MINNESOTA
STATE BOARD OF LAW EXAMINERS
FEBRUARY 24, 1998
TUESDAY MORNING SESSION
Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.
Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.
If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.
Your answer should be complete, but you should not volunteer information or discuss legal doctrines, which are not pertinent to the solution of the problem.
Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.
QUESTION #1 - TAXATION
Brenda is a successful real estate developer and Gill is a social worker. They have been married for six years and have a three-year-old daughter Melissa, born on 11/30/94. After the birth of Melissa the marriage became less satisfying. On 12/31/97 Brenda moved out of the marital home. She and Gill dissolved their marriage the same day. Gill was awarded custody of Melissa.
Their dissolution of marriage decree provided as follows:
1. That Brenda would pay Gill $6,000 per month, $1,000 designated as child support and $5,000 as alimony;
2. That the $5,000 of alimony shall be reduced by $1,500 to $3,500 upon the first of the following two contingencies to occur:
a: The death of Melissa;
b: The making of the November 30, 2012 payment;
3. That all alimony payments shall cease upon the death or remarriage of Gill;
4. That Brenda shall convey title in the marital home, which was owned solely by her, to Gill who shall then be the sole owner and who, with Melissa, will occupy the home; Brenda shall continue to make the mortgage payment of $1,500 per month directly to the bank.
In addressing the issues presented in this question, assume the following:
That Brenda's marginal tax rate on her income is 36% and that Gill's marginal rate on his income is 28%; and
That the fair market value of the house that Brenda conveyed to Gill was $200,000 and had a basis to Brenda of $80,000.
Based upon the terms of the decree, thoroughly discuss the tax consequences to Brenda and to Gill.
Briefly describe the tax consequences to the parties for 1998 if Brenda pays Gill only $3,000 for the December payment instead of the $6,000 owed.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 1 - TAXATION
The tax consequences of the payments made by Brenda to Gill depends upon each payment's status as alimony or child support; alimony is deductible for the payor and income to the recipient, whereas child support is not deductible for the payor or income to the recipient.
For a payment to be considered alimony for tax purposes, it must be paid pursuant to a written agreement or decree, it must be paid in cash, it must cease at the death of the recipient, it must continue for at least three years, and the payor and recipient must not live together.
Taking each provision of the decree one at a time:
PARAGRAPH ONE
Brenda is to pay Gill $6,000 total, $1,000 of that is designated as child support. As such the $1,000 is not deductible for payor or income for recipient. $5,000 is designated as alimony and, at first blush, it qualifies as such. There is a written decree requiring its payment, it is a cash payment, the decree provides that payment cease at death of recipient (Gill), the decree provides for permanent alimony, so it will continue for at least three years, and the facts provide that Brenda and Gill no longer live together. As such, the $5,000 may be alimony for tax purposes.
PARAGRAPH TWO
However, when an "alimony" payment is reduced by a contingency relating to a child, the amount of the reduction is considered alimony in disguise and treated as child support. Here the $5,000 "alimony" payment is reduced by $1,500 upon the death of Melissa or upon Melissa turning 18 years old. As such, the $1,500 reduction is treated as child support for tax purposes and is therefore not deductible for the payor or income to the recipient.
PARAGRAPH FOUR
The transfer of the title to the home itself is not a taxable event when done, as here, pursuant to dissolution. There is not taxable event until the home is disposed of by the recipient and gain or loss is realized – the recipient takes the donor's basis, so Gill's basis in the home is $80,000. However, the $1,500 payment on the mortgage will probably be considered alimony. Alimony does not have to be paid directly to the recipient, it can be paid to a third party on the recipient's behalf. The mortgage payment probably meets the test for alimony; it is a cash payment made pursuant to a decree under which all alimony payments cease at death of the recipient and according to which alimony payments are to be paid permanently. As such, the $1,500 mortgage payment will probably be deductible for the payor and income to the recipient.
If Brenda pays only $3,000 on the December '98 payment, then $2,500 will be child support (not deductible for Brenda, not taxable to Gill) and $500 will be alimony (deductible for Brenda and income to Gill). When payments fall short, they are considered to have met the child support obligation first, the alimony obligation; under the decree $2,500 is really child support ($1,000 designated pleats $1,500 disguised). Moreover, since it is the end of the year and individuals pay on a cash disbursements method, they must evaluate the '98 taxes according to what was actually paid or received in '98, so even though Brenda clearly owes $6,000 it is irrelevant to 1998 taxes.
QUESTION #2 – CONTRACTS/SALES
On August 1, Georgia phoned Wholesale Book Co. (WBC), spoke to a WBC Sales Agent, and explained that she was opening a small independent bookstore in a small college town. She asked for a list of available titles, a price list and an order form. She said she would be ordering approximately 1,000 books and asked how long it would take for delivery. Sales Agent said it would take about three weeks to fill that order.
Sales Agent sent the requested list of available titles and order form with a cover letter saying "We look forward to receiving your order." The order form stated at the bottom: "Orders filled subject to availability due to strikes and other causes beyond our control."
On September 5, Georgia sent WBC an $8,000 order for 1000 books listing the books by title. She scheduled a November 1 opening and leased a storefront at $1,000 per month, plus utilities that were estimated to be $300 per month.
On October 5, when Georgia had not yet received any books, she called Sales Agent at WBC and he said he would get back to her. On October 6, Georgia received a letter from Sales Agent saying that WBC had discontinued trade book sales and was now handling only high school textbooks, adding, "As a result, we cannot accept your offer to buy 1000 books."
Georgia called three other book wholesalers but each said they could not take any new orders during the pre-Christmas rush and could not deliver until mid-January. Georgia placed an order for delivery in January and decided to delay the opening of the store until February 1.
On January 1, Big Chain Books Co. announced plans to open a discount superstore across the street from Georgia's leased premises. Big Chain Books' opening was scheduled for March 1. When she discovered Big Chain Books' plans, Georgia decided not to open her store. She managed to cancel without liability the book order she had placed.
Georgia sold her newly purchased computer at a loss of $1,000. Her labor expense, had the store opened, would have been $3,000 for the period October 1 to February 28. Assume no other expenses were necessary to operate the store.
Georgia sues WBC for net lost profits from November 1 to February 28, claiming a total net profit for that period of $20,000. She based that figure on an estimate that she would have sold 850 books, with total retail receipts of $30,000, over the four-month period. She had commissioned a market survey that showed that she would have made $8,000 in net profit per month after a year of operations.
WBC says there is no contract and, if there is, WBC is not liable for damages.
Analyze and discuss the legal issues presented by this litigation.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 2 – CONTRACTS/SALES
G = George WBC = Wholesale Book Co. K = Contract
Was G's letter of September 5 a K binding WBC to perform?
Because the case involves the sale of goods valued more than $500, the UCC applies. In order for G to claim K damages G will need to establish a K which may be difficult on these facts. A contract requires an offer, acceptance, consideration, (or consideration substitute) and an absence of viable defenses.
Offer.
An offer is a definite clear undertaking by a party to enter a contract. An offer creates a power of acceptance in the party to whom the offer is directed. An offer is not mere negotiating or price inquiry. While the UCC is more flexible than common law on contract formation, an offer still must be present. It is unlikely G's phone call of 8/1, or WBC's sending a price list are offers. G's call was simply an inquiry and WBC's sending a catalogue could be construed as an invitation for offers or bids. However, if a court concludes that WBC's sending the catalogue in response to a single customer's inquiry, was an offer because it was not sent to the public unlike an advertisement which is construed to be an invitation for offers, than a power of acceptance was created in G.
Acceptance.
Acceptance is the consent of the offeree to be bound to the terms of the offer. The UCC does not require the right "mirror image" rule of the common law. If the court finds WBC's shipment of a catalogue was an offer, then G's order of 9/5 was acceptance. If WBC's shipment was not an offer, then G's order of 9/5 was an offer to WBC. Did WBC accept that offer? Although there was no express acceptance, the UCC may allow a K to be formed between merchants where a writing is sent from one merchant to another, and no response is made within 10 days. However, this usually occurs when there is a prior relationship between the parties, a course of dealings. Here G really is not a merchant (her store has not opened) and there is no prior relationship or course of dealing. It is unlikely a K will be formed on that basis.
Consideration.
Is not an issue, both sides have undertaken promises to their detriment (if the court buys that a K was formed).
If a K was formed, does WBC have any defense or excuse for non-performance?
WBC's only defense to non-performance was that it decided to discontinue the product line that G wanted. The general rule for excuse of performance due to impossibility or impracticability is that the duty to be performed is physically not capable of performance or is highly and unfairly impractical. Neither applies on these facts. WBC's decision to discontinue its trade books was a matter within its control and certainly should have been foreseeable when WBC sent their catalogue to G. The disclaimer at the bottom of the order form does not apply as the business decision to discontinue trade books was within their control.
If there is a K, what are the damages G's entitled to?
Generally a non-breaching party is entitled to be put where they would have been had the K been performed. (Expectancy) In addition, the breaching party is liable for all natural consequential changes that are foreseeable at the time of the K.
Had WBC not breached, G contends it would have had the books and been able to open on November 1. If the court concludes that there was a K between G and WBC, and that it required WBC to deliver books to G by October 5 (30 days from G's order) then WBC may be liable for the following:
Lost profits $20,000.
Courts are wary of awarding lost profits that are speculative especially when it involves lost profits for a new business. However, G may be able to recoup these losses if the court accepts the market survey as proof of the lost profits making them less speculative. The lost profits however would be offset by the $3,000 monthly expenses for labor which G did not invest. November through February labor savings = $12,000. $20,000 lost profits less $12,000 labor saved = $8,000.
Lease.
G pays $1,000 for lease and $300 for utilities. It is not clear from the facts when these expenses ended. Once G knew she would not be able to open the store, she had a duty to mitigate her losses. WBC knew G from the first phone call on 8/1 was opening a store, and it was foreseeable that she would incur lease/operating expenses. These also should be recoverable.
If there is no K, is G entitled to any money?
Even if the court doesn't find a K between G & WBC, it may find WBC liable for G's reliance damages. G would argue that WBC knew she needed the books to open her store (call 8/1) and by placing the order with WBC she detrimentally relied on their implied promise to deliver.
QUESTION #3 - EVIDENCE
On January 13, 1996, defendant Donald Doerr submitted a loan application to a federally insured bank on which he falsely stated that he had no liabilities. Donald was indicted and on March 1, 1997, arrested and jailed.
The government alleges that at the time of the loan Donald owned and controlled the Doerr Corp. that had net liabilities of $5,000,000. The parties have stipulated to financial statements showing that as of December 31, 1995, Doerr Corp. had zero assets and $5,000,000 in liabilities.
Below is a summary of testimony and exhibits that will be offered at trial.
Donald will testify that the Doerr Corp. is his brother Bob's corporation and that Bob asked him to sign corporate documents because Bob said he had had SEC problems in the past. Donald will testify that he did sign the corporate documents but that he had nothing to do with running the business.
Donald's cellmate in the county jail, Ronald Rattan, is charged with cocaine trafficking. Rattan will testify that Donald told Rattan that Donald owned an import business. Rattan will also testify that although no promises were made in exchange for testimony, Rattan is aware that under Federal Sentencing Guidelines his sentence could be reduced by as much as three years for his testimony against Donald.
Prosecution Exhibit 1 is a certified copy of the certificate of incorporation for the Doerr Corp. obtained from the files of the Minnesota Secretary of State, signed by Donald Doerr and stating that the corporation had been organized under the laws of the State of Minnesota, and that "Donald Doerr" is the sole stockholder and principal officer of the corporation whose business is described as "imports."
Doerr's estranged wife, Wilma Doerr, agrees to testify for the prosecution and will testify as follows:
1. That she and Doerr have been in the process of getting a divorce since July 1996, when she discovered he had a girlfriend of long-standing;
2. That in 1993, Doerr told her that they would not be able to take a vacation that year because he had lost money on his import business;
3. That in July 1994, in the presence of their 10 year old daughter, Doerr told her that they would not be able to take a vacation that year again because he had lost money on his import business;
4. That in August 1994, she told a co-worker she could not take a vacation because her husband said he lost money in his import business.
Mrs. Doerr's co-worker will testify that she heard Mrs. Doerr say there would be no vacation because Donald lost money in the import business.
Arlene Ausman, an IRS auditor, will be called to testify that she spoke with Wilma Doerr in June 1996, in the course of an IRS audit, and that Mrs. Doerr told her that Mr. Doerr's corporation was really his brother Bob's corporation and that Mr. Doerr's involvement with it, after signing its papers, was non-existent.
Wilma will deny that she told the IRS auditor that her husband had nothing to do with Doerr Corporation.
Analyze and discuss the evidentiary issues that will arise. Address how you believe the judge should resolve them and why.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 3 - EVIDENCE
Evidence must be relevant in order to be admitted. Relevant evidence is evidence that tends to prove or disprove a matter in the case. It is related to the transaction or occurrence of the matter and is used to help the trier of fact. It can be kept out by the judge if it is too prejudicial when weighed against its probative value or is misleading or confusing to the jury.
Hearsay is evidence that is a statement (oral or conduct made to assert) made by an out-of-court declarant to prove the matter asserted. It will not be hearsay if it is brought in for a different reason, such as the effect the statement had on the reader or listener.
I will take each statement or offered testimony in order.
DONALD
Donald can state why he signed the corporate documents as he has personal knowledge, but he can't relay what Bob said to him about the SEC as it is hearsay. Bob said the statements out-of-court. Donald can say the statement should be allowed not for its truth, but for the effect it had on him as the listener and this would probably work. The judge should allow Donald's testimony on why he signed the papers.
RONALD RATTAN
What Donald told Ronald would be hearsay. It was an out-of-court statement made by Donald as being proposed to prove the matter asserted – that he does in fact own the import business. It could be seen as an admission by a party opponent since Donald is a party to the case. The judge will allow Ronald's testimony, but will have to allow Donald a chance to impeach the credibility of Ronald and show he may be biased as he will want a reduction in his sentence.
EXHIBIT #1
The certified copy of the articles of incorporation would be allowed. It falls under a public record and was certified by the Sec. of State. It also is OK as far as the Best Evidence rule even though it is a copy because duplicates are allowed and this record was authenticated by the Sec. of State which makes it self-authenticating in court. The exhibit can be used to impeach the testimony of Donald as it goes to a material fact of his ownership.
WILMA
Wilma and Donald are still married even though they are in the process of divorce. Thus there are two privileges involved. The spousal privilege is for criminal cases only and involves conduct that occurred during the marriage and the privilege ends at divorce. The holder of the privilege is the witness. The marital confidential communication privilege is for communication made in confidence and made during the marriage. This privilege lives even after divorce to things said during the marriage and both parties are holders of the privilege and it is pertinent to both criminal and civil cases.
Wilma's #1 statement
This statement is irrelevant, especially the part of the long-standing girlfriend. It is more prejudicial than probative and should be kept out.
Statement #2
This statement, if made in confidence, would fall under the marital confidential communication privilege. Here, Donald could invoke the privilege and keep Wilma from testifying. It must be shown that he intended for the communication to be confidential, but someone's salary or business loss would probably fall under confidential material. It was a statement said during the marriage.
Statement #3
This statement is similar to the one above except that their daughter was present. When the confidential communication is made in front of other people the privilege is waived, but a 10 year old daughter who is an integral part of the family and is at such a young age will probably not be seen as waiving the privilege. This should not be allowed in either.
Statement #4
What the co-worker heard is hearsay. Wilma said the statement to her co-worker and it is being offered to prove the matter asserted. Not that they couldn't go on vacation, but that Donald owns the import Co. This is not an admission because Wilma is not a party to the suit and not a declaration against interest because she is not unavailable and she didn't know it was against her interest when she said it. It may be seen as Wilma waiving the privilege, but I don't think it will be let in.
CO-WORKER
This is double hearsay and so each level must be admissible. Donald stating to Wilma would be admissible as an admission. The statement from Wilma to co-worker is hearsay and thus not admitted.
ARLENE AUSMAN
Arlene's conversation with Wilma is hearsay unless it falls under some sort of business record. If Arlene took notes in the normal course of her audit, she may be able to testify as long as she can get past the best evidence rule. The statement may be allowed in to impeach Wilma. She is stating that she never said it to the auditor so the defense can impeach Wilma with the statement. It would only be offered to impeach and not as substantive evidence because it was not made at a formal hearing.
QUESTION #4 - ETHICS
Last year Attorney Alice represented a fast food restaurant--Hattie's Southern Fried Chicken--in locating and opening a restaurant in the community. She assisted in matters involving zoning, construction, service contracts and employment contracts. She has been paid for her work and is not currently representing Hattie's on other matters.
Alice has now been contacted by Chicken Tom's, another fast food restaurant that wants to open a store in direct economic competition with Hattie's. Chicken Tom's wants to retain Alice for legal advice in opening the restaurant. Tom tells Alice that he is short on cash and suggests that Alice accept part ownership in the restaurant in lieu of payment for legal advice. Alice is unsure of whether she can represent Tom and if she does, whether she should accept the part ownership offer.
Alice also represents a third restaurant called Big Boy's. A controversy arises between Big Boy's and adjacent landowner Larry. In the course of discovery, Alice requests and receives documents from Larry's attorney. Included in the package of documents is a two-page memo stamped "Privileged Material-Confidential." Alice is unsure about whether she should open the package and read its contents.
As the Big Boy matter is being prepared for trial, Alice serves a subpoena and the $40 witness fee on Will, who will be called as a witness in the dispute with Larry. Will calls Alice and tells her he makes $36 an hour and works 8-hour days. Will says that attending trial for a day will result in an out-of-pocket loss. Will asks Alice to pay the difference between the witness fee and his hourly rate. Alice needs Will's testimony, but is unsure of whether she should pay the difference.
The week before trial, Big Boy's president Max phones Alice and admits to Alice that the deposition testimony he gave the day before was not completely truthful. Max tells Alice that the matter has proceeded this far and she should just take it to trial. Alice is unsure of what to do.
Analyze Alice's concerns and discuss what course of conduct Alice should take with respect to each of the matters mentioned above.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 4 - ETHICS
Conflict of Interest
An attorney cannot represent two clients where there is a conflict of interest between the rights of the clients. However, normally this refers to a legal conflict of interest.
In the case at hand, the conflict is economic. Further, Alice no longer represents Hattie's. It may be prudent for her to disclose her representation of these two entities to both parties involved to ensure there is no objection but because the conflict is economic competition between a former and present client and there does not appear to be any basis to show that Alice could use confidential information regarding Hattie's business to help Tom, she should not have a problem. If she did obtain sensitive material in her preparation of contracts and in obtaining zoning and construction approvals, she should not work for Tom without both parties' consent.
Interest in Ownership
In general, an attorney is not allowed to enter business deals with its clients except ordinary every day transactions such as the purchase of goods. This is to protect the client from being cheated by the attorney. However, it is acceptable in some cases for an attorney to accept part ownership in a business in lieu of payment. If this is done, it would be best for all parties if the client were represented by another attorney when this arrangement is made. It would also be more appropriate if Alice did not obtain any significant amount of control in the business.
Privileged Material
Alice can read this memo. If it is a document that is a confidential business document, Larry has waived any right to confidentiality by producing the document. If this is a document covered by the attorney-client privilege or some other privilege recognized by a Court, Alice may not be able to use the information in the document. If Larry's produced the document, the right is waived. If the attorney inadvertently produced the document, the privilege may still exist because Larry is the holder of the privilege and may not be deemed to have waived the privilege.
But unless the document is covered by an un-waived and recognized evidentiary privilege, Alice has properly obtained the document and may use it against Larry's.
Witness Fee
A party may pay a fee to an expert witness, but is generally not entitled to pay a fee to a witness beyond the statutory witness fee. To allow additional payment may result in bias. A party is required to appear at his or her deposition. A non-party witness may be compelled through issuance of a subpoena. If the party fails to appear, the court may cite the witness for contempt of court. These are the means used to obtain testimony. Alice should not pay Will the difference between his normal wages and the witness fee. If necessary, she should ask the court to compel the witness's testimony.
False Testimony
An attorney has a duty to keep confidential any information received from her client unless it would help perpetrate a future crime or put someone's life in danger. However, she cannot help perpetrate a fraud or crime by continuing to represent a client once she knows he has broken the law.
In the case at hand, Alice should encourage Max to correct his testimony to make it truthful and accurate. If he refuses to do so, she cannot reveal what he told her, but she has a duty to withdraw from the case.
If the case is close to trial, she cannot leave her client in the lurch by withdrawing and leaving him without adequate representation. She would need to obtain an extension from the court as to the trial date to allow Max sufficient time to find another attorney who can take over the case.
MINNESOTA
STATE BOARD OF LAW EXAMINERS
FEBRUARY 24, 1998
TUESDAY AFTERNOON SESSION
Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other.
Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them.
If your answer contains only a statement of your conclusions, you will receive little credit. State fully the reasons that support your conclusions, and discuss all points thoroughly.
Your answer should be complete, but you should not volunteer information or discuss legal doctrines, which are not pertinent to the solution of the problem.
Unless a question expressly asks you to use Minnesota law, you should answer according to legal theories and principles of general application.
QUESTION #5 – CRIMINAL LAW
Irving and Sandra had lived together for five years. Sandra ended the relationship because Irving was jealous and physically abusive, and he abused alcohol and drugs. She moved into an apartment with three friends, Allison, Mary, and Mary's boyfriend, Walter.
Irving called Sandra regularly and begged her to come back to him. She regularly refused. After her refusal one day, Irving hung up the phone and ingested a variety of intoxicants including cocaine, alcohol and marijuana. After several hours of consumption, he drove to the home of his friend, Michael, where he entered an open door and, seeing no one around, picked up a butcher knife and walked away. Just as Irving was about to get into his car, Michael returned from his garden, and seeing Irving, called out to him. Irving turned and brandished the knife at Michael. Michael saw that the knife was his own, and he believed Irving's gesture to be a wave and a request to borrow his knife. He waved back, and Irving got into his car and drove away.
Irving then went to Sandra's apartment. He was about to knock, but looked at the mailbox, and noticed a man's name listed next to Sandra's. Raging with jealousy, he used a penknife to break the door lock. He entered, went to Sandra's room and stabbed her to death with the knife he had obtained from Michael. Hearing Sandra's screams, Allison, Mary, and Walter tried to subdue Irving, but during the struggle, he stabbed all three. None was killed, though Irving believed Walter was dead.
Irving threatened to kill Mary and Allison. Allison persuaded Irving to leave Mary alone by saying to him, "I'll go with you wherever you want to go."
Irving took Allison and went back to Michael's house, and told him what had happened. Michael was horrified, but he agreed to keep things quiet, and he buried the knife in his garden. Michael then called a cab and gave Irving money to pay the fare. Irving told the cab driver to take Allison to a hospital emergency room. When they arrived, Irving was arrested by the police. Later at the police station, Irving claimed to remember nothing of what had gone on.
Discuss the possible crimes and defenses as to potential defendants.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 5 – CRIMINAL LAW
This answer is based on the common law of crimes.
1. Irving's entering Michael's house and taking the butcher knife.
The common law crime of larceny is the wrongful taking and carrying away of property of another with the intent of permanently depriving the owner of possession. Burglary is entering a dwelling of another by force at night with the intent to commit a felony therein.
In this case, Irving entered Michael's house through an open door during the day with no obvious felonious intent. Therefore, there was no burglary. However, Irving did pick up the knife and carried it away out of the house. If Irving intended to keep the knife, he could be convicted of larceny. Michael's waiving to Irving as an "OK" to the taking of the knife does not eliminate the larceny charge because Irving had carried the knife out of the house. However, larceny is a specific intent crime.
Irving could use the defense of intoxication. He could claim all the drugs and drinking eliminated his ability to form the proper intent. Since Michael and Irving were friends he could also argue "just borrowing, no intent to permanently deprive" as a defense to the larceny charge.
2. Irving "brandishing" knife at Michael.
Assault is a specific intent crime – one must perform an act which puts another in apprehension of an immediate battery. Here, because they were friends, Michael was not reasonably in fear of an imminent battery from Irving when Irving brandished the knife. Moreover, assault is a specific intent crime and the same intoxication defense outlined above could be used by Irving if he were charged with assault.
3. Irving's entry into Sandra's apartment.
Please see the elements for burglary outlined in section one above. When Irving entered Sandra's apartment with a pen knife to break the lock, he was using a forcible entry. If this occurred at night, and Irving intended to harm Sandra or commit another felony within, he could be charged with burglary. However, burglary is a specific intent crime and intoxication could be used as a defense.
4. Irving's killing of Sandra.
There are several different ways to approach Irving's killing of Sandra. Outside the common law, if Irving killed Sandra with malice aforethought, he would be guilty of first-degree murder. A good argument for such a charge could be made here because Irving went to Michael's and got the knife he used to kill Sandra with, before he went to Sandra's. However, first degree murder is a specific intent crime and if Michael successfully claims that he lacked the intent to kill due to his intoxication, he would be acquitted.
Common law murder, however, is a malice crime and not a specific intent crime. If someone intends to kill another and successfully achieves that end, it's murder. Irving has apparently no real defense to a charge of murder. He took a knife, went to Sandra's room and stabbed her to death with the knife. Intoxication is no defense here.
Irving could try to claim that there was enough passion involved to mitigate the murder charge to voluntary manslaughter. Voluntary manslaughter occurs when someone murders another with provocation and no chance to cool off/reflect upon one's acts. Irving was "raging with jealousy" when he went to Sandra's apartment, and he apparently did not cool off before he killed her. However, Irving did not see Walter's name in the heat of passion. He acted afterward--the name on the mailbox was probably not enough provocation to justify mitigating the charge to voluntary manslaughter.
5. Irving stabbing Allison, Mary and Walter.
None of these three victims died, so there are no homicide charges here. The prosecutor could try and charge Irving with attempted murder, but attempt is a specific intent crime. If Irving only was trying to escape his captors and not kill them, he could not be found guilty of attempted murder. He could, however, be found guilty of battery. Battery is the harmful or offensive contact with the person of another. It is a general intent crime. Since Irving stabbed all three, he caused enough harm to have committed battery. Voluntary intoxication is not a defense for general intent crimes. Moreover, self-defense is probably not a viable defense for Irving here, as he was the original aggressor and had no right to try and stop the intervention of the roommates.
6. Irving threatening Mary and Allison.
In order for attempt to hold, need action. Just threatening words would not make Irving guilty of attempted murder.
7. Irving taking Allison.
Kidnapping is the wrongful taking of another person to another place with the intent to deprive that person of her freedom of movement. Irving took Allison to Michael's house. He could try and argue that she consented to go by saying "I'll go with you…," but consent must be knowing, voluntary and without duress. Allison feared for her and Mary's life, she was not giving voluntary consent to Irving.
8. Michael burying the knife and giving Irving cab money.
An active aider and abettor of crimes can be charged with all crimes foreseeably committed by his accomplice. In this case, Michael did not apparently know Irving's intended use of the knife when he let Irving take it. He also did not have enough of an encounter with Irving to know of his intoxicated state and thus be liable for criminal negligence. Michael was most likely an accessory after the fact, guilty of hiding evidence of Irving's crimes, but not all of the crimes Irving committed.
QUESTION #6 – CONSTITUTIONAL LAW
Assume that the hypothetical State of Meridian is located in the United States. In the 1990s, several high technology firms expanded rapidly in Meridian attracting many individuals seeking work to move to Meridian from other states. Established Meridian residents feared that the new arrivals could influence elections, and impose their preferences on all Meridian citizens.
In March 1997, the State of Meridian adopted the Meridian Informed Elections Act. The act provides: "An individual may not vote in a Meridian state election until the individual has resided in the state for at least one year." According to the Meridian legislature, this provision will help to insure that only "well-informed voters" cast ballots.
After the Meridian legislature adopted the Informed Elections Act in March 1997, a number of new Meridian residents organized a picket line to protest its enactment. A peaceful protest occurred in the capitol city of Meridian--Black River--on March 24, 1997.
Protesters formed a picket line on a Black River public sidewalk that was located about 100 yards from the Meridian state capitol building.
The protesters were arrested for violating Black River Municipal Ordinance 503. The ordinance prohibits "all organized demonstrations within 500 yards of the state capitol, except for peaceful labor picketing."
1) Analyze and discuss whether the Meridian Informed Elections Act violates the United States Constitution.
2) Analyze and discuss whether Black River Municipal Ordinance 503 violates the United States Constitution.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 6 – CONSTITUTIONAL LAW
This is a constitutional law question dealing with two different issues.
I.A Right to vote
The constitution, as interpreted by the Supreme Court, has established certain fundamental rights that neither the state nor federal governments can impede without sufficient reason. Applied to the states, the 14th Amendment is the "vehicle" for extending constitutional safeguards.
The equal protection clause is implicated when state government decides to treat people or things differently. For most types of regulation -- economic, business, general regulatory -- differences are tested under the rational basis tests, requiring "any rational reason" from the state.
For more important rights and protections, the state or government has a higher burden to justify any regulations. This burden is known as "strict scrutiny" and requires regulation to be narrowly tailored and necessary for a compelling government interest.
The State of Meridian (M) has acted in a way to implicate the 14th Amendment by creating a residency rule requiring one year residency before voting in state elections. The interest it cites is a valid one, insuring that only "well-informed" voters vote.
However, residency rules concerned with the fundamental right of voting for this purpose are likely invalid. While the interest may be "compelling," the statute is not narrowly tailored and does not guarantee any subsequent voter will be "well-informed." Simply living in a place for a period doesn't guarantee this. Moreover, the reason for the law does NOT appear to the without prejudice. In fact, residents of Meridian feared new arrivals could "influence elections." Indeed, this very fear is what the constitution and courts protect. In short, the statute is unconstitutional.
I.B. Right to travel
Besides the right to vote, the Meridian statute may have the effect of constructing the right of all citizens to travel (and live and work) across state lines. While this argument pales compared to the equal protection "right to vote," it may be considered by opponents of the statute.
Free Speech
II.A. Public Forum
The validity of the Black River ordinance probably depends on whether the public sidewalk is a "public" or "non-public" forum. In either case though, the First Amendment (and 14th Amendment applied to the states) restricts most forms of "content control" for speech. Unless speech is "less protected" because its commercial (intermediate) or unprotected (fighting words, incitement to violence), content controls are presumed invalid.
Even in public forums though, time, place and manner (TPM) regulations are allowed, as long as they are content and viewpoint neutral, leave alternative channels open and are narrowly tailored to serve a significant governmental interest.
If the sidewalk near the capitol is a public forum, and I believe it is, the Black River law is unconstitutional. Public forums are those public areas traditionally set aside for exercise of 1st Amendment rights. Places like public plazas, sidewalks, and parks are "traditional" public forums. Of note, this sidewalk is near the capitol, an important place for the exercise of 1st Amendment rights.
As a public forum, no content or viewpoint restrictions are allowed. The law here allows labor picketing within 500 yards, but no other groups. This is a flagrant violation which gives one group privileges over others.
Even as a TPM regulation, this law is suspect. 500 yards from the capitol is a long way, over 1/4 mile. Protestors from 500 yards away may not be noticed. While restrictions on noise may be reasonable, this distance fails the TPM reasonable restriction test.
II.B. Non-public forum
Non-public forums may regulate by content, but not viewpoint. Although this regulation does not provide explicitly that some groups may not protest, that is what is implied. Thus, even as a non-public forum, this law fails the TPM reasonableness test because it is NOT viewpoint neutral. Black River's law violates the constitution.
QUESTION #7 – FAMILY LAW
Wife met Husband in the state of Connectimas where both were in graduate school and where they married in September 1995.
When they graduated in June 1996, Wife and Husband were unable to find jobs near one another. Husband's only job offer as a university professor on a year-to-year contract in the state of Alageorgia. In September 1996, he moved to Alageorgia to take the position. Wife remained in Connectimas, where she found employment.
Throughout the academic year, Husband wrote to Wife and to his parents in Connectimas expressing the hope that he would be able to return to Connectimas soon. The couple agreed orally that Husband would return to stay with Wife in Connectimas during winter break, and that Wife would come to Alageorgia for the summer. They continued searching for positions near one another.
In May 1997, Wife began a relationship with another man, Terence. In June, rather than come to Alageorgia, she wrote to Husband to tell him that she wanted a divorce. Husband has told Wife he is opposed to the divorce, plans to fight it, and wants time to attempt reconciliation.
Wife has now moved in with Terence and is two months pregnant by him. In August 1997, Wife comes to Alageorgia where you practice and asks you to represent her in terminating her marriage so she can marry Terrance before the birth of the child.
Connectimas's divorce statute requires a two-year separation before a no-fault divorce can be granted.
Alageorgia's marital dissolution statute provides the following:
"A dissolution of marriage is the termination of the marital relationship between a husband and a wife. A decree of dissolution completely terminates the marital status of both parties. A dissolution of a marriage shall be granted by a court when it finds that there has been an irretrievable breakdown of the marriage relationship. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the commencement of the proceedings and the prospect of reconciliation, and shall make a finding whether the marriage is irretrievably broken. A finding of irretrievable breakdown is a determination that there is no reasonable prospect of reconciliation. The findings must be supported by evidence that:
(1) the parties have lived separate and apart for a period of 180 days immediately preceding the commencement of the proceeding; or
(2) there is serious marital discord adversely affecting the attitude of one or both parties toward the marriage."
The statute also states:
"No dissolution shall be granted unless one of the parties has resided in this state, or has been a member of the armed forces stationed in the state, for not less that 180 days immediately preceding commencement of this proceeding."
Analyze and discuss all the legal issues presented by the above facts and indicate how you would advise Wife.
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 7 – FAMILY LAW
A divorce decree under common law is subject to full faith and credit with regards to other states. Therefore, if Husband and Wife divorce in Alageorgia, Connectimus will recognize the decree and vice versa if the divorce is granted from the state of Connectimus.
Wife wants a divorce as soon as possible so that she can bear her child in marriage to her new beau, Terence, thus, in wife's mind, time is of the essence. Under Connectimus statute, a no-fault divorce requires two years of separation. It is a possibility that a '"fault" divorce statute also exists in Connectimus but since wife is at fault, she would be unable to sue for divorce. Husband does not wish to divorce. Therefore, if wife divorces under Connectimus law, it will take at least one more year of separation.
The dissolution statute in Alageorgia may be used if one of the parties has resided in the state for not less than 180 days. The issue is whether Husband is deemed to have resided in Alageorgia under the statutory meaning. Common law definition of "reside" or "domicile" requires living in a state with the intent to permanently make it your home. If this is the case, Husband's residence in Alageorgia is not going to qualify. Based upon the plain meaning of the statute, "reside" means live. It has no additional terms to imply an intent to permanently live there is required. In fact, a "member of the armed forces stationed" in the state is not indicative of an intent for permanence either. Therefore, based on the statute's plain meaning rule and the fact that Husband has "resided" in Alageorgia for almost an entire year, the statute applies.
Alageorgia's marital dissolution statute provides for a termination where there has been an irretrievable breakdown of the marriage relationship and in the event that one party does not agree, other factors and circumstances will be considered by the court.
Those factors and circumstances will be applied in Husband and Wife's case because of Husband's opposition to a dissolution. The fact that Husband and Wife have lived apart for one year after only living together for one year is one factor. Another is that Wife has had an affair with another man, as well as conceived a child by another man. Furthermore, the fact that she has taken steps to marry Terence by moving in with him is evidence of an irretrievable breakdown of a marriage. Based on these factors, it is unlikely that a reasonable prospect of reconciliation exists as required by the statute.
I would advise Wife to document the fact that Husband has lived in Alageorgia and she has lived apart from him in Connectimus for almost one full year. Based upon those facts, a dissolution of the marriage can be proceeded with in the state of Alageorgia.
QUESTION #8 - WILLS
On January 10, 1991, Testator duly executed her last will bequeathing $500,000 to her husband, Sam, "and if he does not survive me, then to his child, Step-Son." Testator bequeathed the balance of her estate to her child, Daughter, born to Testator from her prior marriage. The lawyer who prepared this will handed it to Testator, told her it was very valuable, and insisted that she keep it in a "very safe place." The lawyer kept a copy of the will for his files. Testator took the will home and placed it in a locked box which she kept in her bedroom closet.
In January 1993, Testator and Sam divorced. One month following the divorce, Testator sold her home and purchased a condominium in the same city. At about this time, she and Daughter had a conversation about Testator's estate and the disposition of some of Testator's "prized possessions." In that conversation, Testator told Daughter: "Everything is in order, I saw my lawyer about that awhile back."
During the course of the move from the home to the condominium, all of Testator's household goods were destroyed when the moving van in which whey were being moved was totally destroyed by an unexplained explosion of its gas tank.
In March 1993, Testator died unexpectedly. Her original will could not be found. Testator was survived by (1) Sam, (2) Step-Son, the child of Sam from Sam's first marriage, (3) Daughter, and (4) Grandchild, an adopted child of Testator's Son, who died five years before Testator. Testator's net estate is valued at $1,500,000.
To whom should Testator's net estate be distributed and what amount should they receive from the net estate?
MINNESOTA BAR EXAMINATION
FEBRUARY 24, 1998
REPRESENTATIVE GOOD ANSWER
QUESTION 8 - WILLS
The 1991 will, according to the facts, was duly executed. Testator ("T") had legal capacity since she was over 18. Presumably the will was signed by T, in the presence of two witnesses who then signed in T's presence. T appears from the facts to have had testamentary capacity, she knew she was making a will, she knew her rough net worth, she knew the natural objects of her bounty and she knew how she was disposing of her property. Her capacity in 1991 was not in question according to the facts. Later, in 1993 when she told daughter ("D") that everything was "in order," she may have been confused, but that does not affect the validity of the 1991 will. T left Sam 1/3 of her estate, presumably equal to his elective share. There is no requirement that you leave your spouse all of your assets, but you cannot disinherit a spouse. A spouse is always entitled to an elective share, usually 1/3, absent an anti-nuptial agreement to the contrary. The $500,000 bequest to Sam would have satisfied the requirement. At the time of T's divorce from Sam, Sam is automatically removed from the will, by operation of law and he is treated as though he predeceased T. Sam would also be treated as predeceased in the event he had been designated as a Personal Representative. The issue arises if Stepson ("S-S") will take Sam's share pursuant to the instructions of the bequest. More on this below.
T had possession of her original will. Typically, when a testator retains the original will so that the original was last seen in the control of the testator and then the will cannot be found when the testator dies, there is a presumption that the testator has revoked the will. In January 1993 the will was still in T's control. Between January and March of 1993, the will was lost or destroyed, presumably in the explosion which destroyed T's household goods.
If the will was, in fact, destroyed in the explosion and not revoked by T, the lawyer's copy could be probated under the Proof of Lost Wills Statute.
D will want to argue that T revoked the will by physical act prior to her death. I will address both contingencies. Revocation of a will can occur by a physical act or by the execution of a subsequent will which by its terms, revokes the older will. There is no subsequent will in the facts. D will argue that T had intent to revoke her will and then committed an act of physical revocation. The intent would be demonstrated by T's assurances to D that her affairs are in order and the physical act would be presumed because the will cannot be found and was originally in T's control.
If the probate court believes D, T's estate would pass according to the intestacy statute. Therefore, D would receive 1/2 or $750,000 and Grandchild (GC) would receive 1/2 or $750,000. GC would receive the share that T's deceased son would have received under the anti-lapse statute.
The anti-lapse statute would save the gift to Son for GC. Anti-lapse statutes typically provide that if a close relative of the testator predeceases the testator, then that share will pass to the issue of the predeceased relative. Therefore, GC would take Son's 1/2. The fact that GC is adopted has no bearing on his ability to inherit. Adopted person have full rights to inherit from their adoptive parents and grandparents.
If T is deemed to die intestate, then Sam gets nothing because they are not married. S-S also gets nothing because he is not an heir of T. There is no indication that T adopted S-S.
This scenario whereby T's estate passes through intestacy is highly unlikely to occur. Much more likely is that the 1991 will, will be found to have been destroyed in the explosion. There is no evidence that T revoked the earlier will. Since the will was known to be kept in the locked box and the box was destroyed in the explosion, I would argue for admitting the lawyer's copy of the will to probate. Upon an adequate showing under the Proof of Lost Wills Statute, the copy can be admitted to probate.
In this event, the estate will be distributed as follows:
The bequest to Sam will fail because it was automatically revoked upon their divorce. The bequest provides, however, that if Sam predeceases T, the $500,000 goes to S-S. Since Sam is treated as predeceasing due to the divorce, S-S receives $500,000. The balance of the estate, $1,000,000 would pass to D pursuant to the residuary clause of the will.
Since Sam was not mentioned in the will, GC does not receive any property in place of Son. Since son died in 1988, prior to T's making of her will, there are no issues to raise with respect to T's choice to leave the residue of the estate exclusively to D.