July 2017 Questions and Sample Answers

 

 

Lake also points to the pervasive entanglements in Camp as analogous to the State’s control here over the lottery. In Camp, although the festival was organized by a nonprofit entity, the city permitted the festival to use the airport grounds at no cost; the city’s personnel were extensively involved in planning for the festival while on city time and at city expense; the city promoted the festival through its tourism bureau; and the city’s airport personnel controlled access of airplanes during the festival’s air show. As noted supra, the city’s police and first responders were effectively turned over to the festival organizers for the duration of the festival. These entanglements were extensive.

In contrast, the primary relationship between the State of Franklin and Mega is a contract, no different from that between the state and any other contractor. The State of Franklin contracts with private entities to build its buildings, deliver food for its prisoners, and furnish office supplies to state legislators, to name but a few contracts. These contracts do not constitute the sort of pervasive entanglement necessary to constitute state action. When the state enters into a contract to build a state building, the contract demands compliance with many regulations, yet it is left to the contractor to execute the contract. Franklin does not involve itself in the governance of Mega. It does not endorse Mega’s personnel policies as the state had in Brentwood when the state Department of Education approved the Association’s rules. Nor does Franklin involve itself directly in the operation of Mega as the city did in running the airport festival at issue in Camp.

Connection to offending conduct: nexus

Even if Lake had met one or both of the tests discussed above, Lake has failed to meet the further requirement of Rendell-Baker that there be a nexus, meaning a connection, between the state and the challenged action. That is, Lake has not shown that the offending conduct—her being discharged without due process—was somehow connected to the state’s influence over Mega. Lake was discharged by Mega in the same way that any private corporation fires any employee. The state played no role in the discharge, so Lake cannot show the required nexus. Lake offers no facts that rise to the level of the circumstances where the state and private parties have acted in concert to engage in denial of a party’s civil rights. Mega’s only participation with the state is to contract with the state to operate the lottery. Mega did not involve the state in any way in its decision to fire Lake.

Affirmed.

Sample Answer

 

ARGUMENT

I. Doris Stern and Allied Behavioral Health Services Acted Under Color of State Law and Are Subject to Suit Under 42 U.S.C. 1983 Because They are State Actors.

The United states court of Appeals for the 15th Circuit determined that a private entity may be liable for violatng 42 U.S.C. 1983 if the private entity is deemed to be a state actor. In Lake v. Mega Lottery Group, the Court held that no one set of circumstances or criteria is sufficient to determine whether a private  entity was acting under color of law as a state actor. Rather, the Court noted that there are a range of circumstances that must be considered: first, state action exists where the private actor was engaged in a public function delegated bt the state; second, a private actor engages in state action when the state exercises its coercive or influential power over the private actor or when there is sufficient entanglements between the private actor and the saye; and third, when there is a close nexus between the state and the challenged actions.

i. Doris Stern and Allied Behavioral Health Services should be liable for violating §1983 of the Civil Rights law by descriminating against female probationers since they were engaged in a public function.

In Lake v. Mega Lottery, the Court held that a state action exists where the private actor was engaged in a public function delegated by the state. In Lake, the plaintiff claimed her employer, Mega, fired her without due process. Mega is a lottery group that entered into a contract with the State of Franklin to operate the lotter, with the profits reverting to the state. Mega argued it should not be liable since it is a private actor. In determining whether Mega was a state actor, the Court looked to Supreme Court precedent in prior cases. In West v. Atkins, the Supreme Court held that where a privately employed doctor was employed to provide medical care to inmates in a state prison, that doctor became a state actor since the sate is the sole entity required to provide medical care to those it imprisons, thus the doctor's action was entirely a public function. Furthermore, in Camp v. Airport Festival, the Court determined that where the defendant, a private non-profit entity created to organize an aviation festival, accepted the authority to instruct the police regarding arrests and security at its private festival, that private entity was engaged in a public function and thus became a state actor since only the state has power to deprive persons of their freedom by arresting them.

Furthermore, the Court in Lake provided further examples of those activities found to be public functions that constitute a state action including: operating a local primary election, operating a post office, and providing for public safety through fire protection and animal control. The Court noted that since the action must be one exclusively within the state's powers, certain functions like operating hospitals, privately owned public utilities, or schools or foster care are not considered state actions since they are not exclusively nor tradtionally state functions since private organizations often initiate and perform these functions without state involvement. Ultimately, the Court in Lake determined that since operating a lottery is not a traditional function of state government, considering the vast number of private entities operating similar activities through private ventures like casinos or racetracks, Mega's actions could not be considered state action and thus Mega was not engaged in a public function.

Here, Allied Behavioral Health Services and Doris Stern (collectively "Allied") contracted with Franklin to provide probation for those convicted of misdemeanors, pursuant to the Franklin sentencing court rules and guidelines for probation and were thus engaged in a public function. Rita Peek was sentenced to 18 months of probation on May 31, 2016 due to her misdemeanor conviction. The sentencing court in Franklin determined that Ms. Peek's 10 month jail sentence would be stayed on the condition that she recieved mental health counseling by Allied. Under the Franklin Criminal Code(FCC) 35-210, the court may suspend the jail sentence and place the person on probation, by which the court is vested with the power to determing the conditions for probation. Furthermore, the FCC goes on to note in section 35-211(a) that every country shall appoint a County Probation Officer who shall be an employee of the county and will provide probation services to the county as required by the Code, either directly or through other entities as provided by law. Moreover, FCC allows the county to contract with non-profit entities to provide the probation services pursuant to the court's orders. The FCC even states that the entity must recieve approval from the County Probation Officer of an annual plan of Services, and must submit to the County Probation Officer quarterly reports listing the names of the probationers. Thus, the control and regulation of probation terms and conditions is vested solely with Franklin, much like the administration of medical treatments to inmates was vested solely with the state in West. Much like the private doctor in West who administered treatment to the patients was considered to be a state actor because of his administration of a state function, so also is Allied engaged in administrating and overseeing a traditional state function--the terms and conditions of probation.

James Simmons, the director of the Probation Services Unit for Allied, even admitted in his depostion that Allied must offer mental health counseling and other probation services pursant to the court's orders. Allied must submit an annual plan and quarterly report to the county to be approved for the probation services to continue. Furthermore, Simmons acknowledged in his deposition that the judge determines the conditions of probations, and that Allied cannot deviate from those conditions, neither by adding nor removing the conditions of probation. Moreover, Simmons attested that Allied recieves 40% of its funding from public funding. Allied may argue that despite its administration of probationary services, it should not be considered a state actor because it offers many other services that are not regulated by the state, and that it recieves 60% of its funding from private entities, thus making it predominantly a private actor. However, this argument falters in light of the fact that 100% of the Union County probation program, with whom Allied contracts and for whom Allied provides probation services, is funded by the state and through probationer's fees, and that the Union County's Probation Office is a unit of local government. Furthemore, Simmons acknowledges that it must report the terms of the probation agreements to the County and that if the probationers do not complete the requirements and terms of their probation, Allied must notify the County who will then extend the probation or impose a jail sentence. Thus, Allied's actions are similar to those of the private entity in Camp, who accepted the authority to direct the county police officers to make arrests at its festival and was deemed to be a state actor because it exercised an authority that was tradtionally a state function. So too did Allied exercise authority to administer probation services and report incomplete probation that would affect the probationers' judicial sentences and terms, a traditional public function, making Allied a state actor.

B. Allied is a state actor because Allied and Franklin was pervasively entangled regarding the administration of probation services and Allied's decisions were left to the sole discretion of the State.

In Lake, the Court determined that state action exists if a state has influence or control over the private entity or sufficient entanglement with the entity. The Court noted that the state's exercise of its power or influence must be such that the private choice can be said to be that of the state. The Court held that Lake failed to show any evidence that the State of Franklin recommended or even knew anything about Mega's decision to fire Lake. In Rendall-Baker, the plaintiffs claimed that their First Amendement rights were violated when they were discharged by a private school. There, the Court held that this was not state action becuse the state did not regulate or encourage the private board of trustees to fire the employees. Furthermore, in Brentwood, the U.S. Supreme Court held that there was pervasive entangelement between a private Associaion and the state where the Association, who regulated interscholastic competitions, was composed of a board of public school representatives and the Association's rules were subject to the state's approval and adoption. This constituted pervasive entangelement. In Camp, the state had turned over its own police to the festival for the defendant's use, consituting extensive entanglement.

Here, Allied's board consists of 11 members, 2 of whom are publuc members. Like the Association's board, in Brentwood, Allied's board has the presence of public actors signifying engatngelement with Franklin. Allied will argue that the board is made up of 11 members and decisions require a majority vote, thus the 2 public entities on the board would not constitute excesive entangelement. However, it should be noted that regardless of the board's composition, Allied functions predominantly in the same manner as the Association in Brentwood, in that Allied also submits annual plans and quarterly reports to the County for its approval and adoption. Furthermore, as SImmons admitted in his deposition, Allied cannot do anything that the county would not approve and it must adhere solely to judicial instruction regarding administering probation. Allied will argue that like Mega in Lake, there is no entangelement simply by durnishing services as part of its contract with the county and that the contract demands compliance with the terms of probation but that Allied is not governbed by Franklin. However, Allied is not merely providing services pursuant to a contract and in compliance with those terms, but it is also enacting rules that must be approved by the county regrding mental health counseling, and unlike the defendant in Lake, Allied's services have the effect of depriving individuals of their liberty rights through its administration of the terms of probation sentencing. Thus, Allied and Franklin are pervasively entangeled in their contractual operation of the probation services such that Allied's actions constitute state action.

C. Allied's discrimination towards female probationers has a sufficient nexus to Franklin since Franklin recieves reports from Allied regarding the status of its probationers' compeletion of probation terms and those on the wait list to still recieve counseling in conjunction with their probation terms.

In Lake, the Court held that Lake had fauled to show that there was a nexus between the state and the challenged action. The Court held that a nexus exists by a showing that the offending conduct is somehow connected to the state's influence over the private entity. The court held that Mega was acting like any private corporation would in firing its employees and that the state played no role in the discharge so there is no nexus.

Here, Simmons admits that 90% of women do not start or even complete the counseling within the probation terms, and that 70% of the women are given an extended probation because of this. Furthermore, Simmons states that 75% of male probationers recieve completed counseling within the period of their probation. Simmons also asserts the wait lists composed of those who have not yet recieved counseling is submitted to the court for review. Thus, unlike Mega who did not submit its corporate policies and terms to the state for review, Allied must submit the wait list and quarterly reports to the court who has knowledge that female probationers have not recieved probation, and that Ms. Peek was on the wait list for three quarters. Thus, there is a sufficient nexus between the state and Allied in depriving Ms. Peek of her rights in that both acted in concert in that Allied deprived her of her counseling and the term of her probation is due to expire shortly, and the court knew of this by reviewing the wait list and quarterly reports and did not intervene. Thus, a sufficient nexus exists.

II. CONCLUSION

Since Allied was engaged in a public function by administering probation services in accordance with the court's directions and rules, and there was sufficient entangelment in that the court had to approve Allied's services and the conditions of the services for Allied to continue offering its counseling to probationers, and since there was a sufficient nexus between Allied's consistent dely in offering of counseling services within the period of Ms. Peek's probation and the court recieved notice of this through quarterly updates and annual reports, Allied is a state actor and should be held liable for a violation of 42 U.S.C. 1983.

Sample Answer

 

I. DEFENDANTS, ALLIED BEHAVORIAL HEALTH SERVICES AND DORIS STERN, ARE STATE ACTORS AND, THEREFORE, ARE SUBJECT TO 42 U.S.C. § 1983.

42 U.S.C. § 1983 provides for a cause of action against persons acting under color of state law who have violated rights guaranteed by the U.S. Constitution.  Buckley v. City of Redding (9th Cir. 1995).  The Constitution's due process clause applies to states, but not to private actors.  Lake v. Mega Lottery Group (15th Cir. 2009).  However, an individual is protected from harm from a private actor if a claimant can prove that the private actor was a state actor.  Id.  The key question in determining whether a private actor is a state actor is whether the state "is responsible for the specific conduct of which the plaintiff complains."  Brentwood Academy (2001).

In Lake v. Mega Lottery Group, the 15th Circuit U.S. Court of Appeals considered the question of whether a private actor was a state actor.  In making this determination, the court determined that state action exists where the private actor was engaged in a public function delegated by the state.  Additionally, state action is present when the state exercises its coercive or influential power over the private actor, or when there are pervasive entanglements between the private actor and the state.  Rendell-Baker v. Kohn (1982).  The court noted, however, that in addition to these two tests, the following additional requirement must be in order for there to be state action: there must be such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the state itself.  Lake, citing Brentwood.

A. Defendants are private actors that are engaged in a public function delegated by the State, and therefore, are state actors, and subject to 42 U.S.C. § 1983.

In Lake, the the plaintiff sued a private actor, and claimed that the private actor fired her without due process.  The private actor moved to dismiss the complaint on grounds that as a private actor, it could not be sued under 42 U.S.C. § 1983.  Originally, the State of Franklin established a state-operated lottery, but due to financial costs, the State entered into a contract with this private actor to operate the lottery, with the profits reverting back to the state.  The Court of Appeals found that operating a lottery is not a traditional function of state government, as many private entities operate similar activities.  Therefore, the private actor was not engaged in a public function, and was, thus, not a state actor.

However, in West v. Atkins, the U.S. Supreme Court found that a privately employed doctor was a state actor when he was employed to provide medical care to inmates in a state prison.  The Supreme Court stated that the state was required to provide medical care to those it imprisons, and when the doctor contracted with the state to provide that care, he became a state actor.  Additionally, in Camp v. Airport Festival, the 15th Circuit Court found state action where a private nonprofit entity accepted the authority to instruct the police regarding arrests.  The 15th Circuit found that only the state has the power to deprive persons of their freedom by arresting them.

In this case, Union County began contracting with Defendants since 2014 to provide misdemeanor probation services with the County.  According to the deposition of the director of the Probation Services Unit of Allied Behavorial Health Services (Allied), James Simmons (Simmons), Allied consists of two units, one of which is the Probation Services Unit.  Simmons is the director of this unit.  As stated by Simmons, "[this unit] carr[ies] out sentencing orders of the court."  How the unit decides to do so is up to the unit, so long as the unit follows court orders.  Even though the unit does not deal with the county on a day to day basis, the unit submits an annual place and quarterly and annual reports to the county.  Additionally, the county pays for most of the probation services, with the probationers' fees making up the rest.

Like the doctor in West, Defendants here are providing mental health treatment to those on probation by the State, and when Defendants contracted with the State to provide that care, Defendants became a state actor.  Additionally, only the state has the power to order persons to probation, similar to the state's authority in Camp, and therefore, Defendants are engaged in public function, and are a state actor.

Defendants may argue that the public function test is narrowly construed to require action that is exclusively within the state's powers, and, therefore, courts have rejected claims that those who operate hospitals, privately owned public utilities, or schools, or provide foster care are performing public functions because these are not traditionally the exclusive prerogative of the state.  Lake.

However, here, Defendants are performing public functions because no other entity, other than the State, can order probationers to probation.  This is traditionally the exclusive prerogative of the state.

• Defendants may point to the fact that Allied has another other unit, the Family Services Unit.  Additionally, Allied receives grants and funds from the community.  They may point to the fact that much of the funding for persons not on probation comes from insurance and from individual clients who pay for their own services.  Overall, Allied gets 40% of its funding from public sources, while 60% of its funding comes from private sources.  While the majority of its funding comes from private sources, the county itself, in addition to the probationers' fees, pays for 100% of the Union County probation program.
• According to the deposition of the director of the Probation Services Unit of Allied Behavorial Health Services (Allied), James Simmons (Simmons), Allied is a nonprofit organization that originally was formed to provide mental health counseling and other services to residents of Union and neighboring counties.  A board of directors hires the executive director, who is a named Defendant in this case, and the board determines what services Allied offers, approves Allied entering into contracts, and sets policies, including personnel policies.  The board includes a county judge, and the county director of public health services.  Other members include community and business leaders, religious leaders, and active citizens.  The board requires majority vote to act.
• While there are only two out of eleven members of the board that are public officials, the representation of the state via these two public officials is enough to say that

B. The state exercises its coercive and influential power over Defendants, and there are pervasive entanglements between Defendants and the State.  Therefore, there is state action, and Defendants are subject to 42 U.S.C. § 1983.

1. THE STATE HAS COERCIVE/INFLUENTIAL POWER OVER DEFENDANTS.

The state's exercise of its coercive power or influence must be such that the private choice can be said to be that of the state.  Lake.

In this case, the named plaintiff in this class action, Ms. Rita Peek (Peek), was sentenced to 18 months' probation by the Union County court in May 2016.  According to her sentencing order, which was signed by the Honorable James Finch, Peek must report to Defendants' facilities for the services ordered by the court and any services ordered by the County Probation Officer.  Additionally, Peek was ordered to meet with a counsel assigned by Defendants to review compliance with the Court's sentencing order, and the Defendants must inform the Court of any violations of Peek's sentencing order.  Ms. Peek has to be evaluated for and undergo mental health counseling by Defendants, and pay Defendants a fee for such services.  In the event Peek does not follow any of the conditions of her sentencing order, her probation may be revoked and she is subject to a list of punishments, including reinstatement of the original 10-month jail sentence, and any relief that the Court deems appropriate.

These conditions found in Peek's sentencing order is evidence of the state's coercive power and influence, and, thus, the private choice of Defendants can be said to be that of the state.  The sentencing order specifically states what Peek can and cannot do when receiving treatment of Defendants' facilities, and if she is found to be in violation of these conditions, the Court, not Defendants, have the authority to revoke Peek's probation and reinstate a jail sentence.  Additionally, as stated by Defendants' own director the Probation Services Unit, "[Allied] carries out whatever the judge orders."  The sentencing court determines what kind of counseling services Allied will provide to probationers.  Furthermore, where a probationer were to violate a condition of probation, Simmons would have to report that to the court.  This is the type of coercive power and influence that the court in Lake was looking for in order to find state action.

Defendants may argue that the state has no influence over Defendants' actions, and that the private choice of Defendants cannot be said to be that of the state.  Defendants may point to the fact that they provide these services to probationers privately, and without the State's influence.  However, as is evident from the regulations prescribing what Defendants can and cannot do pursuant to the Franklin Criminal Code, and the authority the court has explicitly made clear in Peek's sentencing order, the state has substantial power and influence over Defendants and the services Defendants provide to probationers like Ms. Peek.  Therefore, Defendant's private choice of giving male probationers priority in receiving mental health counseing, and failing to provide female probationers with counseling, can be said to be that of the state.

2. THERE ARE EXCESSIVE ENTANGLEMENTS BETWEEN THE STATE AND DEFENDANTS.

In Brentwood, the U.S. Supreme Court found that where the defendant was composed primarily of representatives of public schools, the defendant operated the sports program for the state's public high schools, and the State Department of Education formally adopted the defendant's rules as rules for the public school sports programs, there was pervasive entanglement between public schools and the defendant that essentially made the defendant a state actor.  Additionally, the 15th Circuit found state action because of excessive entanglements where the city permitted the private actor to use airport grounds at no cost, the city's personally were extensively involved in planning for the festival the defendant was holding while on city time and at city expense, the city promoted the festiva, and the city's airport personnel controlled access of airpolanes during the festival's air show.  Camp.

Here, under section 35-211 of the Franklin Criminal Code, any country may elect to provide probation services for those convicted of misdemeanors by contracting with a private entity.  That entity must be a nonprofit entity, and must receive approval from the County Probation Officer of an annual plan of services.  This plan details oversigh of those on probation, alcohol and drug testing, counseling, etc.  Additionally, these private entities must require each individual providing these services to hold a bachelor's degree or its equivalent, as determined by the County Probation Officer.  Furthermore, the private entity must submit to the County Probation Officer quaterly reports information that is required by the County Probation Officer, and needs to obtain approval of these reports from the County Probation Officer.  Finally, the private entity needs to submit to the County Probation Office an annual report of services provides and expenses incurred, and must received approval of that report from the County.

Defendants may argue that the relationship between them and the State is unlike that of Brentwood and Camp, and more like the relationship between the private actor in Lake and the State of Franklin.  In Lake, the court found that the primary relationship between the defendant and the State of Franklin is a contract, which is no different from that between a state and an independent contractor.  A contract where the state hires a private entity to build a state building and demands compliance with state regulations, yet leaves it up to the private contractor to execute the contract is not pervasive entanglement that warrants treating the private entity as a state actor.  Ultimately, the court in Lake found that the State of Franklin did not involves itself in the governance of the defendant, did not endorce the defendant's personnel policies, unlike the State in Brentwood, and the State of Franklin did not involve itself directly in the operation of the defendant, as the city did in Camp.

Here, however, there was more than a mere contract between Defendants and the state.  There is pervasive regulation that directs exactly how Defendants were to provide mental health treatment.  Therefore, there are excessive entanglements between the state and Defendants that warrants treating Defendants as state actors.

C. There is a close nexus between the State and Defendants' action that seemingly private behavior of the Defendants should be fairly treated as that of the State itself.  Therefore, there is state action, and Defendants are subject to 42 U.S.C. § 1983.

The court in Lake found that the claimaint failed to demonstrate the further requirement that there be a nexus between the state and the challenged action, and therefore, the court declined to find state action.  In Lake, the court noted that the claimaint did not show that the offending conduct, her being discharged without due process, was somehow connected to the state's influence over the defendant.  Essentially, the claimant was fired in the same way as any private corporation fires any employee, and the state played no role in that discharge.  The court said that the claimaint failed to show that the state and the private actor acted in concert to engage in denial of a party's civil rights.

Here, however, Union County and Defendants have acted in concert to engage in denial of Peek's, and other women who are similarly situated to her and are not receiving the treatment that they need from Defendants, civil rights.  As admitted by Simmons, probation is a restriction on a person's liberty, as it is similar to being in jail.  Probationers must comply with conditions of probation, meet with Allied employees eahc month, cannot leave the state, and more.  Thus, there is a close nexus between the State and Defendants' action that seemingly private behavior of the Defendants should be fairly treated as that of the State itself.  Therefore, there is state action, and Defendants are subject to 42 U.S.C. § 1983.

Because Defendants are engaged in a public function, there is state coercion and influence, and pervasive entanglement between the State and Defendants, and there is a close nexus between the State and Defendants' action, Defendants are state actors, and are, therefore, subject to 42 U.S.C. § 1983.

 

MPT-2

In re Zimmer Farm

FILE

Memorandum to Examinee

Email to County Board President

Memorandum from Judy Abernathy, Investigator

LIBRARY

Excerpts from Hartford County Zoning Code

Excerpts from Franklin Agriculture Code

Report from Franklin Senate Committee on Agriculture

Shelby Township v. Beck, Franklin Court of Appeal (2005)

Wilson v. Monaco Farms, Franklin Court of Appeal (2008)

Koster v. Presley’s Fruit, Columbia Court of Appeal (2010)

FILE

State of Franklin

County of Hartford

Office of the County Attorney

92 Oak Street

Glenview, Franklin 33705

MEMORANDUM

TO: Examinee

FROM: Carl S. Burns, County Attorney

DATE: July 25, 2017

RE: Complaints about Zimmer Farm

The county board president, Nina Ortiz, is concerned about activities at the John and Edward

Zimmer farm on Prairie Road, and specifically about the bird rescue operation and bird festivals

they operate on their farm. Ms. Ortiz has received numerous complaints from local residents

about the activities at the farm. While she supports the concept of a bird rescue operation, Ms.

Ortiz would like the bird operation moved to a location far away from any residential

subdivisions. She also wants the festivals stopped. She has asked me to research whether the

county’s zoning ordinance can limit the Zimmers’ operations. Further, she wants to know

whether the Franklin Right to Farm Act (FRFA), which protects certain farms and farming

activities, applies here.

In addition to the bird rescue operation and the festivals, the Zimmer farm produces apples and

strawberries for local sale. The Zimmers’ apple and strawberry cultivation and sales are

permitted under the applicable county zoning ordinance. I want you to focus on the bird rescue

operation and the festivals—the activities the neighbors are complaining about. Please prepare an

objective memorandum for me analyzing these questions:

1. Is the Zimmers’ bird rescue operation permitted under the county zoning ordinance?

2. Are the Zimmers’ festivals permitted under the county zoning ordinance?

3. How, if at all, does the FRFA affect the county’s ability to enforce its zoning

ordinance with respect to the bird rescue operation and the festivals?

In your analysis, address any counter arguments the Zimmers may make in support of the bird

rescue operation and the festivals. Address only the questions I have raised above. Do not draft a

separate statement of facts, but be sure to incorporate the relevant facts, analyze the applicable

legal authorities, and explain how the facts and law affect your analysis.

Email to County Board President

TO: Nina Ortiz, County Board President (ctybdpres@Hartford.gov)

FROM: Sally Wendell (swendell@cmail.com)

DATE: May 8, 2017

SUBJECT: Zimmer farm complaints

I am writing on behalf of homeowners living in Country Manors and Orchard Estates, near the

Zimmer farm. For the past two years, the Zimmers have run a bird rescue operation. The birds

create noise and offensive smells and attract flies, all of which bother us. We cannot sit or eat

outside or use our outdoor grills because of the bird noise, odors, and bugs. We did not have this

problem before the Zimmers began their bird rescue operation. Just come out some evening and

see for yourself how bad it is!

Last year, the Zimmers also hosted several bird festivals with music and food. People who came

to these festivals parked on the streets in our subdivisions and walked to and from the farm,

littering our streets and yards. Plus the music got pretty loud and we could hear it whether we

wanted to or not. The Zimmers are planning more festivals, maybe even every month.

We paid good money for our homes because we wanted some quiet country living—that’s why

we moved here. Now our neighborhood is becoming like a downtown entertainment center. We

taxpayers and homeowners want you to shut down the Zimmers’ bird rescue operation and stop

these festivals.

A taxpaying citizen,

Sally Wendell

MEMORANDUM

TO: Carl S. Burns, County Attorney

FROM: Judy Abernathy, Investigator

DATE: June 19, 2017

RE: Zimmer farm complaints

On June 14, 2017, I interviewed John Zimmer and his son Edward regarding neighbors’

complaints about the Zimmers’ farming activities.

As soon as I arrived at the Zimmer farm, Edward Zimmer said, “I know why you are

here—just tell those neighbors ‘Right to Farm.’ They knew they were moving to a farm area—

what did they expect?”

John Zimmer provided some background. When his parents, Gus and Ann Zimmer,

purchased the property in 1951, it consisted of an apple orchard and a strawberry field. Gus and

Ann continued that operation and began growing vegetables after purchasing additional land in

1960. They sold the fruit and vegetables to local grocery stores. In 1985, John and his wife,

Darlene, took over the operation and expanded their produce sales to three farmers’ markets.

In 1988, the Zimmers began a tradition of holding a one-day annual apple festival for

their children’s school. School families arrived by bus with their children and picked apples,

which were for sale. The families played games and listened to music. There were approximately

100 persons in attendance.

In 2007, the Zimmers suffered several losses—a late spring freeze that ruined the

strawberry crop, tough financial times, and some serious health setbacks for Darlene. In 2009,

their son Edward moved to the farm to help. Darlene died in 2010. John and Edward continue to

produce apples and strawberries for sale locally, but they discontinued the vegetable operation.

In 2015, Edward, who is trained as a veterinary assistant, began taking in wounded ducks,

geese, owls, quail, pheasants, hawks—pretty much any fowl or bird that had been hurt. People

from miles around bring him wounded birds. Edward made improvements in some of the

outbuildings and now cares for as many as 100 birds at a time. I inspected the buildings where

the birds are kept and did not observe any obvious threats to public health.

Edward’s goal is to care for the birds until they can be released back to the wild, but

those that cannot be rehabilitated stay on the farm. Edward does not sell the birds, does not make

any profit from the operation, and does not intend to do so. He loves to rescue birds.

 

Last year, Edward and John said they took a clue from agritourism, a development in the

last 20 years that uses entertainment and public educational activities to market and sell

agricultural products. The Zimmers held four weekend festivals at their farm in 2016. They

showed me a flyer used to advertise the fall festivals. It was titled “Fall Bird Festival” and said

“Support injured birds, listen to music, have a good time. Buy apples and discover the best

recipes for baking with fruit.” The flyer listed details such as hours of the festival, directions, etc.

As many as 200 people attended the festivals each day. To attract people to the festivals,

the Zimmers had vendors provide food and drinks, and local musicians offered musical

entertainment. A local chef offered two sessions on cooking and baking with fruit; the Zimmers

also sold apples or strawberries, depending on the season, and cookbooks.

Each day of the festival, Edward gave a one-hour program about birds. To raise funds for

his bird rescue operation, Edward sold bird-related souvenirs, including T-shirts, caps, and

books. Guests were encouraged to “adopt” a wounded bird by donating to its care and upkeep.

Profits from the bird-related souvenirs, along with the donations, were used to underwrite the

bird rescue operation. The Zimmers plan more bird festivals this year.

I also visited the two adjoining subdivisions, both of which were developed in the 1990s.

Before that residential development, the land on both sides of the 30-acre Zimmer property was

farmland for over 100 years. Presently, all lots in both subdivisions have been sold and

developed. Country Manors, which lies to the east of the Zimmer farm, consists of upscale

homes. Orchard Estates, which lies to the west of the farm, consists of moderately priced homes

very attractive to families due to a number of playgrounds and park areas within the subdivision.

About 20 of the homes in Country Manors border the Zimmer Farm, and about 30 of the Orchard

Estates properties border the farm. Both subdivisions are zoned R-1, single-family residential.

On June 15, I reviewed public records and confirmed that Zimmer Farms Inc. has owned

the property in question since 1951. The Zimmer farm is zoned Agricultural A-1. As you know,

Hartford County has countywide zoning. Most property is either single- or multi-family

residential, light industrial, or agricultural. The permitted uses for A-1 zoned areas are specified

in the zoning ordinance. Growing apples and strawberries for commercial sale, as the Zimmers

have done, is permitted in an A-1 zone.

LIBRARY

EXCERPTS FROM HARTFORD COUNTY ZONING CODE

Title 15. ZONING

§ 22. Agricultural A-1 District Permitted Uses

(a) Within an A-1 district, the following uses are permitted:

(1) any agricultural use;

(2) incidental processing, packaging, storage, transportation, distribution, sale, or agricultural

accessory use intended to add value to agricultural products produced on the premises or

to ready such products for market;

. . .

(b) Definitions

. . .

(2) “Agricultural use” means any activities conducted for the purpose of producing an

income or livelihood from one or more of the following agricultural products:

(a) crops or forage (such as corn, soybeans, fruits, vegetables, wheat, hay, alfalfa)

(b) livestock (such as cattle, swine, sheep, and goats)

(c) beehives

(d) poultry (such as chickens, geese, ducks, and turkeys)

(e) nursery plants, sod, or Christmas trees

. . .

An agricultural use does not lose its character as such because it involves noise, dust,

odors, heavy equipment, spraying of chemicals, or long hours of operation.

(3) “Agricultural accessory use” means one of the following activities:

(a) a seasonal farm stand, provided that it is operated for less than six months per year

and is used for the sale of one or more agricultural products produced on the

premises;

(b) special events, provided that they are three or fewer per year and are directly related

to the sale or marketing of one or more agricultural products produced on the

premises.

EXCERPTS FROM FRANKLIN AGRICULTURE CODE

Ch. 75 Franklin Right to Farm Act

§ 2. Definitions

(a) “Farm” means the land, plants, animals, buildings, structures (including ponds used for

agricultural or aquacultural activities), machinery, equipment, and other appurtenances used

in the commercial production of farm products.

(b) “Farm operation” means the operation and management of a farm or an activity that occurs

on a farm in connection with the commercial production, harvesting, and storage of farm products.

§ 3. Farm not nuisance

(a) A farm or farm operation shall not be found to be a public or private nuisance and shall be

protected under section 4 of this Act if the farm or farm operation existed before a change in

the land use or occupancy of land that borders the farmland, and if, before that change in land

use or occupancy of land, the farm or farm operation would not have been a nuisance.

(b) A farm or farm operation that is protected under subsection (a) shall not be found to be a

public or private nuisance as a result of any of the following:

(i) a change in ownership;

(ii) temporary cessation or interruption of farming;

(iii) enrollment in a governmental program; or

(iv) adoption of new technology.

§ 4. Local units of government

Except as otherwise provided in this section, a local unit of government shall not enact, maintain,

or enforce an ordinance, regulation, or resolution that conflicts with this Act and undermines the

purpose of this Act.

Effective July 1, 1983.

REPORT FROM FRANKLIN SENATE COMMITTEE ON AGRICULTURE

Pertaining to S.B. 1198, May 3, 1983

S.B. 1198 will be known as the Franklin Right to Farm Act and will protect Franklin

farmland. During each of the past several years, two to three million acres of U.S. farmland have

been converted to nonagricultural uses. Franklin’s agricultural resources play an important role

in feeding the population of Franklin, the United States, and the world. Loss of farmland imperils

2.2 million agriculture-related U.S. jobs, the habitats of 75% of our wildlife, and open spaces

necessary for a healthy environment. Loss of farmland creates urban sprawl with the attendant

stresses on the infrastructures of Franklin’s formerly rural counties and small towns.

When land that was formerly agricultural is converted to residential land, new home

dwellers, not familiar with rural life, complain of odors, noise, dust, and insects caused by

animals, crops, and farm machinery. Too often these new residents file nuisance suits against

their farming neighbors. Additionally, local ordinances enacted in response to residents’

concerns threaten farmers with fines and/or closure if they are in noncompliance with the

restrictions imposed by the ordinances. These restraints and costly lawsuits by nonfarming

neighbors discourage farmers from investing in their farms and remaining on them.

S.B. 1198 protects those who farm for a living. A farming operation that was not

previously a nuisance does not become one when residential development moves in next to the

farmland. To qualify for this protection, farmers must show that the farm operation would not

have been a nuisance at the time of the changes in the area. This protection applies to those who

make their living farming, whether in an agricultural area or in a residential area, not to those

with gardens for personal use. Under the common law, “coming to a nuisance,” such as building

a home next to a cattle operation, was ordinarily a defense for the farmer. However, courts have

been reluctant to afford this defense wide applicability. This reluctance adds to the uncertainty

facing farmers. S.B. 1198 codifies this common law defense and protects those who farm for a

living.

Accordingly, this Committee declares that it is this state’s policy to conserve, protect, and

encourage the development and improvement of its agricultural land for the commercial

production of food and other agricultural products, by limiting the circumstances under which a

farming operation may be deemed to be a nuisance.

Shelby Township v. Beck

Franklin Court of Appeal (2005)

The issue on appeal is whether the Franklin Right to Farm Act (FRFA or “the Act”)

preempts a local zoning ordinance.

In 1995, the Becks purchased 1.75 acres of property in Shelby Township. The property

had been used for raising chickens, and there were chicken coops on the property when the

Becks purchased it. In 1995, the land use plan for the township allowed farming on this land. In

1996, the Becks began raising chickens for sale at local butcher shops. In 1998, Shelby

Township passed Zoning Ordinance 7.0, which requires farms to have a minimum size of three

acres. In 2000, several real estate developers began to build homes near the Becks’ property.

Neighbors began complaining to the Township Board about the smells and noise from the Becks’

chickens. The neighbors filed a petition with the Township Board, asking it to close down the

Becks’ operation because it was a nuisance. In 2004, the Township Board decided that the best

way to close down the Becks’ farm was to enforce its ordinance regarding minimum farm size.

The Township sued to enforce its ordinance, and the Becks moved to dismiss, claiming that

FRFA preempts the ordinance. The trial court granted the motion, and the Township appealed.

State law can preempt a municipal ordinance in two ways. First, preemption occurs when

a statute completely occupies the field that the ordinance attempts to regulate. FRFA does not

“occupy the field,” because the legislature has also authorized local governments to enact zoning

laws concerning agricultural properties. Second, preemption occurs when an ordinance conflicts

with a state statute and undermines its purpose. A conflict exists when the ordinance permits

what the statute prohibits or vice versa. Determining whether there is a conflict requires a careful

reading of the statute and the ordinance in light of the policy and purposes behind the statute and

measuring the degree to which the ordinance frustrates the achievement of the state’s objectives.

If Shelby Ordinance 7.0 is in effect, the Becks cannot raise chickens on their property

because it is under the minimum size required for a farm. However, Section 4 of FRFA provides

that a local ordinance is preempted when it conflicts with FRFA. The question then is whether

there is a conflict. Section 2 of FRFA defines a “farm” as “land, plants, animals, buildings,

structures . . . and other appurtenances used in the commercial production of farm products.” The

Act does not set a minimum acreage for farms. Here, the Becks’ operation—raising chickens for

sale—is protected by FRFA because it is the commercial production of farm products, even

though the operation takes place on only 1.75 acres. Thus, there is a conflict between the size

requirement of the ordinance, which prohibits the Becks from raising chickens, and FRFA,

which does not. Thus the ordinance and FRFA are in direct conflict, as the ordinance prohibits

what is permitted by the Act. The ordinance undermines the very purpose of the Act by

prohibiting this farm operation.

The Township’s effort to use its size ordinance to prevent what the neighbors believe is a

nuisance is the very sort of enforcement action that FRFA is designed to prevent. FRFA states

that a farm shall not be found to be a nuisance if it existed before the change in land use and if,

before that change, it would not have been found to be a nuisance. The Becks’ operation began

in 1995, before the residential development neighboring it was created. In 1995, the Becks’ farm

operation was a permitted use and would not have been a nuisance. Accordingly, the Becks’

operation is protected by FRFA.

Our conclusion that the state law preempts the local ordinance also serves the purpose of

the Act, which is to conserve land for agricultural operations and protect it from the threat of

extinction by regulation from local governmental units. See Sen. Rpt. Comm. Agric. 1983.

Affirmed.

Wilson v. Monaco Farms

Franklin Court of Appeal (2008)

Defendant Monaco Farms (Monaco) has operated a dairy farm on its property from 1940

to the present, with changes in the ownership passing from father to son in 1970, and to

granddaughter in 2000. Monaco increased the number of dairy cows on the farm from 40 to 60 in

2005, and from 60 to 200 in 2007.

Plaintiff Bill Wilson has lived in the subdivision immediately to the east of Monaco since

1990. In 2007 he filed a private nuisance action against Monaco, alleging that the flies, dust, and

odors from the dairy cows interfered with his enjoyment of his property. Monaco moved to

dismiss, relying on the Franklin Right to Farm Act (FRFA), which it claims continues to protect

a farm operation when it expands or changes its operation. In response, Wilson argued that

FRFA does not protect a farm whose expansion created a nuisance not present at the time he

purchased his property. The trial court granted the motion to dismiss, and Wilson appealed. We

affirm.

The present situation is the very sort of farm operation the legislature intended to protect

when it enacted FRFA. Monaco has existed since 1940, and it would not have been a nuisance at that time. In 1984, the land bordering Monaco was subdivided and developed into a residential area and was zoned residential.

There were no complaints about the operation of Monaco until 2007, when it expanded

from 60 to 200 cows. The question is whether FRFA continues to protect Monaco after the

expansion. When it enacted FRFA, the legislature understood that circumstances could change

and provided that certain changes would not affect the protections of FRFA. Section 3(b)(i) of

FRFA addresses the issue of change in ownership but does not address changes in size or nature of the operation.

Wilson argues that because the legislature listed four, and only four, contemplated

interruptions or changes in farm operations, those are exclusive and exhaustive. If Wilson is

correct, the only changes the legislature intended to protect are the four items specified in the

statute, and those four do not include expansion of farm operations.

Monaco, on the other hand, argues that where the legislature provides a list, the court

must determine what is common among the items on the list and then consider whether the

matter at issue is sufficiently similar to the items listed as to be included. Monaco argues that the

change in size of the operation is similar to a change in technology, which does not destroy the

protections of FRFA. Both changes have as their purpose the opportunity to increase farm

production and thus profitability.

Both parties assume that the court must look to § 3(b) of FRFA. A better approach is to

examine § 3(a), which provides that a farm “shall not be found to be a public or private nuisance

. . . if the farm or farm operation existed before a change in the land use or occupancy of land

that borders the farmland . . . .” Thus, the statute provides a date for measuring whether a

nuisance exists, namely the date when the use of the neighboring land changed. In this case, that

date is 1984, the year that the neighboring land was subdivided and developed into a residential

area. The legislature may have assumed that farms might expand. Indeed, it noted in § 3(b) the

possibility of change in technology. Nevertheless, the legislature established only one date for

measuring whether a nuisance exists.

The purpose of FRFA is “to conserve, protect, and encourage the development and

improvement of [Franklin’s] agricultural land for the commercial production of food and other

agricultural products, by limiting the circumstances under which a farming operation may be

deemed to be a nuisance.” Sen. Rpt. Comm. Agric. 1983. Relying solely on the legislature’s date

for determining whether a nuisance exists serves the statutory purpose.

When he bought his home in 1990, Wilson knew that he was moving next to a dairy

farm. It remains a dairy farm, albeit a larger one. Nothing in FRFA prohibits expansion of farm

operations. Despite the expansion of Monaco’s dairy operation, it is protected by the Act, and the

trial court properly dismissed Wilson’s nuisance action.

Affirmed.

Koster v. Presley’s Fruit

Columbia Court of Appeal (2010)

In this case, the court is asked to determine the applicability of the Columbia Right to

Farm Act (CRFA). The precise issue on appeal is whether the production of wooden pallets for

use in harvesting peaches is an agricultural activity protected by the Act.

Defendant Presley’s Fruit (Presley’s) has grown and sold peaches at its location since

1960. In 2006, Presley’s added a new building and began manufacturing wooden pallets for use

in harvesting and transporting peaches.

In 1997, plaintiffs Matt and Kathleen Koster purchased residential property that abuts

Presley’s. They had no complaints about Presley’s until 2006, when they began experiencing

noise and dust associated with the manufacturing of the wooden pallets. The Kosters filed a

nuisance suit against Presley’s, claiming that the noise and dust is a nuisance that substantially

and unreasonably interferes with their enjoyment of their property.

Presley’s moved to dismiss, claiming the protections of CRFA. CRFA states that a farm

operation which existed one year before the change in the area is not a nuisance if it would not

have been a nuisance at the time of the change in the property. The trial court granted the motion.

On appeal, the Kosters argue that CRFA protects only farm activities and not

manufacturing. Presley’s claims that the pallets are needed to harvest and transport the peaches

(a farm product) to market and that therefore the manufacturing of the pallets is protected by

CRFA.

Resolving this question requires the court to interpret and apply the provisions of CRFA.

Our role in construing a statute is to “ascertain and give effect to the legislative intent.” Brady v.

Roberts Electrical Mfg., Inc. (Columbia Sup. Ct. 1999).

We must examine the Columbia statute’s text and give the words their natural and

ordinary meaning in light of their statutory context. If the statutory language is clear and

unambiguous, the court must apply the statute’s plain language and not venture beyond the text

to add words not there. However, when the statutory language is unclear, the court may refer to

the purpose of the legislation and the legislative history of the statute, such as legislative

committee reports, to aid us in interpreting the text.

In this case, an examination of the statutory language provides the answer. CRFA defines

a farm product as “those plants and animals useful to human beings produced by agriculture and

includes, but is not limited to, forages and sod crops; grains and feed crops; dairy and dairy

products; poultry and poultry products; livestock, including breeding and grazing animals; fruits;

vegetables; or any other product which incorporates the use of food, feed, or fiber.” Although

that is a broad definition of farm product, there is no mention of products produced from wood.

The pallets are constructed of wood and nails or staples. The wood used for the pallets

originates from outside the defendant’s property. The products, therefore, are not grown, raised,

or bred on the farm premises, but are only assembled there from materials purchased elsewhere.

The pallets do not match any of the definitions of farm products set forth in the Act, nor are they

like any of those farm products defined by the statute. The manufacturing of these wooden

pallets is not an activity protected by CRFA.

We reverse the trial court’s order dismissing this case. If, on remand, the Kosters are

successful in their nuisance action and convince the court to order Presley’s to cease producing

the pallets at the farm, there will be no loss of farmland. If the Kosters succeed, Presley’s land

will continue to be used for the production of peaches. The land will remain agricultural.

Presley’s would manufacture the pallets off the farm premises rather than on the premises, or

purchase the pallets from some outside source. Purchasing pallets should be no more a threat to Presley’s than purchasing a truck for hauling the peaches to market.

Reversed and remanded.

 

Sample Answer

 

MEMORANDUM

To: Carl Burns, County Attorney

Date: July 25, 2017

Re: Complaints about Zimmer Farm.

1)    Is the Zimmer's bird rescue operation permitted under the county zoning ordinance?

The Zimmer's Bird rescue operation is not permitted under the Hartford County Zoning Code (the Zoning Code).

The Zimmer farm is located on land that is zoned as A-1.  According to the Zoning Code, the use of the land zoned as A-1 is restricted to agricultural use and the incidental activities that are necessary to add value to the agrecultural products that are produced on the farming land to get them ready for a market.  According to the Zoning Code, the agricultural use includes raising livestocks and/or poultry and cultivating crops and/or nurseries for the purposes of raising an income or livelihood.

Here, the bird rescue operation is an activity that is undertaken by Edward, the son of John Zimmerman, who was trained as a veterinary assistant.  The sole purpose of the operation is to restore birds back to good health and release them back to their natural habitat and keep those who are not able to survive on their own in the nature.  The operation is solely motivated by Edward's love of rescuing birds and he does not intend nor is he interested in making a livelihood out of the bird saving operation.  According to these facts, the bird rescue operation is not included as an agricultural use and is not permitted under the Zoning Code.

2)     Are the Zimmers' festivals permitted under the county zoning ordinance?

The Zimmers' festivals are not permitted under the Zoning Code.

The Zoning Code permits a seasonal farm stand (operated less than 6 months) that sells one or more agricultural products produced on the premises, and permits a few specials per years as long as the events are directly related to the sale or marketing of the agricultural products produced on the land.  As tesified by John and Edward Zimmer, the main purpose of the bird festival is to promote their bird rescuing operationg and raise money to fund the operation.  It is true that they also sell fruits that they raise on their land (apples or strawberries, depending on the season), but the sale of these products are incidental rather than being the main purpose of the event.  The main focus of these events are to raise money for the bird rescue operation and to raise awareness of their bird rescue operation.  The Zimmers sell bird-related souvenirs, give an hour long educational program about birds, and invite the guests to adopt a wouned bird by donating to its care and upkeep.  They invite vendors to provide food and musicians to entertain the guests to make the atmosphere fun, but the main focus of the event is to raise awareness and funds for their bird rescue operation.

Therefore, the festivals are not permitted under the Zoning Code.

3)    The impact of FRFA on the county's ability to enforce the Zoning Code with respect to the bird rescue operation and the festival?

The FRFA does not apply in this case and therefore, will have no impact on the county's ability to enforce the Zoning Code.

In Shelby, the court states that a state statute can preempt a municipal ordinance in two ways: (i) if the state statue completely occupies the field that the ordinance attempts to regulate, the local ordinance is preempted; and (ii) when an ordinance is in direct conflict with a state statute and undermines the purpose of the state statute, the state statute preempts the local ordinance.  The court continues to state that determining whether there is a conflict requires a careful reading of the both statute and ordinance in light of the policy and purposes behind the statute and measuring the degree to which the ordinance frustrates teha chievement of the state's objectives."

The purpose of The Frankline Right to Farm Act (FRFA) is to conserve, protect and encourage the development and improvement of all agricultural land for the commercial production of food and other agricultrual products by limiting the circumstances under which a farming operation may be deemed to be a nuisance.

In Shelby, when a neighbor brought a nuisance against the farmer who was raising chickens for livelihood and who was in violation of a local zoning ordinance requiring a minimum size of farmland to raise chickens.  In that case, the court preemption by FRFA because the local ordinance sought to frustrate the purpose of the statute (protecting local farmers and local agricultural land for commercial production of food) by seeking to curtail the farming activities (or effectively put the farmer out of business) for zoning violations.

Here, in this case, the FRFA does not preempt the local zoning ordinance because the Farmer Zimmers' activities are not protected by the statute.  As shown above, the purpose of the FRFA is to protect farmers and agricultural lands who are in the business of commercially producing food and any other related agricultural products for the market.  The main purpose behind the Zimmers' activities of bird rescuing and the frequent festivals are not to produce agriculatural products to the market, but rather to raise awareness and gain funding for their altruistic goal of rescuing birds to their natural habitats and taking care of those that can't return to nature.

The Zimmers can argue that as the court determined in Shelby, a farm shall not be found to be a nuisance if it existed before the change in land use and if, before that change, it would not have been found to be a nuisance.  According to this argument, the Zimmers can argue that their farming had existed since 1950s, long before the residential areas were zoned as residential areas, and therefore, their activites relating to the bird rescue operation and festivals should not be curtailed by the Zoning Code.  However, that argument fails since the bird rescue operations and festivals are not considered to be farming and are not within the agriculatural activities as defined and protected by the FRFA, and even if the activities were to be included as the protected agricultural activities, the argument would still fail since the two activities were undertaken just recently, in 2016, after the neighboring areas were zoned as residential areas.

As the court in Koster v. Presley's Fruit determined, activities that are not agricultural activity are not protected under the FRFA.  In this case, the nuisance case was based on the defendant's production of wooden pellets to use for the sale of the peaches cultivated on land.  The court determined looking at the ordinary language of the FRFA, the production of the wooden pellets were not included as agricultural activites under the statute, despite the fact that the use was necessary and so closely related to the production of the agricultural products for the purpose of selling on the market. This case supports the argument that the bird rescue operation and the bird festivals that are held on the land of the Zimmer's are not agricultural activities as defined under the FRFA.

The FRFA does not apply in this case. The bird rescue operation and the bird festivals are not included in the agricultural activities protected under the FRFA and is outside of the scope of protection provided by the FRFA.  Therefore, the FRFA will have no impact on the county's ability to enforce the Zoning Code.

 

Sample Answer

 

To:        Carl S. Burns, County Attorney

From:    Applicant

Date:     July 25, 2017

Re:        Complaints about Zimmer Farm

I have reviewed your memorandum regarding Ms. Ortiz's concerns about activities at the John and Edward Zimmer farm on Prairie Road. Per your instructions, I have focused on the bird rescue operation and the bird festivals they operate on their farm in analyzing 1) whether the Zimmers' bird rescue operation is permitted under the county zoning ordinance; 2) whether the Zimmers' festivals are permitted under the county zoning ordinance; and 3) how, if at all, the Franklin Right to Farm Act (FRFA) affects the county's ability to enforce its zoning ordinance with respect to the bird rescue operation and the festivals.

1. Is the Zimmers' bird rescue operation permitted under the county zoning ordinance?

Zimmer Farms, Inc. has owned the property in question, which is zoned A-1, since 1951. Title 15, Section 22 of the Hartford County Zoning Code states that, within an A-1 district, "any agricultural use" or "incidental processing, packaging, storage, transportation, distribution, sale, or agricultural accessory use intended to add value to agricultural products produced on the premises or to ready such products for market" is permitted. The question in the Zimmers' case, therefore, is whether their bird rescue operation qualifies as an "agricultural use."

Section 22(b)(2) defines "agricultural use" as any activity "conducted for the purpose of producing an income or livelihood from one or more" of a variety of agricultural products, including crops or forage, livestock, beehives, poultry, nursery plants, sod, or Christmas trees. Subsection 22(b)(2)(d) provides examples of poultry "such as chickens, geese, ducks, and turkeys," although the list is clearly not exhaustive.

On its face, the Zimmers' bird rescue operation does not appear to be an "agricultural use" under this definition, because the ordinance seems to imply that most "agricultural uses" are ultimately intended for human consumption, rather than some peripheral activity (with the exception of farming trees), for profit. We should therefore consider how narrowly a court would construe the language of Hartford's zoning ordinance and see whether we could make an argument for the bird rescue operation as an agricultural use, even though the Zimmers do not seek to make any profit from the operation.

In a nuisance suit known as Koster v. Presley's Fruit, for instance, the Columbia Court of Appeal examined the statutory text of the Columbia Right to Farm Act (CRFA) in order to determine whether the CRFA was applicable to the production of wooden pallets for use in harvesting peaches as an agricultural activity protected by the Act. In that case, the court found that the broad definition of farm products included in the statutory language provided a clear answer as to whether the wooden pallets matched any definition of farm products set forth in the Act, finding that the manufacturing of these wooden pallets is not an activity protected by the CRFA. Because this is a Columbia case, however, it is not controlling in Franklin; it can merely be used as persuasive authority in our case.

The Zimmers stated that they were inspired by agritourism to use the bird rescue operation as an educational and public activity to market and sell their other agricultural products. We can thus make a good argument that the bird rescue operation is part and parcel of the Zimmers' overall farm operation, especially because they advertise their farm products in the same breath as they promote the bird rescue ("Support injured birds, listen to music, have a good time. Buy apples and discover the best recipes for baking with fruit."). They encourage visitors to "adopt" wounded birds and donate to their care and upkeep, and they sell bird-related souvenirs to help underwrite the bird rescue operation.

Although it is therefore questionable whether the Zimmers' bird rescue operation qualifies as an "agricultural use" under the county zoning ordinance, we could perhaps pursue the agritourism-as-agricultural-use line of thinking if this case moves forward. One would need further information from the Zimmers as to how they see their bird rescue operations commingling with, and contributing to, their larger farm operations in the future in order to make this a stronger argument. It is clear, however, that Franklin legislators believe it is the state's policy to promote agricultural enterprises and preserve wildlife and habitats (see Sen. Rpt. Comm. Agric. 1983), so this may be a promising argument for them to pursue.

2. Are the Zimmers' festivals permitted under the county zoning ordinance?

If we make the argument that the Zimmers' bird rescue operation is an "agricultural use" as an effort towards agritourism, as described above, the Zimmers' festivals would most likely be classified as an "agricultural accessory use" under Title 15 of the Hartford County Zoning Code. Section 22(b)(3) defines an agricultural accessory use as, for instance, a seasonal farm stand, or special events (provided that "they are three or fewer per year and are directly related to the sale or marketing of one or more agricultural products produced on the premises").

There is a strong argument to be made that, even though the Zimmers do not seek to make profits from the bird rescue operation itself, the operation and its attendant activities -- such as the four weekend festivals the Zimmers held in 2016 -- are geared towards exactly that:  attracting visitors who will purchase fruit from the farm and who will return frequently to see and support the rescue birds. As noted above, the Zimmers advertised their products at the same time as they invited visitors to see the birds, listen to music, buy apples and strawberries, and purchase cookbooks. The Zimmer family has been holding apple festivals since 1988, when the farm boasted a one-day apple festival for the Zimmer children's school. The Zimmer farm therefore has a long tradition of holding festivals to promote charitable cases at the same time as they attract visitors for purchasing their products.

Because the Zimmers have suffered a number of agricultural losses at their farm, including late spring freezes that have ruined crops, tough financial times, and family members' health issues, they have had to discontinue some of their operations (e.g., vegetable production) that consume many of the farm's resources. It is therefore a real boon to the farm that as many as 200 people have attended their festivals each day -- clearly a higher number of visitors than would be attracted to their farm on an ordinary day. Obviously the festivals have become an important source of income for the Zimmers, because they want to keep hosting them.

One could therefore easily make an argument that the Zimmers' festivals are "special events," as delineated in Section 22(b)(3)(b) of the county ordinance, that are "directly related to the sale or marketing of one or more agricultural products produced on the premises." The Zimmers sell their apples and strawberries at these festivals, and the festivals are clearly meant to support the family's agritourism efforts.

One should note, however, the ordinance's restrictions on the number of festivals to be held per year. Sally Wendell, the Zimmers' neighbor who wrote a complaint to the County Board President, stated that the Zimmers plan to hold more festivals, perhaps every month. The Zimmers should be aware that they cannot hold more than three festivals per year, pursuant to the ordinance, even though they apparently held four festivals at the farm last year without incident.

3. How, if at all, does the FRFA affect the county's ability to enforce its zoning ordinance with respect to the bird rescue operation and the festivals?

Chapter 75, Section 4 of FRFA provides that the Act preempts any conflicting local ordinance: "Except as otherwise provided in this section, a local unit of government shall not enact, maintain, or enforce an ordinance, regulation, or resolution that conflicts with this Act and undermines the purposes of this Act." See Shelby Township v. Beck. The question then becomes whether the language of a local ordinance, such as Hartford's zoning ordinance, conflicts with FRFA. Section 2 of FRFA defines a "farm" as "land, plants, animals, buildings, structures...and other appurtenances used in the commercial production of farm products," and "farm operation" as "the operation and management of a farm or an activity that occurs on a farm in connection with the commercial production, harvesting, and storage of farm products."

One therefore needs to consider whether the Hartford ordinance's definition of "agricultural use" and "agricultural accessory use" correlate with the definitions of "farm" and "farm operation" under FRFA. Although FRFA's language is broad, and therefore would seem to encompass more uses or activities than those defined under the Hartford ordinance, its definitions clearly hinge on whether commercial activities are at play. As long as the Zimmers pursue the agritourism argument outlined above, underscoring at every opportunity the fact that they are operating the bird rescue and festivals as income generators for their agritourism business, they will likely succeed in making an argument that their property is operating as a "farm," and the festivals as a "farm operation," under FRFA.

Section 3(b) of FRFA states that a farm "shall not be found to be a public or private nuisance...if the farm or farm operation existed before a change in the lans use or occupancy of land that borders the farmland...." As the court in Wilson v. Monaco Farms observed, the statute thus provides a date for measuring whether a nuisance exists -- namely, when the use of the neighboring land changed. Relying on this date for determining whether a nuisance exists serves the statutory purpose of FRFA, which is "to conserve, protect, and encourage the development and improvement of [Franklin's] agricultural land for the commercial production of food and other agricultural products, by limiting the circumstances under which a farming operation may be deemed a nuisance." Sen. Rpt. Comm. Agric. 1983, as cited in Wilson v. Monaco Farms.

Because the Zimmer family used the property as a farm well before the neighbors began complaining about the operations there -- as early as 1951 --, they will succeed in continuing their fruit farming there. On the other hand, the bird rescue operation has only been active for approximately two years. The question may therefore hinge on whether this expanded use of the farm is protected under FRFA. In Wilson v. Monaco Farms, the court makes clear that Section 3(b)(i) of FRFA does not address changes in size or nature of a farm operation.

Ms. Ortiz's best argument may therefore be that, although nothing in FRFA prohibits expansion of farm operations, the nature of the Zimmers' farm has changed substantially from its original use, and that the farming purposes of the property are now tangential to their entertainment enterprises. This may be an uphill argument, however, because the public policy of Franklin strongly supports the preservation of farming, wildlife, and open spaces, as well as the people who make their living from farm-related activities.

 

Please let me know if you have any questions about my analysis or would like further research on any of these topics.

 

MEE Question 1

On the evening of July 4, a woman went to the end of her dock to watch a fireworks display on the lake where her house was located. The woman’s husband remained inside the house. The fireworks display was sponsored by the lake homeowners association, which had contracted with a fireworks company to plan and manage all aspects of the fireworks display.

The fireworks display was set off from a barge in the middle of the lake. During the finale, a mortar flew out horizontally instead of ascending into the sky. The mortar struck the woman’s dock. She was hit by flaming debris and severely injured. When the woman’s husband saw what had happened from inside the house, he rushed to help her. In his hurry, he tripped on a rug and fell down a flight of stairs, sustaining a serious fracture.

All the fireworks company employees are state-certified fireworks technicians, and the company followed all governmental fireworks regulations. It is not known why the mortar misfired.

The woman and her husband sued the homeowners association and the fireworks company to recover damages for their injuries under theories of strict liability and negligence. At trial, they established all of the above facts. They also established the following:

1) Nationally, accidents involving fireworks cause about 9,000 injuries and 5 deaths each year. About 15% of these accidents are caused by mortars misfiring in the course of professional fireworks displays, and some of these accidents occur despite compliance with governmental fireworks regulations.

2) Even with careful use by experts, fireworks mortars can still misfire.

3) Although a state statute requires a “safety zone” of 500 feet from the launching site of fireworks when those fireworks are launched on land, the statute does not refer to fireworks launched on water. Neither the homeowners association nor the fireworks company established such a zone.

4) The average fireworks-to-shore distance for this display was 1,000 feet. The woman’s dock is 450 feet from the location of the fireworks barge; at only three other points on the lake is there land or a dock within 500 feet of the fireworks barge location.

After the conclusion of the plaintiffs’ case, both the homeowners association and the fireworks company moved for a directed verdict on the basis that the facts established by the evidence did not support a verdict for the plaintiffs.

The trial judge granted the motion, based on these findings:

1. Fireworks displays are not an abnormally dangerous activity and thus are not subject to strict liability.

2. Based on the evidence submitted, a reasonable jury could not conclude that the conduct of the fireworks company was negligent.

3. The misfiring mortar was not the proximate cause of the husband’s injuries.

4. The homeowners association cannot be held liable for the fireworks company’s acts or omissions.

As to each of the judge’s four findings, was the judge correct? Explain.

 

Sample Answer

 

(1) The judge was correct in his finding that fireworks are not an abnormally dangerous activity making the defendant strictly liable. At issue is whether the fireworks are of the type of abnormally dangerous activities that warrant imposing strict liability. In general, if a defendant is engaged in an activity that is deemed to be abnormally dangerous, he is liable under the theory of strict liability even if he used reasonable care. An abnormally dangerous activity is one that is impossible to make safe and not commonly done within the community. Activities that have been deemed to be abnormally dangerous by the court have included explosions, hazardous chemicals, and demolitions. Here, while plaintiffs presented evidence that fireworks have been known to cause about 9,000 accidents and 5 deaths per year only 15% of the accidents are caused by mortars misfiring (the type of accident that cause the plaintiff's injury). While fireworks are technically explosions, they are not of the type that can cause harm to everyone in the immediate surroundings. They are a common attraction in every community throughout the country.Demolitions and chemical spills are the types of abnormally dangerous activities that the courts intended to protect the public welfare from by imposing strict liability on those who engage in them. Since fireworks are not on the same level as those activities mentioned, the judge was correct in his finding that fireworks are not subject to strict liability.

(2) A reasonable jury could conclude that the conduct of the fireworks company was negligent toward the woman. At issue is whether the fireworks company breached their duty of care to the plaintiff by not establishing a safety zone for their fireworks display.To establish a prima facie case for negligence, the plaintiff must establish that there was (1)a duty owed by the defendant; (2) that the defendant breached that duty; (3) the breach was the actual and proximate cause of the injury; and (4) the plaintiff suffered damages.  Every person owed a duty to act with the reasonable care of an ordinary prudent person, and owes that duty to all foreseeable plaintiffs. The majority view is that a defendant owes a duty to all of those who are within the zone of danger, and will not be liable for unforeseeable plaintiffs. Here, foreseeable plaintiffs are those within the "safety zone" of 500 feet from where the launching site of the fireworks takes place if it is on land. The statute that imposes this duty does not refer to fireworks launched on water, but nonetheless, neither the homeowners association nor the fireworks company established such a zone. Even if the fireworks were on land, the woman was located 450 feet from the location of the launching site, within the zone of danger, therefore the plaintiffs breached their duty of care.

As for causation and damages, the defendants were both the actual and proximate cause of the woman's injuries. They were the actual cause because but for their failure to set up a safety zone of 500 feet from the launching site of the fireworks, the woman would not have been injured by a misfired mortar. The failure to set up the zone was the proximate cause of her injuries because it was foreseeable. The misfiring of the mortar struck the woman's dock (which was within the zone of danger), caused flaming debris to hit the woman, causing her to suffer damages.

Since the woman would be successful in establishing a prima facie case for negligence, the judge was incorrect on finding that a reasonable jury could not conclude their conduct was negligent.

(3) The judge was incorrect in his finding that the misfiring mortar was not the proximate cause of the husband's injuries. At issue is whether the husband's reaction to seeing his wife's injuries was a foreseeable consequence of the defendant's breach of duty of care. As mentioned, all defendants are liable for the foreseeable consequences of their negligent acts. As a general rule, danger invites rescue. Where there is a unforeseeable result from a forseeable intervening act, the defendant is liable even though he did not anticipate the result happening in the way they did. Since it was established that the woman's injury was caused by the failure to set up a safety zone, it is foreseeable that someone rushing to their aid would injure themselves as well. Even though it is unforeseeable that person trip down the stairs and injure their ankle, it is an anticipated reaction if they is in a hurry to help someone that is in danger. Thus, the misfiring mortar was the proximate cause of the husband's injuries.

(4)The judge was correct in his findings that the homeowners association cannot be held liable for the fireworkds company's acts or ommissions. At issue is whether the company was an employee or independent contractor. Under the doctrine of respondeat superior, an employer is vicariously liable for the actions of his employees within the scope of the employment. To determine whether a party is employee or an independent contractor, the most important factor is whether the employer has the authority to control the  party's actions. While the court looks to other factors such as whether the party has his own business, uses his own tools or equipment, and works on his own time, the controlling factor is how much discretion the employer has over the party's work. Here, while the homeowners association contracted with the company to provide a fireworks display, the company was in charge of planning an managing all aspects of the display. Further, all of the company's employees were state-certified and were regulated by the state. Since the company was more under the state's control, it can be said that they were independent contractors, and the homeowners association was not vicariously liable.

An exception to the rule is found where the independent contractor is engaged in abnormally dangerous activities. In that case, the homeowners association would be found liable. However, since it can be argued that fireworks are not abnormally dangerous, the exception may not apply.

 

Sample Answer

 

1. Fireworks As Abnormally Dangerous Actvitiy

The trial judge was correct in concluding that fireworks displays are not an abnormally dangerous activity and thus are not subject to strict liability. The issue is whether, even whe using reasonable care, fireworks displays are likely to cause serious bodily injury and whether they are a matter of common usage.

Strict liability applies to abnormally dangerous activities. An abnormally dangerous activity is an activity that, even when using a reasonble degree of care, the activity does/is likely to cause serious bodily injury or death. Also, the activity must not be a matter of common usage. Simply, the degree of harm cannot be ruled out by using reasonable care. If it is established that an activity is abnormally dangerous, both actual and proximate cause must also be shown.

Here, fireworks displays are an abnormally dangerous activities. Nationally, fireworks cause about 9,000 injuries and 5 deaths each year. Evidence established at trial demonstrated that "even with careful use by experts, fireworks mortars can still misfire" and some fireworks display accidents occur "despite compliance with governmental fireworks regulations." In other words, even when using a reasonable degree of care and complying with firework regulations, fireworks are still likely to cause death or serious bodily injury. However, fireworks are a matter of common usage. Typically, courts have held that such things like gas and oil are matters of common usage, while nuclear chemicals are not of common usage. Fireworks are used yearly for holidays and personal use by professionals and non-professionals. Thus, they are common to all individuals. Though fireworks may cause serious bodily injury or death when using reasonble care, they are matters of common usage. As such, strict liability does not apply.

The trial judge was correct in concluding that fireworks displays are not an abnormally dangerous activity.

2. Negligence of Fireworks Company

The trial judge was not correct in concluding that a resaonble jury could not conclude that the conduct of the fireworks company was negligent. The issue is whether the company breached their duty of care.

To prove a party was negligent, four elements must be proven: 1) duty to conform conduct to a standard of care; 2) breach of that duty; 3) causation, both actual and proximate; and 4) damages. Ordinarily, parties have a duty to act as a reasonbly prudent person under the circumstances. This is an objective standard. A party breaches this duty by failing to conform their conduct to the relevant standard of care. A party must actually cause the injury and proximately cause the injury. The injury must be a foreseeable consequence from the defendant's actions. Damages must also be proven.

Here, there is evidence that the fireworks company was negligent. The company had a duty to act as a reasonably prudent person under the circumstances. The company had this duty towards foreseeable plaintiffs. The woman was foreseeable because she was within 500 feet of the launch site. The company breached this duty. Though a state statute required a "safety zone" of 500 feet from launching sites of fireworks when lauched on land, the state had no such statute referring to launching fireworks from water. Though the fireworks company was not required to have a "safety zone" of 500 feet from the launching site, they should have been aware that there was a risk of injury to persons within 500 feet because of the statute regarding land launches. It was reasonably foreseeable that the woman could be injured, as she was in one of 3 locations within the 500 foot zone. The fireworks were both the actual and proximate cause of her injuries. Getting injuried from flaming debris actually caused her injury and it was reasonbly foreseeable under the circumstances. It was foreseeable that a firework could misfire as experts claim that they can, even when using care. The woman also suffered personal injury damages. Thus, the company was negligent.

The trial judge was not correct in concluding that a resaonble jury could not conclude that the conduct of the fireworks company was negligent.

3. Proximate Cause of Husband's Injuries

The trial judge was not correct in concluding tthat the misfiring mortar was not the proximate cuase of the husband's injuries. The issue is whether the man's attempt to safe his wife was foreseeable.

To prove a party was negligent, four elements must be proven: 1) duty to conform conduct to a standard of care; 2) breach of that duty; 3) causation, both actual and proximate; and 4) damages. Ordinarily, parties have a duty to act as a reasonbly prudent person under the circumstances. A party's actions are the proximate cause of an injury if the injury or intervening force was reasonbly foreseeable.

Here, the husband's injuries were reasonably foreseeable from the misfiring mortar. The misfiring mortar actually and proximately caused the injuries to the man's wife. In his attempt to safe/help his wife, he was in a "hurry" and tripped on a rug and fell. His attempts to rescue his wife were reasonably foreseeable. Courts typically hold that danger invites rescue, and thus, injury to rescuers is reasonably foreseeable. Thus, the misfiring mortar proximately caused the man's injury because it occurred while he was attempting to rescue his wife.

4. Homeowner's Assocation Liability

The trial judge was correct in holding that the homeowners assocation cannot be held liable for the fireworks company's acts or omissions. The issue is whether they are liable under a theory of vicarious liability.

An employer may be vicariously liable for the acts of its employees. An employer will be liable if the the person was actually his employee and if the injury occurred in the scope of the relationship. An employer will not be liable for the acts of an independent contractor. Typically, an employer has no right to control the work or performance of an independent contractor. An employer will only be liable for the acts or omissions of an indepedent contractor if the independent contractor is performing an inherently dangerous activity or  a nondelegable duty, or the employer has held the independent contractor out as his employee.

Here, the homeowners association contracted with the fireworks company to plan and manage all aspects of the fireworks display. There is no evidence to suggest that the company is an employee of the homeowners assocation. Instad, the company is an independent contractor. The company is deemed an independent contractor because they were charged with managing and planning the event -- the homeowners association had no control over their work.  The company was not performing an inherently dangerous activity (fireworks are not abnormally dangerous activities, as mentioned above) or a nondelegable duty. Thus, there is no basis to apply vicarious liability against the homeowners association.

The trial judge was correct in holding that the homeowners assocation cannot be held liable for the fireworks company's acts or omissions.

MEE Question 2

Businesses in the United States make billions of dollars in payments each day by electronic funds transfers (also known as “wire transfers”). Banks allow their business customers to initiate payment orders for wire transfers by electronic means. To ensure that these electronic payment orders actually originate from their customers, and not from thieves, banks use a variety of security devices including passwords and data encryption. Despite these efforts, thieves sometimes circumvent banks’ security methods and cause banks to make unauthorized transfers from business customers’ bank accounts to the thieves’ accounts.

To combat this type of fraud, State A recently passed a law requiring all banks that offer funds transfer services to State A businesses to use biometric identification (e.g., fingerprints or retinal scans) to verify payment orders above $10,000. Although experts dispute whether biometric identification is significantly better than other security techniques, the State A legislature decided to require it after heavy lobbying from a State A–based manufacturer of biometric identification equipment.

A large bank, incorporated and headquartered in State B, provides banking services to businesses in every U.S. state, including State A. Implementation of biometric identification for this bank’s business customers in State A would require the bank to reprogram its entire U.S. electronic banking system at a cost of $50 million. The bank’s own security experts do not believe that biometric identification is a particularly reliable security system. Thus, instead of complying with State A’s new law, the bank informed its business customers in State A that it would no longer allow them to make electronically initiated funds transfers. Many of the bank’s business customers responded by shifting their business to other banks. The bank estimates that, as a result, it has lost profits in State A of $2 million.

There is no federal statute that governs the terms on which a bank may offer funds transfer services to its business customers or the security measures that banks must implement in connection with such services. The matter is governed entirely by state law.

The bank’s lawyers have drafted a complaint against State A and against State A’s Superintendent of Banking in her official capacity. The complaint alleges all the facts stated above and asserts that the State A statute requiring biometric identification as applied to the bank violates the U.S. Constitution. The complaint seeks $2 million in damages from State A as compensation for the bank’s lost profits. The complaint also seeks an injunction against the Superintendent of Banking to prevent her from taking any action to enforce the allegedly unconstitutional State A statute.

1.Can the bank maintain a suit in federal court against State A for damages? Explain.

2.Can the bank maintain a suit in federal court against the state Superintendent of Bankingto enjoin her from enforcing the State A statute? Explain.

3.Is the State A statute unconstitutional? Explain.

 

Sample Answer

 

1. The issue presented is whether the suit by the large bank can be maintained in federal court against State A for damages.

Generally a state of the U.S. cannot be sued by a private party or a foreign country under the principal of state sovereign immunity. This principle is derived from the 11th Amendment to the U.S. Constitution. Although the Supreme Court has interpreted this to allow the state to be sued by the federal government/the U.S. and to be sued by other states. A state will not be able to be sued by a private person (which the bank is legally considered to be as a corporation which has the legal status of a person who can sue and be sued) for damages that would be paid out of the state's treasury funds. Therefore, although the suit would be able to meet the requirements for federal diversity of citizenship subject matter jurisdiction. A corporation for purposes of diversity is said to be a citizen of every place it is incorporated and the one place where it is headquartered. Therefore, the bank is a citizen of State B, and the State A (if it could be sued here) would obviously be a citizen of State A, thus complete diversity is acheived. The amount in controversy requirement for diversity jurisdiction is determined based on the good faith allegation in a plaintiff's well-pleaded complaint, which here is for $2 Million, far in excess of the $75,000 requirement.  It is prevented from suing State A for damages under State sovereign immunity of the 11th Amendment.

2. The next issue presented is whether the Superintendent of the Bank can be sued in her official capacity so as to enjoin her from enforcing the State A statute at issue, despite the existence of state sovereign immunity.

State sovereign immunity does not extend to state officials, which the Superintendent qualifies as, if the suit is for an injunction or damages to be paid personally out-of-pocket by the superintendent. Here, the bank seeks an injunction against the state official so under the 11th Amendment that is proper and allowable. However, in order to bring a suit in federal court there must be diversity of citizenship, subject matter, or in the alternative if both other options fail, supplemental subject matter jurisdiction over each claim. The bank as already explained above is a citizen of state B for diversity purposes, the state Superintendent of State A would be considered a citizen of State A. THerefore, complete diversity is satisfied and the bank has in good faith included in its complaint, as explained above, that the lost profits it has suffered from the implementation of the statute are in excess of $75,000. Therefore, there would be diversity subject matter jurisdiction over this claim and this claim to enjoin the Superintendent from enforcing the State A statute could be brought so long as the bank had standing. Standing requires 1) injury in fact, including a particularized harm and a concrete harm, as well as 2) redressibility - the ability of a judgment that is favorable to plaintiff to resolve their problem, and 3) causation - some causual connection between the injury and the conduct complained of. However, the justiciability doctrine of mootness will bar a claim despite standing's requirements otherwise appearing to be met here because the claim is not yet ripe. Mootness comes into play to bar claims that have not yet been enforced, such as when statutes have not yet been enforced to prevent the court from rendering an advisory opinion (which federal courts are not permitted to do) rather than dealing with a concrete injury. Here, however, it appears that bank has standing, including a concrete injury, which need not be economic, and that mootness should not bar the claim because although not enforced the bank has already had a loss in business due to the statute - a loss of $2 million because the costs to comply would be 50 million and customers did not want a reduction in services from the bank. Therefore, it appears the injury in fact could be satisfied by the lost customers, the redressibility element is met because invalidating the statute would resolve the bank's problem of high cost security measures and there is a basic causal connection between the statute requiring the measures and the bank needing to cut services to comply with it while not expending too much in security prevention. Thus, the claim to enjoin Superintendent may be brought in federal court.

3. The issue is whether state statute could be unconstitutional for failure discriminating against out-of-staters under the Privilege & Immuntities Clause of Art. IV or as discriminating against interstate commerce or unduly burdening interstate commerce under the Commerce Clause (as when applied against the states frequently referred to as the Dormant Commerce Clause). The Privileges and Immunities clause of Art. IV of COnstitution does NOT apply to corporations or aliens, meaning that it cannot be used by them to assert a claim under it. Therefore, that is inapplicable here becuase the bank is a corporation - incorporated in State B.

However, the Commerce Clause says that state laws must not discriminate against interstate commerce and will be held invalid unless they 1) have an important noneconomic government interest they promote and there is no reasonable nondiscriminatory alternative means, 2) the market participant exception applies, or 3) the law involves government undertaking a tradtional gov't function. Alternatively, even if nondiscriminatory, the state law will violate the Commerce Clause if it unduly burdens interstate commerce - which is determined by blancing the harm to interstate commerce against the government interest being pursued. Here, even if nondiscriminatory, it appears that this law is unconstitutional because it unduly burdens interstate commerce. It is leading a national bank to have to forfeit a widely used service of electronic fund transfers over a relatively small amount in the grand scheme of commerce ($10,000) in a state and in order for banks to not need to reduce their services it is requiring security measures that would require approximately $50 million. This appears to unduly burden interstate commerce. Therefore, the bank can argue that statute is unconstitutional under the Commerce Clause.

 

Sample Answer

 

1. Soveriegn immunity likely precludes the bank from suing State A in federal court for damages.

The issue is whether the bank can maintain a suit in federal court against State A for damages.

Under the United States Constitution, the doctrine of sovereign immunity generally prevents private actors from suing states in federal court without their consent. This has been interpreted to mean suits for monetary damages. Sovereign immunity does not apply where (1) the state gives consent to such suit, or (2) where federal law explicitly creates a cause of action with damages, or (3) where there is a suit against an individual, in their official capacity, for an injunction to enjoin unconsituttional activity.

Here, there is no indication that State A has consented to the suit, and it is doubtful that they would consent to such a suit. They would, of course, be free to do so if they so desire. In addition, the facts state that there are no federal laws on point. This question involves a suit for damages, and as such, sovereign immunity would prevent such a suit in the absence of one of the exceptions.

Therefore, the bank cannot maintain a suit in federal court against State A for damages, without its consent, based on the doctrine of sovereign immunity as found in the US Constitution.

2. Can the bank maintain a suit in federal court against the state Superindendent of Banking to enjoin her from enforcing the State A statute?

a. Soverign immunity does not apply to suits for injunctions

The issue is whether soverign immunity precludes the bank from maintaining a suit against the Superindendent of Banking to enjoin her from enforceing the State A statute.

Analysis of this issue is similar to the analysis above, however, the relevant rule is that an individual can be sued in their official capacity to enjoin unconstitutional actions.

Therefore, sovereign immunity does not preclude the suit.

a. The federal court likely has federal subject matter jurisdiction.

The issue is whether a federal court would have jurisdiction over the claims of the bank.

Federal courts are courts of limited jurisdiction, and cannot hear all claims. The ways to get in to federal court include (1) issues of federal laws, regulations, treaties, and the constitution, (2) diversity jurisdiction (there are many other ways to get in to federal court based on the constitution, but they involve suits between parties not present here.) Federal question jurisdiction must be raised on the face of a well-pleaded complaint.

Assuming that Bank A can raise a colorable argument sufficient to show a federal constitutional question - likely under the commerce clause, as discussed below. This will entitled them to file suit in federal court. The facts tell us that there are no other federal laws on point, so the argument must be constitutional. Diversity jurisdiction is not available for suits by private parties against a state.

Therefore, if the bank can raise a constitutional issue on the face of their well-pleaded complaint, likely based on the commerce clause, the federal court will have jurisiction to hear their claim.

3. The statute is likely not unconstitutional based on the commerce clause.

The issue is whether the dormant comerce clause prohibits State A's law because it unduely burdens interestate commerce.

States have general police power, and can pass any legislation related to the health, safety, and welfare of its citizen. The federal constitution does provide some limits on this power, however. Regulating interstate commerce is an enumerated power of the federal government. It is also an exclusive power of the federal government. While are precluded from regulating interstate commerce where (1) there is a direct federal statute that contradicts the state statute, or (2) federal regulation is so pervasive that it "occupies the field." The federal government can, however, permit states to regulate. However, the dormant commerce clause applies to limit the abilities of states to overly burden interstate commerce, even in the absence of federal regulation. States may not pass laws that directly discriminate against out-of-state actors; these are subject to strict scrutiny analysis. If a law does not directly burden interestate commerce but has a substantial incidental effect, courts apply a balancing test that compares the benefit to the state with the burden on interestate commerce.

In the instant case, the facts tell us that there are no on point federal statutes. Therefore, the dormant commerce clause will apply. The statute does not directly discriminate against out of state actors on its face, since it makes no provisions for separate treatment of out-of-state actors. Therefore, the burden is incidential, if any, and the benefits and burdens should be balanced.

There are apparently few benefits to State A. The benefits would theoretically be that it offers more security, protects State A citizens from fraud, and decreases bank related crime and fraud. However, the facts state that experts are in dispute about the value of biometric identification is significantly better than other techniques. On the other hand, the facts are sparse regarding what alternative methods are available and whether other methods may cost. The only dispute is whether they are better or worse. In addition, the facts state that State A is adopting it based on lobbying from a State A based manufacturer of biometric identification software.

However, the burden on interestate commerce may be equally light. The bank would be required to reprogram its entire US electronic banking system if it were to comply with state laws, but they would only lose about $2,000,000 in profits. Whether the burden is high would turn on the number of banks affected and the cost to each.

Based on the facts given, it is unlikely that a court would conclude the State A statute is unconstitutional based on the balance of harms under the facts given. 

 

MEE Question 3

A garment manufacturer sells clothing to retail stores on credit terms pursuant to which the retail stores have 180 days after delivery of the clothing to pay the purchase price. Not surprisingly, the manufacturer often has cash-flow problems.

On February 1, the manufacturer entered into a transaction with a finance company pursuant to which the manufacturer sold to the finance company all of the manufacturer’s outstanding rights to be paid by retail stores for clothing. The transaction was memorialized in a signed writing that described in detail the payment rights that were being sold. The finance company paid the manufacturer the agreed price for these rights that day but did not file a financing statement.

On March 15, the manufacturer borrowed money from a bank. Pursuant to the terms of the loan agreement, which was signed by both parties, the manufacturer granted the bank a security interest in all of the manufacturer’s “present and future accounts” to secure the manufacturer’s obligation to repay the loan. On the same day, the bank filed a properly completed financing statement in the appropriate filing office. The financing statement listed the manufacturer as debtor and the bank as secured party. The collateral was indicated as “all of [the manufacturer’s] present and future accounts.”

There are no other filed financing statements that list the manufacturer as debtor.

On May 25, the manufacturer defaulted on its repayment obligation to the bank. Shortly thereafter, the bank sent signed letters to each of the retail stores to which the manufacturer sold clothing on credit. The letters instructed each retail store to pay to the bank any amounts that the store owed to the manufacturer for clothing purchased on credit. The letter explained that the manufacturer had defaulted on its obligation to the bank and that the bank was exercising its rights as a secured party.

The finance company recently learned about the bank’s actions. The finance company informed the bank that the finance company had purchased some of the rights to payment being claimed by the bank. The finance company demanded that the bank cease its efforts to collect on those rights to payment.

Meanwhile, some of the retail stores responded to the bank’s letters by refusing to pay the bank. These stores contend that they have no obligations to the bank and that payment to the manufacturer will discharge their payment obligations.

1. As between the bank and the finance company, which (if either) has a superior right to the claims against the retail stores for the money the retail stores owe the manufacturer for clothing they bought on credit before February 1? Explain.

2. Are the retail stores correct that they have no obligations to the bank and that paying the manufacturer will discharge their payment obligations? Explain.

 

Sample Answer

 

1.) The issue here is who has the superior right to the claims against the retail stores for the money owed to the manufacturer for clothing bought on credit. To determin the priority of a secured transaction, we must look at the (a) collateral, (b) attachment, and (c) perfection. Collateral can be a myriad of things including consumer goods, inventory, farm, products, equipment, accounts, chattel paper, and documents. Attachment occurs when there is (a) value given, (b) rights are creates, and (c) there is a security agreement. The security agreement must be in on (a) tangible meduim, (b) have a description of the collateral with particularity, and (c) be authenticated. Perfection can occur through (a) a financing statement, (b) control, or (c) possession. A secured transaction can be unperfected or perfected. A financing statement must have (a) the name of the debtor, (b) the name of the creditor, and (c) a broad discription of the collateral. The financing statement must be filed with the secretary of state. This affects priority.

Finance company

The finance company arguably has a secured transaction. The collatoral in question is the outstanding accounts which falls under accounts. There was attachment because (a) value was given in the agreed price, (b) rights were created by the financing company getting rights to outstanding accounts, and (c) there is a security agreement discussed further below. There is a security agreement here because (a) there was a tangible medium in the document that memorialized the transfer, (b) there was a description in detail of the payment rights being sold, and (c) it was autheticated in the form of a signature.  However, this transaction was not perfected as noted inthe prompt. This is an unperfected interest.

Bank

The bank also has a security interest.  The collateral is in the form of accounts. There is attachment because (a) value was given when the manufaturer borrowed money from the bank, (b) rights were created by the bank being granted rights to "present and future accounts," and (c) there is a security agreement. The loan agreement acts as a security agreement because (a) a loan document is a tangible medium, (b) there was a description of "present and future accounts", and (c) it was autheticated in the form of a signature. The Bank files a financing statement because it had the names of the debtor and creditor and a description of the collateral. Because there wsa attachment and perfection, this is a perfected secuity interest.

When looking at competing security interest, an unperfected verses a perfected will lead to the perfected having priority no matter when the attachment happend. In that case, the Bank will have priority because it was perfected.

There is an argument that "present and future accounts" are not a description with particularity. However, it should be sufficient to pass the test because one could ascertain which accounts are being specified. However, if it is not enough to create the security agreement, then the Finance company would have priority because perfection cannnot come without attachment. If Bank is not perfected because of this, then we would look to who attached first. In that case, it would be the finance company.

2a.) The issue here is whether the retail stores have no obligations to the bank. A security interst in an account creates a right to get the proceeds from that account in the case of default. Reposession of accounts requires that the holder of the interest use commercially reasonable standards to get the accounts. If the letters are the commercial standard for enforcing account rights, then this is ok. Therefore, the retail stores are incorrect that they have no obligations to the bank.

2b.) The issue here is whether paying the manufacturer will disharge the retail stores' payment obligations. The holder of a security interest in accounts has the rights to those accounts as mentioned. The holder of this type of security interst takes the powers and rights of the original account holder in the case of a default. Here, there has been a default, thus the Bank has all of the rights and powers of the original accout holder. One of the rights of an original account holder is to be able to collect what is owed on that account. This right, now held by the bank, is enforceable. Payments to the manufacturer would be improper and would not satisfy the account which now belongs to the Bank because of the manufacturer's default. Thus the retailers are wrong that paying the manufacturer would discharge their payment obligations.

 

Sample Answer

 

1. The issue is a perfected security interest v. an unperfected security interest in accounts.

In order for a party to have a security interest, the security interest must attach. This is done by the secured party providing value to the debtor, the debtor having a right in the collateral, and either (1) an agreement authorized by the debtor sufficiently describing the collateral or (2) control or possession of the collateral by the secured party. A secured party may then perfect their security interest in one of a few ways: file a financing statement, having control or possession of the collateral, or some type of automatic perfection. A proper financing statement will list the names of the secured party, the debtor, and describe the collateral. Unlike a authorized agreement, this description may be super-generic. A perfected security interest will always have priority over an unperfected security interest in the same collateral.

Here, on February 1, the manufacturer entered into a transaction with a finance company pursuant to which they sold all their outstanding rights to be paid by retail stores for clothing. The manufacturer had rights to these accounts, and the finance company paid the manufacturer value for these accounts. There was also a signed agreement that described the payment rights in detail. These conditions are sufficient to establish that the finance company's security interest in the manufacturer's account attached on February 1. However, their security interest was not perfected because they did not file a financing statement, have control over the accounts, and no automatic perfection provision applied to these accounts.

On March 15, the manufacturer borrowed money from the bank. The bank provided value in the loan, and the manufacturer still had rights in the collateral, which was described as "present and future accounts." This is a sufficient description because a debtor may use future property as well as present for collateral, and "accounts" is specific enough to meet the requirement to authenticate an agreement, which here was singed by both parties. As such, the bank's security interest in the manufacturer's account attached March 15. On that same day, the bank perfected its security interest by properly filing a financing statement. This statement listed the manufacturer as debtor and bank as secured party, and indicated the collaterl as "all the manufacturer's present and future accounts," which is a sufficient description. Therefore the bank's security interest was perfected.

When the manufacturer defaulted on its repayment obligation on May 25, the finance company only had an unperfected security interest, while the bank had a perfected security interest. The bank therefore has a superior right for the claims against the retail stores for the money owed to the manufacturer on clothing bought on credit before February 1.

2. The issue is whether the retail stores have an obligation to pay the bank.

When a secured party seeks to exercise its rights and demand payment of accounts, the must provide notice to all affected parties. If they do not, then the party they seek payment from will not be obligated to pay the secured party in lieu of the debtor. However, oncce notice is given, the secured party has properly executed its rights, and the account parties must pay the secured party rather than the debtor for the accounts the secured party has an interest in.

Here, shortly after the manufacturer defaulted on its repayment obligation to the bank on May 25, the bank sent signed letters to each retail store to which the manufacturer sold clothing on credit. The bank had a security interest in all the manufacturer's present and future accounts, so it was required to provide notice to all of the retail stores that bought clothing from the manufacturer on credit. When the bank did this, the manufacturer lost its rights in the accounts, and the retail stores were put under an obligation to pay the bank rather than the manufacturer. As such, the retail stores are not correct that they have no obligations to the bank and paying the manufactuter will discharge their payment obligations.

 

MEE Question 4

In 2012, Testator wrote by hand a document labeled “My Will.” The dispositive provisions in that document read:

A. I give $50,000 to my cousin, Bob;

B. I give my household goods to those persons mentioned in a memorandum I will write addressed to my executor; and

C. I leave the balance of my estate to Bank, as trustee, to hold in trust to pay the income to my child, Sam, for life and, when Sam dies, to distribute the trust principal in equal shares to his children who attain age 21.

After Testator finished writing the will, he walked into his kitchen where his cousin (Bob) and his neighbor were sitting. After showing them the will and telling them what it was but not what it said, Testator signed it at the end in their presence. Testator then asked Bob and his neighbor to be witnesses. They agreed and then signed, as witnesses, immediately below Testator’s signature. The will did not contain an attestation clause or a self-proving will affidavit.

When the will was signed, Sam and his only child, Amy, age 19, were living. Testator also had an adult daughter.

In 2015, Testator saw an attorney about a new will because he wanted to change the age at which Sam’s children would take the trust principal from 21 to 25. The attorney told Testator that he could avoid the expense of a new will by executing a codicil that would republish the earlier will and provide that, when Sam died, the trust principal would pass to Sam’s children who attain age 25. The attorney then prepared a codicil to that effect, which was properly executed and witnessed by two individuals unrelated to Testator.

Two months ago, Testator died. The documents prepared by Testator and his attorney were found among Testator’s possessions, together with a memorandum addressed to his executor in which Testator stated that he wanted his furniture to go to his aunt. This memorandum was dated three days after Testator’s codicil was duly executed. The memorandum was signed by Testator, but it was not witnessed.

Testator is survived by his aunt, his cousin Bob, and Sam’s two children, Amy, age 24, and Dan, age 3. (Sam predeceased Testator.) Testator is also survived by his adult daughter, who was not mentioned in any of the documents found among Testator’s possessions.

This jurisdiction does not recognize holographic wills. Under its laws, Testator’s daughter is not a pretermitted heir. The jurisdiction has enacted the following statute:

Any nonvested interest that is invalid under the common law Rule Against Perpetuities is nonetheless valid if it actually vests, or fails to vest, within 21 years after some life in being at the creation of the interest.

To whom should Testator’s estate be distributed? Explain.

 

Sample Answer

 

1.     The formalities of a will accordining to the Uniform Probate Code ("UPC") in determining the validity of a last will and testament and codicils to that last will and testament.

The issue is whether or not the Will that Testator hand wrote is considered to either be a formal last will and testament or if it is to be a holgraphic will.  In order for a will to comply wih the formalities of a last will and testmaent, the doucment created must meet three criteria with regard to a testamentary document.  First, the Testaor must have interest in the property for which they are devising or bequeathing in the document.  There is nothing to suggest from the facts that Testator had either legal and/or equitable title in the property.  The purpose of the will is to devise or bequeath both personal and real property to either heirs of the Testator should they predecease the recipients of such property.  Then the Testator must be have created the testamentary document with the capacity to due so.  Capacity means that the Testator was 18 years of age or older, was of sound mind and body when Testator created his last will and testament.  There is no evidence here to suggest that Testator lacked capacity.  Lastly, the Testator must publish their intent that the document that the witnesses are witnessing being signed by the Testator is in fact their last will in testament.  It is not necessary under the UPC that the witnesses are aware of the contents of the document other than it is the wishes of the Testator that it is in fact their last will and testament.  There is no conflict of interest that the witnesses may or may not have an interest in the contents of the Will so long as there is no evidence that his Cousin Bob had used any undue influence upon Testator to create the will.  Therefore there does not appear to be any defense available to invlidate a will.  Although an attestation clause or a self=proving wil affidavit would further subtantiate the validity of the will it is not necessary should it be clear and convincing that Testator intended for the document to be his last will and testament.  Furthermore, the codicil that was executed three years later (in 2015)  republished the Will that Testator created in 2012 which was properly executed and witnessed with the necessary formalities to reduce any question as to the intent of the Testator when he created the original Will in 2012.

2.    Sam's gift lapsing due to his death preceding the death of Testator and the effect on the interest conveyed in the Will

The issue here is whether Sam's children have a residuary interest in the balance of the estate referenced in clause 3 of the last will and testament of Testator since Sam predeceased Testator. This interest that Testator created is known as a Testamentary Trust.  A testamentary trust is one in which the Testator creates a fiduciary duty upon a Trustee (i.e. Bank) to administer the trust upon the death of testator.  The fiduciary duty is owed to the beneficiaries of that trust until the terms of the trust either are extinguished or the express terms of the trust are directed to lapse after a certain period of time.  Here, Sam was designated as an income beneficiary and Sam's children had an interest that placed a condition upon the children in order to receive their principal beneficiary interest once they reached the age of 25.  The codicil that amended the original age of 21 to 25 was a valid amendment due to formalities of a codicil having been met in 2015.   In order for a income beneficiary, in this instance Sam to have received the income from the testamentary trust, he must have outlived the Testator.  Here Sam failed to do so and thus his interest in the property has been extinguished.  And since their was no anti-lapse clause incorporated into the last wil and Testament of Testator, the gift adeems (i.e. fails to pass)  The next question is whether or not the principal beneficiaries' gift fails since they have not reached the age required by the codicil of 25,

3.    Sam's children's (Amy and Dan) rights to the principal given that the original devise failed to Sam.

The issue here is whether or not the Rule Against Perpetuities would prevent Amy and Dan from taking their interest in the future.  Here the Trustee has a fiduciary duty to manage and distribute the principal to the beneficiaries once they attain the age of 25.  The Rule Against Perpetutities states that the measuring life plus 21 years is the measuring stick to determine whether or not a interest holder can take possession.  The trick here is to figure out when the clock started.  In this regard the life in being is Testator since the measuring life is measured in a testamentary trust not at the time the Will was executed but rather at the time the Testator dies. Therfore, the jurisdiction's statute does not conform to the UPC that the interest vests at the time of the death of the testator as opposed to the time it was created.  In this case, the clock begins as to the Rule Against Perpetutities in 2015 when Testator passed away.  It is clear that Amy and Dan are lives in being and it can be determined that Sam will not have any other children due to his death the class is closed and the remaindder interest is a valid conveyance as to the residuary estate that listed in clause 3 of the 2012 last will and testament.  Therefore, the trustee will be able to distribute the residuary estate held in trust once Amy and Dan reach the age of 25.  Typically a principal beneficiary can claim their interest if the income beneficiary's interest are extinguished (i.e. Sam's demise) but the interest of Amy and Dan have wil not vest until they have the attained the age of 25.  Therefore, the gift to Amy can vest within one year so that gift is valid.  While the gift to Dan will not vest within 21 years because Dan will only have reached the age of 24.  As a result, Trustee (Bank) owes a fiduciary duty to Amy only.

4.    Daughter not being included in the last will and testament makes her a pretermitted heir if the Will is a holographic will.

Testator is within their rights to exclude the natural  heir so long as they have made notable mention of their intent through their testamentary instrument that they are excluding as such.  Here, Testatator failed to make mention of his intent to exclude his adult daughter in his last will and testament.  Since this was not evidenced in a writing the daughter can make a claim as to her intestate share is if the Will was never probabted by the Surrogate Court and make a claim as a rightful descendant.

5.    $50,000 bequest to cousin Bob is valid.

Since the will that was created in 2012 has been established as a valid will in accordance with the proper formalities of a testamentary instrument, it it therefore a legal dispositive instrument.  Bob as mentioned above in paragraph 1 was a witness to the will and an interested party can be a witness to the will so long as no undue influence (duress by a close familial relative) does not exist in this case.  Cousin Bob is entitled to the devise of the $50,000 which is personal tangible property.

6.     Aunt's rights to the furniture.

Aunt was not originally identified to have an interest in the household goods but rather her gift was referenced in the original document as a partial integration of household goods.  Each gift must have been bequeathed or devised with specificity unless it state for example a genearlization. (eg. all my shares in IBM stock to X).  Such a gift would be valid if identified the person to receive the gift.  Here the gift survives because of the codicil identifying the intent of testator to bequeath Testator's furniture to Testator;s Aunt.  There are no facts to dispute that another Aunt is making a claim to the furniture and thus the surviving Aunt receveivs the furniture..

 

Sample Answer

 

1) The issue is whether Cousin Bob's interested-witness stauts effects his taking under the will.

Underlying Will

To be valid, a will must be in writing, with intent to make testimentary dispositions, signed by the testator in front of two witnesses, attested to two witnesses, and signed by two uninterested witnesses.  Here, the will was written and labeled "My Will," and made dispositions which, when considered together with the heading "My Will" were intended to be testimentary.  Further, testator informed the witnesses that it was her will and signed it in their presence, and they subsequently signed.

Jurisdictions differ as to whether an interested witness (a signing witness who is also a beneficiary under the will) either (i) takes nothing under the will, (ii) takes an amount equal to their intestate share under the will.  The UPC does away with the interested witness doctrine and allows for interested witnesses to inherit their share under the will.  However, once a will is republished by codicil, assuming that on the codicil there are two uninterested witnesses, the problem that the underlying will had an interested witness is moot.

Here, Cousin Bob is an interested witness.  Pursuant to the will, he is receiving $50,000.  He also signed the original will as a witness.  However, becuase the will was republished by codicil and the codicil included two uninterested witnesses, there is no longer a problem in any jurisdiction of Cousin Bob being an interested witness. Therefore, Cousin Bob takes $50,000.

2) The issue is whether a subsequent writing dictating how personal property is to be distributed can be valid

A will can incorporate another document which is not present at execution by reference.  To incorporate by reference, the subsequent document must be (i) in existance at the time the will is executed, (ii) referred to in the will with the intent to be referenced, and (iii) described with sufficient particularity that it can be identified when necessary.

Here, the memorandum is dated three days after the codicil (which republishes the will, see above) was executed.  Therefore, it was not incorporated by reference.

Alternately, a subsequent writing can become part of the testimentary disposition if it disposes of personal property or cash but not real estate.  Here, the document disposes of "household goods" to someone who will be written in a letter to executor.  Such a letter was found together with Testator's personal effects after her death and named his aunt as the benefiiary of the furniture.

Therefore, the furniture goes to Testator's aunt.

3) The question is whether the remainder of the estate can go to Sam's children.

Testimentary Trust

A testimentary trust is a trust which is created in a person's will.  The trust document is either referred to in the will or the will spells out the rules governing the trust.  To create a trust, a settlor must have (i) intent to make a trust - to give legal possession of property to a trustee and equitable possession to the beneficiary, (ii) it must be for a valid purpose (not illegal or against public policy), and (iii) it must have res - property.

Age that Grandchildren Receive Trust Res

Here, the third clause in Testator's will is a valid testimentary trust.  It takes the residue estate and creates a trust, where Bank is the trustee and is holding the trust property for the benefit of the beneficairy, Sam and his children.

A will is revoked in part by executing a codicil which contradicts some or all of the provisions therein.  Here, Testator wanted to change the date which her grandchildren would receive the trust principal from age 21 to age 25.  She did so by executing a codicil.  Therefore, she changed the age which her grandchildren receive the trust money from 21 to 25.

Rule Against Perpetuities

Pursuant to  the statute in the applicable jursdiction, an interest otherwise invalid under the Rule Against Perpetuities will be otherwise valid if it vests or fails to vest within 21 years of some life in being at the creation of the interest.

Here, the trust provides that Sam's children receive the trust res when they reach the age of 25.  At Sam's death, he did not have a child who had reached the age of 25.  However, within 21 years it can be determined which, if any, would receive the res.  His daughter Amy is 24 and we would know within a year whether she survives to the age of 25.  Therefore, it does not matter that Dan, Sam's son is 3 and we would not know within 21 years whether he survives to 25 becuase we would already know whether Amy made it to 25.  Therefore, the residue estate is being held in trust for the beneift of Sam's children who reach the age of 25.

MEE Question 5

A woman is on trial for the attempted murder of a man whom she shot with a handgun on March 1. According to a State A police report:

The woman started dating the man in August. A few months later, after the woman broke up with him, the man began calling the woman’s cell phone and hanging up without saying anything. In February, the man called and said, “I promise you’ll be happy if you take me back, but very unhappy if you do not.” The following week, to protect herself against the man, the woman lawfully bought a handgun.

On March 1, the woman was working late in her office. At 10:00 p.m., the man entered the woman’s office without knocking. The woman immediately grabbed the gun and shot the man once, hitting him in the shoulder.

The police arrived at the scene at 10:10 p.m. By this time, a number of people had gathered outside the doorway of the woman’s office. A police officer entered the office, and his partner blocked the doorway so that the woman could not leave and no one could enter. The officer immediately seized the gun from the woman and asked her, without providing Miranda warnings, “Do you have any other weapons?” She responded, “I have a can of pepper spray in my purse. Is that a weapon?”

At 10:20 p.m., after the woman had been arrested and the man taken to the hospital, a custodian told the police officer, “I didn’t see the shooting, but I heard some noises in the hall around 10 and then a loud bang and screaming.”

A few hours later, at the hospital, the man told the police officer that he had entered the woman’s office just to speak with her and that the woman had shot him without provocation.

The woman will defend against the attempted murder charge on the ground that she acted in self-defense. In State A, self-defense is defined as “the use of force upon or toward another person when the defendant reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.”

State A has adopted evidence rules identical to the Federal Rules of Evidence. State A follows the doctrine of the Supreme Court of the United States when interpreting protections provided to criminal defendants under the U.S. Constitution.

The prosecution and the defense have fully complied with all pretrial notice requirements, the authenticity of all the evidence has been established, and the court has rejected defense objections based on the Confrontation Clause.

The woman, the man, and the police officer will testify at trial. The custodian is unavailable to testify at trial.

Under the Miranda doctrine and the rules of evidence, explain how the court should rule on the admissibility of the following evidence:

1.Testimony from the woman, offered by the defense, repeating the man’s statement, “I promise you’ll be happy if you take me back, but very unhappy if you do not.”

2.Testimony from the police officer, offered by the prosecution, repeating the woman’sstatement, “I have a can of pepper spray in my purse. Is that a weapon?”

3.Testimony from the police officer, offered by the prosecution, repeating thecustodian’s statement, “I didn’t see the shooting, but I heard some noises in the hall around 10 and then a loud bang and screaming.”

 

Sample Answer

 

1. Woman's testimony of man's statment

The issue is whether the woman can testify as to statements made to her by the victim.

Hearsay consists of out-of-court statements offered in court to prove the truth of the matter asserted. Statements of independent legal significance, such as threats, offered to show the statement's effect on the recipient of the statement are not offered for the truth of the matter asserted, and are therefore not hearsay. Where self-defense requires a "reasonable belief that that . . . force is immediately necessary for the purpose of defending [oneself] against the use of unlawful force by [another]" a statement made out of court and offered in court to prove that the defendant had a reasonable fear is not offered for its own truth, but for the statement's effect on the listener. All evidence must pass the 403 balancing test that its unduly prejudicial nature does not substantially outweigh its probative value.

Here, the man's statement was an out-of-court statement offered by the woman in court. However, she is not offering the statements for the truth of the matter asserted, that she would be happy if she took the victim back and unhappy if she did not. Rather, the statements are being offered as evidence that the woman had reason to fear the man. This goes to her assertion of self-defense, as it tends to show that her fear of immediate harm at the hands of the victim was reasonable. The statement is unlikely to be found unduly prejudicial, and any prejudice is very unlikely to be found to sunstantially outweigh the probative value.

As the statment is being offered for a reason not having to do with the truth of the matter asserted, the court should allow these statements to come in.

2. Police testimony of woman's statement

a. Miranda issue

The issue is whether the police officer can testify as to the statement made by the woman before being mirandized.

Statements made by defendants to police before being mirandized may be excluded where the person is in custody and subject to police interrogation. However, where a police officer is responding to an ongoing emergency, this requirement may be waived, and the statement may be allowed.

Here, the woman made the statement to the police officer while the exit to the room was blocked by a police officer, and in response to a direct inquiry by the police officer. The requirements of custody and interrogation are therefore met. However, because the woman had just shot the victim, the police's question was arguably related to an ongoing emergency. It is a close call, but because the woman was asked the question in the midst of a potential ongoing emergent situation, the statement is likely to be admitted. The prejudice of this statment is unlikely to be found undue, not to substantially outweigh its probative value.

b. Hearsay

Another issue is whether the woman's statement should be excluded as hearsay.

A statement by a party opponent is not hearsay, and can be offered for any reason.

Here, the woman is on trial, and this statement is being offered by the prosecution. As such, it is an opposing party statement and not subject to exclusion based on hearsay rules.

3. Police testimony of custodian's statement

The issue is whether the custodian's out-of-court statement, being offered for the truth of the matter asserted, can be excluded as hearsay or allowed in as an exception to the rule against hearsay.

The rule against hearsay is subject to several exceptions. These include present sense impression, excited utterance, and then-existing state of mind. The present sense impression allows for the admission of statements that would otherwise be excluded as hearsay if they are expressions of the declarant's contemporaneous interpretation of concurrent events. An excited utterance is one made during or immediately after a startling event, while still under the shock of the exciting event. The then-existing state exception allows for the admission of otherwise hearsay statements when the statments describe the declarant's then-existing physical or emotional state, or the declarant's plan or intent for future action.

Here, likely none of the aforementioned exceptions apply, though excited utterance is the closest call. The shooting happened at 10:00, and the statement was made at 10:20. This delay makes the present sense impression and state of mind exceptions inapplicable. For an office custodian, however, 20 minutes might not be enough time to calm down from having heard a shooting in the building. Still, it is unlikely that this statement would be allowed in because of that delay.

 

Sample Answer

 

1. The issue is whether the man's statement, "I promise you'll be happy if you take me back, but very unhappy if you do not," is admissible under the Federal Rules of Evidence.

Under the Federal Rules of Evidence, evidence is admissible if it is relevant. Evidence is relevant if it is both probative and material. Evidence is probative if it has a tendency to make a fact more or less probable. Evidence is material if the fat is of consequence in determining the action.  Furthermore, under the Federal Rules of Evidence, an out-of-court statement is inadmissible to prove the truth of the matter asserted. Such statements are considered inadmissible hearsay. However, out-of-court statements used for reasons other than to prove the truth of the matter asserted, such as statements used to prove the effect on the listener, are not hearsay.

Here, the man's statement is an out-of-court statement. However, the woman is not using the statement to prove the truth of the matter asserted. Rather, the relevance of the evidence is the effect it had on the listener. That is, the text message is probative of whether or not the woman acted in self-defense. Accordingly, even though it is an out-of-court statement, it is not being used to prove the truth of the matter asserted, but is being used to show the effect it had on the woman. Therefore, the statement is admissible under the Federal Rules of Evidence as non-hearsay.

2.a. The issue is whether the police officer's testimony, repeating the woman's statement, "I have a can of pepper spray in my purse. Is that a weapon?" is admissible under the Federal Rules of Evidence.

As discussed above, unde the Federal Rules of Evidence, an out-of-court statement is inadmissible to prove the truth of the matter asserted. However, statements made my the opposing party are admissible as non-hearsay.

Here, the statement was made by the woman, who is the defendant and is thus the opposing party. Accordingly, even though this is an out-of-court statement, it is admissible as non-hearsay.

2.b. The issue is whether the police officer's testimony, repeating the woman's statement, "I have a can of pepper spray in my purse. Is that a weapon?" must be excluded pursutant to the Miranda doctrine.

Under the Miranda doctrine, a defendant may not be subjected to custodial interrogation without certain procedural safeguards being provided. An individual is "in custody" if they are under arrest or otherwise not free to leave. An individual is subject to "interrogation" when the police are asking them direct questions or engaging in other conduct they should know is likely to elicit a response. When a defendant is subject to such "custodial interrogation," they must be read their Miranda rights. If an officer subjects a defendant to custodial interrogation without providing Miranda warnings, any incriminating statements made during the interrogation are inadmissible against the defendant except for impeachment purposes. Furthermore, under the public safety exception, questions asked for the purpose of preventing immediate danger on behalf of the defendant do not need to be accompanied by

Here, the woman had not been formally placed under arrest. Nevertheless, the officers had seized her weapons and blocked the door so she could not leave. Thus, the woman was "in custody." Furthermore, the police officer asked the woman a direct question ("do you have any other weapons?"). Thus, the "interrogation" aspect of "custodial interrogation" is satisfied. However, the officer was asking the question to make sure she could not harm anyone else. Therefore, the question did not need to be accompanied by Miranda warnings pursuant to the public sagety exception. Thus, the evidence is admissible despite the fact that the woman was not given Miranda warnings.

3. The issue is twhether the police officer's testimony, repeating the custodian's statement, "I didn't see the shooting, but I heard some noises in the hall around 10 and then a loud bang and screaming," is inadmissible hearsay.

As discussed above, unde the Federal Rules of Evidence, an out-of-court statement is inadmissible to prove the truth of the matter asserted. However, there are several exceptions to the hearsay rule. Two of such exceptions are relevant here. First, under the present sense impression exception, hearsay may be admitted if the statements describe an event of condition and is made while or immediately after experiening that event or condition. Second, under the excited utterance exception, hearsay statements are admissible if they relate to a startling event and are made under the stress of the excitement that event caused.

Here, the statement does describe an event or condition. However, the statement was made 20 minutes after experiencing the event. Therefore, it was not made during or immediately after experiencing the event or condition. Accordingly, the statement does not fall within the present sense impression exception to the hearsay rules.

Furthermore, the statement does relate to a startling event or condition. The man heard gunfire and screaming, which would cause almost anyone to be startled. However, once again, the statement was made 20 minutes after it happened. This is plenty of time to calm down from the stress that would be caused by hearing the gunfire. Therefore, it cannot be said that the statement was made under the stress of the excitement that the event caused. Accordingly, the court should find that the evidence is not admissible under the excited utterance exception to the hearsay rules.

 

MEE Question 6

Taxes Inc. (“Taxes”) is a tax preparation business incorporated in State A, where it has its corporate headquarters. Taxes operates five tax preparation offices in the “Two Towns” metropolitan area, which straddles the border between State A and State B. Three of the Taxes tax preparation offices are located in Salem, State A; the other two are in Plymouth, State B.

A woman, a recent college graduate, was hired by Taxes and trained to work as a tax preparer in one of its offices in Salem, State A. The woman and Taxes entered into a written employment contract in State A that included a noncompete covenant prohibiting her from working as a tax preparer in the Two Towns metropolitan area for a period of 24 months after leaving Taxes’s employ. The employment contract also provided that it was “governed by State A law.”

After working for Taxes for three years, the woman quit her job with Taxes, moved out of her parents’ home in State A (where she had been living since her college graduation), and moved into an apartment she had rented in Plymouth, State B. Two weeks later, she opened a tax preparation business in Plymouth.

Taxes promptly filed suit against the woman in the federal district court for State A, properly invoking the court’s diversity jurisdiction. The complaint alleged all the facts stated above, claimed that the woman was preparing taxes in violation of the noncompete covenant in her employment contract, and sought an injunction of 22 months’ duration against her continued preparation of tax returns for any paying customers in the Two Towns metropolitan area.

Taxes delivered a copy of the summons and complaint to the home of the woman’s parents in State A (the address that she had listed as her home address when she was employed by Taxes). The process server left the materials with the woman’s father.

Each state has service-of-process rules identical to those in the Federal Rules of Civil Procedure.

Under State A law, covenants not to compete are valid so long as they are reasonable in terms of geographic scope and duration. The State A Supreme Court has previously upheld noncompete covenants identical to the covenant at issue in this case. When determining whether to give effect to a contractual choice-of-law clause, State A follows the Restatement (Second) of Conflict of Laws.

Under State B law, covenants not to compete are also valid if they are reasonable in scope and duration. However, the State B Supreme Court has held that noncompete covenants are unreasonable and unenforceable as a matter of law if they exceed 18 months in duration. While State B generally gives effect to choice-of-law clauses in contracts, it has a statute that provides that choice-of-law clauses in employment contracts are unenforceable. When there is no effective choice-of-law clause, State B follows the lex loci contractus approach to choice of law in contract matters.

Rather than file an answer to Taxes’s complaint, the woman filed a motion pursuant to Rule 12(b)(6) to dismiss the action for failure to state a claim upon which relief can be granted. The  woman’s motion argued that the noncompete covenant is invalid and unenforceable as a matter of law. Two days after filing the motion to dismiss, and before Taxes had responded to the motion, the woman filed an “amended motion to dismiss.” The amended motion sought dismissal on the same basis as the original motion (failure to state a claim), but also asked the court to dismiss the action pursuant to Rule 12(b)(4) for insufficient service of process.

1. Should the court consider the woman’s motion to dismiss for insufficient service of process? Explain.

2. If the court considers the woman’s motion to dismiss for insufficient service of process, should it grant that motion? Explain.

3. In ruling on the woman’s motion to dismiss for failure to state a claim, which state’s choice-of-law approach should the court follow? Explain.

4. Which state law should the court apply to determine the enforceability of the noncompete covenant? Explain.

 

Sample Answer

 

I. Motion on Insufficient Service of Process

The issue is whether the woman waived the personal jurisdiction issue of insufficient service of process by not including it in her first response to the summons and complaint.

Although personal jurisdiction is a constitutional requirement, the party whom it protects can waive it by failing to assert certain issues relating to personal jurisdiction in their first response to a summons and complaint. One such personal jurisidiction matter is the adequacy of service. It does not matter whether the defendants first response is an answer or a motion, if the adequacy of service is not raised in the first response, that defense is waived.

Typically pleadings can be amended without leave of the court within 21 days of filing. When there is an effective amendement it relates back to the time of filing. What the woman seeks to do here is not to amend her pleading but to amend her motion to dismiss. Were she allowed to do this, a party could always later assert a personal jurisdiction defense which they had omitted from their first response. As such, the woman should not by amendment be allowed to argue what she should have included in her first response. The court should not consider the adequacy of service of process.

II. Sufficiency of Service of Process

The issue is whether service upon the a resident of the woman's former address was adequate.

Federal Rule of civil procedure 4 allows for service of process at a person's primary residence on some of suitable age and discretion who resides there. Taxes, by sending service of process to the address that the woman had listed when she was employed with them, was making an effort to serve her, but it did not comply with the letter of the rule. The former residence in state A was not the woman's primary residence because she had since relocated to an apartment in state B where Taxes knew she had also begun a job as that was the subject matter of their suit. As such, she was present in state b with apparent intent to remain there indefinitely. Thus, she can probably be considered a domicilairy of state B and as such her primary residence was no longer in state A despite the fact that Taxes served someone of suitable age and discretion who resided at that address. Thus, if the woman is allowed to challenge the sufficiency of process she will probably prevail.

III. Choice of Law for the Motion to Dismiss

The issue is whether the federal district court for state A will apply the choice of law rules for state A or state B.

Under the supreme court's decision in Klaxon, a federal district court always applies the choice of law rules of the forum in which it sits. Thus, because Taxes filed its claim in district for state A, the federal court will apply the same Second Restatement Approach followed by the state courts in State A.

Under the second restatement approach, the court will look to apply the law of the state with the greatest interest in the case. To determine which state has the greatest interest, the court will look first to the contacts that each state has with the case and the policies that each state may have at issue.

Here, the contract was between Taxes, a business entity incorporated in state A and the woman, a then-domiciliary of state A (given her address at the time) concerning work that was to be done a Taxes's state A office in Salem. The contacts with state A are thus very strong.

There is generally a policy of honoring the valid expectations of the parties as expressed in their agreement. here, the agreement sepcificies that state A law shall govern. That is reasonable and foreseeable for the parties given the substantial contacts between state A and this agreement.

As far as other policy considerations go, both states A and B recognize the validity of the non-compete clause with the only difference being that state B cuts off the time limit at 18 mos. while State A permits agreements of a longer duration. State B cannot be said to have a policy against non-compete clauses and thus its interest in fairly weak. The law of state A should be applied to hold the choice of law non-compete agreement valid as it appears to be reasonable in scope and duration and concerns unique services.

 

Sample Answer

 

1. The issue is whether the court should consider the woman's amended motion to dismiss for insufficient service of process.

The issue of the sufficiency of service of process must be raised at the first opportunity (either in a pre-answer motion to dismiss, or if no such motion is filed, in the answer) or else it is waived. Furthermore, the Federal Rules of Civil Procedure (FRCP) provide that courts should freely grant leave to amend motions unless doing so would cause an unfair burden on the other party.

Here, although the woman did not include the insufficient service of process argument for dismissal, the woman ammended the motion a prompt two-days later. Moreover, Taxes had not yet filed a reply to the original, unammended motion. Thus, although Taxes case will be dismissed if the motion is granted, it is not unfairly prejudicial because they will be given the opportunity to respond. Thus, the court should consider the ammendemnt motion.

2. The issue is whether the woman's motion to dismiss for insufficient service of process should be granted.

Under the FRCP, service of process is valid if done in a way that is permitted by the state law where the federal court sits or any of the ennumerated methods in the FRCP. The FRCP provides the following methods to validly serve process on defendants within the United States: (1) personal delivery, (2) at the persons dwelling with a person of suitable age and discretion, and (3) serving an authorized agent.

Here, Taxes delivered a copy of the summons and complaint to the home of the woman's parents in State A. While the parents are almost definitely "of suitable age and discretion," they do not live at the woman's dwelling. In fact, the woman had moved to State B. It is immaterial that the woman had that listd as her home address when she was employed by Taxes, because the FRCP provide no such exception. Furthermore, because the state's service of process laws are identical to the FRCP, this method did not comply with a method permitted by the state law where the federal court sits. Therefore, the woman's motion to dismiss for insufficient service of process should be granted if it is considered.

3. The issue is, in ruling on the woman's motion for failure to state a claim, which state's choice of-law approach should the court follow.

Under the Erie doctrine, claims brought in a federal court exercising diversity jurisdiction must apply state substantive law and federal procedural law. Choice-of-law rules are considered "substantive law" for Erie purposes, and thus the federal court should apply the state law. Because the suit is brought in State A, the court should apply the State A choice-of-law rules, which applies the Restatement (Second) Conflict of Laws.

4. The issues is what state law the court should apply to determine the enforceabilty of the noncompete covenant.

Given that the court must follow the State A choice-of-law rules, the court must utilize the Restatement (Second) of Conflict of Laws Approach. Under this approach, the law to be applied is that of the state which has the most significant relationship to the case.

Here, the employment contract was executed in State A. Furthermore, when the woman worked for Taxes, she worked in its State A office. Thus, the entire case is about an agreement between the parties that was executed in State A related to an employment relationship they had in State A. Even though the woman now lives in State B and is violating the clause by working there, the relationship that State A has with the case outweighs any tangential relationship State B may have with it. Accordingly, State A has the most significant relationship with the case, and thus State A law should be applied.