with his son. Ever since the separation, she has made sure that Sammy has a photo of himself and Fred by his bed. She has allowed Fred to spend significantly more time with Sammy than even the court ordered in the divorce decree. She has consulted Fred on important decisions concerning Sammy’s health and welfare.
Sammy is a resilient child who adapted well to the new routine in place after his parent’s divorce. He had some difficult months, and mild stress, but on the whole, he has adjusted well to living separately with his mother and father.
Joan Wells teaches Irish literature. She currently teaches at a community college, but has been offered a position at Columbia State University (CSU). This position is very prestigious and offers a much higher salary that she could get in Franklin. Franklin State University has a policy against hiring its own students; therefore, Joan could never get a comparable position in Franklin. Columbia offers a high quality of life for children, as well as other benefits.
Joan wants to accept the position at CSU, and also wants to retain physical custody of her son. Joan is a good mother and believes this move is best for the family. It is for this reason that she has brought this petition.
1. Joan’s desire to accept a rare employment opportunity with a higher salary presents a legitimate reason to move to Columbia with Sammy.
In determining whether to allow a parent having sole legal or physical custody of a minor child to leave Franklin, the court must consider whether the move is in the best interests of the child. FDMA § 109. There is a presumption that a parent with primary physical custody may move the child from Franklin. Marshall. Joan Wells has primary physical custody and, therefore, is presumptively allowed to move. The Supreme Court has interpreted Section 109 to require the custodial parent to present a legitimate reason for the move. Once she has done so, the other parent can rebut the presumption by showing the move is not in good faith or is not in the best interests of the child.
Franklin recognizes “the realities of a mobile society.” Marshall. Improved employment opportunities are considered a legitimate reason to move. Id. Here, Joan has been offered a rare, wonderful position with CSU, and if she turns it down, she may never get another like it.
Joan has been offered a position as associate professor of Irish literature at CSU. She will have a higher salary. Michael McBryan, the Chair of Irish literature at Franklin State University said his department would never hire Joan because it has a policy against hiring its own graduates. (Joan graduated from Franklin, and was a promising, excellent student.) In any event, Franklin could not match CSU’s salary. She will be eligible for raises that will make her financially secure. CSU has a whole department devoted to Irish studies, so she will have colleagues to encourage her. Her current position at a community college is not even comparable to what she is being offered at CSU.
2. Fred Wells has not shown that the move is motivated in bad faith or by anything other than a legitimate need for employment.
Once the custodial parent has met her burden of showing a legitimate reason for the move, the other parent has the burden of proving that the move is motivated by bad faith or is not in the best interest of the child. Fred claims the move is motivated by Joan’s dislike of his new wife, but he offers no real evidence of this. Joan tries to avoid talking to his new wife, but she has not let it interfere with Sammy and Fred’s relationship.
This case is distinguishable from Davis v. Davis where the petitioner had a long history of trying to alienate the children from their mother. The testimony in this case shows the opposite. Joan has tried to encourage the relationship between father and son.
3. The move is in the best interests of Sammy because he will have a high quality of life and his mother will have a higher salary.
Fred has not met his burden of showing the move is not in the best interests of Sammy. Section 402 of FDMA directs the court to consider the child’s healthy adjustment to home, school and community and the interaction of the child with parents and other significant people. Feldman. However, reducing the amount of time the child spends with the non-custodial parent is not alone sufficient to show the move is not in the child’s best interest. Marshall.
(1) Mental and Physical Health
Sammy is a normal child who adapts well to new situations. This case is distinguishable from Lewis where the child had special needs.
Sammy has experienced only mild stress with respect to living separately from his father.
(3) Interaction with parents and other relatives.
Joan will let Sammy spend holidays and vacations with Fred. She will use email to ensure the two are in close contact. When he is older, Sammy can fly to see Fred.
Both sets of grandparents live a number of miles away, so they are not in daily contact with Sammy anyway.
(4) Wishes of Parents
Obviously, Fred opposes this move. He claims Sammy has a special singing talent, which he wants to encourage. He feels Joan will not develop this talent the way he would.
However, Sammy is only six years old. It is too far too soon to know whether he has the makings of a professional singer. He should not be pushed. Joan will allow him to become more well-rounded, and to develop his own interests. There will be singing opportunities in Columbia. In any event, Fred is biased in this matter and cannot offer a neutral evaluation of Sammy’s ability. There was no expert testimony. This factor should not justify forcing Joan to choose between a rare employment opportunity and custody of her son.
For the foregoing reasons, Joan Wells’ petition should be granted.
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QUESTION 1 (Criminal Law)
Dealer owns a large retail used car dealership. Dealer purchases out-of-state cars at auctions, rolls back their odometers, and sells the cars to the public. Dealer asks his Employee to help turn back the odometers, and Employee does so. Dealer then submits affidavits containing false mileage readings to Motor Vehicles to obtain New Jersey title to the cars. Motor Vehicles personnel do not know the affidavits are false.
Buyer purchases a car from Dealer. After Buyer experiences a series of mechanical problems, Buyer’s mechanic tells Buyer he found evidence of odometer tampering. Buyer takes this information to the police, who obtain a warrant to wiretap Dealer’s office. The wiretap reveals Dealer and Employee’s activities. The wiretap also shows Employee has become nervous someone from Motor Vehicles will uncover the operation, owing to Dealer’s exponential increase in sales of “rolled back” cars.
The police ask the Director of Motor Vehicles to approach Employee about the operation. When approached by the Director, Employee offers the Director money to keep quiet and continue to issue titles containing false odometer readings. The Director tells the Employee, “I’ll get back to you.” The Employee, however, never hears from the Director.
Employee, fearing indictment, comes to your law firm for advice. He wants to know what crimes he and Dealer may have committed and what defenses, if any, exist. You are the associate assigned to prepare a memorandum setting forth any common law and state statutory crimes committed and any potential defenses.
PREPARE THE MEMORANDUM
Sample Answer-1 A
Subject: Crimes and potential defenses to Auto Scam
The dealer and the employee may be guilty of fraud, conspiracy to commit fraud. The dealer, by himself in addition to the above offenses can be held for committing solicitation, false pretenses and attempted bribery. The employee, by himself, may be held for committing an accomplice crime.
The dealer may be guilty of fraud. Fraud occurs when a seller makes a material misrepresentation to a seller which is relied upon by the seller in purchasing the product. Here, the dealer has intentionally been rolling back odometers in an attempt sell cars to purchasers who mistakenly believe they are buying newer cars than have been used less than they really have. If the buyer's had known their car's odometers had been tampered with they would not have bought the cars, making their reliance material.
The dealer may also be guilty of committing conspiracy to commit fraud. Conspiracy occurs where two or more people have intent to commit a crime plan or have a meting of the minds to commit the crime and then take a substantial step to commit the crime. Mere preparation is not enough. If the dealer and the employee agreed to roll back the odometers, because of their actions, they would have committed conspiracy to commit fraud.
The dealer may also be guilty of the crime of false pretenses. This occurs when a party makes an intentional misrepresentation of fact which is relied upon to obtain title to the removable property. Here, the dealer intentionally lied to the Motor personnel in regards to the mileage of his cars to obtain false title. Because the personnel were not aware of the fraud, it becomes theft of title and thus false pretenses crime.
The dealer can also be guilty of attempted bribery. This occurs where a party has intent to commit bribery and takes a step towards committing the crime. Here, the dealer tried to bribe the director to keep quiet and continue with issuing titles. The director never actually took money, thus never making it a completed crime of bribery.
Dealer can also be charged with solicitation which occurs where a defendant encourages, asks or appears to someone to commit a crime. The dealer is guilty of this because he solicited his employees to commit the rollbacks of the cars.
The employee could be charged with conspiracy which involves a meeting of the minds and intent to commit a crime w/a step toward the commission. By agreeing to rollback, it could be argued that he conspired to commit the frauds with the dealer.
The employee can also be guilty of fraud which occurs when a person makes a misrepresentation in the sale of a product which is relied upon. The employee did roll back the odometers knowing that this was a crime, thus, making him guilty of fraud.
Potential defenses that can be raised include illegal search and seizure under the 4th Amendment and also an illegal seizure or entrapment.
A wiretap to listen on a phone must be obtained through a valid warrant which contains prob. Cause. The warrant must contain affidavits alleging that a crime is or is about to be spoken of and the reasons why such a wiretap will produce such evidence. The warrant must cite the specific conversations and info that is needed and police must turn off the tap if conversations are relevant to the purposes of the warrant.
Dealer can claim the wiretap is an illegal seizure under the fourth Amendment. To claim a privacy right, an individual must have a privacy interest in the thing seized or illegally obtained.
Probably cause can be obtained from a reliable witness who doesn't need to give their identification and usually must be corroborated. Here the evidence was corroborated through the buyer's personal mechanic finding the odometer tamperings and the buyers' telling the cops equates to sufficient prob. cause to execute the valid warrant for the wiretap.
The dealer can also claim entrapment which occurs when the police send an agent or themselves to entrap a party into committing a crime. A entrapment will not occur if the police can show the defendant had a pre existing propensity to commit the crime without the police helping him along. The dealer can claim the police sent the Director to approach him and entrap him into confessing. This is a week argument and will not work.
Dealer can also claim illegal seizure if the conversation is used b/w the dealer in the director against the dealer. We do not know if the dealer is being prosecuted yet. A person does not have a privacy right to their conversation being protected in a public place and the dealer must be aware that any conversation not privileged or assumed confidential, especially in a public is a liable to be used against him as a confession of guilt.
Re: Dealer & Employee
The following is the requested assessment of possible crimes & defenses regarding the conduct of Dealer & Employee as related, to us by employee.
LARCENY BY FALSE PRETENSES
The issue is whether Dealer & Employee committed larceny by False pretenses, as defined at common law. The elements of larceny by false pretenses are a larceny, by misrepresentation of a current or past fact, that results in the perpetrator obtaining title. A larceny is a taking & moving of property of another without permission with the intent to permanently deprive its owner of his rights thereto. Here Dealer & Employee both turned back the odometers. This is a misrepresentation of a current fact; i.e., how much the auto had been driven. B/C of this misrepresentation, Buyer was induced into paying for a car. Thus Dealer obtained title to Buyer's payment.
While it is not clear that Employee, in his capacity as employee, obtained title, Employee, actively aided Dealer & thus is liable as an accomplice.
Both Dealer & Employee took & moved the payment of Buyer. While Buyer gave permission it was based upon the false pretense & thus void. Finally, Dealer & Employee intended to interfere with Buyer's interest in the payment by keeping it. Thus they are liable for common law larceny by False pretenses.
Attempted Bribery of a public official
The issue is whether Employee attempted to bribe a public official. Under the NJ statute, a person is guilty of bribery of a public official when he offers the public official payment, for the official to act or fail an act in the scope of his official authority & the public official accepts & does so act.
Here, Employee offered the Director of Motor Vehicles money. The Director of Motor Vehicles is a public official. In exchange for the money, Employee sought to influence the Director of Motor Vehicles to refrain from carrying out his public duties.
However, the public official here did not accept the payment. Thus, Employee is guilty only. Here, Dealer asked Employee to turn back odometers & Employee agreed. Turning back the odometers resulted in larceny so the objective was unlawful. Therefore Employee & Dealer are guilty of conspiracy.
Under the NJ statute a person commits criminal Fraud when he makes a material misrepresentation with the intent to induce reliance. Here, the changing of the odometers was a material misrepresentation & both Dealer & Employee intended to have Buyer rely on it. Thus, they are guilty.
4th Amendment Search
The issue is whether Dealer & Buyer have any defenses. The warrant for the wire tap must have been valid under the 4th Amendment for the evidence obtained thereunder to be admissible. For the warrant to be issued, it must be based upon probable cause. In the case of a police informant, it must be shown that the informant is reliable & how the informant received his information.
Here, Buyer gave the police the information. There is no evidence that Buyer was a reliable informant. Thus the police needed to conduct an independent investigation For corroborating evidence, which the police Failed to do. Thus evidence from the tap should be excluded.
Filing of False Affidavits
The issue is whether the Dealer violated the NJ statutory prohibition against knowingly filing false documents with a state agency. Here, Dealer knew the affidavits contained false information. Moreover, Dealer filed the false documents with the Dept of Motor Vehicles. Also, the employees of Motor Vehicles are not aware of the falsity. Thus the Dealer violated the NJ statute.
Employee may raise the defense of duress. The basis of the defense would be that Dealer is in a position of power over Employee. However, there is no evidence of threats made to Employee, so this will not be successful.
The defense of entrapment cannot be raised by defendant "predisposed" to commit the crime. Because Employee's other crimes involve dishonesty, Employee was predisposed to bribe the Director. Thus, entrapment is not an available defense.
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QUESTION 2 (Constitutional Law)
Summer City (“Summer”) has outsourced its police and fire services to Lizzybeth Services (“LBS”), a private contractor. Since its incorporation as a municipality in 1926, Summer has exclusively provided the town’s police and fire services. Summer’s outsourcing contract requires LBS to retain every police and fire department employee for a minimum of one year, unless the employee engages in conduct warranting termination for cause. At Summer’s insistence, the outsourcing contract also requires LBS to conduct random drug testing of all police and fire personnel.
On his first day of employment with LBS, C.J. Wade, a twenty-year veteran of Summer’s police force, is asked to take a drug test. LBS asks Wade and other police officers who operate motor vehicles to submit to drug tests. Wade refuses to take the drug test, and LBS immediately terminates his employment. Wade asks you to represent him and requests you prepare a memorandum exploring all claims he may assert against Summer. He also asks you to discuss all defenses Summer may assert against his claims.
PREPARE THE MEMORANDUM
Re: Termination of Employment and Drug Testing
You asked me to prepare a memo exploring all claims you may assert against Summer with all defenses Summer may argue. For the following analysis, it is my conclusion that you may have a viable 14th Amendment Procedural Due Process claim and a potential, though unlikely 4th Amendment unreasonable search claim, provided we establish state action to make out constitutional claims.
1. State Action
In order to assert any constitutional claims against the City of Summer you must first establish that your employment by LBS involved state action. The U.S. Constitution generally does not apply to private action and, therefore, state action must be established.
Under U.S. Supreme Court precedent (including Marsh & Brentwood Burton), the Court has found state action where a private entity has been entrusted with and is carrying on responsibilities and activities traditionally done by the government (gov't). Such an activity, for example, includes a corporation running a town (Marsh). State action also exists where the gov't is inextricably entangled in the conduct of private parties. Under this theory the Court has found racial discrimination by a restaurateur operating in a government owned parking garage sufficient to establish state action (Burton).
Here, there is a strong argument that LBS, though technically a private contractor, is a state actor b/c the functions of police and department services have traditionally been vested in local gov't and not private actors. Furthermore, Summer has a history of providing these functions as state functions (since 1926). Also, Summer may be considered inextricably entangled in the operation of LBS insofar as Summer controls the minimum 1 yr. retention policy and the random drug testing.
Summer will likely argue no state action b/c these services are not traditionally vested in the gov't and the private contracting is closest to the private contracting of utilities rather than the running of a town (Jackson). Under Supreme Court precedent, the private contracting of public utilities (i.e., electric service) was not sufficient for state action. If Summer wins on this argument, all constitutional claims are moot and Summer will win. There is, however, a strong argument for state action here.
2. 4th Amendment Claim
You may be able to make out a claim on the 4th Amendment of the U.S. Constitution because the blanket random drug test constituted an unreasonable search that you had a right to refuse.
Under the 4th Amendment, people have a right against unreasonable searches and seizures by the gov't where there is an expectation of privacy. This generally requires that a search be conducted only pursuant to a warrant that is sworn out on probable cause, unless one of several narrow exceptions to the warrant requirement are met. Random blanket drug testing has been specifically addressed by the U.S. Supreme Court both in school searches and in searches of adults.
Under Vernonia School District, the Court upheld the blanket drug-testing of student athletes w/o individualized suspicion, reasoning that the special needs of the school in maintaining a drug free education environment outweighed the already diminished expectation of privacy students, and student athletes, had while in school. This same "special needs" standard is applied to blanket searches of adults w/o individualized suspicion, particularly where these is a public safety concern. Under Skinner, Von Raab, and other similar precedents, the Court allowed blanket drug testing of such groups as locomotive operators, immigration and customs employees, and police officers reasoning that the public safety interest involved in the employment of these groups was a special need outweighing the expectation of privacy.
Here, the drug testing was done w/o individualized suspicion (police officers driving motor vehicles) and there is an important public safety interest (the need for police to be drug-free in operating motor vehicles and discharging their duties). For these reasons, a 4th Amendment claim will likely fail as the situation seems closely analogous to unfavorable Supreme Court precedent. You may, however, argue this precedent is inapplicable b/c the special need is not present here and you had a high reasonable expectation of privacy in your body requiring a warrant/probable cause for search.
3. 14th Amendment Procedural Due Process
You may have a claim, despite the refusal to comply w/the drug test, under 14th Amend. Procedural Due Process because a state actor deprived you of your property interest in your job w/ notice and a hearing.
Under the 14th Amendment deprivation by the gov't of an interest in life, liberty, or property generally requires that the deprivee get notice and an opportunity to be heard by a neutral decisionmaker. To determine what is specifically required, the Court will consider the extent of the deprivation, adequacy of further procedures to increase the accuracy in fact finding, and the govt's interest in administrative efficiency.
A property interest can be shown where one has a specific entitlement, beyond a mere expectancy, in continued gov't employment (See Roth, Perry).
Here, you may argue that you had a property interest in your employment by virtue of being a 20-year veteran on the police force and b/c you had been contractually guaranteed retention for one year after LBS took over. This is evidence of a property interest and you may argue that your interest was invalidly deprived w/o notice and a hearing to explain your position. This argument should stand regardless of the outcome of the 4th Amendment claim, though it is much stronger if you are successful there.
Summer will argue no entitlement, only an expectancy in employment and employment areas.
The following claims may be asserted against Summer.
1. Violation of Procedural Due Process
LBS and Summer have violated Wade's due process rights by immediately terminating his employment upon his refusal to take the drug test, without giving Wade any notice or a hearing prior to terminating his employment under the due process clause of the 14th amendment, applicable to state and local governments, the government may not arbitrarily take a liberty or property interest without providing due process. Due process requires that certain procedures must be followed before depriving someone of property interest when a person has a reasonable expectation of an entitlement in their job, then the person's job is considered a property interest that cannot be taken away without due process. Here, there is state action, thus LBS must abide the Constitution even though it is a private contractor. The Supreme Court has held that when a private entity is performing functions that have previously exclusively been performed by the government, then state action will be found. Here, Summer has exclusively provided the town's police and fire services since 1926, thus delegation to LBS does not remove LBS's actions from the ambit of state action. Also, Wade had a reasonable expectation of continued employment; government employees such as police officers are usually only terminated for good cause, in contrast to private employees who are usually employed at will. Here, the fact that Summer's outsourcing contract required LBS to retain the employees for at least a year unless there was cause to terminate show that Wade has a reasonable expectation. Moreover, he was a veteran of the police force. Thus, Summer/LBS should have given him a hearing prior to termination.
2. Violation of Substantive Due Process
By requiring Wade to take a drug test, LBS violated Wade's fundamental right of privacy under the 14th amendment. Under the 14th amendment, when the government infringes on a fundamental right guaranteed by the constitution, the government must meet the burden of strict scrutiny. Strict scrutiny requires the government to show that the infringement is necessary to achieve a compelling state interest. Under strict scrutiny, there must be no less restrictive alternatives before the government's action will be upheld. Here, Summer will argue that it has a compelling state interest in having its policemen and firefighters be drug-free, because police and firefighters must be ready at all times to protect people's lives, and they cannot properly perform this important and sensitive job if they are intoxicated. Summer will argue that the State has the police power to act for the safety, health and morals of its people, and the drug-test policy is valid. However, Summer's policy is not narrowly tailored to achieving its objective of having a drug-free police and firefighter force. It can be argued that there are less intrusive ways then randomized testing. For example, it could have a policy of only requiring drug tests of those employees who are suspected of taking drugs. This narrow policy would be supported by Supreme Court precedent; in one case, the Supreme Court upheld drug testing of state railroad employees that were working when a railroad accident occurred. There, since an accident had occurred, the Court authorized drug testing of those employees who were working at the time of the accident. Here, in contrast, there have been no accidents or complaints. Wade and other police officers have been randomly asked to submit to a drug test.
However, Summer may defend by pointing out that the Supreme Court upheld random testing for high school athletes. Summer will argue that since it only asked police officers who operate motor vehicles to take the drug test, their policy is narrowly tailored and the state interest in having police officers driving cars while on duty to be drug-free is very high. However, on balance, Wade will win on the substantive due process violation, because Summer's drug testing policy is not the least restrictive way to achieve their goal.
3. Equal Protection violation
Wade can bring an equal protection claim against Summer for arbitrarily distinguishing police from firefighters, and for distinguishing police officers who operate motor vehicles from those police officers that don’t, since only police officers that drive cars are required to get tested. However, this argument will fail because police officers are not a suspect class, so rational basis review applies. Summer's policy will be upheld because requiring police officers who operate cars to have drug tests is rationally related to a legitimate state interest.
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QUESTION 3 (Property)
Anna, Betty, and Carolyn have each owned their homes on Pleasantdale Road for over ten years. Betty’s property sits between Anna’s and Carolyn’s properties.
This year, Anna decided to regrade her property and install bricks along the boundary between her property and Betty’s. As a result, the grading on Anna’s property has been raised by several inches, and the bricks form a barrier between the two properties. Unfortunately, this work causes Betty’s backyard to fill with large pools of water after every rainfall and large patches of ice in the colder weather. The yard takes several days to drain, and Betty’s use of the backyard has been severely curtailed. An engineer has advised Betty she will have to install a $20,000 drainage system to dispose of the surface water because the bricks have blocked the surface water’s flow.
Part of Betty’s driveway lies on Carolyn’s property. The driveway is the subject of an agreement entered and recorded by their predecessors in title, stating in part: “The owners of the first parcel [currently Carolyn] and their successors in title grant unto the owners of the second parcel [currently Betty] and their successors in title the free right of using the portion of the driveway located on the first parcel.” The agreement continues: “The owners of the second parcel [currently Betty] covenant and agree for themselves and their successors in title not to erect any structure on any part of the driveway.”
Betty has failed to maintain the portion of the driveway located on Carolyn’s property. Carolyn has paid to fill potholes and remove snow. Recently, Betty’s son bolted a skateboard ramp to the driveway. Although Carolyn has asked, Betty has refused to remove the ramp. Irritated, Carolyn installs a fence on the driveway that tracks the boundary between the properties. Betty is upset because now she cannot drive her car on the driveway and park it in her garage, located behind her house.
Betty comes to your law firm for advice concerning the drainage and driveway problems. The partner handling the matter has asked you to prepare a legal memorandum analyzing the factual and legal issues involved, including potential causes of action, possible defenses, available remedies, and the likely outcome of any litigation.
PREPARE THE MEMORANDUM
DATE: July 29, 2004
RE: Betty's Causes of Action, Defenses and Available Remedies
Betty is currently faced with legal issues surrounding 3 uses of her property. I will discuss each of them in turn.
I. Water Collecting in Betty's Backyard
Traditionally, surface waters have always been considered a nuisance on land, and at common law a property owner was entitled to use any reasonable means to divert surface water from his property. This was known as the common enemy rule. In fact, an owner could take action even if it would result in harm to an adjacent parcel of land.
In this case, it is unlikely that our client will succeed on her claim because of the common enemy rule. Anna was entitled to divert surface water from her property and she has done so in a reasonable manner. The fact that Betty's yard takes several days to drain and it will cost $20,000 to install a drainage system are insignificant. Since the common enemy rule protects Anna's actions, Betty will not have a claim for the extra surface water on her land.
II. Betty Will Likely Have to Remove the Skateboard Ramp
From the Driving, But She Can Force Carolyn to Remove
the Fence Obstructing Her Right of Way.
Carolyn and Betty's predecessors in interest entered into a valid agreement for an easement and a restrictive covenant/ equitable servitude. An easement is the right of a property owner to use or enter another parcel of land. The parcel that is benefited from the easement is the dominant tenement and the parcel that is burdened is the servient tenement. An appurtenant easement passes automatically to successor's in interest if the original contracting parties intended it to and the owner of the servient tenement had notice of the easement.
In this case, Carolyn owns the servient tenement to an appurtenant easement. In the easement grant, the original grantor and grantee intended the easement to bind future parties and Carolyn had constructive notice of the easement because it was recorded. Therefore, when Carolyn purchased her property, she took it subject to the appurtenant easement.
There are only a limited number of ways an easement can be terminated. Those are Estoppel, the Necessity which created the easement ends, Destruction of the Servient Tenement, Condemnation of the Servient Tenement, Release, Abandonment, Merger, and Prescription. None of these are available in this case. Although Betty violated the restrictive covenant by building a skating ramp on the driveway, she did not abandon her right to use the easement by doing so. Further, Betty will not be estopped from enforcing the easement because she has not done anything inconsistent with ownership of the easement.
Based on the foregoing, Betty and Carolyn still own their properties subject to the easement appurtenant to Betty's dominant tenement. Carolyn is bound by the terms of the easement and she does not have a defense that there was misuse of the easement or the easement was terminated. Therefore, Betty will likely prevail in her claim to have Carolyn remove the fence obstructing her right of way.
III. However, Betty could have to pay damages for violating the restrictive covenant and almost certainly will be forced to remove the skateboard ramp from the property. A restrictive covenant/ equitable servitude is a promise between land owner to do something or not to do something related to their land. The difference between the two is the remedy that the plaintiff seeks and the requirements for the burden and benefit to run. In a restrictive covenant claim, the plaintiff seeks money damages and when enforcing an equitable servitude, the plaintiff seeks an injunction.
Betty is burdened by the restrictive covenant because she promises not to build a structure on any part of the driveway. If the skate ramp is considered a structure, Betty will be liable for damages if Carolyn can show that the covenant was in writing, with the intent to bind successors, it touches and concerns the land, there was horizontal privity between the original contractors and vertical privity between Betty and her predecessor, and Betty had notice of the agreement. The agreement in this case was in writing and Betty had notice of it because it was recorded. Further, the covenant touches and concerns the land because it is directly related to Betty's use of the property. However, it may be difficult to show horizontal privity between the original contracting parties. This (VP) means that they were in a successor in interest relationship such as grantor/grantee or devisor/ devisee. If that is not the case, Carolyn will not be successful in her claim for damages.
Carolyn will however be successful in enforcing an equitable servitude if she can show notice to Betty and an intent to bind successors. Here, Betty had notice because the agreement was recorded and the agreement expressly states its intent to bind successors. Therefore, Carolyn will be successful in getting an injunction to remove the skating ramp.
In sum, Betty has no cause of action for the surface water, can get an injunction to remove the fence obstructing her right of way, and will be forced to remove the ramp on her driveway.
RE: Betty's Boundary Disputes
DATE: July 29, 2004
Betty's situation presents three distinct issues: the brick wall installed by Anna, the fence installed by Carolyn, and the Skateboard ramp ("the ramp") installed by Betty's son. Betty will likely be able to obtain an order requiring Anna to remove the wall or pay damages. Betty will also likely be able to enjoin Carolyn from maintaining the fence. However, Betty will likely be required to remove the ramp from her driveway.
A. Anna's Brick Wall
Betty will likely be able to either enjoin Anna from keeping the brick wall or in the alternative obtain damages. The main issue is whether Anna's wall unreasonably harms Betty's enjoyment and use of her land.
At common law, surface water was treated as a "common enemy." Landowners are free to alter their property in order to divert surface water from their land. However, in doing so a land owner may not cause unreasonable harm to another's land.
In this case, Anna was entitled to regrade her property because she was the land owner. However, under the common enemy doctrine, her diversion of surface water could not unreasonably harm another's land. Under the facts presented here, Betty's land appears to suffer significant harm. This is demonstrated by the large pools of water after rain, and the large patches of ice in winter. Furthermore, the cost would be significant in order to remedy the situation, as demonstrated by the Engineer's $20,000 estimate to correct the problem. Because Betty's land is unreasonably burdened by Anna's diversion of water, she is entitled to relief.
A court may utilize its equity power to require removal of Anna's wall. However, such remedies are usually appropriate only when money damages are inadequate. Here, because the problem would be corrected for $20,000, money damages are an adequate remedy. Therefore, Anna will be liable for the $20,000 repair. Her only viable defense would be that the harm caused by the diverted water is not unreasonable. Given the event of flooding, Anna's defense would likely fail. Betty will recover $20,000 for her damages.
B. The Fence Erected by Carolyn
Betty should be able to obtain an injunction requiring Carolyn to remove the fence. The key issue is whether the agreement concerning the driveway is an enforceable easement, that has not been destroyed.
An easement is a non-possessory interest in land that enables its owners to go onto the land of another for some designated purpose. An easement may be created by an express grant.
Here, the agreement concerning the driveway is an easement. The agreement is in writing. It expressly states that the owner of Betty's parcel is entitled to go onto the land of Carolyn's parcel to use the land as a driveway. This explicit grant of a non-possessory interest constitutes an easement.
Easements are enforceable in equity. When the owner of a burdened parcel interferes with the easement holder's right of access, the easement holder may seek an equity order enjoining the interference.
Carolyn is the owner of the servient parcel because Betty is entitled to the use of a portion of Carolyn's property. By erecting a fence, Carolyn interfered with Betty's right of entry. As a result of this interference, Betty is entitled to an order enjoining Carolyn from maintaining the fence.
Carolyn will likely attempt to defend her installation of the fence by claiming the easement has been abandoned. An easement may be destroyed through abandonment. In order for an easement to become abandoned, the easement owner must express their want to abandon the easement and take physical acts that manifest such intent.
Here, Carolyn will likely claim that Betty's neglect constitutes abandonment. Carolyn has had to maintain the driveway. She has had to fill in potholes. However, Betty's inaction is insufficient to constitute abandonment. She has not expressed an intent not to use the driveway. In fact, it would appear that she has continued to use the driveway throughout. Because the easement is valid and has not been destroyed, Betty should be able to obtain an injunction forcing Carolyn to remove the fence.
C. The Ramp Installed by Betty's Son
Betty will likely be required to remove the ramp her son installed. The principal issue involved is whether the agreement concerning structures on the driveway is an enforceable equitable servitude.
An equitable servitude is a promise that is enforceable in equity requiring a land owner to do or refrain from doing some act on their land. In order to be enforceable, the original promise must have been in writing, the original parties must have intended the burden to run to subsequent land owners, the promise must touch and concern the land, and the party against whom the promise is enforced must have notice of it.
The agreement concerning structures on the driveway is a valid and enforceable equitable servitude. The original promise was in writing as evidenced by the agreement. The original parties intended the burden to run as demonstrated by the use of the language "agree for themselves and their successors." The promise touched and concerned the land because it inhibited the land owners from a use of the land they would otherwise be entitled to. Finally, Betty had notice of the promise by virtue of her predecessors having recorded the agreement. The agreement therefore is a equitable servitude enforceable against Betty.
Betty's only defense would be that the ramp was not a "structure" within the agreement. Given that the ramp would fit a lay understanding of "any structure," this defense would likely fail. Therefore, Carolyn would likely be able to obtain an injunction requiring Betty to remove the ramp.
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QUESTION 4 (Evidence)
Fred Johnson runs an orphanage, the Help Center for homeless children. He encourages particularly troubled youngsters to share his quarters at the Center.
Bobby, a ten-year-old from a broken home, was a visitor to Johnson’s suite and routinely slept over. His school counselor found that, instead of being stabilized by his time at the Center, he had grown increasingly distracted, depressed, and disoriented. The counselor inquired of Bobby’s classmates. They had learned from Bobby that Mr. Johnson was sexually abusing the youngster. Mr. Johnson was convicted at trial of pedophilia/sex abuse charges. Certain evidentiary rulings are now contested on appeal by his defense.
1. A prior judgment of conviction of a similar offense by Mr. Johnson was admitted.
2. Several juvenile residents of the Help Center were allowed to testify about sexual overtures made to them by Mr. Johnson.
3. Bobby’s school counselor testified as to his distracted conduct in class. She spoke about what she had heard from other students.
4. A licensed child psychiatrist testified as to the typical demeanor of a child victimized by sexual abuse.
5. The Chair of the Orphanage’s Board was precluded from testifying as to the strength of Mr. Johnson’s character.
6. Bobby’s testimony was read into the court record to spare him the embarrassment of a court appearance.
You are the law clerk to the appellate judge. Assess the merits of each evidentiary ruling.
PREPARE THE MEMORANDUM
From: Law Clerk
Re: Evidentiary Rulings in State v. Johnson
You asked me to assess the merits of each evidentiary ruling in the State v. Johnson case. Per the following analysis, my conclusion is the prior conviction, testimony by the juveniles, testimony re distracted conduct, and testimony of the psychiatrist were properly admitted. The testimony re what students told the counselor was inadmissible hearsay. The Chair’s character evidence should have been admitted and Bobby’s real testimony should NOT have been admitted.
1. Prior Judgment of Conviction of a Similar Offense
The admission of the prior judgment of a similar offense against Mr. Johnson was likely proper because such convictions are admissible to prove propensity to commit a crime where the crime is sexual assault/molestation. Also, a prior good conviction is admissible as an exception to hearsay as a judicial admission that may be offered to prove any relevant fact.
Under the Federal Rules of Evidence, and indeed, the evidentiary rules in most states, a prior conviction of a similar offense in a pending sexual molestation case is admissible against the Defendant to prove propensity to commit the crime. This is a special rule for sexually based offenses based on the recognized high degree of recidivism in such crimes. As with all evidence, the conviction is admissible if relevant (i.e., it tends to prove or disprove a fact of consequence) and is NOT otherwise inadmissible (e.g., probative value substantially outweighed by danger of unfair prejudice). The only other requirement is that the Defendants have pre-trial notice of intent to use the conviction.
Here, the conviction was relevant because it tends to prove that Johnson committed the crime he is now charged with. The conviction is admissible under the special rules for sexually-based offenses.
Furthermore, although a conviction is an out-of-court assertion offered for the truth of the matter asserted and, hence, hearsay, there is an exception to the hearsay rule for guilty pleas and convictions (NOT nolo contendere plea) as judicial admissions. The conviction can, therefore, be admitted as an exception to hearsay.
2. Testimony by Juvenile Residents
The testimony of the juvenile residents is likely admissible as relevant to prove Defendant committed the crime and based on the perception and first-hand knowledge of competent witnesses. The testimony would only be inadmissible if the juvenile witnesses were too young at the time of the conduct alleged to be able to rationally perceive and remember or if the juveniles could not understand the duty to tell the truth. Also, some of the testimony may be inadmissible if the probative value is substantially outweighed by the presentation of cumulative evidence of unfair prejudice.
Under the rules of evidence, all witnesses, excluding the judge and jurors, are presumed competent to testify. The judge may, however, disclose testimony where he determines the witness lacks the capacity to remember or perceive the subject matter of the testimony or the duty to tell the truth because of the age of the witness. Otherwise, a competent lay-witness may properly testify regarding his observations and first-hand knowledge.
Evidence will be inadmissible where the evidence is merely cumulative and the cumulative nature risks unfair prejudice that substantively outweighs the probative value of the evidence.
Here, the testimony was likely proper. As long as the juveniles were able to perceive and remember the events they testified to, and they understood (the duty to tell) the truth, the testimony is proper. There may be a risk of unfair prejudice if too many witnesses are used to prove the same event, but there are not enough facts to determine.
3. Counselor Testimony
The counselor testimony re the distracted conduct is proper as lay-witness testimony based on first-hand knowledge/observation; the testimony re statements of other students is inadmissible hearsay.
Under the evidence rules, a lay-witness may testify as to events rationally related to the witness’s perception and within the knowledge of the witness. Testimony about out-of-court statements offered for the truth of the matter asserted is hearsay and inadmissible absent an exception.
Here, the testimony by the counselor regarding Bobby’s distracted conduct is proper because the counselor observed this conduct and it is relevant to prove Bobby’s disposition, tending to prove Johnson committed the crime. The testimony re what other students said is offered for the truth and is, therefore, hearsay. There is no evident exception to hearsay here.
4. Child Psychiatrist Testimony
The testimony of the child psychiatrist was admissible expert testimony.
Expert testimony is admissible where one with special or technical knowledge can give an opinion on a relevant issue that is helpful to the jury in its deliberations. The witness must be accepted as an expert on the subject matter of the testimony based on prior education, training experience, or skill. The expert may base his opinion or otherwise inadmissible evidence.
Here, the child psychiatrist’s testimony was relevant to show Bobby was abused (i.e., he acted like an abused child). This testimony required special knowledge, but was likely helpful to the jury. As long as the psychiatrist was properly qualified as an expert in the demeanor of a sexually abused child (he likely was as having prior education and experience in child psychology), the testimony was proper expert testimony.
5. Chair’s Character Testimony
The Chair’s character testimony was improperly excluded; a criminal defendant has a right to introduce relevant character evidences in favor of the defendant. Once a defendant offers favorable character evidence, the prosecutor may rebut the relevant character trait with opinion/reputation evidence or inquiry about specific acts on cross-examination of the character witness.
Here, Johnson was a criminal defendant and, therefore, entitled to offer evidence of his good character or a relevant trait. Provided the Chair’s testimony was on a relevant character trait, the evidence was improperly excluded.
6. Bobby’s Testimony
Bobby’s testimony read into evidence was likely improper as hearsay and a violation of Johnson’s 6th Amendment right to confrontation of the witnesses against him. The relevant jurisdiction may, however, allow substitute testimony by young child in sexual molestation cases for public policy considerations.
Prior testimony offered for the truth of the matter asserted is hearsay (defined supra) and inadmissible absent an exception. The former testimony exception to hearsay requires the declarant to be unavailable at trial. Also, the 6th Amendment to the U.S. Constitution affords criminal defendants the right to be confronted by witnesses against them.
Here, the testimony of Bobby read into evidence is likely not proper because it is hearsay and there is no indication that Bobby is unavailable. Also, Johnson has a right to be confronted by the witnesses against him.
1) Evidence in general is only admissible if it id relevant, that is more likely to prove that a certain aspect if the allegation occurred. While the relevance standard is quite broad, all evidence must also be weighed to show that its relevance is not outweighed by the prejudicial effect.
Generally evidence of past crimes is inadmissible under the F.R.E to help prove that a crime was committed in this case. There is a fear that the jury may confuse the issues it would be too prejudicial. There are some exceptions however. If a party testifies as a witness you can impeach that party’s testimony by offering extrinsic evidence of any felonies committed by the witness in the last ten years. In addition, there is a special exception for sexual abuse of children under the F.R.E where even though such evidence is generally inadmissible, in these specific cases it would be allowed. Therefore, this evidence was properly admitted either because Johnson testified as a witness, or because of the special child sex abuse circumstance.
2) Again, as before the evidence must be judged in its relevance/prejudice. Again, the evidence is clearly relevant and likely admissible. Generally, specific instances of conduct cannot be used to show conduct in conformity on this occasion. Someone could not show an old car accident to prove I was negligent in a new, unrelated case. Therefore under normal instances, such testimony would not be permissible character evidence. There are however certain exceptions where specific instances can be used to prove motive, intent, mistake and two other limited categories. If this evidence of prior sexual overtures falls into one of these categories, such as intent, then the testimony would be admissible as it would not be used to prove conduct in conformity, but for another reason. Given the situation of this sexual abuse, such evidence fell into separate allowable category and is admissible.
3) The general rule is that hearsay evidence is inadmissible, unless it falls in to a specific category of hearsay where it is considered admissible because of its extra reliability. Hearsay is an out of court statement being offered to prove truth of the matter.
All of the statements about what the teacher heard from the student is inadmissible hearsay that doesn’t fall within an exception and should be excluded.
The other half of her testimony is admissible however. Any witness may testify to things that they personally observed. The school counselor may testify to her personal observations of Bobby so long as they satisfy the relevance/prejudice test mentioned above. This testimony is indeed relevant and was personally observed so it is admissible.
4) The Federal Rules of Evidence allow testimony to help assist the jurors in making their determinations of fact. It is up to the judge to determine whether an expert is competent to testify and in federal law this is judged under the Daubert standard. Experts may testify about things offered into evidence in the trial of things that would normally be considered by an expert in making determinations.
Assuming that the Judge found the expert qualified his testimony is likely admissible. The testimony is relevant and it may help the jury with their determinations. So long as the testimony comes from something stated at the trial or is something an expert if this type would rely upon it is admissible.
5) Character evidence may be introduced in criminal cases. Character only becomes an issue if the Defendant makes it one meaning the Defendant must introduce characters evidence first. However, once he does so the prosecutor may introduce their own bad character evidence. Under the Federal Rules of Evidence, character evidence may be introduced either as opinion or reputation evidence by the character witness. It is also important to note that character evidence may only be offered if relevant to a trait which the accused is tried. Which evidence of honesty is admissible in a fraud trial, it is not admissible in a murder trial.
Here there is no reason why the evidence shall be found to be inadmissible so long as it relates to an appropriate character trait of Johnson.
6) Here, an issue is whether out of testimony may be offered against the accused. There are very limited circumstances where such statements are allowed for fear that it would violate the Defendant’s 6th Amendment right to confrontation if a witness testimony was merely read into evidence. Testimony of witness may generally only be read into evidence if the witness is no longer available and the defendant have both the motive and opportunity to cross examine the witness at previous time.
In this case it does not appear that Johnson had the motive and opportunity to cross examine Bobby previously so the reading of his testimony into evidence would violate Johnson’s 6th Amendment right to confrontation. Therefore, the testimony is inadmissible.
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QUESTION 5 (Contracts)
Sensation Sensors, Inc. (“SS”) manufactures and sells pressure sensors for use in plane, auto, and ship engines. In December 2003, Buyer, a manufacturer of ship engines, sends a written request for price quotes to manufacture 2,500 sensors of a particular type, to be shipped by May 15, 2004.
The SS representative confirms by telephone that SS can complete the job and deliver the units. Buyer agrees to purchase them. The sensors are sensitive to temperature extremes, which can damage electronic devices, and therefore Buyer requests delivery by climate-controlled airfreight, to arrive by May 25. They agree on a contract price of $250 per sensor, for a total cost of $625,000 inclusive of shipping.
Buyer sends the following letter to SS:
This will confirm your agreement to manufacture and provide 2,500 model-T sensors, to be delivered FOB at your plant on or before May 15. Shipping is to be by climate-controlled airfreight. Payment of $625,000 is to be made within five days of our receipt of the goods.
SS does not respond but begins to manufacture the sensors. One component of the sensor is manufactured overseas. SS and its supplier, All-Parts, have a contract under which All-Parts agrees to provide sufficient quantities of the component to meet SS’s requirements. Deliveries are made monthly. On January 30, SS advises All-Parts it will need 5,000 components before the end of March, which include the components for Buyer’s 2,500 sensors. All-Parts ships 3,000 in February. In March, the government in All-Parts’ country suspends the export of the components for four months, and All-Parts is unable to ship the remaining 2,000 components. SS cannot find a replacement supplier and is able to complete the manufacturing of only 1,500 of Buyer’s 2,500 sensors. On April 15, SS’s long-term provider of airfreight service goes out of business. After making several inquiries, SS determines it will be impossible to ship by air except by paying ten times the anticipated cost, and no sooner than May 25. SS instead ships in an appropriate temperature-controlled truck. The truck picks up the goods May 14, but breaks down, exposing the goods to desert temperatures. The goods arrive at Buyer’s place of business June 1. The 1,500 sensors are unloaded and a receipt is signed by Buyer’s foreman, noting “All rights reserved.”
On July 10, during quality control testing of the engines into which the sensors had been installed, Buyer discovers a 40% failure rate. Buyer notifies SS it will sue for failure to deliver 2,500 working sensors by May 25 unless SS cures by August 15. SS hires you to prepare a comprehensive memorandum outlining its rights, obligations, and liabilities.
PREPARE THE MEMORANDUM
Re: Buyer et al
Date: July 29, 2004
There are several issues arising from your dealings with Buyer. The first issue is Buyer’s likely claim versus you and your defenses. The second issue is what claims you have against All-Parts and the trucking company.
To begin with, Buyer will likely be able to assert a valid claim for the defectively delivered 1,500 sensors, but not for the entire shipment of 2,500. You will have a valid claim against the trucking company, but not against All-Parts.
Buyer vs. SS
A. Contract Formation
Before Buyer can sue for any breach of contract, a contract must be shown to exist. Because this agreement deals with the sale of goods, it is covered by Article 2 of the UCC. Contracts under the UCC Art. 2 for more than $500 must be in writing, or have a valid exception, to satisfy the Statute of Frauds.
The Statute of Frauds prevents enforcement of any contract against a party, unless that party signed a writing containing sufficient information. The letter sent by Buyer to you satisfied the sufficient writing requirement, but was not signed by you. However, the UCC allows enforcement of a writing, such as this one that by its writing claims to be memorializing an oral agreement, if the other party does not contradict the writing within a reasonable time. Since you never disputed the assertion in the letter that it was confirming your agreement, that letter is viewed as a valid contract and binding on you.
B. Undershipment of 1,500 sensors.
A contract for goods under the UCC requires the goods sent to the Buyer confirm perfectly with what was ordered. Failure to provide perfect tender means the buyer can reject all the goods (allowing for time to cure), reject the nonconforming goods, and reduce the payment accordingly, or accept.
In this case Buyer ordered 2,500 sensors, but only received 1,500. This undershipment would count as a breach, except the UCC recognizes that when a seller cannot satisfy all of its order due to unforeseen problems outside of the seller’s control, the seller should proportionally reduce all of the orders by its underage. The Buyer cannot reject a shipment, but will have their price reduced accordingly.
Since you were prevented from filling your orders due to the actions of a foreign government, you were correct in proportionally reducing all of your orders. Furthermore, Buyer does not have the option to reject the goods for this reason, but will simply pay for 1,500 sensors at the agreed $250 per sensor.
C. Defective Goods
As described above, the perfect tender rule requires the goods sold be exactly as ordered. The 40% of sensors being defective violates the perfect tender rule, so Buyer has a valid claim for breach for those goods.
You have several defenses, but none are likely to be successful. First, you can argue the risk of loss was on Buyer because the contract was FOB at your plant.
An FOB contract requires the seller get the goods to the required location, provide for shipping from there, and notify the buyer the goods are in transit. The method of shipment is whatever is commercially reasonable, unless specified in the contract. When the seller has properly delivered the goods to the FOB location, the risk of loss passes to the buyer.
You properly delivered the goods to your place by May 15 as required and, I assume, notified Buyer the goods are being shipped. However, you shipped the goods with a carrier not provided for in the agreement. Such a breach of the carrier agreement means the risk of loss did not pass to the buyer, but remained yours. Furthermore, the significantly higher cost of shipping by agreed upon terms is not a defense. You assumed the risk of carrier costs increasing, and the original agreement was not unconscionable.
Your second defense is that Buyer failed to do a timely inspection and did not report any problems within a reasonable time after they should have been discovered. The UCC allows a buyer a reasonable time after delivery to inspect the goods, and, if they do not conform, to reject them.
In this case the goods arrived on June 1, but were not inspected until July 10. That six week delay may be considered an unreasonable time to inspect, but even if it is seen as so, the buyer still has the right to revoke his acceptance.
After acceptance, a buyer can revoke his acceptance if the goods are discovered to be nonconforming. Such revocation must be within a reasonable time of discovering or should have discovered the defect.
It is unlikely a court would find both the inspection and the revocation time periods had passed from June 1 to July 10.
SS v. All-Parts
SS can sue for breach for All-Parts failing to deliver the 5,000 components. All-Parts has a valid defense that the contract became impracticable to perform. It no longer had to perform under the contract.
Impracticability requires that, although it may be possible to perform a contract, it is commercially extremely unreasonable to do so. The reason or cause of this problem must be from an unforeseen source outside of the breaching party’s control.
The problem here is a foreign government’s ban on exports. Such a ban makes it all-but-impossible for All-Parts to get the required goods to you. Therefore, All-Parts is excused from performance.
All-Parts could also claim the contract fails for lack of consideration because a quantity of whatever required is illusory. However, courts have long recognized that requirement contracts are valid contracts based on the illusion of illusoriness theory.
SS v. Trucking Co.
All contracts have a good faith requirement to perform. Although the trucking co. may not be at fault for its truck breaking down, it was a breach and resulted in damages to the shipped goods. Therefore, you can sue for breach and will win.
From: Bar Applicant
Date: July 29, 2004
Re: SS’s rights, obligations and liabilities
I. Is there a valid, & enforceable contract?
Under Article 2 of the UCC a contract for the sale of goods (moveable personal property) valued @ $500 or more requires a writing to be enforceable and not in violation of the Statute of Frauds. However, an exception exists when a merchant (one engaged in the business of selling/buying the goods at issue) sends a signed confirmatory memo to another merchant that sufficiently identifies the contracting parties, and the terms of the contract. If the merchant does not respond with 10 days of receiving this memo a contract has been formed.
Here, we have a contract for the sale of goods over $500 b/c sensors are moveable personal property and the total contract cost is $625,000. Also, both SS and buyer are merchants b/c SS is engaged in the business of selling sensors and buyer is in the business of buying sensors in order to manufacture ship engines.
Buyer’s written, signed memo sent to SS sufficiently identifies a contract b/c it identifies the parties (SS & Buyer), and it sufficiently identifies the terms of quantity (2500 model -T sensors), price ($625,000 to be paid w/n 5 days of receipt), and delivery (FOB, shipping by climate controlled air freight).
B/c SS failed to respond to this confirmatory memo, a valid contract was formed under the Merchant Confirmatory Memo Exception to the Statute of Frauds.
II. Did SS breach the contract?
Under UCC Art. 2, perfect tender is required. In other words, any non-conformity in delivery of goods that deviates from the contract’s terms is a non conformity. A buyer has the right to reject non-conforming goods. Furthermore, a buyer may accept the goods and then revoke his acceptance if the nonconformities (1) substantially impair the value of the contract and (2) the non conformities could not have been discovered upon delivery.
Here, SS breached the contract by delivering only 1,500 out of the 2,500 model-T sensors it was obligated to deliver under the contract. Also, bc these sensors were not shipped by control air freight the sensors were damaged, and so 40% of them were useless to Buyer.
SS may argue that Buyer accepted the non-conformities by taking delivery on June 1st and not reporting any non-conformity until July 10. However, Buyer may properly revoke his acceptance b/c the delivered sensors substantially impair the value of the contract since when installed into engines there was a 40% failure rate. Also, Buyer had no reason to know of the sensors non-conformities until actual quality control testing occurred. As such, Buyer’s revocation of acceptance only one month after delivery is reasonable given the circumstances.
In addition, SS’s deviance from the contract requirement of shipping by air is not acceptable. Although SS could argue impractability based upon the fact that shipping by air was ten times more expensive, mere decrease in profits is not a sufficient excuse. Moreover, the change in delivery methods directly led to the sensors being damaged by overexposure to heat.
Thus, SS was in breach of the contract.
Buyer’s remedies upon breach under the UCC include: the cost of cover (replacement goods) or market price damages if cover is not available plus incidental expenses or reasonable costs. Buyer in equity may also seek specific performance of the conforming goods at the Seller’s expense.
Here, Buyer has demanded that SS specifically perform the contract by August15, or else Buyer can elect to sue for money damages under the UCC, for the difference between the market price of 2,500 sensors – the contract price of $250 per sensor, assuming of course that replacement model T sensors are not available. If they are available, then Buyer has a duty to mitigate damages by seeking cover in (1) good faith (2) w/o unreasonable delay and (3) at a reasonable price.
SS could attempt to argue excuse from performance based on the impossibility of its supplier All-Parts. Impossibility refers to the occurrence of an event whose non-occurrence was a basic assumption of the contract.
Here, government’s conduct is suspending exports in Allparts country made it impossible for SS to meet buyer’s demands in time. In addition SS could not reasonably find a replacement supplier. Such events were not foreseeable to SS and Buyer at the time of contracting. However, this only served to delay SS’s time for performance b/c exports from All-Part’s country were only suspended for four months starting in March. Thus, by the end of June, SS should be able to get a sufficient quantity of components delivered to meet Buyer’s demand for specific performance.
It should be noted, that b/c the government actions in Allpart’s country were not foreseeable and made performance impossible, SS will not be able to sue Allparts for breach of contract damages based upon Allpart’s non-performance of their out contract w/ SS since their performance was excused under the circumstances.
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QUESTION 6 (Torts)
Cynthia owns and operates Archery Alley, where bow and arrow enthusiasts can practice their skills in an enclosed range. Cynthia purchases arrows from Barry, a dealer in archery equipment. On the outside of each box of arrows is a warning label as follows: “ARROWS INTENDED SOLELY FOR RECREATION — DO NOT TAMPER.” Because arrows eventually splinter due to repeated use, Cynthia purchases approximately ten boxes of arrows each week.
Pete works for Cynthia. His duties include opening each box of arrows upon arrival and inspecting them to make sure they are free from obvious defects. As a youth, Pete’s schooling was sporadic and, as an adult, he is functionally illiterate.
Pete dislikes Tony, a customer who frequents the premises. Knowing that Tony is practicing for an upcoming tournament, Pete shaves the tips of a batch of arrows Tony intends to use. Pete knows this will cause the arrows to fly in an unpredictable manner, making it almost impossible to hit the targets. Pete plans to watch Tony’s practice session and enjoy the sight of his frustration.
One evening, Tony is practicing with the shaved arrows. His first two shots are so wild they actually land in the area designated for bystanders, far from the targets. His third shot strikes Joe, a patron standing with other bystanders in that area. Joe is injured and requires hospitalization.
Joe hires your law firm. Discovery reveals the facts outlined here. The senior partner has asked you to analyze the case, list all potential defendants and the possible claims against, and defenses for, each such person. He has also asked you to discuss areas where an expert witness might be of assistance.
Joe claims against Tony, Pete, Archery Alley and possibly Cynthia and Barry. They will raise the defenses of assumption of risk and comparative negligence, but these will not preclude recovery. An expert witness could help us prove that Pete's misconduct caused Joe's injury.
Joe v. Tony
Tony may be liable for negligence. He did not intend to hit Joe but is liable for negligence if he breached a duty of reasonable care, and caused Joe damages.
Tony has a duty to act as a reasonably prudent person and avoid harm to foreseeable plaintiffs. Joe was a bystander and it was foreseeable that an arrow could injure him. Therefore, Tony owed him a duty of reasonable care.
We have an argument that Tony breached his duty. Tony is a frequent archer who competes in tournaments. On the day in question, however, his first two shots were so wild that they landed in the area designated for bystanders. A reasonable person would have stopped shooting and inspected the arrows and replaced them. Tony was on notice that something was wrong with his arrows. He breached his duty. The arrows caused Joe's injury, and Joe has been damaged.
Joe v. Pete
Pete intentionally shaved the tips of the arrows, knowing that they would fly in an unpredictable manner. He may be held liable for battery, possibly intentional infliction of emotional distress and negligence.
Battery requires intent to cause harmful or offensive contact to another's person and causing such contact. A person can be liable for battery if he is reckless. Pete recklessly shaved the arrows, knowing the likelihood that they would fly unpredictably and hurt someone. Arguably, he intended a battery. He can respond that he had no idea the arrows would fly so far afield. He was not aware of the attendant circumstances. He may prevail on this theory.
He can probably be found liable for intentional infliction of emotional distress. He engaged in extreme and outrageous behavior, intending to cause distress to Tony. He is liable for damages caused by his behavior. Under the doctrine of transferred intent, he could be found liable for causing distress to Joe (although emotional distress damages could also be tacked on to a negligence claim).
Pete is liable for negligence, too. He had a duty to foreseeable victims, like Joe. He may claim that as a functional illiterate, he could not read the warning "DO NOT TAMPER." However, his behavior will be compared to a reasonably prudent person, not to other illiterates. In any event, it was still negligent to tamper with the arrows.
We would have to show that the shaving of the arrows caused the injury. Expert testimony would be helpful on this point. Perhaps an engineer or physicist could explain the Motion of arrows.
Joe v. Archery Alley
If Archery Alley is a corporation and if it employed Pete, Joe should file a claim against it based on negligence and negligent retention.
Archery Alley is vicariously liable for the torts of its employees under the doctrine of respondent superior -- as long as the torts were committed in the scope of employment. Here, Pete shaved the arrows while employed by Archery Alley. It will be held liable for his negligence. It may argue that intentional torts are not foreseeable and outside the scope of employment. That is generally the law, except where the tortfeasor is furthering his employer's business or torturous conduct is foreseeable.
Archery Alley can also be held liable for negligent retention. It was negligent to hire a functional illiterate to inspect arrows, especially since he could not read the warnings on the box. As a seller of a defective product, it can be held liable for products liability.
Joe v. Cynthia
If Archery Alley is a corporation, Joe cannot hold Cynthia vicariously liable as an owner unless he can pierce the corporate veil. If she was directly negligent in her capacity as an operator of Archery Alley, he can hold her liable on a similar theory of negligent selection.
Joe v. Barry
A manufacturer can be held liable for defective goods even in the absence of negligence. Barry is a manufacturer and can be held strictly liable if the arrows had a manufacturing defect, design defect or warning defect.
Arguably, the warning should have been more detailed. An expert may help us prove that there was a design defect and shaving the tips shouldn't have caused such sporadic behavior.
As a seller of arrows, Archery Alley can also be held liable, but can seek indemnity from Barry.
All of the defendants who are sued for negligence can argue that Joe assumed the risk of injury. By standing near an archery range, he knew there was a possibility of injury. Joe can convincingly argue that the possibility was remote and rare and he was not aware of it.
The defendants will also argue that Joe was negligent in remaining in the bystander zone after two of Tony's arrows had already landed there. Even if defendants can make a comparative negligence claim, this will only reduce Joe's recovery, not eliminate it. His negligence was minor compared to the others.
Expert testimony can help us prove the following:
1. The arrow had a design defect;
2. The shaving of the tips caused the arrow to injure Joe;
3. The warning was inadequate;
4. Other Archery Alleys employ better qualified employees;
5 Joe's medical problems were caused by defendant's misconduct;
6. The effect of the injury on Joe's employment potential, etc.
To: Sr. Partner
Re: Broken Arrows
Barry - Strict Liability
A claim may exist against Barry. To succeed at strict liability, one must show that a person sold a defective product, unreasonably dangerous to users, that causes physical harm to users and the seller was in the business of selling and the product was in substantially the same condition as when it was sold. Barry was a retailer of arrows, however, Pete tampered with them so they were not in the same condition as when sold.
Joe may argue that the defective condition was a lack of warning, the condition was unreasonably dangerous and it caused his injury.
It is true that the arrows had written warnings, however, there was no picture. Warnings may constitute a defect when they are insufficient to protect against foreseeable misuse. Here, the misuse was foreseen. The warning itself addressed it - DO NOT TAMPER. Joe may argue that the cost of a picture on the box was minimal compared to the harm and as such Barry as a retailer was unreasonable in not having the warning and should be strictly liable.
A product's design may be defective in itself if it is unreasonably dangerous. Joe needs to establish that there was a reasonable alternative design. The Alternative needs to be cost efficient, i.e. not unreasonably prohibitive, and must not destroy the utility of the product.
Barry knew the arrows could be tampered with and the danger. Joe may use an expert here to establish that a different alternative design is available, not cost prohibitive and won't harm the utility of the product.
TONY - NEGLIGENCE
Joe may bring a claim of negligence against Tony. Negligence requires a duty, breach, causation (Fact and Legal) and Damages.
Duty - person must conform to a specific standard of conduct as not to unreasonably risk harm to others. Generally, this is a reasonably prudent person standard, however, a person is required to act with any special skill or knowledge he has.
Here, Tony was an experienced archer. He competed in the sport. He shot two arrows that landed in the bystander area. He should have known something was wrong and not continued to shoot arrows into the bystanders. He breached his duty of care.
The breach was the but for cause of Joe's injury. But for Tony shooting a 3rd bad arrow it would not have occurred. It was foreseeable that shooting an arrow into the bystanders would result in that injury. Tony is also the proximate cause. Finally, Joe was damaged - hospitalization.
Assumption of Risk - contributory/comparative neg. It may be argued that Joe was also at fault because he failed to get out of the way. Two arrows landed previously; he should have acted reasonably.
Cynthia may be vicarious liable for the actions of her employee Peter.
Vicarious Liability requires that the employee:
1. Act within scope of employment
- Place Frolic/Detour
2. Be acting generally for benefit of employer.
Pete was working for Cynthia. His duties were to open each box of arrows and inspect them for defects. He was at work during work hours and doing his job. Cynthia may be vicariously liable for Pete's negligence. She may not be liable for Pete's intentional torts unless they are in furtherance of the employment or the employment creates conflict. That is not the case here.
A claim may also exist against Cynthia for negligent hiring.
1. Employer/Employee relationship;
2. Employee unfitness for employment;
3. Employee's defect causes harm;
4. Employer knew or should have known of unfitness, or, alternatively, failed to properly investigate;
Here, Cynthia probably should have known that Pete can't read. She gave him the duties of inspecting dangerous arrows w/ written warnings. She breached her duty by not making sure Pete understood the dangers. Joe was injured as a result of Pete's inability to read.
Causation will be difficult to prove here. It must be argued that had Pete read the warning, he would not tamper with arrows.
Battery: intentional offensive touching to the person.
Here, Pete caused the arrows to go astray. They touched Joe offensively. Any person would find that offensive. The intent element will be hard, but Joe should argue that his conduct was so reckless that it was substantially certain to result in an offensive touching. Pete saw 2 arrows fly into the bystanders.
This argument will undercut Joe's claims against Cynthia however. Cynthia can argue that even if Pete couldn't read, he knew the risk when he saw the arrows fly. His failure to stop Tony was a intervening cause relieving her of negligence.