Editor’s Note: These answers to the essay questions on the July 2012 bar examination were drawn from passing candidates who earned very high scores on the essays selected. They have been transcribed as submitted by the candidate and may contain misspellings, grammatical errors, misstatements of law or fact and erroneous conclusions. They are not to be construed as model answers, nor are they in any respect the work of the Board of Bar Examiners.

QUESTION 1 — TORTS

Vera, a truck driver, is hauling a load of dynamite along a highway in violation of posted signs prohibiting commercial traffic. Suddenly, a deer darts into her lane of travel. Vera jams on her brakes and avoids a collision, but the shifting weight of the dynamite causes the truck to overturn. Fortunately, Vera is not injured, and the dynamite does not detonate. However, the overturned truck blocks the highway for several hours.

Meanwhile, in a nearby house, Dawn, who is 8-plus months pregnant, experiences sharp labor pains. Her husband, Peter, frantically escorts Dawn to his car and begins to drive toward the hospital but quickly discovers that the highway is blocked by the overturned truck. Unwilling to wait for the highway to clear, Peter detours through a large field owned by Tony, a circus animal trainer. In the process, Peter drives over Tony’s rare Peruvian marigolds, the seeds for which cost thousands of dollars.

At that moment, Tony is training a tiger he houses in a secured area of his property surrounded by a 12-foot cyclone fence. The tiger has been with the circus for years and has never displayed aggressive tendencies. However, startled by the sound of Peter’s car approaching at a high rate of speed, the tiger runs through the entry door in the fence that Tony had inadvertently left open.

Hours later Barry, the police chief, spots the tiger in town. Barry successfully rigs a trap to capture the tiger, but in the process, he trips over a sidewalk and badly injures his knee.

Six months later, still on crutches, Barry files suit to recover for his personal injuries, while Tony files suit seeking compensation for the lost Peruvian marigolds. The two suits are consolidated for trial. You are the law clerk to the trial judge who has asked you to prepare a memorandum on the potential tort claims and the defenses available to each defendant.

PREPARE THE MEMORANDUM

QUESTION 1 — ANSWER A

To: Trial Judge

From: Application

Re: Potential tort claims for Barry and Tony

Officer Barry’s Claims and Tony’s Defenses.

This case presents multiple claims that can be brought by Officer Barry and Tony. There are also defenses that can be raised by either party.

Barry’s claims against Tony.

Barry has a claim for negligence against Tony. However, because Officer Barry was acting within his official duty as a police officer, and because the tiger did not cause Officer Barry’s injury he most likely will not be successful in his claim against Tony.

In order to bring a claim of negligence a plaintiff must show that the defendant owed him a duty, breached the duty, the breach was a proximate or direct cause of the injury, and that the plaintiff suffered damages. Generally the ownership of a wild animal or an animal that is inherently dangerous is analyzed under strict liability, which means that the ownership of the animal and the injury alone are sufficient to show there was a duty and a breach of duty. In this case Tony owned a tiger. Tigers are considered wild animals. Thus, Tony is strictly liable for the injuries caused by the tiger. This shows that Tony had a duty to Officer Barry. Further, Officer Barry was injured in an attempt to capture the tiger after it escaped from Tony’s home. Officer Barry could establish that the Tiger was a proximate cause of his injury. Even though the tiger did not attack him or strike him, the attempt to catch the tiger was enough to show causation. Officer Barry has suffered damages. He has badly injured his knee and has been on crutches for at least six months. This most likely impaired his ability to work and engage in other activities. Thus Officer Barry has a claim for negligence against Tony.

Tony has potential defenses to the negligence claim. First Tony could raise a defense of comparative negligence. Generally most jurisdictions follow the comparative negligence standard. However, if New Jersey is a contributory negligence standard, Tony should raise that. Contributory negligence is a defense where by the plaintiffs own negligent actions bars him/her from recovery. In this case contributory negligence could bar Officer Barry from recovering because he tripped over a sidewalk. If New Jersey is not a contributory negligence state and follows comparative negligence, Tony should still raise the defense because it could limit how much Officer Barry could recover. In a pure comparative negligence jurisdiction the plaintiff’s negligence would limit recovery by the percentage if his/her own fault. Thus by raising the defense Tony may be able to limit his liability to officer Barry.

Further, Tony should raise the defense that he cannot be liable because Police officers and firefighters cannot recovery for injuries sustained while acting in their official role. Thus a police officer who is on duty, and in the act of his official job, cannot sue for injuries sustained during that act. To that effect, Tony would argue that Officer Barry was a police officer, on duty, and was acting in his capacity as a police officer when he decided to trap the tiger. He was injured in the process of that act, and should be barred from recovery.

Also, Tony could argue that the tiger was not the cause of Officer Barry’s injury. The tiger did not attack or attempt to attack the officer. Instead the officer went out to trap the tiger and was injured by his own fault, when he tripped over the sidewalk. He could have been injured by tripping over the sidewalk even if there was no tiger present. Thus the tiger was not a cause of the injury, and thus a negligence claim cannot succeed. Tony could also argue that he is a circus animal trainer so he was not keeping the tiger as a pet, but as part of his job. Thus he is not liable under strict liability.

Tony’s suit for compensation.

Tony has a cause of action for trespass and conversion against Peter. Peter has a defense of private necessity, however that will not prevent Peter from having to pay for the damages caused by his car. Tony may also bring a claim for negligence against Vera.

Trespass is the intentional invasion of the property of another, that interfere’s with the owners use and enjoyment of their land. The act must be voluntary, but the actor does not have to know that they have crossed the boundary line onto someone else’s property. Tony would have a claim of trespass against Peter and Dawn because Peter drove his car onto Tony’s land in an attempt to get to the hospital. Tony did not give Peter permission to enter his property or drive through it. Thus Peter has committed a trespass. In a trespass case Tony does not have to prove damages, but in this case he has damages. Peter drove over Tony’s rare Peruvian marigolds. The seeds to plant them cost thousands of dollars. Peter driving over the marigolds has deprived Tony of his use and enjoyment of the land. In defense to the trespass claim Peter would argue private necessity. His wife was in labor and needed to get to the hospital. Peter would argue that the highway was blocked and cutting through Tony’s land was the only way to get to the hospital in an emergency situation. However, even in a private necessity defense, the defendant is not exempt from liability.

Additionally Tony could bring a negligence action against Peter and Vera. Against Peter, Tony would argue that Peter had a duty to act as a reasonable person in an emergency situation would. He breached that duty because a reasonable person would not drive across someone else’s field at a high rate of speed. His breach of duty was a direct cause of the marigolds being damaged and Tony suffered damages as a result. Peter would argue, in his defense, that he was not negligent because a reasonable person in his situation would have cut across a large field to get to the hospital, when there was no other way to get there. Tony would also bring a negligence suit against Vera, the truck driver. He would argue that she was negligent per se because she was in violation of a state law when her truck overturned. Negligence per se is an action which shows that the violation of a statute is enough to establish a duty and the breach of a duty. Thus Tony would only have to prove causation and damages, which in this case, he would argue that because of the negligence of Vera, Peter had to drive onto his land, and his marigolds, which cost thousands of dollars to plant, were damaged. In defense Vera would argue that this is not negligence per se, because the statute is not aimed at protecting the class of plaintiffs that Tony belongs to nor does it protect from the harm suffered by tony. The statute was not enacted to protect Tony from someone driving on his field, because of a traffic jam due to an accident. Thus, Vera would argue that it is a simple negligence case, and she did not breach any duty to Tony. She was driving carefully and in the situation, of coming across a deer, she acted as a reasonable person in her situation would have acted. She simply applied her brakes to avoid a collision. It was reasonable in the circumstance and thus should not be liable for negligence. Further Tony cannot show that any potential breach was a cause of his damages. Peter was a superseding intervening force, that would prevent her from any liability.

QUESTION 1 — ANSWER B

To: Presiding Judge

From: Applicant/Law Clerk

Re: Tort Claims

Date: July 26, 2012

Barry vs. Tony. Tony will probably be strictly liable to Barry for the damage to Barry’s knee. The issue is whether owners of non-domesticated animals are strictly liable for the torts these animals cause, absent any dangerous or known propensities. The rule is that owners of non-domesticated animals, those other than dogs, cats, and livestock, are strictly liable for the torts these animals cause including bites and any injuries suffered upon their capture as long as the injuries were proximately caused by the dangerous animal. Here, although the tiger did not bite Barry or harm him directly, Barry was injured by tripping over a sidewalk and badly injuring his knee. His knee injury was foreseeable in that the capture of a dangerous animal can be dangerous to the capturers including injuries like Barry’s knee. Thus, capturing the tiger was the proximate cause of Barry’s injuries and he can recover against Tony for his knee damage.

It should be noted that since the theory of Barry’s case is strict liability, any precautions he takes in protecting society from Tony is no defense and irrelevant. Thus, even though the tiger escaped because of Dawn and Peter’s detour, that is no defense to the damage the tiger may cause to other victims, namely Barry.

Tony may have a defense of comparative negligence against Barry’s claim of strict liability. Most common law jurisdictions have abandoned traditional contributory negligence and have adopted comparative negligence in its pure form, meaning Barry’s damages can be reduced by his own percentage of fault, as assigned by the jury. Others have adopted a partial or modified comparative negligence meaning if the plaintiff, here Barry, is more than 50% negligent, he will not be able to recover against a defendant. On these facts, it isn’t clear if Barry was even negligent as the situation was an emergency one and he most likely acted as a reasonable person would under the circumstances. Therefore, it is unlikely that Tony’s liability will be reduced by Barry’s comparative negligence.

Tony vs. Dawn and Peter. Dawn and Peter will probably be jointly and severally liable to Tony for trespass to property. The issue is whether people who traverse another’s land during an emergency are liable to the property owner for damages. The rule is that an intentional physical invasion of another’s property is the tort of trespass to property and the tortfeasors will be liable for all actual damages to the property. Here, Dawn and Peter decided to detour through a large field, owned by Tony, and drive over Tony’s rare Peruvian marigolds, which costs thousands of dollars. Dawn and Peter will be liable to Tony for the damages they caused because they did in fact intentionally physically invade Tony’s property with their car and caused him damages. Dawn and Peter will be jointly and severally liable as joint tortfeasors for the damages to Tony’s marigolds.

Dawn and Peter may try the defend against Tony’s trespass to property claim with the defense of private necessity. Private necessity is a defense to trespass to property and can best be described as a “lesser of evils” defense. Here, Dawn and Peter drove over Tony’s field because the road was blocked by Vera’s truck. Dawn was in labor and thus needed to get to the hospital as soon as possible. Peter was unwilling to wait for the highway to clear, so he chose the lesser evil of not waiting and potentially having to deliver his baby in the car, or driving over a field. However, in a private necessity defense, as opposed to a public necessity one, the defendant is liable for all actual damages stemming from his trespass, although, had the circumstances been such that Dawn and Peter needed a house to deliver the baby, they could not be evicted by Tony during the emergency. Thus, Dawn and Peter would still be jointly and severally liable to Tony for the damage to his marigolds and any other incidental damages to his land.

Dawn and Peter v. Vera; Tony v. Vera. Dawn and Peter probably won’t have a claim for contribution against Vera. The issue is whether Dawn and Peter may recover any award against them asserted by Peter from Vera. The rule is a negligent tortfeasor will be liable for all actual and foreseeable damages stemming from his negligence. Here, Vera avoided a deer by slamming on her brakes to avoid collision but due to her cargo, the shifting weight of the dynamite, the truck turned over and blocked traffic for hours, causing Dawn and Peter the need to detour onto Tony’s property. The threshold issue is whether Vera was in fact negligent. To be negligent, she would need to owe Dawn, Peter, and potentially Tony (i) a duty of care to acts as a reasonably prudent person under the circumstances, (ii) have breached that duty of care, (iii) because of the breach, Dawn, Peter, and potentially Tony suffered damages and been the cause in fact and proximate cause of such damages, and (iv) actual damages. Vera of course owes a duty as a reasonably prudent person under the circumstances to all foreseeable victims, which includes at least Dawn and Peter. In addition, she may be found to be negligent per se given that she violated posted signs prohibiting commercial traffic. The test for negligence per se as a substitute for the duty of care, would be whether the property damage that occurred is in the class of dangers and class of harms that the ordinance was meant to alleviate. Here, the signs were meant to prevent commercial traffic from potentially causing accidents and clogging the road. Thus, Vera may be found negligent per se and thus liable for all cause in fact and proximately caused damages.

However, it is unclear that Vera would be the proximate cause of Dawn, Peter and Tony’s damages given that one could not foresee that avoiding a deer would cause property damage elsewhere. Dawn and Peter’s own volition was the driving force behind their detour, which may be a superseding and intervening cause of the harm to Tony’s land.

Contribution requires a showing that Vera was in fact negligent and jointly liable for Tony’s property damage. If such a showing is made, the jury will assign the tortfeasor his percentage fault and he will be liable to Dawn and Peter. It is unclear on these facts that Vera’s negligence was the proximate cause of Tony’s and thus Dawn and Peter’s damages. Thus, Dawn, Peter, and Tony’s claim against Vera will probably fail.

It should also be noted that Tony may also try to assert a negligence claim against Vera separately or if she is joined as necessary party to the action against Dawn and Peter, he may assert his own claim. However, the above analysis would still apply and thus Vera will probably not be found to be liable for Tony’s property damage.

Another theory Dawn, Peter, and Tony may try is strict liability for ultrahazardous activities. The issue is whether a truck driver will be liable for any damages simply for transporting ultrahazardous goods. The rule is that a transporter of ultrahazardous materials will be liable for any damages that they proximately cause. Here, although the shifting weight of dynamite caused the truck to overturn, there was no detonation of the dynamite. Had the dynamite detonated or people were fleeing to avoid the detonation and harm of the dynamite, Dawn, Peter and Tony would have a good case in strict liability. Here, however, their damages were remotely caused by the shifting weight of the boxes that the dynamite was stored in and this does not bring about a cause of action for strict liability for ultrahazardous activities. Thus, this claim should fail too.

QUESTION 2 — CONSTITUTIONAL LAW

In July 2011, the State enacted legislation outlawing same sex marriage. Yary is a police officer. Yary and Dominga, her life partner, were married in June 2011 pursuant to the State’s civil union statute.

Yary had also commenced the process of undergoing a sex change operation and now wears clothing traditionally associated with the male gender. When Yary’s supervisor, Clemencia, learns of the transgender plans, she terminates Yary’s employment without notice after 20 years of service in August 2011.

In September 2011, Yary successfully completed the transition to the male gender. He returns to attending services at his non-denominational church. Clemencia knows Yary and his fellow church members smoke mamajuana, an illegal Dominican, hypnotic drug, as a sacrament during these services.

Using her position as the township police captain, Clemencia surreptitiously places a GPS tracking device underneath Yary’s car to monitor his private activities. The police track Yary’s car to the church, obtain a telephone search warrant, arrive at the church to execute the warrant and arrest the congregants in attendance, including Yary and Dominga, for the illegal possession and use of mamajuana.

Yary and Dominga come to your office seeking advice about a potential challenge to the same sex legislation and their other legal problems. They ask you to prepare a memorandum of law outlining the potential constitutional claims and defenses each may assert. They also want an assessment of the defenses that may be raised against them.

PREPARE THE MEMORANDUM

QUESTION 2 — ANSWER A

MEMORANDUM OF LAW

TO: Yary and Dominga

FROM: Attorney

RE: Brief discussing your legal issues

Issues Presented

1. Does the July 2011 enactment of legislation outlawing same sex marriage violate the New Jersey or United States Constitutions?

2. Was Yary’s termination from her place of employment a lawful termination?

3. Was the arrest of Yary, Dominga, and other congregants at their church a lawful and Constitutional arrest?

Suggested Answers

1. No, laws prohibiting same sex marriage are presently permissible under both the state and federal Constitution. Clients should, however, challenge the statute by make a compelling argument that the law violates the Fourteenth Amendment.

2. Likely no, termination on the basis of sex is a violation of Title VII and may have deprived Yary of due process of law.

3. Yes, while the search warrant was illegally obtained, the inevitable discovery doctrine permits the legal arrest of the congregants.

Argument

1. Marriage in the United States is governed by state law, but, like all laws, is subject to the restrictions of the U.S. Constitution. Marriage is a fundamental right that, under the Due Process Clause of the Fourteenth Amendment of the United States Constitution, cannot be denied unless necessary to achieve a compelling government interest. Further, under the Equal Protection Clause of the same amendment, a statue cannot discriminate between groups without a reason; in the case of a suspect classification, there is a heightened standard required for discrimination. All other delineations of groups merely require a showing of a rational relationship to a legitimate government interest.

Here, the State banned same sex marriage by statute. Neither the United States Supreme Court, nor the Third Circuit Court of Appeals, have ruled on this issue. In the absence of a ruling, same sex marriage bans have been permitted as constitutional, as sexual orientation is not a suspect classification and the government need only present a legitimate interest in banning same sex marriage. The New Jersey Supreme Court, similarly, has not ruled on the constitutionality of this issue, thus leaving the legislature and governor free to ban such marriages. Yary and Dominga should, however, make a constitutional claim that a fundamental right is being denied to them absent a state showing of a compelling government interest and also make an argument that a ban on marriages on the basis of sexual orientation fails rational basis scrutiny and is a denial of equal protection of the law, which is unconstitutional under the Fourteenth Amendment. Those would be strong arguments to make to challenge the law and a denial of a marriage license to them and supported by two circuits, but at present the legislation is valid.

2. Yary’s termination from the police department likely violated Title VII of the Civil Rights Act of 1964 and may have deprived her of procedural due process of law in violation of the Due Process Clause of the 14th Amendment.

Title VII prohibits discrimination in employment on the basis of race, ethnicity, national origin, sex and religion. It applies to all employers, pubic and private with 15 or more employees. Under this federal statute, an employer may not make a decision in the hiring, termination, refusal to promote, demotion, pay, or hindrance to work environment of an employee or prospective employee because of her membership in one of the above named protected classes. Discrimination on the basis of sexual orientation is not protected by Title VII, but transgender individuals have been able to succeed in limited circumstances by arguing that discrimination on the basis of sex realignment surgery or failure to conform with gender stereotypes violates the prohibition on discrimination on the basis of sex.

Here, when Clemencia, Yary’s supervisor, learned of Yary’s transgender plans, Yary was terminated. Termination is, in all cases, an adverse employment action. Yary should argue, with a high likelihood of success, that this adverse employment action was taken solely because of Yary’s sex, because Yary was not conforming to the stereotypes associated with the sex she had previously outwardly displayed. A burden shifting takes place whereby Clemencia and the police department will have an opportunity, through a burden of production, to show that their firing was for a legitimate non-discriminatory reason that did not involve sex. The burden of persuasion then shifts back to Yary, who must show that this legitimate non-discriminatory reason was merely a pretext to cover up the real reason: sex discrimination. In doing so, Yary may point to her 20 years of service and rely on evidence of good performance as well as circumstantial evidence, including stray remarks by Clemencia, about Yary’s sex.

Yary, as a government employee, may also challenge the manner of her termination on the basis of a violation of due process. Under the Fourteenth Amendment of the Constitution, state actors are required to provide procedural due process when taking action that would deprive an individual of their life, liberty or property. To satisfy procedural due process requirements, the state must provide proper notice of the deprivation and a meaningful opportunity to be heard to challenge the deprivation through an evidentiary hearing.

Here, Yary must show that she had a property interest in her job as a township police officer. (As a local government, the township is a state actor and the 14th Amendment applies.) If Yary was unionized, she likely has a property interest under her contract. She was terminated without notice and without a hearing. Thus, her due process was violated in violation of the U.S. Constitution.

3. The arrest of Yary, Dominga and the other congregants for illegal possession of mamajuana raises issues under both the First and Fourth Amendments as incorporated to the state through the Fourteenth Amendment.

The First Amendment protects the religious freedom of each individual and prohibits the government from establishing or favoring a given religion or religious beliefs. This includes government prohibitions that interfere with essential components of deeply held belief in god or something that fills the traditional role of god in one’s life.

Mamajuana is an illegal substance, yet it is a sacrament in Yary’s church. The law prohibiting the use of mamajuana is likely constitutional if it is neutrally applied to everyone, rather than targeting Yary’s church. Thus, even though the church considers it a sacrament, its ban does not violate the First Amendment because it is applied uniformly for a secular purpose.

However, there are also Fourth Amendment issues. The Fourth Amendment of the U.S. Constitution ensures that people will be protected from unreasonably government searches and seizures and secure in their persons and places. It requires that probable cause be shown to obtain a warrant to search or seize someone or something and that, in the absent of a warrant, exigent circumstances exist or probable cause otherwise be obvious such that a warrant would have been issued by a magistrate if circumstances had permitted. Evidence obtained or arrests made in violation of the Fourth Amendment are not valid or admissible in U.S. courts.

Here, Clemencia, acting as a police officer, placed a GPS tracking device underneath Yary’s car. This purpose was to monitor his private activities. This action likely violated the warrant requirement of the Fourth Amendment, as there is no indication that Clemencia obtained a warrant prior to placing the GPS device. The Fourth Amendment only protects against searches where a person would have a reasonable expectation of privacy. Yary had a reasonable expectation of privacy in the movement and private activities of his car. The Fruit of the Poisonous Tree doctrine prohibits the introduction of evidence or use of information obtained as a result of an unconstitutional search, such as this one. However, an exception exists if the result would likely have occurred anyway, that is, if the information, even without the illegal search, would have been inevitably discovered. Here, as Clemencia knows about the mamajuana smoking at Yary’s church, this would have been inevitably discovered by Clemencia just showing up at the church, the arrests are therefore likely valid.

QUESTION 2 — ANSWER B

MEMORANDUM

To: Yary & Dominga

From: Applicant

Date: July 26, 2012

Re: Constitutional challenge to same sex legislation & other legal issues

In this memorandum I will outline the potential constitutional claims you have arising out of the same sex marriage legislation, the termination of Yary’s employment, the potential First Amendment implications of your use of the mamajuana drug and potential constitutional defenses to your criminal possession and use charges.

I. Potential Challenge to the Same Sex Marriage Legislation.

There are two avenues to analyze this issue. First, the 14th Amendment Due Process Clause has both procedural and substantive components. While I will discuss the procedural components later in this memo, the substantive component is at issue here. Substantive due process protects a variety of rights and serves as a constitutional “catch all” for rights which are recognized by not delineated elsewhere in the Constitution. Marriage is a fundamental right protected by the 14th Amendment’s Due Process Clause. Fundamental rights under the 14th Amendment are given “strict scrutiny,” meaning that any law that infringes on a fundamental right must be narrowly tailored to a compelling state interest. This is a very high burden to meet and many laws which infringe on a fundamental right will be struck down under the strict scrutiny analysis. However, because of the federal Defense of Marriage Act (DOMA), the states are free to either permit or outlaw same sex marriage.

The second avenue to analyze this issue is the 14th Amendment’s Equal Protection Clause. The Equal Protection Clause requires that individuals be treated the same. When a law discriminates against a particular group of individuals, the Equal Protection Clause is implicated. Here, the same sex marriage legislation discriminates against homosexuals because it denies homosexuals the right to marry under state law. However, law discriminating against homosexuals are only given “rational basis review” because homosexuals are not considered a suspect class. Suspect classifications include race or national origin. Gender is an intermediate suspect class. Other classifications such as wealth, age or disability are given rational basis review like homosexuality.

As you can see, there are several ways to attack the same sex marriage legislation as unconstitutional. Another obstacle is the issue of standing. Standing is an individual’s ability to bring a claim in court. Standing requires that the individual have suffered an injury, that the injury be subject to redress and that the injury be related to the claim at issue. When a claim is unripe, it is brought too soon. When a claim is moot, it is brought too late.

My first concern is that Yary and Dominga (Y & D) may not have standing to challenge the same sex legislation. To challenge the law, you must first have been injured by it. Here, Y & D were married pursuant to the State’s civil union statute. However, Y & D never applied to be married and were never refused marriage as homosexuals under the July 2011 outlaw. However if Y & D’s civil union is affected negatively by the July 2011 ban on same sex marriage, then that would qualify as valid standing.

A second concern is that now Yary has successfully completed the transition to the male gender. If, at this point, Yary would be recognized as a male rather than a female, Y & D would not longer be considered homosexuals. Thus, Y & D would not longer be refused a marriage license under the July 2011 law. This would render the claim moot, because an issue no longer exists for Y & D and they are no longer prohibited from getting married as homosexuals, because they would now be classified as a man and woman validly applying for a marriage license.

Because Y & D’s claim is likely now moot, Y & D, as a couple do not have standing to challenge the law. Although the 14th Amendment Due Process and Equal Protection Clauses remain available avenues to challenge the July 2011 ban on same sex marriages, Y & D are not plaintiffs with standing to do so.

II. Yary’s termination of employment

The 14th Amendment also has a procedural component. Procedural Due Process protects the rights of life, liberty and property against government intrusion. Procedural Due Process requires that certain procedural rights be adhered to before an individual is deprive of life, liberty or property. Government employment is considered a property right protected by the 14th Amendment. So long as an individual has an expectation of continued employment and is not an “at will” employee, than the property right to continued government employment exists. Typically, procedural due process requires that an individual be granted notice and an opportunity to be heard before they are deprived of a property right such as government employment. Procedural Due Process does not require an extensive or complicated hearing process but does require an opportunity for the employee to have notice and be heard prior to being discharged.

Yary has a viable claim against his government employer for violation of his procedural due process rights. Yary’s supervisor terminated Yary’s employment without notice after 20 years of service. Yary appears to have had an expectation of continued employment, and thus had a protected property interest in his employment. The supervisor denied Yary procedural due process by terminating him without notice or an opportunity to be heard.

Yary also has a viable claim against the government employer for employment discrimination. Although transgender individuals are not considered a suspect class, State law likely forbids such employment discrimination and a viable claim under such an applicable statute would be successful.

III. First Amendment concerns arising out of the illegality of Mamajuana

The First Amendment protects the Freedom of Religion. The First Amendment is incorporated to the states via the 14th Amendment’s Due Process Clause. The Freedom of Religion includes both the Free Exercise Clause and the Establishment Clause. The Establishment Clause forbids the government establishing of religion or non religion. The Free Exercise Clause forbids restrictions aimed at stifling religious belief or religious activity. However, while the freedom to believe is absolute and cannot be infringed, the freedom of exercise is not absolute. Laws which are neutral on the law’s face and do not target religion but do incidentally affect religious exercise are typically valid and only subject to rational basis review analysis.

Y & D have no viable claim that the illegality of possession and use of mamajuana violates their 1st and 14th Amendment rights. The law against possession and use of mamajuana would survive a rational basis review challenge because the state has a legitimate interest in prohibiting the use of hypnotic drugs and the law is rationally related to that interest. In addition, the law is neutral and does not specifically target Y & D’s non denominational religious group. Thus, a First Amendment challenge to this law and Y & D’s charges would fail.

IV. Constitutional Defenses to the criminal charges.

The Fourth Amendment prohibits unreasonable searches and seizures without a warrant. Individuals are entitled to be free from searches that infringe on a reasonable expectation of privacy and are entitled to be free from illegal seizures of their person or property. A warrant requires probable cause and must be issued by a neutral magistrate. Probable cause for a warrant may be based on an officer’s personal knowledge but it can also be based on a combination of other evidence.

The use of a GPS tracking device, placed on a vehicle, is a search. Whether the search is unreasonable and requires a warrant depends on the extent of the intrusion. When a GPS device only tracks information that could also be visible from public space, the search is reasonable and does not require a warrant. However, extended use of a GPS could render it unreasonable and in violation of the 4th Amendment. When a GPS device tracks and provides information that could not otherwise be seen from public space, such as a location inside a home, garage or privately owned warehouse, than the search is unreasonable and in violation of the 4th Amendment without a warrant.

The exclusionary rule is a constitutional method of excluding evidence from trial that has been illegally seized in violation of the defendant’s rights. A motion to suppress the mamajuana seized in this case would likely be successful because an argument can be made that Y & D’s 4th Amendment rights were violated. The extent of the GPS tracking will be an important inquiry and it must be argued that the GPS intrusion was extensive and extended past anything visible from public space.

The argument can also be made that the probable cause to the search warrant was insufficient and thus the warrant and subsequent search and arrest was also invalid. The warrant’s probable cause was likely based on Clemencia’s personal knowledge that the GPS tracking device of Yary’s car to the church. Whether this amounts probable cause is questionable and a viable claim can be made that it does not. If the warrant was insufficient and in violation of the 4th Amendment than the evidence seized can be suppressed. Without the drugs as evidence, the charges against Y & D for illegal possession and use of mamajuana would likely be dropped. It is worthwhile to pursue these suppression motions.

Please let me know if you have any questions or concerns and how you would like to proceed from here.

QUESTION 3 — CRIMINAL LAW

Owner, the owner of a commercial building, was in severe financial distress. The building was unoccupied, the taxes were unpaid, and Owner had allowed the building’s insurance to lapse through non-payment. Owner’s municipality had determined the building a hazard and, as a result, had boarded up its entrances and fenced off the property. The municipality demanded that Owner tear down the building.

Owner decided, however, to burn down the building. He borrowed a filled 5-gallon gas can from his friend B and went to the building. After determining that the fence boards securing the building were intact, he entered the building and looked for any occupants. V, a transient sleeping in the building, heard Owner and hid in a closet.

Owner poured the gasoline on the floor of the building, left a lit cigarette near the gasoline, and returned to his car. Owner waited until the fire ignited and then called 911 from a pay phone to report the fire. The building burned to the ground and killed V. The police investigation revealed that gasoline was used as an accelerant.

Several days later, Police observed Owner in his parked car. Police recognized Owner and approached him to speak about the fire. Police smelled alcohol on Owner’s breath and immediately ordered Owner from the car, searched its interior, opened the car’s trunk, and found the 5-gallon gas can. Police placed Owner under arrest, read him his Miranda rights, and transported him to the police station.

Police questioned Owner, who denied any involvement with the fire. Police secretly recorded Owner’s questioning for comparison to the voice on the 911 call, which call Owner denied making.

You are a clerk in the County Prosecutor’s Office. The Assistant Prosecutor handling this matter has asked you to prepare a memorandum detailing all possible charges against Owner as well as all anticipated defenses.

PREPARE THE MEMORANDUM

QUESTION 3 — ANSWER A

To: Prosecutor

From: Clerk

Re: Owner arrest

The following memorandum addresses the substantive crimes we might charge owner with, and the procedural defenses he may raise.

Substantive Crimes

Arson

The issue is whether Owner committed arson by burning down his own building. At common law, arson was the malicious burning of the dwelling of another. A dwelling is a structure designed primary for residential use, whether or not it is or usually is occupied. Malice means the defendant either intended the burning, knew the burning would result from his actions, or recklessly caused the burning. The burning need not totally destroy the building, but must cause substantial damage. Many jurisdictions have abolished the rule that the building must be a residence. Some jurisdictions have abolished the rule that the building must be owned by another, if the burning was intended to facilitate insurance fraud.

Here, Owner intentionally burned the building to the ground. However, the building was a commercial building, not a dwelling. The mere fact that V was sleeping there at the time does not transform the nature of the building. Therefore, the dwelling element is not met, unless this jurisdiction has abolished it. Further, Owner actually owned the building. Thus, he did not burn the building of another. Even if the jurisdiction allows an intent to commit insurance fraud to substitute for non-ownership of the building, Owner had already allowed insurance to lapse, so could not have had such intent. Therefore, arson probably cannot be proved.

Conspiracy to Commit Arson

The issue is whether Owner committed conspiracy by borrowing B’s gas can. A conspiracy is formed between two people when they agree to commit a crime with the intent that a crime be committed. Some jurisdictions also require that there be an overt act made towards the end of the conspiracy. At common law, a conspiracy cannot be formed unless two people actually agree to commit the crime; there is no conspiracy if one has no intent to commit the crime.

Here, Owner involved B is the arson by borrowing his gas can. However, gas cans are perfectly legal implements with many non-criminal uses. There is no evidence that B knew what Owner intended to do with his gas can, and therefore there is no evidence that B agreed to commit a crime with the intent a crime be committed. Without such evidence of B’s knowledge and agreement, no conspiracy was formed. This charge will therefore likely fail.

Murder

The issue is whether Owner murdered V by burning down the building. Murder is the unlawful killing of another person with intent to cause death or serious bodily injury, or with depraved indifference to human life, and with malice aforethought. Malice aforethought means the defendant coolly reflected on the act he was about to take, at least for a moment.

Here, Owner intentionally burned the building, which act caused V’s death. However, there is no evidence he intended V’s death. Therefore, he can only be convicted if he caused the death with reckless indifference to human life. Owner checked the building to see if the fence boards were all intact, then actually entered the building to make sure no persons were present. Only then did he start the fire. While such actions may have been inadequate, they do show that Owner was acting with some concern for human life, and intended to spare it. Thus, he cannot be called depravedly indifferent. Owner therefore lack the mens rea for murder, and cannot be convicted.

Felony Murder

The issue is whether V’s death in the course of a burning qualifies as felony murder. When a defendant commits an inherently dangerous felony, and a person dies in the course of that inherently dangerous felony, the defendant is guilty of felony murder. The defendant need not have intended or expected the death. Arson is an inherently dangerous felony.

V died in the course of Owner’s intentional burning of the building. If this burning was arson, then Owner would be guilty of felony murder. However, as above, it appears there was no arson. Therefore, Owner’s guilt of felony murder is dependent on his guilty for arson.

Voluntary Manslaughter

The issue is whether, if not murder, V’s death counts as voluntary manslaughter. A person is guilty of voluntary manslaughter if he commits a murder in imperfect self defense, or under the heat of passion. Imperfect self defense is when a person defends himself in honest belief he is under deadly attack, but such belief is unreasonable. The heat of passion is shown when the person reacts to an irresistible impulse with no chance to reflect. Neither condition is applicable here, and murder cannot be proved either. Therefore, Voluntary Manslaughter is inappropriate.

Involuntary Manslaughter

The issue is whether V’s death counts as involuntary manslaughter. Involuntary manslaughter is shown when the defendant causes the death of the victim with mere recklessness or with criminal negligence, but without the intent to cause or knowledge there would be death or serious bodily injury. Criminal negligence is gross negligence.

Here, while Owner may have believed there was no one in the building, he could not have known that. In fact, he was wrong, and his burning caused death. Burning a 5-story building without authorization is almost reckless by definition. Involuntary manslaughter is thus probably proven.

Procedural Defenses

Car Search

The issue is whether the search of Owner’s car was reasonable. If such search was not reasonable, all evidence traceable to it must be suppressed. The Fourth Amendment to the Constitution, applied to the states by the Fourteenth Amendment Due Process Clause, prohibits unreasonable searches and seizures. A search or seizure is presumptively unreasonable if conducted without a warrant, unless subject to an exception. Automobiles are subject to lesser protection. If an officer plainly views an object from outside the car, such plain view is not a search, and he may seize the object if it is plainly criminal. Further, during any traffic stop conducted due to reasonable suspicion that a crime has been committed, the police may order the suspect out of the car. The police may search the car within the wingspan of the suspect for weapons, to ensure officer safety. If the suspect is arrested, the police may then search the car for evidence of the crime for which the suspect was arrested. Even without an arrest, the police may search the car upon probable cause to believe the car contains contraband.

Here, the police were entitled to approach Owner, and to look in his car windows. However, the police had no reasonable suspicion that any crime had been committed at that point. While the suspect appeared drunk in his parked car, the charge of drunk driving generally requires that the driver be operating the car, and there is no evidence here the key was in the ignition. Ordering him out of the car was therefore improper. Further, once he was ordered out, the police were only entitled to search within his wingspan for weapons. The trunk is not included in such search. There was no arrest, and no probable cause to search. Therefore, the search was probably illegal, and the gas can must be suppressed as the fruit of an illegal search.

Miranda

The issue is whether the police violated the Fifth Amendment by questioning Owner, or by recording a voice sample. The Fifth Amendment, applied to the states via the Fourteenth Amendment, prohibits compelled self-incrimination. Under Miranda, when a suspect is interrogated in custody, he must be warned of his right to remain silent, that statements will be used against him, of his right to counsel, and his right to appointment of counsel. The suspect may then freely waive his right to counsel and talk. If the prosecution cannot show the rights were freely waived, then any confessions are inadmissible. Miranda only applies to communicative statements, and not to non-communicative sample such as blood, breath, or voice samples.

Here, Owner was brought into custody and read his Miranda rights. It is unclear whether he then voluntarily waived his rights, but this is irrelevant at this point because he did not say anything incriminating. The mere sound of his voice, as non-communicative evidence, is not subject to Miranda, and therefore the voice sample may be used even if the suspect’s Miranda rights were violated. Thus, the voice sample may be used in any case.

QUESTION 3 — ANSWER B

To: Prosecutor

From: Clerk

RE: Owner

Owner is guilty of arson. At issue is whether owner committed arson. Arson is defined as the malicious burning of a building. Owner, with intent-which is even beyond the mental state required for arson, planned and carried out, the burning of his own building. For arson to be completed, mere charring is not enough, but that is not at issue here, because the entire building was completely burned and destroyed.

At common law, arson required the malicious burning of a home, but the requirement of “home” or “dwelling” is no longer required. Thus, owners act in pouring gasoline all over and lighting a cigarette, constituted a malicious burning of the dwelling.

Owner is guilty of felony murder. At issue is whether owner is guilty of felony murder, by causing the death of V. Felony murder is defined as, in the course of committing an enumerated felony, the death of a non-participant is caused; the death must be a foreseeable consequence of the D’s actions. One such enumerated felony is arson. Therefore, any foreseeable death of a non-participant caused while committing the arson, would constitute murder.

V was a non-participant who was killed by Owner’s arson. Owner may raise a defense that the death was not foreseeable because V was hiding in a closet, but this will have to be determined at trial.

Owner could be found guilty of highly reckless murder. At issue is whether Owner’s actions were highly reckless, thus allowing a charge of highly reckless murder. Actions are considered reckless when they are done with knowledge of a substantial certainty that their actions will bring about particular consequences, and the actor disregards this substantial risk to human life and acts anyway. Here, even if Owner is successful at defending the felony murder charge, he will be liable for murder in the second degree as a highly reckless murder, or at the least, involuntary manslaughter as reckless murder.

Owner was aware with substantial certainty that starting a fire using 5 gallons of gasoline would cause a huge fire, and this putting anyone in the vicinity in great danger. Therefore he acted recklessly and will be guilty of at least involuntary manslaughter, if not murder in the second degree for being highly reckless.

Owner can raise the 4th amendment as a defense. The 4th amendment protects from unlawful searches and seizures. Generally, a valid is required to conduct a search of person’s home, car, or person, and a search without a warrant is unlawful, and under the exclusionary rule, such evidence will be inadmissible against the D. However, there are multiple exceptions to the warrant requirement. One such exception is the automobile exception. If, after the stopping of a vehicle by police, a reasonable suspicion arises as to the criminal acts or illegal contraband being hidden in the car, police may search the cars interior. The reason for this exception is that there is a lower expectation of privacy in one’s automobile.

Here, the police approached Owner’s car to speak to him about the fire, and immediately smelled alcohol on his breath. Because driving while intoxicated is illegal, and because odors and plain smell are not protected as private, the police had probable cause to search the interior passenger area of the car. However, they exceeded their scope during this search, by opening us the trunk of Owner’s car. The trunk may only be searchable if the police have reasonable suspicion that evidence pertaining to the crime that gave rose to the search, is likely to be found in there. Here, however, Owner was drunk and in his car, and this if her was drinking while driving the alcohol would not be in the trunk, rather it would be in the passenger area of the car. Thus, Owner can raise the defense that the gasoline should be suppressed, and his arrest is vacated, because the gasoline was discovered in violation of his 4th amendment right against unlawful searches and seizures.

Owner may also raise a violation of his 6th amendment right to counsel. At issue is whether Owner’s 5th and 6th amendment right to counsel was violated when he was questioned without counsel present. The 5th amendment protects a person’s right against self-incrimination, and this a suspect need not answer questions when interrogated by the police. However, this right is waivable, so long as the suspect makes a voluntary waiver of silence, and is not coerced or questioned under duress.

Owner was read his Miranda rights, and thus was informed of his right to remain silent. He then spoke to the police while being held and questioned. There is nothing in the evidence to suggest that Owner was coerced or threatened into speaking with the police, and thus he made a voluntary waiver of this right. Therefore, this defense by Owner will fail.

In addition, as told to Owner in his Miranda warnings, he has a right under the 6th amendment to be represented by counsel during this post-arrest interrogation. However, Owner has waived this right as well, as he has not requested his attorney, and he has spoken with the police anyway.

Owner may raise a defense that his due process rights were violated. At issue is whether Owner’s due process rights were violated, when his interrogation was recorded. Due process requires fair and just treatment of suspects, D’s, and convicts, Thus, Owner will argue that, by recording him without his knowledge violates this right. However, Owner is has been arrested, waived his right to remain silent, and is at the police station being questioned by police. He is not in a place where people have a reasonable expectation of privacy and anything he says can be used against him. Also, a person’s voice us not afforded protection under the 4th amendment because, like odors, it is not considered private.

The final issue will be whether the evidence obtained through questioning will be inadmissible under the fruit of the poisonous tree doctrine. Under this doctrine, evidence obtained through the exploitation of a Constitutional right violation, will be deemed fruit of the poisonous tree, and will be inadmissible against D. Thus, if Owner is successful in proving that the search of his trunk was unlawful, all subsequent evidence arising out of that search will also be excluded.

QUESTION 4 — EVIDENCE

Victoria was robbed of her purse and cellphone at gunpoint. During the robbery, the gun fired, and Victoria was killed. When the police arrived at the crime scene, they activated a cellphone GPS locator application from their computer. By following the GPS tracking signal, the police captured Sam, a suspect who matched the perpetrator’s description and was in possession of the victim’s purse and cellphone. Sam was charged with felony murder and armed robbery. At a pre-trial conference, the prosecutor advised the court she will offer the following evidence:

1. Testimony of Sam’s 6-year-old daughter that 2 days before the robbery, Sam told her that they were desperate for money and he would “do anything” to support her.

2. Testimony of the first aid responder that before she died, the victim stated, “If I do not make it, my attacker had a rose tattooed on his right arm.”

3. Testimony of Sam’s pastor that one week after the robbery, while in jail, Sam asked whether “he could be forgiven for doing something very wrong.”

4. The records from Victoria’s cellphone company tracking the location of her cellphone.

5. Testimony of Oscar, a police officer in Springfield, where Sam lives, that he would not be surprised if Sam robbed Victoria because he was known as a “troublemaker.”

6. Testimony of a social worker at the jail that when she met with Sam, he told her that he was “sorry about everything that happened.”

You are the trial judge’s law clerk and are assigned to write a memorandum advising the judge how the evidentiary issues raised by the parties should be resolved and why.

PREPARE THE MEMORANDUM

QUESTION 4 — ANSWER A

MEMORANDUM

TO: Trial Judge

FROM: Law Clerk

DATE: July 26, 2012

RE: Evidentiary issues in State v. Sam

This memorandum is in response to your request. Sam has been charged with felony murder and armed robbery. The prosecution has submitted piece of evidence for review. This memorandum will assess each evidentiary issue raised and advise how each should be resolved. Note that as a general matter, all relevant evidence is admissible. Evidence is relevant if it tends to make an element or defense more or less probable.

1. Testimony of Sam’s 6 year-old daughter

The testimony of Sam’s 6 year old daughter should be admitted. Generally, witnesses are presumed to be competent to testify. A witness will not be found incompetent merely by being below a certain age. When a young child seeks to testify, the court must assure that the witness has knowledge, perception, and memory of the event and understand the nature of an oath and requirement to tell the truth. Therefore, Sam’s 6-year-old daughter is presumed competent to testify and the judge should merely assess where she has the personal knowledge and ability to understand the oath prior to admitting her testimony.

Hearsay is an out of court statement offered for the truth of the matter asserted. Under the rules of evidence, hearsay is generally inadmissible unless it is written out of the definition or falls within an exception to the hearsay rule. Here, the prosecution seeks to introduce testimony of Sam’s 6 year old daughter. She will testify that two days before the robbery, Sam told her that they were desperate for money and he would “do anything” to support her. Sam’s daughter is therefore seeking to testify to a statement made by Sam, an out of court declarant.

However, the statement may fall outside the definition of hearsay. If a statement shows a declarant’s then existing state of mind, it may be admissible. This statement arguably does that.

However, if it is determined that the statement is being introduced for the truth of the matter asserted, that they needed money and he would do anything for her, it should be excluded unless it fits within an exception. There is an exception to the hearsay rule for party admissions. When a party makes a statement and that statement is used against that party, it is an exception to the hearsay rule. Here, the prosecution seeks to use Sam’s statement against him in court. Therefore, it qualifies as a party admission and should be admitted.

2. Testimony of first aid responder

The testimony of the first aid responder should be admitted as an exception to the hearsay rule under the exception for a dying declaration. The first aid responder seeks to testify that right before she died, the victim stated, “If I do not make it, my attacker had a rose tattooed on his right arm.” This is an out of court statement offered to prove the truth of the matter asserted, that the attacker had a rose tattoo. Therefore, it is inadmissible hearsay unless it falls within an exception.

One exception to the hearsay rule is for dying declarations. This exception applies only in civil and homicide cases. This is a homicide case so it may apply here. Further, the declarant must not be available for trial. Here, the declarant, victim, has died so she is unavailable.

The declaration must be made while the declarant is under the impression of impending death. She need not die, but must think that her death is imminent. The declaration also must relate to the cause and circumstances of her potential death. Here, the declarant made the statement as she was dying and said “I do not make it…” This indicates that she thought she was going to die. The statement pertains to identifying her attacker and thus is about the cause and circumstances of her death. Therefore, this testimony should be admitted as a dying declaration.

3. Testimony of Sam’s pastor

The statement should not be admitted because of the clergy-communicant privilege. Here, Sam’s pastor seeks to testify about a statement made by Sam. The statement, asking whether “he could be forgiven for doing something very wrong,” would fall into the admission exception to the hearsay rule (as discussed above) because it was a statement by a party sought to be used against that party.

However, testimony will not be admissible if it is protected by privilege. Privileges are governed by common law. One recognized privilege is for clergy-communicant communications. It requires that the communicant make the communications in confidence to the clergy member for religious purposes.

Here, Sam’s pastor is a member of the clergy. Sam’s pastor speaking with Sam in jail and Sam, one week after the robbery, asked if he could be forgiven. It is likely that Sam asking the pastor about forgiveness was in reference to forgiveness by God and thus was for religious purposes. Therefore, it is likely that the clergy privilege applies. If it the clergy privilege applies, the communicant holds the privilege and can prevent the clergyman from testifying. Therefore, this testimony should not be admitted, assuming Sam object, under the clergy-communicant privilege.

4. Records from Victoria’s cell phone company

The records should be admitted as business records, an exception to the hearsay rule. Documents, not just oral statements, can be considered hearsay if offered for the truth of the matter asserted. Here, the documents would constitute hearsay because they are being offered to prove the contents, that the cellphone was where the tracking records say it was.

Therefore, the records would be inadmissible unless within an exception. There is an exception for business records. In order to qualify under the business record exception, they must be made by an employee during the regular and ordinary course of business. That is, they must be something that the employee does on a regular basis, thus giving it a higher indicia of reliability. Here, if the cellphone company regularly keeps records of tracking services, this documented should be admitted under the business record exception.

Because it is a document, it may require authentication. For a writing, authentication requires that a witness show that it is what the proponent purports it to be. Therefore, assuming the records are properly authenticated, they should be admitted.

5. Testimony of Oscar

Oscar’s testimony should not be admitted because it is inappropriate character evidence. In a criminal case, the prosecution may not offer character evidence for the purpose of inferring the defendant’s conformity with that character. In other words, it can not be used to show the defendant’s disposition for a certain bad character trait to infer conformity therewith. In a criminal case, evidence of the defendant’s bad character may only be used for other purposes, such as to establish a motive, intent, modus operandi, mistake of fact, etc.

The defendant may first place his owner character into issue by introducing evidence of his good character to infer conformity therewith in order to prove his innocence. If defendant does so, then the prosecution may rebut this with character evidence for defendant’s bad character.

Here, Oscar, the police officer, seeks to testify that he would not be surprised if Sam robbed Victoria because he was known as a “troublemaker.” This evidence is not being used for any allowable purpose mentioned above. If it were, evidence of his reputation would be allowed. Furthermore, there is no indication that Sam has places his character into issue by offering evidence of his good character. Therefore, the prosecution is simply seeking to introduce Oscar’s testimony regarding his opinion of Sam and Sam’s reputation in the community merely to show his bad character to infer his guilt. This is not allowed. Therefore, Oscar’s testimony should not be admitted.

6. Testimony of social worker

The testimony of the social worker should not be admitted because of the socialworker-client privilege. The social worker seeks to testify that when she went to meet with Sam in jail, he said he was “sorry about everything that happened.” This is an out of court statement offered for the truth of the matter asserted, that Sam was sorry. It could be used to infer that he did something to be sorry for. However, this would qualify as a party admission (as discussed in more detail above) because it is a statement by Sam being used against him. It would therefore be admissible as a hearsay exception.

However, statement otherwise admissible will be excluded if they are privileged. The courts have recognized a psychiatrist/psychologists -patient privilege that extends to social workers and clients. Confidential statements made within the social worker-client relationship will be privileged.

Here, the social worker visited with Sam in jail. He told her that statement in confidence in her position as his social worker. As her client, Sam holds the privilege. Therefore, Sam can assert this privilege and prevent the social worker from testifying.

QUESTION 4 — ANSWER B

To: Trial Judge

From: Law Clerk

Re: Memorandum of Evidentiary Issues

Issue One: Nonhearsay, hearsay and child testimony

The testimony of Sam’s 6-year-old daughter can only be admitted if she is competent to testify. To be a competent witness, the witness: (1) must have personal knowledge of the facts that he or she is to testify regarding; and (2) take an formal oath to tell the truth. The oath is satisfied if the person is able to understand the nature of the oath as well as understand the nature of the promise being given. Sam’s daughter may only testify if these requisite elements are met.

Furthermore, the statement itself constitutes hearsay. It is a statement by an out-of-court declarant and offered to prove the truth of the matter asserted. However, there are many exceptions to the general hearsay rule. One such exception is the party admission, which stipulates that a party may introduce any statement against the opposing party if the statement was made by the opposing party. The statement here is made by Sam and therefore would be admissible against Sam.

The statement also constitutes a nonhearsay statement as circumstantial evidence of speaker’s state of mind. Statements that are not offered to prove the truth of the matter asserted, but rather aim to shed light on the speaker’s state of mind at the time the statement was made, are admissible. The usage of these nonhearsay statements can provide insight into speaker’s motive or intent. Here, the statement can be used by the prosecutor to demonstrate that Sam was in dire need of money and would be willing to take drastic steps in order to help her daughter. The statement is not offered to prove that Sam actually committed the crimes, but rather to demonstrate her situation prior to the events in question.

Issue Two: Hearsay and dying declaration exception

The testimony sought to be admitted is a statement made by an out-of-court declarant offered to prove the truth of the matter asserted. This is hearsay and is generally inadmissible. However, there are exceptions to the general rule. In particular, under the dying declaration exception, an out-of-court declarant, who is no unavailable to testify, that makes a statement regarding the circumstances and cause of his or her impending death may be admitted. Death must be imminent and the statement must regard the circumstances of the death.

Here, the first aid responder heard the victim state that “If I do not make it, my attacker had a rose tattooed on his right arm.” The admissibility of this statement turns on whether death was imminent. It does relate to the circumstances of death, and in particular the identity of the attacker. Most likely, the evidence should be admitted given that Victoria was shot and ultimately died. The statement to the first-aid responder will be admitted as a dying declaration and as an exception to the general rule against the inadmissibility of hearsay.

Issue Three: Hearsay, party admissions and privileged communications

The testimony of Sam’s pastor that Sam asked whether “he could be forgiven for doing something very wrong” constitutes a statement by an out-of-court declarant and is offered to prove the truth of the matter asserted. Thus, it is hearsay, and under the general rule, hearsay is inadmissible. However, there are many exceptions to the general rule. In particular, a party may introduce a statement made by the opposing party as a party admission. There is no confrontation requirement and the statement may be admitted to impeach or as substantive evidence.

Here, Sam, the opposing party, made the statement. Therefore, the prosecutor is free to admit Sam’s statement as a party admission. It is not required that Sam be admitted. The party admission will constitute an exception to the general rule against the admissibility of hearsay.

Despite the applicability of the party admission hearsay exception, the privilege between Pastor and Penitent applies. Sam asked his Pastor whether “he could be forgiven for doing something very wrong” in a private confidential conversation. The purpose of the communication went directly to the nature of the relationship between Pastor and Penitent. Confidential communications of this nature are privileged and may not be used by the opposing party in court, unless an exception applies. One such exception is voluntary waiver, which occurs by the party holding the privilege bringing the statement into issue. There is no indication that Sam has voluntarily waived the privilege. Consequently, the statement may not be admitted as a party admission because it is privileged.

Issue Four: Hearsay and the business records exception

The records from Victoria’s cellphone company will be admissible provided they satisfy the business records exception to hearsay. In general, oral or written statements made by an out-of-court declarant are inadmissible if offered to prove the truth of the matter asserted. However, the business records exception constitutes an exception to the general rule. To satisfy the business records exception, the records: (1) must be made in the regular course of business; (2) be regularly made; (3) the record sought to be introduced must be made in the regular manner; (4) the record sought to be introduced must have been made close to or contemporaneous with the event in question; and (5) made by an employee or agent with personal knowledge of the relevant event.

The records from Victoria’s cellphone company tracking the location of her cellphone must satisfy the above elements. The records must not have been constructed for the purposes of litigation or for assisting the police in their search for the suspect. If the above elements are indeed met, the records can be admitted under the business records exception to the general rule against the admissability of hearsay.

Issue Five: Bad character and reputation evidence admissibility

The testimony of the Oscar as to Sam’s reputation in the community as a “troublemaker” is inadmissible on direct examination. The general rule is that a defendant may not be attacked with character evidence on direct examination because such evidence constitutes propensity evidence. Propensity evidence or testimony is inadmissible to demonstrate that defendant was predisposed to, or more likely to, engage in the criminal conduct at issue. As noted, character evidence constitutes propensity evidence.

However, character evidence is admissible to impeach a defendant in certain circumstances. If a defendant employs evidence supporting the defendant’s good character or reputation in the community, the prosecution may then admit character evidence to rebut the defendant’s character witnesses. Such rebuttal evidence may come in the form of witness testimony. Witnesses may state their awareness of defendant’s bad reputation in the community or their opinion of the defendant. These rebuttal witnesses may not testify as to their knowledge of specific acts by the defendant.

Consequently, the introduction of Oscar’s testimony is inadmissible on direct against the Defendant, but would be admissible against the Defendant as rebuttal evidence as to Defendant’s bad character, if Defendant “opened the door” through the use of good character testimony.

Issue Six: Hearsay, party admissions and protected communications

The testimony of a social worker at the jail that when she met with Same, he told her that he was “sorry about everything that happened” is a statement by an out-of-court declarant and is offered to prove the truth of the matter asserted. Thus, it is hearsay, and under the general rule, hearsay is inadmissible. However, there are many exceptions to the general rule. In particular, a party may introduce a statement made by the opposing party as a party admission. There is no confrontation requirement and the statement may be admitted to impeach or as substantive evidence.

Here, Sam, the opposing party, made the statement. Therefore, the prosecutor is free to admit Sam’s statement as a party admission. It is not required that Sam be admitted. The party admission will constitute an exception to the general rule against the admissibility of hearsay.

However, there is an issue of whether the communications between the social worker and Sam were privileged. There is a privilege between social workers and their subjects, which excludes all confidential communications between the social worker and the subject that are within the proper scope of the relationship. The communication was private between Sam and the social worker. Therefore, it is not admissible by the prosecutor.

QUESTION 5 — CIVIL PROCEDURE

Milan France, a company incorporated and operating in France, manufactures heavy equipment. Milan France does not sell any of its machines directly to buyers in the United States. Rather, Milan France sells its machines through Milan America, a company incorporated and with its principal place of business in Florida. Although the two entities have similar names, Milan France and Milan America are distinct corporate entities with no common ownership or management.

Milan France’s President stated as its manufacturing objective: “All we wish to do is sell our products in the United States and get paid!” Milan America structures its sales and advertisement efforts in accordance with Milan France’s guidance whenever possible. From 2005 to the present, Milan France and Milan America attended and exhibited together at an annual American trade convention. The convention took place in several states, but never in New Jersey. Of the thousand Milan France machines sold by Milan America throughout the United States, 10 were sold to New Jersey companies.

Milan America sold to Riley, a company incorporated and with its principal place of business in New Jersey, a machine manufactured by Milan France. Employee of Riley severed 4 fingers while operating the machine in New Jersey. Employee, a Pennsylvania resident, sued Milan France and Milan America in New Jersey state court on various grounds, including products liability. The client, Milan America, hired your law firm. Prepare a memorandum to the senior partner analyzing the following issues:

1. a. Does the court have personal jurisdiction over Milan America? Explain.

b. Does the court have personal jurisdiction over Milan France? Explain.

2. What discovery can be used to gather facts and information to prepare for trial in state court? Describe such discovery in detail.

3. If Milan America believes it has a claim against Milan France, how should Milan America proceed?

PREPARE THE MEMORANDUM

QUESTION 5 — ANSWER A

MEMORANDUM OF LAW

To: Senior Partner

From: Associate

RE: Jurisdiction and Discovery in Milan America case

New Jersey’s Personal Jurisdiction over Milan America

New Jersey has personal jurisdiction over Milan America (hereinafter MA) because MA has minimum contacts with New Jersey such that subjecting MA to jurisdiction in New Jersey does not offend notions of fair play and justice. In order to hear a case, the due process clause of the U.S. Constitution demands that a court have power over the parties to the case — this is what we refer to as personal jurisdiction. As a threshold inquiry, we must look to the extent to which the state seeks to exercise personal jurisdiction over the defendant— specifically, their long arm statute. NJ exercises jurisdiction to the full extent of the due process clause. Thus, the Constitutional analysis is what is significant for purposes of this case.

A plaintiff submits to the jurisdiction of the court when the plaintiff files the complaint in the state. Whether a court has jurisdiction over a defendant is the more difficult question. There are a number of ways that a court may obtain personal jurisdiction over a defendant. First, PJ can be obtained where the person or entity is a resident of the state seeking to exercise jurisdiction. A corporation is a resident of two places: its principal place of business, and its place of incorporation. In our case, MA is domiciled in Florida, and therefore, the court does not have jurisdiction over MA via domicile. A defendant can also consent to the jurisdiction of the state. MA has not done this.

In order to obtain jurisdiction over MA, MA must have minimum contacts with the state of New Jersey. To satisfy this, MA must have purposefully availed itself of the state of New Jersey. The court will evaluate the quality of the contacts with the state, and not the quantity of the contacts. Here, MA has purposefully availed itself of NJ by sending machines to NJ. Further, it has minimum contacts with NJ because it sold Riley, a New Jersey business, the machine that is the cause of this case.

Beyond having minimum contacts, the contacts must be related to the case. A court may have general jurisdiction over the defendant where their contacts are so continuous and systematic so that they are essentially at home in the forum state. Here, MA’s contacts do not rise to that high standard. However, a court may also have specific jurisdiction over a defendant. This occurs when the contacts with the state are directly related to the cause of action in the case. This is precisely the instance here. MA’s most significant contact with NJ IS the cause of action for this case — the explosion of the machinery. Therefore, NJ has a specific personal jurisdiction over MA.

The final determination is consideration of the “fairness factors.” Where a court has personal jurisdiction over a defendant, it will be rare that fairness factors overcome the inquiry. The fairness includes considerations such as the forums interest in litigating case, the interests of the interstate system, the convenience of the parties, and where the evidence is located. Here, the explosion occurred in NJ so all of the witnesses to the accident are probably located in the NJ vicinity. NJ has an interest in litigating the case because the plaintiff, while not a resident of the state, is still closely tied to the state because she works there. MA is an American corporation, and while they are not located in the NJ vicinity, it is not an unreasonable burden for the corporation to litigate the case in the US.

The court has specific personal jurisdiction over MA consistent with a minimum contacts analysis.

New Jersey’s Personal Jurisdiction over Milan France

Consistent with the Supreme Court’s decision in J. McIntyre Machinery v. Nicastro (a case arising out of the state of New Jersey and bearing similar facts to this case), and Asahi, the state of New Jersey does not have personal jurisdiction over Milan France (hereinafter MF).

MF does not have minimum contacts with the defendant. MF represents the problem of assessing minimum contacts when a supplier places a product into the stream of commerce. Here, MF has intended to purposefully availed itself of the United States— as it intended to do per its manufacturing objective. Additionally, MF has availed itself to the US by attending an exhibition at the American trade convention. Further, MF has placed products in the “stream of commerce” to the US. However, MF has not purposefully availed itself of the state of NJ specifically. Rather, it has sold all of its machines to MA, which in turn have distributed MF’s products. Moreover, only 10 of MF’s machines have actually been sold by MA in the state of NJ. The SCOTUS in Asahi fractured as to whether placing a product into the stream of commerce was sufficient to establish that a defendant had minimum contacts with a particular state. In that instance, a plurality of the justices thought that placing a good into the stream of commerce was sufficient to establish purposeful availment with the forum state. Other justices felt that “something more” was required — for example, in state advertising. In any event the court in Asahi found that the court lacked personal jurisdiction based on the fairness principles set forth above. Crucial to the court’s analysis was that the defendant in that case was a foreign defendant. The defendant in Asahi was a foreign manufacturer who had distributed component parts across the US that were subsequently incorporated in numerous products. The court’s decision rested on the fact that the defendant was an out of state manufacturer, and fairness factors, such as preserving positive relationships with foreign countries, dictated that jurisdiction could not rest on such tenuous grounds. While the decision in Asahi has not be much clarified, the court did establish in Nicastro that purposeful availment to the United States generally would never be sufficient to establish general jurisdiction.

Consistent with the Asahi and Nicastro decisions, MF does not have sufficient minimum contacts with NJ. Only 10 of its machines have been sold in the state of New Jersey through another distributor, and not at the command of MF. Second, the machine at issue exploded there. While NJ might find this is enough to exert jurisdiction over MF, the fairness principles will be determinative. Litigating the case in NJ will burden MF, and will threaten international relations. It will hinder foreign corporations from selling their products in the United States because of a gigantic threat of being held to endless liability. Therefore, the court will probably find that it does not have personal jurisdiction over MF.

Discovery Tools in Case

Because this case has been filed in NJ state court, there will be no mandatory disclosures as is required by the Federal Rules of Civil Procedure. However, there are a number of other discovery tools available. The NJ Rules of Civil Procedure are very similar to the Federal Rules for purposes of discovery and maintain that all relevant information is discoverable. Information is relevant for purposes of discovery if it is reasonably calculated to lead to admissible information of consequence in the case.

First, MA should serve interrogatories on Riley. Our firm, on MA’s behalf, should seek to discover all those people who were witnesses to the event in question, those who have worked with the machine before, how the company has kept the machine, any modifications that Riley has made to the machine, and any documentation of the injury. Based on this information, we are likely to find the names of third parties who should be deposed, such as witnesses to the event, Riley employees, those who have worked on the machine, etc. In any event, we will seek to depose the plaintiff himself. Further, because this case is for personal injuries suffered, we will want to make sure that we have the plaintiff submit to a physical examination by one of our physicians. In preparation for this examination, and for the case generally, we should make a request for documents to the plaintiff, perhaps most importantly, a request for medical records and a medical history.

Cross-Claim or Implead MF

It will be difficult to bring a claim against Milan associated with this already existing case because the court very likely does not have personal jurisdiction over Milan.

If the court finds that it can in fact exert personal jurisdiction over MF in the state of NJ, then MA should bring a cross-claim against MF. A cross-claim is where a defendant sues another defendant to the case. MA must bring its cross-claim in its reply to the plaintiff’s complaint. The reply to the plaintiffs complaint must be made within 21 days after the complaint has been served on the defendant or after the court deny’s any of defendant’s motions.

If the court finds that it cannot exert personal jurisdiction over MF, MF will be dismissed from the case and MA will be unable to bring a cross-claim against MF because MF is no longer a codefendant. MA could then seek to bring in MF as a third party defendant to the case. However, in order for the court to hear this case, it must still have personal jurisdiction over MF. The court probably still will not find personal jurisdiction over the defendant, unless the contacts relating to MA’s claims against MF are related to the MF’s limited contacts with NJ. Again, because MF’s contacts with MA are so tenuous and because fairness dictates otherwise, the court probably will not find that they have jurisdiction over MF. Thus, MA will not be able to proceed against MF by impleading.

In any event, MA can bring its own claim, separate and apart from this case, against MF. To do so, MA should file a complaint in the state court of Florida. Here, the court will be able to exercise Personal jurisdiction over MF because MF will have purposefully availed itself of Florida. It has sold all of its products only to MA, a corporation domiciled in the state of Florida. So long as the claim that MA seeks to bring arises out of MF’s contacts with Florida, MA could file its own suit against MF in Florida.

QUESTION 5 — ANSWER B

To: Senior Partner

From: Law Clerk

Re: Legal Issues Pertaining to Milan France and Milan America

Personal Jurisdiction over Milan America.

The New Jersey state court does have personal jurisdiction over Milan America. The issue is what actions a defendant must take to be subject to personal jurisdiction in a New Jersey state court.

A New Jersey state court can assert personal jurisdiction if the following procedures are performed. The plaintiff must first commence an action in the state court. The plaintiff must then serve process on the defendant. The state court must finally have a basis for personal jurisdiction over the plaintiff.

In order for a New Jersey state court to have a basis over an out of state defendant, the defendant must either: (i) be personally served in the state; (ii) consent to service; (iii) waive service; or (iv) be domiciled in the state. If there is no basis under any of these grounds than the basis for jurisdiction must be under the long-arm statute, which allows service of process as far as due process extends. In accordance with the Supreme Court, a defendant must have minimum contacts with the state so that the assertion of jurisdiction over that defendant does not offend the traditional notions of fair play and substantial justice. This requires a showing of purposeful availment by the defendant — i.e., actions directed at the state which entitle the defendant to the benefits and privileges of the law.

In the present case, there is no basis over Milan America on any of the first four grounds. There is no evidence that the defendant corporation was served in New Jersey, there is no evidence of a waiver, there is no evidence of a forum selection clause and Milan America is a company incorporated and with its principal place of business in Florida.

However, Milan America does have minimum contacts with New Jersey. Specifically, while Milan America has sold thousands of machines throughout the United States, it has specifically sold 10 machines to New Jersey companies. While this may seem like an insignificant contact, it is still contact that demonstrates a purposeful availment with the state of New Jersey so that jurisdiction over them in a New Jersey court would be expected.

Furthermore, in order to assert jurisdiction over a defendant, there must be general or specific jurisdiction. For the defendant to be subject to general jurisdiction, the defendant must do regular, continuous and systematic business in the state where it is as if they are present in the state. Clearly Milan America’s business with the state does not arise to this level. However, Milan America would be subject to specific jurisdiction because the action at question arose out of Milan America’s contact with the state of new Jersey. Plaintiff Employee, of Riley, is suing Milan America because he severed 4 fingers using a machine sold by Milan America to Riley, a New Jersey Corporation. Therefore, the court would have specific jurisdiction over this action.

Finally, the assertion of jurisdiction over Milan America would not offend the traditional notions of fair play and substantial justice. Factors to consider include: (i) the burden on the defendant; (ii) the interest in the state court in adjudicating and (iii) the interests of the plaintiff in commencing the action in the current state.

Under the current facts, there would not be a significant burden on the defendant to be subject to jurisdiction here. The defendant is located in Florida and sold goods in New York. It would not be difficult to litigate a case in this state. Furthermore, New Jersey has a significant interest in litigating the case because the injury occurred in the state of New Jersey and to an employee of a New Jersey Corporation. Milan America may have an argument that the state has less of an interest because Employee is a Pennsylvania resident, but the accident still occurred in this state at the business of a New Jersey company. Finally, the plaintiff has an interest in litigating the case wherever he desires so the factors as a whole demonstrate that the assertion of jurisdiction would not offend the traditional notions of fair play and substantial justice in this case.

Personal Jurisdiction of Milan France.

Milan France is unlikely to be subject to personal jurisdiction in a New Jersey state court. The issue is whether a foreign defendant who does not have any significant connections with the state may be subject to jurisdiction in the state.

The tests for assertion of jurisdiction were discussed supra. If New Jersey were to assert jurisdiction over Milan America it would have to be under the long arm statute. An additional issue arises when a corporation injects goods into the stream of commerce that includes injury in the forum state. While no binding decision has been offered by the Supreme Court under such circumstances, half the court has found that when a defendant injects goods into the stream of commerce and directs them at the forum state, the defendant could be subject to jurisdiction. The other half of the court has required a more significant action directed at the state.

Under either test, Milan France does not seem to have the minimum contacts with the forum state. First, while it does inject its goods into the stream of commerce by selling them to Milan America, Milan America sells goods all over the country and there is no indication that it purposefully targets New Jersey. Furthermore, Milan France’s other connections with New Jersey are almost non-existent. Milan France does not direct any of its actions toward New Jersey specifically, as evidenced by the President’s statement “All we wish to do is sell our products in the United States …” While this obviously includes New Jersey, the inclusion of New Jersey is incidental to its overall business and not a targeted result. That is apparent from he fact that even Milan America itself has only sold 10 machines to New Jersey companies.

Furthermore, Milan France cannot be said to be a subsidiary of Milan America as they have distinct corporate identities and no common ownership. While the two have appeared at trade shows together, no such show has ever taken place in New Jersey. As such, the contacts with New Jersey are insufficient to assert jurisdiction over the corporation.

Furthermore, there will clearly be no general jurisdiction over Milan America because if its actions do not satisfy minimum contacts analysis, it will be insufficient to satisfy the general jurisdiction requirement. And finally, any potential assertion of jurisdiction would offend traditional notions of fair play and substantial justice because it would require a foreign corporation to come to a New Jersey state court to litigate a case where it never intended to have any business or connection to the state. Therefore, Milan France would not be subject to jurisdiction in New Jersey state court.

Discovery Material.

Milan America could obtain the following discovery material in the current action to assist with litigation: written interrogatories, document requests, and deposition requests. The issue is what discovery can be used to gather facts and information to prepare for trial in state court.

As attorneys for Milan America we could prepare written Interrogatories for Employee to respond to. Such interrogatories could elicit information such as, where the products were actually sold to Riley; who actually purchased the products; what Employee was specifically doing when he severed his fingers; what type of work employee was hired to perform; and how delivery of the machine was made. These questions are pertinent to determining whether Milan America would actually be subject to jurisdiction. If these statements elicited information specifying that the product was sold in a state other than New Jersey then the court might not have specific jurisdiction over the action. Furthermore, the questions regarding what use Employee was making of the machine and what his responsibilities include are pertinent to determining whether Employee was at all contributorily negligent in the accident or whether he was making a foreseeable use of the machine.

We could also make specific document requests to potentially recover a description of Employee’s job duties; receipts as to the purchase of the machine; and any potential warnings the machine included. These documents would be pertinent to again determine how the machine was sold and whether Employee was using the machine in an appropriate fashion. Finally, the warnings may go to show that the machine had a latent defect that could not be designed away and may defeat a potential action on strict liability grounds.

Finally, we should request to depose Employee himself to determine what actually occurred during the incident. As we currently have insufficient information as to how the accident occurred, where the accident occurred and what Employee’s responsibilities included, such information could be obtained by specifically deposing Employee in regards to these matters.

Milan America Proceeding against Milan France.

Milan America can proceed against Milan France in a number of different ways, which includes impleading Milan France into the current action or filing subsequent suit against Milan France for Indemnification. The issue is how Milan America can proceed against Milan France.

The first course of action, impleading Milan France into an action between Milan America and Employee is one course of action that it could take. In doing so, Milan America would file a third party complaint against Milan France and then serve process on Milan France. Milan America can then assert cross-claims against Milan France on the grounds that Milan France should indemnify Milan America because Milan France was the manufacturer of the allegedly defective product and Milan America would have a right to indemnification under such circumstances. However, there would be some issue as to proceeding by this fashion because as determined above, the court does not have personal jurisdiction over Milan America in the present case.

The more appropriate course of action would be to file a separate suit against Milan France in a forum in which Milan France would be subject to jurisdiction; most likely a state court in Florida. Under the current facts, Milan France entered into sales with Milan Florida and would probably be subject to jurisdiction in that forum. Milan America should then sue Milan France under the same grounds as discussed above; i.e., indemnification for the alleged product defect. As such, Milan France would be liable for all money paid by Milan America to Employee. However, Milan America should timely bring such action because there is a statute of limitations on such claims.

QUESTION 6 — REAL ESTATE

Five years ago, Laura entered into a written 10-year lease with Yogi for Yogi to operate his yoga studio in Laura’s building (“Building”). Two years ago the owner of an adjacent building leased space to a zumba dance studio which blasts music during its classes. Yogi complained to Laura that the loud zumba music interrupted the tranquility of his yoga classes. Additionally, several months ago, Yogi’s studio was flooded during a heavy rain storm because the parking lot at the Building was not graded properly. Yogi complained to Laura about the flooding, and Laura had the grading fixed to address the problem. Yogi vacated the Building 2 months ago and ceased making rental payments. Yogi informed Laura he left because of the loud zumba music and because he is fearful of more flooding. Laura has taken no steps to re-let the Building.

Tom executed his last Will and Testament leaving his real property to Laura and his personal property to Betty. Tom owned 1 parcel of real property (“Parcel”). Before Tom died, a fire partially destroyed the building on the Parcel. After Tom’s death, insurance proceeds were paid to Tom’s estate to cover the fire damage. Laura wants the insurance proceeds so she can restore the building. Betty says the insurance proceeds belong to her.

Fifty years ago, Laura’s parents, now deceased, transferred property (“Property”) to Township with the following language in the Deed, “It is the understanding of the parties that a school is to be erected on this land which is to be used for public school purposes only.” Thereafter, a building was erected on the Property, and it was used as a public school until last year when Township decided to close the school due to declining enrollment. Currently, the Property is being used for after school care and recreational purposes. Laura, her parents’ only heir, wants the Property transferred to her, but Township has refused.

Laura comes to your law firm. Laura wants to (1) collect lease payments from Yogi; (2) collect the insurance proceeds; and

(3) have the Property transferred to her.

You are asked to prepare a memorandum setting forth all of Laura’s rights, obligations, and liabilities with respect to these issues.

PREPARE THE MEMORANDUM

QUESTION 6 — ANSWER A

To: Laura

From: Lawyer

Re: Property issues

You will be successful in collecting some lease payments from Yogi, but probably not all of them. The issue is whether Yogi had a right to vacate the premises in violation of the lease agreement. Yogi stated that he left because of the loud Zumba music coming from the adjacent building. In every lease, there is an implied covenant of quiet enjoyment, in which the landlord promises not to interfere with the lessee’s use and enjoyment of the property. This only includes the landlord’s actions, and the landlord is not responsible for the actions of neighbors, especially if the neighbor is not another tenant of the landlord. Here, the disturbance was coming from an adjacent building owned by someone other than you. You have no obligation (and no ability) to control the actions of the neighbors. You did not violate the covenant of quiet enjoyment, and Yogi had no right to break the lease for this reason.

Yogi also claimed he broke the lease because he was fearful the parking lot would flood again. Above I outlined the covenant of quiet enjoyment. Another way for this covenant to be broken is by a “constructive eviction.” This occurs when there is a substantial interference or problem with the property and notice is given to the landlord, who fails to remedy the situation. The tenant, to claim a breach was warranted by constructive eviction, must leave the premises after the landlord fails to fix the problem. Here, there was a substantial interference with Yogi’s use of the property- the yoga studio flooded because of the grading in the parking lot. Yogi notified you, and Yogi thereafter left. However, Yogi cannot claim he was constructively evicted because you had the lot fixed to remedy the problem. Yogi’s insecurities about potential future floods does not justify a claim for constructive eviction nor does it justify his breach of the lease agreement. You are entitled to rent from Yogi.

I must inform you that most courts will not hold a tenant liable for the remainder of the lease if the landlord has an opportunity to mitigate her damages by re-letting the property. Your lease with Yogi was for five years, and there seem to be approximately three years left on the lease. I advise you to actively seek a new tenant to mitigate your damages, and then sue Yogi for the deficiency.

You are entitled to the insurance proceeds from the Parcel left to you in Tom’s will. Generally, if a specific devise in a will is destroyed before the death of the testator, the gift is adeemed, meaning you would normally get nothing. If the property is destroyed and the testator collects insurance proceeds during his life, the beneficiary has no right to those proceeds. The rule is different, however, if the proceeds have not been fully paid at the time of the testator’s death. If this occurs, the beneficiary is entitled to the remainder of the proceeds that have not been paid to the testator during his life. It seems here that Tom died before any of the insurance proceeds were paid to him, and the insurance company paid to his estate. Under the rules I have outlined above, you are entitled to the insurance proceeds for the damage to the Parcel left to you in Tom’s will.

You probably cannot compel the Township to transfer you the property. A property owner can usually control the way in which devised property is to be used by creating a “defeasible fee.” This allows the owner/grantor to place conditions on property use, and provide for some type of penalty if the grantee exceeds the scope of the conditions. The penalty can either be transferring the property back to the grantor (or his heirs), or a third party. The law disfavors defeasible fees, because it places a restraint on alienation and property rights. However, courts will enforce them if it is the clear and manifest intent of the grantor. I do not believe that a court would construe the language in the grant to the Township sufficient to create a defeasible fee. The words “It is the understanding of the parties…” is not clear and unequivocal that the condition should be binding. Court have held that a grantor’s hope or desire to use land a certain way is not sufficient to create a defeasible fee. Even though the Township is no longer using the property for a public school, the precatory language in the grant created a fee simple absolute and the Township is the absolute owner of the lot.

QUESTION 6 — ANSWER B

MEMORANDUM

To: Laura

From: Applicant

Date: July 26, 2012

Re: Lease/Insurance/Property Title

(1) Laura will be able to recover under the lease from Yogi, but her recovery will be reduced because of a failure to mitigate damages.

The issue is whether a breach of the lease agreement by an abandoning tenant in face of external nuisance and fear of future harm precludes recovery by the landlord.

The rule concerning leaseholds is that a landlord promises to give over possession of the premises, with attendant implied warranties (quiet enjoyment being principle among them in commercial leases) and to maintain the common areas while the lessee agrees to the reasonable upkeep of the premises and to pay rent.

Here, Yogi has abandoned the property and ceased rent payments on two stated theories. (i) External nuisance created by Zumba Dance Studio; and (ii) Fear of renewed flooding from the parking lot.

Neither provides grounds for Yogi to abandon the lease. The warranty of quiet enjoyment, which Laura owes to Yogi does not entail providing totally quiet surrounds, but rather refers to quiet title — that none will disturb Yogi’s possession of the leased premises.

Given Yogi’s particular business he may have a legitimate nuisance claim against the Zumba store; however as lawful possessor of the property he was capable of bringing an action in nuisance against Zumba for violating his right to enjoy the property. But Yogi brought no such action.

The second ground is also improper as justification for abandonment. While the initial flooding due to faulty grading of the parking lot (a common area) was indeed Laura’s responsibility, she met her obligation when she addressed the problem and had the lot re-graded. (The common enemy rule of surface waters does not allow for a landlord to flood his tenant).

Yogi’s stated fear of renewed flooding is not supported by evidence and is not a reasonable basis for vacating the premises and abandoning the lease. Whatever damages the flooding caused will be a potential liability for Laura, because her duty to maintain extended to the parking lot when it was improperly graded, but the risk of future flooding has been largely addressed and the single instance does not properly terminate the lease.

However, Laura has a duty to mitigate her damages. Now that Yogi has indeed vacated the premises and made clear his intention to abandon the lease Laura must make a good faith effort to re-let the property and seek damages under the lease agreement from Yogi that cover the difference plus her expenses in reletting. The longer Laura sits on the empty unit without action, the stronger Yori’s claim that she has failed to mitigate becomes.

(2) The insurance proceeds for the fire damage destroying a building on Parcel belong to Laura because of the rules governing ademption and post-death payment of insurance proceeds.

The issue is whether the partial ademption of a gift which is covered by insurance proceeds entitles the specific legatee whose gift partly adeemed to the insurance payout.

The rule is that specific legacies which are destroyed, alienated or lost during testator’s lifetime adeem under the will (and the legacy is lost). If the legacy is covered by insurance paid out to the testator the proceeds are not saved for the adeemed gift, and become part of the larger estate. However, if the proceeds from insurance on the specific legacy are paid after death to the testator’s estate those proceeds belong to the legatee whose legacy under the will was adeemed.

Here, Laura is a devisee of real property, including a parcel of land and the building on that parcel. Before the testator’s death the building was partially destroyed by fire, which functioned as a partial ademption of the legacy to Laura (Tom cannot devise that which he no longer has, and real property is unique, so when specifically set forth it constitutes a specific gift under the testamentary plan). However, the proceeds of insurance from the fire were not paid during testator’s life. Had they been, they would become part of the personal property of the estate (which includes money) and would have be bequeathed under the will to Betty.

But because the proceeds were paid to the estate of Tom after his death they do not become a part of the larger estate. They are paid out to the legatee whose gift (partially) adeemed. In this case that is Laura. She is entitled to take the proceeds covering the building, and should petition the Chancery Court, Probate Part for that relief if the executor fails to distribute the proceeds to her.

(3) The transfer of Property back to Laura from Town will turn on the court’s interpretation of the nature of the freehold estate created by her parents 50 years ago.

The issue is whether a Fee Simple Determinable with the Possibility of Reverter was created when the Property was conveyed by Deed with the conditional language “It is the understanding of the parties that a school is to be erected on this land which is to be used for public school purposes only.”

Public policy favors transfers of property in fee simple absolute, and courts will read such a freehold estate into property when the deed does not properly conform to other leasehold species and their various requirements of formation.

The particular transfer in question is either Fee Simple Absolute with precatory language or a Fee Simple Determinable with the future interest possibility of reverter resting in the heir of grantor, Laura.

Because the future interest here is in grantor’s heirs the Rule Against Perpetuities is not applicable, and the extended periods of time involved are not a hinderance. (Furthermore, if the Property is located in NJ the Rule has been abolished by Statute).

No right of re-entry exists because such must be expressly carved out in any deed, and the language here fails to achieve that. Therefore, Laura either has the claim to legal title of the land as of last year when it ceased to be used for public school purposes only and reverter was effected. Or the Town owns the land free & clear of any future interests.

The latter situation seems more likely here. The language used in the deed is more precatory than express. “It is the understanding” does not have the affirmative weight of express language such as “so long as” or “until” or “unless.” Because the language tends toward being precatory in nature, the court is likely to find that a Fee Simple Absolute title was vested in the Town and Laura retained no interest.

QUESTION 7 — CONTRACTS

Kim and Event Planner (“Planner”) signed a written contract whereby Planner would help set up Kim’s lavish $5 million affair on January 18th to showcase her new product lines to wealthy, potential investors. Kim needs investment capital to launch her new products, and her accountants estimate, based upon past performance, Kim should raise $15 million. Before they signed the contract, Kim told Planner “the affair on January 19th would be the event of the year.” Kim’s attorney drafted the contract and pursuant to the written contract, Kim paid Planner a $1 million down payment; Kim would pay another $1 million after the event.

Planner paid Chef Ramsay $500,000 to prepare elegant cuisine. Planner also paid Buddy, the Cake Boss, $75,000 to bake Kim’s cake. Planner also paid for and booked for January 19th, Exclusive Hotel’s Ballroom for $150,000 and 40 V.I.P. suites, for $3,500 per night for Kim and her guests. Kim expended up-front money also: high-priced entertainment, $300,000; wardrobe and jewelry, $125,000; a spokesperson, $25,000; and advertising, $250,000.

On January 18th, at 4:00 p.m., Kim arrived at Exclusive Hotel to check into her suite. Much to her dismay, she found no rooms available, as Planner had reserved those suites for the 19th, per Kim’s conversation, and had not noticed the January 18th contract date. Exclusive Hotel’s ballroom was also unavailable on the 18th. Kim immediately and angrily telephoned Planner. Planner responded she had made all arrangements per Kim’s statement the event would occur on the 19th.

Neither Chef Ramsay nor Buddy could finish their culinary delights on the 18th. Planner managed, however, to book the nearby Cheapo Motel for the evening. Cheapo Motel had a small “Banquet Room” and sufficient available guest rooms. Planner arranged for cars to transport Kim’s guests, who arrived at Exclusive Hotel, to Cheapo Motel, where guests dined on standard Cheapo Motel fare at hastily arranged tables.

Kim claims several investors called and/or wrote her saying things such as “if you cannot get it together to hold that simple affair, I have no confidence in you, your products, or companies associated with you.”

Kim sues Planner in state court, and Planner counter sues against Kim. You are the law clerk to the trial judge who has asked you to prepare a memorandum setting forth and analyzing all contract causes of action each party may have as well as all defenses and damages claims.

PREPARE THE MEMORANDUM

QUESTION 7 — ANSWER A

MEMORANDUM

To: Trial Judge

From: Law Clerk

Re: Kim v. Planner Contract Claims , Defenses, Damages

I. Whether a valid contract exists between Kim and Planner.

This is a contract for services, party planning services, so common law contract principles apply, not the Uniform Commercial Code.

Initially, a valid contract exists between Kim and Planner. A valid contract exists when an offer is made by an offeror and is validly accepted by an offeree. There must be a meeting of the minds, mutual consideration, and there must not be any valid defenses to stop contract enforcement. Consideration is a bargain for exchange, or put differently, each party giving up something to their detriment. Most contracts are bilateral. Bilateral contracts are contracts where a promise is exchanged for another promise.

Kim and Planner entered into a valid contract where Kim would pay Planner $5 million and Planner would organize Kim’s lavish affair. There was valid consideration, the offer was accepted by mutual promises to perform and each knew they were contracting for Kim’s event.

The presence/absence of valid defenses are discussed below.

The standard for contract performance in common law contracts is substantial performance. A breach must be material to invalidate an agreement to excuse the other party from performance. While only a material breach will excuse the other party from performance, any breach will enable the innocent party to collect damages as a result of the minor breach.

Kim should seek to enforce the agreement as made, which would indicate a material breach on part of the Planner. This would excuse her from performance and she would be able to sue for damages from the Planner’s breach. Planner will likely seek to invalidate the agrement or assert the actual date for performance was the 19th and as such, he has not breached the contract.

II. Kim’s Claims Against Planner

Parol Evidence. Once a valid contract is created, when it is reduced to writing, if an agreement is completely integrated, the parties affirm there are no additional terms that are left out of the contract. It incorporates any/all prior negotiations into the contract and anything not included in the writing is not a contract term. The parol evidence rule serves to bar all prior oral or written communications from becoming part of the contract. This does not apply to subsequent communications, only prior. The agreement will not be able to be supplemented by evidence that contradicts its terms.

Kim and Planner reduced their agreement written by Kim’s attorney. The agreement was signed by both parties intending to be bound. The date of performance in the contract states January 18th. Any prior communications will give way to the contract terms when they contradict. Here, the date for performance is January 18th. The statement made by Kim prior to signing the contract that performance will be on January 19th is not admissible because it contradicts an express term of the contract — that performance is the 18th.

Planner could defend that such evidence could be admissible for the limited purpose of showing a mistake in the drafting of the contract. Even if such evidence is permitted to show the presence of a drafting mistake, the Planner will likely have to show more than one statement regarding the date.

Material Breach. Kim is likely to be successful on an argument that Planner has materially breached the contract and as such, Kim is excused form her performance on the contract, namely paying him any remaining balance owed. Material breach is a substantial breach, not just a small collateral breach.

Here, it is likely a material breach has occurred. The nature of Kim’s party was a lavish party on January 18th. The Planner was supposed to deliver such a party on January 18th. Kim had people coming into town to stay at the hotel expecting a party on the 18th. Planner did not deliver a party on the date specified in the contract. He also did not deliver a “lavish” party. He delivered a party at Cheapo Motel with standard hotel food and hastily arranged tables. This is a material breach since it touches upon the essence of the contract, which was a party on January 18th and a lavish affair. As such, Kim’s performance should be excused and she should not be required to pay Planner for such.

Estoppel. Kim could assert promissory estoppel. If the contract is not found to be legally enforceable, she could assert that she reasonably relied on the terms of the contract, it was foreseeable that she would do so and that it would be unjust not to enforce the contract.

Kim relied on the written date. She had her friends come into town. She had a great deal of money at stake because of her company. It was reasonable that she would rely on the terms of the contract and it would be unjust to allow Planner to prevent enforcement of the contract. This is an equitable remedy and should only be pursued in absence of a valid contract in law. If this is successful, Kim should collect all money she has lost so that she can be put back in the same place she would be in had the contract been valid.

III. Planner’s Claims Against Kim

Kim’s Material Breach. Planner should assert that Kim breached the contract, not him and that he is entitled to payment for his services rendered. A material breach occurs when one party ether does not perform or performance falls substantially short of what is contemplated in the contract. Planner could argue that Kim materially breached the agreement by not paying his contract price. He will argue that he substantially performed the contract by getting Chef Ramsay to prepare cuisine, making all the bookings at Exclusive Hotel’s Ballroom, and having the cake done. He will argue the majority of the contract was performed by him, and as such he did not materially breach.

Kim could have just changed the date of the party last minute to mitigate losses that occurred as a result of changing the party. Each contracting party is under a general duty to mitigate losses when possible. Kim made the losses significantly greater when she had the venue changed the day before. While Planner may have had the wrong date, the mix-up could have been made smaller by Kim allowing the party to happen that day.

Unjust enrichment. Unjust enrichment occurs when a party to a contract performs and by remaining uncompensated, the other party to the contract will have unfairly benefitted from the contract. When this occurs, the party who has performed should be compensated for services.

Here, Planner has spend a great deal of money on this party. He has already paid Chef Ramsay, Buddy, Exclusive Hotel for VIP rooms and Exclusive Hotel’s ballroom.

Kim should rebut this claim by indicating that she has not been enriched by his at all since she did not get any benefit of their services. Instead, because they were booked on the wrong day, she was unable to take any advantage of any of the these expenses and planner should not receive any money from her for unjust enrichment. Kim will likely be successful defending this claim.

Estoppel. Planner should assert a promissory estoppel claim against Kim for the statement about the party being on January 19th. The elements to promissory estoppel are that one party reasonably relied on a statement made by the other, it was foreseeable that he would rely on such, and it would be unjust not to compensate the party for their reasonable reliance.

Kim explicitly stated that the party was on January 19th. She stated, “the affair on January 19th would be the event of the year.” She was making this statement to the person specifically planning her party. It was reasonably foreseeable that Planner would rely on this date statement that the host of the party made. It should be noted that Kim was not just anyone, but rather she was the host of the party, so it is incredibly reasonably foreseeable that her statement would be relied upon for planning her own event. Since Kim was the one that made the error, planner should argue it would be unjust not to enforce the contract against Kim, and at least recoup his costs under the contract. Planner has a good chance of being successful on a promissory estoppel claim.

V. Damages

The underlying premise of contracts damages is that they should put the innocent party in as good of a place as they would be had the breach not occurred. They are not supposed to be unjustly enriched, as a contract breach is not equivalent to a windfall.

The general measure of damages to a contract is the expectancy damages. These general damages are available when a party has breached and the individual is entitled to actual losses suffered.

If it is found that Kim materially breached the contract, Planner should be able to recoup his losses — his actual expenses incurred that he was not compensated for. One would arrive at this value by adding all expenses incurred, adding any incidental damages (i.e. costs incurred as a result of the breach) and then that is the amount that Kim should be liable to him for. Since Kim has paid the Planner a $1m down payment, if the actual amount lost is less than $1m Kim should be refunded the difference. If the amount lost is greater, Kim is responsible for the difference.

If Planner is found to have materially breached, he will be liable to Kim for her losses. Kim’s losses are more difficult to ascertain. Some of the damages that Kim has suffered such as her up front costs of entertainment and any of the previous arrangements that could not be used at Cheapo Motel would be included in her damages. Also any incidental damages, as defined above would be included. What is difficult to ascertain are Kim’s lost profits from her business venture.

Special damages are only collectable when they were reasonably anticipated by the parties during contract formation. Here, Kim’s new product line was a new business. New business damages are very speculative and difficult to ascertain since there is no pattern of preexisting profits. Her accountant estimated she should raise $15m but a court would likely need more evidence that this would be her actual loss. A court could try to look for evidence of what similar ventures were able to raise for capital at similar affairs, if they exist. Courts are very reluctant to give damages that are too speculative, so Kim may only be able to recoup her general, not special damages of loss of investment capital.

Kim could only recoup special damages if they were reasonably foreseeable and anticipated by the parties. There is no evidence that Planner knew Kim would stand to lose $15m if this party did not succeed. The party’s failure could be reasonably attributed to the investors becoming disinterested since one guest stated, “if you cannot get it together to hold that simple affair, I have no confidence in you, your products, or companies associated with you.” It also could be reasonably foreseeable that since she is spending $5 million on a party, her losses would be in the millions. More information is needed to ascertain whether the Planner knew or had reason to know that she stood to lose that much money from her investors.

If the $1m is considered a liquidated damages clause, Planner may be able to keep the $1m payment. Liquidated damages clauses are generally upheld if they bear some resemblance to actual damages and actual damages were too speculative to calculate when contracting.

Here, more information would be needed to determine whether the $1m down payment was pre-payment for services or whether the parties intended it as a liquidated damages clause.

QUESTION 7 — ANSWER B

Memorandum for Causes of Action Regarding Kim and Planner

1. Kim’s causes of action

(a) Material Breach

Kim can sue Planner for a material breach of the contract. The issue is whether planning the event on a date that is stated differently in the contract constitutes a material breach. The rule is that a material breach is when one party does not perform an essential duty under the contract, and this breach goes to the “heart” of the contract. If one party commits a material breach, this gives the non-breaching party an excuse not to perform their stated duties under the contract.

The parole evidence rule prevents a court from looking at the parties’ “side” agreements that are not within the four corners of the contract unless the evidence refers to events that happened after the contract was signed by the parties. Some exceptions to the parole evidence rule is that the court will look at evidence outside of the contract if there is an ambiguous term and the court needs assistance in deciphering its meaning. The court will also look at evidence if it seems that the contract looks incomplete and the outside evidence “fills in the blanks” for the court.

In this case, Kim is hosting a $5 million event where she has invited wealthy potential investors to view her new product lines. The date of this event is essential, if not one of the most important, elements under the contract. Kim can argue that the contract states that the date of the event is January 18th, and Planner did not perform her stated duties by that date but instead did not even bother to refer to the contract and planned everything for January 19th.

Kim will argue that the parole evidence rule will bar Kim’s statement that the affair on January 19th would be the event of the year. Kim will argue that the only relevant aspects of the contract are within the contract itself, where the parties signed that the event will be held on January 18th. Because of Planner’s breach, the entire event was ruined, the chef couldn’t come, the cake boss couldn’t come, the guests had to stay at a completely different hotel, and Kim lost a lot of money in trying to fix everything.

Because Planner did not keep up her end of the bargain and materially breached, Kim is excused from paying her $1 million and Kim will argue that she is entitled to expectation damages under the contract.

Kim can also argue that because of Planner’s material breach, Kim did not get the business of the investors that she would have gotten had the event been the $5 million affair that it was supposed to be. Kim needed investment capital in order to launch her new products, and she was expected to raise $15 million from the investors after this event. Because of Planner’s breach, not only did she lose money but she also lost the expected profits of $15. Therefore, Planner is liable to Kim for her expected profits of $15.

Defenses

Parole Evidence

Planner will argue that the parole evidence rule would not bar Kim’s statement that the event was on January 19th because this fact fills in the blanks. Planner will argue that she only planned everything for January 18th because that was the date that Kim said to her.

Mistake (Unilateral Mistake)

Planner will argue that there was a mutual mistake. The rule is that if the parties are both unaware or mistaken of a material term in a contract, the contract is cancelled. However, one party’s mistake, or a unilateral mistake, is rarely a defense in contract law. If one party had reason to know of the other party’s mistake, the contract will be interpreted on the latter’s terms.

In this case, there was not a mutual mistake. Kim was planning an event for January 18th, and the contract said January 18th. Although Kim mentioned that the date was the 19th, Planner still should have looked at the contract at least once before performing her duties under the contract. Here, there is only the existence of a unilateral mistake, which is rarely a defense in contract law. Planner made a mistake by thinking it was the 19th, and this mistake could have been cleared up had she just reviewed the contract in a very preliminary manner. This defense will not work in this case.

Substantial Performance

Planner will argue that although she breached the contract by planning for the wrong day, she still substantially performed and is entitled to some payment. She paid the chef, paid the cake boss, booked the hotel ballroom, expended up-front money for high-priced entertainment, wardrobe and jewelry, a spokesperson and advertising. She did all of her under the contract but messed up the date, so she should be entitled to some payment.

Good Faith

This is probably Planner’s weakest argument, but she did act in good faith. She did not maliciously breach the contract but was just basing her duties on a previous conversation with Kim. However, acting in good faith alone will not prevent you from having to pay damages.

Mitigation of Damages

Planner can argue that Kim did not mitigate damages. Under common law, a nonbreaching party has a duty to mitigate damages and not make it worse. Here, although Planner might have materially breached by planning the party for the wrong day, it might have been less expensive and less disastrous to notify the guests that the party was January 19th instead of January 18th. It was only 4:00 PM when Kim saw that the room wasn’t ready. Although some crazy women guests were probably already getting ready for the party, it could have been enough time to notify the guests that the party would be the following day. Although maybe not all of the investors would show up, some would.

Damages: too speculative, court will only give reliance damages

2. Planner’s causes of action

Unjust Enrichment

Planner spent some up-front money to buy the entertainment and all that stuff. Kim would be unjustly enriched if she did not pay Planner for these things, which costs over her 1 million down payment, around $200,000. However, Kim can argue that this money is part of her reliance damages since Kim will most likely not be able to get expectation damages of 15 million because they are too speculative.