July 1985, Question 4 [Constitutional law]
Question 1 Torts
Whit, a Marine Corps officer, was convicted of murder in 1946 in a highly publicized trial. The only evidence against him at the trial was the testimony of two former Marines that Japanese prisoners of war had been killed while in the custody of troops commanded by White during the battle for control of Guadalcanal. In 1954, one of these witnesses who was then dying of cancer confessed that he and the second witness had lied at the trial of White in order to avoid punishment for their own misconduct. When investigation confirmed the truth of the confession, White received a pardon, was released from prison, and entered a religious order where he lived in seclusion under vows of silence and poverty.
Late in 1984, White developed a serious illness. He reluctantly left the order and entered a hospital for treatment.
News, a daily newspaper in the city in which the hospital is located, has prepared a feature article that fully and truthfully recounts the trail, imprisonment, and the events leading to the pardon of White. The author and editors have relied solely on information available in public records. News has notified White that it intends to publish the article. White objects to the prospect of unwelcome publicity. White and News have been warned by White's doctors that the emotional stress White may suffer if the story is published will impede his recovery.
1. If the story is published, on what theory or theories might White base an action for damages against News? Discuss.
2. If White seeks an injunction to prohibit publication of the proposed story, what defense of defenses should News offer, and how should the court rule on them? Discuss.
Question 2 [Civil Procedure]
Seler, a citizen of State S, and Byer, a citizen of State B, met in state B and signed a written contract by which Seler agreed to sell Whiteacre, located in State W, to Byer. The contract as written provided that the purchase price of Whiteacre was $15,000. Seler returned to State S and sent Byer a deed conveying good title to Whiteacre.
Byer did not send Seler any money, but brought an action against Seler for reformation of the contract to correct and alleged error in the contract price. Byer alleged that the agreed price was $7,500 and that the $15,000 figure in the contract was a typographical error. The action was brought in a federal district court in State B. Subject matter jurisdiction was based on diversity. Personal jurisdiction over Seler was based on service of process under State B's long-arm statute.
1. Seler moved to dismiss the action, alleging lack of both personal and subject matter jurisdiction. The motion was denied.
2. Seler then filed an answer asserting that the written contract accurately stated the agreed price. In addition, he counterclaimed for the $15,000 purchase price set forth in the contract and demanded a jury trial. Byer answered the counterclaim and moved to strike the demand for jury trial. The motion was denied.
3. Seler then served Byer with interrogatories demanding responses to the following questions: "(a) Have you had Whieacre appraised? (b) If so, state by whom, state the appraised value or values, and attach copies of all written reports received from all appraisers." Over Byer's timely objections to the interrogatories, the court ordered disclosure only of the identity of appraisers and their appraised values.
4. At trial, Byer testified that the agreed price was $7,500 and that the $15,000 figure in the written contract was typographical error. An appraiser testified on behalf of Byer that the value of Whiteacre when the contract was signed was, at most, $8,200. Byer rested his case. Seler testified that the agreed price was $15,000. The jury returned a verdict for Seler for $15,000, and judgment was entered accordingly. Byer (?) moved for judgment notwithstanding the verdict, or, in the alternative, for new trial. The court granted the motion for judgment notwithstanding the verdict. No other motions were made during or after trial.
1. Did the court rule correctly on the motion to dismiss? Discuss.
2. Did the court rule correctly on the motion to strike the demand for the jury trial? Discuss.
3. Did the court rule correctly on the objection to the interrogatories? Discuss.
4. Was the evidence admitted at trial such that the court was correct in granting the motion for a judgment notwithstanding the verdict? Discuss.
5. What procedural argument or arguments should Seler have made in opposition to the motion for a judgment notwithstanding the verdict? Discuss.
QUESTION 3 [Community Property]
All the following events occurred in California.
H, an engineer, married W, a dentist, in 1976. Before marriage they orally agreed that the earnings of W after marriage would be her separate property. Later W told friends in H's presence that she would have refused to marry H had he not agreed to this. After marriage W deposited her earnings in her separate bank account.
Beginning in 1977, without H's knowledge, W used withdrawals from the account to buy common stocks in her name. By 1985 she had accumulated a valuable portfolio.
In 1977, H and W purchased a single family residence as their home. The deed conveyed the property to "H and W in joint tenancy with right of survivorship." H made the down payment from separate earnings accumulated before the marriage. H and W signed a note and trust deed for the balance of the purchase price. H made monthly payments on the note from his current earnings until 1983, when he was disabled in an accident caused by the negligence of X. Thereafter, W made the payments from her current earnings.
H settled his damages claim against X for $200,000, and over W's strenuous objection used the money to build a vacation cottage on land he had inherited. Due to market conditions, the value of the land and improvement is increasing rapidly.
In 1985, H died, leaving a properly executed will made a few weeks before death. The will included an accurate description of the family residence and devise of "my one-half interest in said property" to S, and adult son from an earlier marriage. The will also provided that all other assets were left to S.
What are S's and W's rights, if any, with respect to the following properties:
1. The stock portfolio? Discuss.
2. The family residence? Discuss.
3. The vacation cottage? Discuss.
Answer according to California law.
QUESTION 4 [Remedies]
Al planned to build a large shopping center in a suburban area. Betty agreed in writing to sell Al her 100 acre farm located in the center of the proposed development. Al deposited with Betty a portion of the purchase price, the balance to be paid upon delivery of the deed by Betty. At the time their written contract was entered into, Al told Betty only that he was buying her land and 200 acres from other local farmers for a "big project."
Relying upon Betty's agreement, Al purchased the surrounding 200 acres from other farmers. He paid them the same price he had contracted to pay Betty-$1,000 and acre. This price was $200 an acre over market value.
Claude, hoping to build his own shopping center on other nearby land, paid Betty $100,000 to refuse to convey her property to Al. Betty falsely notified Al that she could not complete the sale because she had discovered a defect in her title. Al reluctantly accepted return of his deposit. Without Betty's land, Al could not develop the shopping center as planned, and he has offered his 200 acres for sale.
Claude purchased the land for his shopping center from local farmers for $500 an acre, $300 below the former market value, because land values in the entire area plummeted once Al offered his 200 acres for sale. Claude's shopping center is nearing completion.
Al has recently learned of Claude's arrangements with Betty.
What legal and equitable remedies does Al have:
1. Against Betty? Discuss.
2. Against Claude? Discuss.
QUESTION 5 [Corporations]
The by-laws of Dixie, a publicly held corporation, provide, "The number of directors of the corporation shall be five." Insofar as pertinent, Dixie's articles of incorporation state that the number "constituting the initial board of directors" is five and provide for annual election of directors.
Since its incorporation five years ago, Dixie has been very profitable. Anticipating a hostile takeover attempt, the board voted to increase its size to nine and to stagger the terms of directors so that only three would stand for election each year.
Stan, owner of 29% of Dixie's voting stock, demanded that the board call a special meeting of shareholders to disapprove the board's action and the remove the president from office. The board refused to call a meeting for those purposes. It filled the newly created board positions with persons who were experienced in business and were close friends of the original board members. The new board entered into transactions that harmed Dixie financially but which made the corporation a less attractive target for takeover.
When Stan filed a derivative suit against Dixie and the directors challenging the board's conduct, the board appointed the new members as a "special litigation committed." Thereafter, the board moved to dismiss the suit because "based upon the recommendation of the special litigation committee, the board has concluded the suit is not in the best interests of Dixie."
1. Did the board act lawfully:
A. In increasing its size to nine members without a shareholder vote? Discuss.
B. In staggering the terms of board members without a shareholder vote? Discuss.
C. In refusing to call a special meeting of shareholders? discuss.
D. In filling the newly created board positions without a shareholder vote? Discuss.
2. Should the court grant the board's motion to dismiss? Discuss.
Do not discuss federal securities law issues.
QUESTION 6 [Wills]
On January 1, 1975, Ted, his wife Wilma, and their two adult children, Chuck and Sally, were residents of the State of Alsan. On that date, Ted wrote, dated, and signed his will entirely in his own handwriting. The will provides: "I want my house to go to my daughter, Sally. All my other property of any kind is to go to my wife, Wilma, if she survives me, and otherwise to Sally."
Sally witnessed Ted's signing and dating the will. Sally added her signature as the sole witness. Alsan requires that a handwritten will be signed by two witnesses.
In 1977, Chuck died, survived by his infant son George, born in 1976. In 1980, Ted and Wilma moved to the State of Calco. In 1981, Wilma died intestate. Shortly thereafter, Ted gave Sally $300,000 for the purchase of a home. At the time of the gift, Ted stated in writing that the gift was an advancement.
In 1984, Ted died a resident of Calco, never having revoked his 1975 will. Ted was survived by Sally and George, whom Ted had never seen. When Ted died, his house in Calco was worth $200,000. His other assets were worth a total of $30,000.
You may answer this question according to either of the following assumptions:
A . On January 1, 1975, and at all times thereafter, the probate code of the State of Calco is the same as the probate code in effect in California prior to January 1, 1985,
or
B. On January 1, 1975, and at all times thereafter, the probate code of the State of Calco is the same as the probate code in effect in California as of January 1, 1985.
Either choice A or choice B will receive equal credit. You must state at the beginning of your answer which choice you have made.
1. I the 1975 will effective in Calco? Discuss.
2. How should the assets of Ted's estate be distributed? Discuss.
CHOICE B- California law as of January 1, 1985
1. Is the 1975 will effective in Calco?
2. Distribution of Ted's assets
J85 1. Contracts
Art and Betty own adjoining farms in County, an area, where all agriculture requires irrigation. Art bought a well-drilling rig and drilled a 400-foot well from which he drew drinking water. Betty needed no additional irrigation water, but in January 1985, she asked Art on what terms he would drill a well near her house to supply better tasting drinking water than the County water she has been using for years. Art said that because he had never before drilled a well for hire, he would charge Betty only $10 per foot, about $1 more than his expected cost. Art said that he would drill to a maximum depth of 600 feet, which is the deepest his rig could reach. Betty said, "OK, if you guarantee June 1 completion." Art agreed and asked for $3500 in advance, with any additional further payment or refund to be made on completion. Betty said, " OK," and paid Art $3500.
Art started to drill on May 1. He had reached a depth of 200 feet on May 10 when his drill struck rock and broke, plugging the hole. The accident was unavoidable. It had cost Art $12 per foot to drill this 200 feet. Art said he would not charge Betty for drilling the useless hole, but he would have to start a new well close by, and could not promise its completion before July 1.
Betty, annoyed by Art's failure, refused to let Art start another well and on June 1, she contracted with Carlos to drill a well. Carlos agreed to drill to a maximum depth of 350 feet for $4500, which Betty also paid in advance, but Carlos could not start drilling until October 1. He completed drilling and struck water at 300 feet on October 30.
In July, Betty sued Art seeking to recover her $3500, plus the $4500 paid to Carlos.
On August 1, County's dam failed, thus reducing the amount of water available for irrigation. Betty lost her apple crop worth $15,000. The loss could have been avoided by pumping from Betty's well if it had been operational by August 1. Betty amended her complaint to add the $15,000 loss.
In her suit against Art, what are Betty's rights and what damages, if any, will she recover? Discuss.
2. Con law
The County Board of Education (Board) seeks your advice as Board's legal counsel regarding two current problems:
1. The public high school in the county district has scheduled graduation ceremonies for a Saturday morning, as has been the custom for all schools in the District. This year's senior class valedictorian, Val, holds religious beliefs that prevent her from attending the graduation ceremony because Saturday is the Sabbath day observed by her religion. Val has demanded that Board reschedule the graduation so she can attend and deliver the traditional valedictory address.
2. Board has had a policy of permitting community groups to use the high school auditorium for evening and weekend meetings at a modest rental fee.
Now NFO, a local organization that advocates racial and religious discrimination, has applied for use of the auditorium for a major recruiting meeting on April 20. Persons and groups opposed to what they characterize as the "extremist" views of NFO are demanding that Board reject the application "out of hand, without giving it or even appearing to give it serious consideration." The local police chief also opposes the application on the basis of "hard intelligence" that some militant "anti-fascists" plan to remove NFO members from the school auditorium by physical force if the meeting takes place.
Both Val and NFO have delivered letters to Board invoking "rights under the U.S. Constitution" in support of their respective demand and application.
What issues arising under the U.S. Constitution are presented by:
1. The demand of Val? Discuss.
2. The application of NFO? Discuss.
3. Trusts
Bill, a widower, had one child, his daughter June. Bill purchased a $100,000 farm (Blackacre), bought a single payment life insurance policy on his own life (face amount $50,000), and maintained a large balance in a checking account (usually $100,000). Titles to the farm and the account were always in Bill's name only. June was named originally as beneficiary of the insurance policy, but Bill reserved the power to change the designation of his beneficiary.
A few years before his death, Bill requested the insurance company to make Joe, his neighbor, sole policy beneficiary. After the company informed Bill the change had been made, Bill wrote Joe: I have named you my insurance beneficiary you are to collect the proceeds and divide them three ways. You are one; the others I shall name later. Joe replied: Sure, I'll do what you want.
In June 1980, Bill executed a deed conveying Blackacre to an old friend, Pete. The day of this execution, Bill mailed a signed letter to Pete directing him to rent my farm, pay the net income to June yearly, and when she dies, convey the farm to my church. Pete received and read the letter. A few days later, Bill attempted to deliver the deed to Pete but found out from Pete's housekeeper that Pete was on a three-month sailing trip in the South Pacific. Bill gave the housekeeper the deed and told her to give it to Pete when he returned.
In July 1980, Bill suffered a heart attack and while hospitalized, executed a valid will which left all property I own to my daughter, June, and I recommend that she look out after my 90-year-old Aunt Selma, as long as she lives, making such gifts and provisions for her as she, June, thinks best.
The day after executing this will, Bill wrote the following on a separate piece of paper: To Joe: the other two beneficiaries are Tom Allen and his wife.
Bill died the following day. Two days after Bill's death, Pete's housekeeper handed Pete the deed.
Who is entitled to the assets and why? Discuss.
4. Evidence
Tim was tried in a State A court for possession of 1/10 gram of heroin, a felony. The government's only witness was Officer Jenks, an undercover police officer. Jenks testified that after Tim arranged to sell drugs to Jenks, Tim, in company with Sue, met Jenks on September 13, 1984. Jenks also testified that Tim refused to make the sale, and that Jenks arrested Tim, searched him, and found a substance he believed to be heroin in Tim's jacket pocket.
1) The prosecutor then offered as an exhibit a document entitled "Official State A Forensic Laboratory Report," which states that the unknown substance found in possession of Tim was tested and found to be heroin. The report concludes: "I certify that the above is a true and accurate statement of the findings of this state agency as made this date" and is signed by A. Smith, Executive Director and Custodian (seal).
2) As its first witness, the defense called the defendant, Tim, who testified on direct that he was in possession only of powdered milk and that he was being framed by Jenks. On cross-examination, Tim was asked, "Isn't it true that on May 1, 1983, you were in possession of 1/2 gram of heroin?" Over defense objection, Tim was instructed by the court to answer and said "yes."
3) As its second witness, the defense called Sue, who testified: that she had been dating the defendant for a year; that on the eight occasions they dined out prior to the offense, he always drank his coffee after having added powdered milk taken from a jacket pocket.
4) Sue then testified: that Jenks once arrested her for prostitution and offered to release her on payment of a bribe; that when she refused, Jenks said, "Just wait, I'll get you and all your friends."
5) In rebuttal, the prosecution called Dr. Walt, M.D., who testified: that on September 9, 1984, he examined Tim, who complained of insomnia and anxiety; that during the private examination Tim stated that he was a narcotics addict in need of money to supply his habit; and that Tim asked Dr. Walt if he would like to buy drugs.
Assume that all appropriate objections were made. Were the items of evidence (1) through (5) properly admitted? Discuss. In dealing with item (2), discuss only the cross-examination and ignore the defendant's privilege against self-incrimination.
5. Real Property
QUESTION 5 [Real Property]
Lisa owns a five-story commercial building. On January 1, 2005, she leased the top floor to Tom for a five year term at a rent of $500 a month. The lease was in writing and signed by both parties. It contained a restriction that the premises could be used only “as a dance studio and for no other purpose." It also provided "Landlord shall not lease space in the building to any competitor of Tenant." The lease did not contain any express warranties or disclaimers.
Tom moved in immediately and began to operate a dance studio. In June 1995, he sold his dance studio business to Alice, one of his instructors, and assigned the lease to her. The assignment did not contain any express assumption or assignment of contract rights clauses.
In January 1989, a dance student fell through a floor board. When the board was replaced, it was discovered that, although the building met building code requirements, the floor was not strong enough for a dance studio.
In February, Lisa rented the basement to Charles, who used it for aerobic exercise classes.
Alice wrote to Lisa demanding that Lisa have the floor strengthened and cancel the lease with Charles. Alice claimed that Charles was in competition with her. Lisa refused both requests. On July 1, 1989, Alice mailed the top floor key back to Lisa and moved out of the building. She has paid no rent since moving. Lisa has made all reasonable attempts to mitigate the loss.
Lisa has now sued both Tom and Alice for the rent due.
How the court should rule? Discuss.
6. Criminal Law
Detective Trace received a telephone call from an informant who had given reliable information to Trace on several prior occasions. The informant truthfully told Trace that "David is planning to sell stolen silicon chips to Vic and probably will deliver the chips to Vic within the next two weeks. David usually rents a room at the Savoy Hotel to use when he makes his sales." Trace immediately prepared an affidavit detailing the informant's past reliability and reciting the quoted statement of the informant. On the basis of the affidavit, a magistrate issued a warrant authorizing a search for silicon chips in any Savoy Hotel room rented by David in the two weeks following the date of the affidavit.
One week later Trace learned from the hotel manager that David had rented a room at the Savoy Hotel. Armed with the warrant Trace went to the hotel intending to search the room in David's absence. As he listened at the door to determine if the room was occupied, however, he overheard David offering to sell silicon chips to Vic. He then heard the two men arguing, the sounds of a struggle, a crash, and silence. Trace knocked on the door, announced "police with a search warrantÑopen the door," and entered when David opened the door. Seeing Vic unconscious and apparently injured on the floor, Trace drew his gun and asked David what he had done. David replied: "I pushed him and he hit his head against a table." Trace summoned an ambulance but Vic died of head injuries before it arrived.
David has been charged with murder and offering to sell stolen property, both of which are felonies. David moved to exclude testimony by Trace regarding his observations in the hotel room, all evidence found in the hotel room, and the statement made by David to Trace, on the ground that the evidence had been obtained in violation of David's rights under the Fourth and Fifth Amendments to the United States Constitution. The trial court denied the motion.
1. Was the trial court correct in denying the motion? Discuss.
2. Is the evidence sufficient to sustain a conviction of David for murder or any lesser included offense and, if so, on what theory or theories might guilt be predicated? Discuss.