New Jersey Board of Bar Examiners

February 2024 Questions and Sample Answers

February 2024 Questions

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MPT 1

MPT 2

MEE 1-6

February 2024 Sample Answers

MPT-1

Sample Answer

MEMORANDUM AT LAW

TO: Deanna Gray, District Attorney

FROM: Examinee

DATE: February 27, 2024

RE: State v. Iris Logan

The purpose of this memorandum is to aid in the evaluation of whether we, through the District Attorney's office of Franklin, should charge Iris Logan with robbery and felony murder based on her January 17, 2024 arrest, and January 26, 2024 preliminary hearing. Per office policy, we do not over-charge in cases where evidence is weak.

LEGAL ARGUMENT

I. Robbery

Franklin Criminal Code § 901 defines robbery as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Under State v. Driscoll, the court breaks robbery into four elements that must be met: (1) the intentional or knowing nonconsensual taking of (2) money or personal property (3) from the person or presence of another (4) by means of force. State v. Driscoll (Fr. Ct. App. 2019). There, the defendant conceded his intent or knowledge to take personal property from another, but he disputed that he did not put his victim in fear, nor did he use violence in the taking. State v. Driscoll (Fr. Ct. App. 2019).

The Franklin Court of Appeals noted that while the Franklin Criminal Code simply requires "violence," Franklin case law has been able to provide that for the purposes of robbery, "violence" can be thought of simply as "force." State v. Driscoll (Fr. Ct. App. 2019). Further, the court held that "the force necessary to constitute robbery is the posing of an immediate danger to the owner of the property." State v. Driscoll (Fr. Ct. App. 2019) citing to State v. Schmidt (Fr. Ct. App. 2009). The court in Driscoll further distinguished the force necessary, noting that "taking something stealthily without the owner's knowledge is simply theft," but there, because the defendant struggled with the owner for control of her personal property, his use of force was sufficient to constitute robbery. State v. Driscoll (Fr. Ct. App. 2019).

Here, the Iris Logan is accused of robbery for the act of taking a purse from Ms. Tara Owens on the afternoon of January 17, 2024 in the City of Centralia, County of Hamilton, State of Franklin. To determine whether the charge of robbery would be proper, we must look to the four-elements provided by the court in Driscoll.

The first three elements of robbery can be considered together. While there is no indication that Logan has conceded to her intention in the taking the purse from Ms. Owens, it is assumed based on her accused conduct that she knowingly took the purse from the victim. Per the victim and witness statements, Logan is alleged to have "ran up behind her [Ms. Owens] and grabbed her purse." Rogers Testimony, Preliminary Hearing (January 26, 2024). It would be difficult for Logan to argue that this act was somehow an accident or not a taking of personal property from Ms. Owens person.

Next, on the issue of force, it would have to be shown that the force posed an immediate danger to the owner of the property, and the taking was not merely theft without the owner's knowledge. Similarly to Driscoll, Logan can argue that she did not put the victim in fear, nor did she use violence. Per her testimony, Ms. Owens contends that when she felt someone grab her purse, she "just let the person have it," and that she "didn't fight it." Owens Testimony, Preliminary Hearing (January 26, 2024). Ms. Owens further admitted that she was "not really" in fear of the person taking her purse, and she "just wanted to give her my purse and be done with her." Owens Testimony, Preliminary Hearing (January 26, 2024).

However, despite perhaps Logan not intending to cause injury, Ms. Owens was in fact injured during the course of the interaction because she "got twisted up" when the bag was being taken off of her shoulder, leaving her with a sprained wrist. Owens Testimony, Preliminary Hearing (January 26, 2024). While this does not rise to the level of struggle that occurred in Driscoll because Ms. Owens was not attempting to prevent her purse from being taken, it could be argued that by simply grabbing something attached to a person as closely as a purse on a shoulder, Logan posed an "immediate danger to the owner of the property." State v. Driscoll (Fr. Ct. App. 2019) citing to State v. Schmidt (Fr. Ct. App. 2009). Further, the act does not fall below to the standard of theft, because the taking was not stealthily without the owners knowledge, because Ms. Owens felt her purse being taken, heard the perpetrator say to "let me have that purse," screamed for help, and sustained an actual injury. Owens Testimony, Preliminary Hearing (January 26, 2024).

Another argument that Logan could put forth is that even the police officer and dispatcher relaying information on the day of the alleged robbery referred to the act as a "purse snatching," and not a robbery. Torres Testimony, Preliminary Hearing (January 26, 2024). In fact, Officer Maria Torres testified that she did not know the extent of the injury, or the degree of danger. This argument, however, would be especially weak for Logan to pursue. Neither the dispatcher nor the officer are tasked with naming a proper charge when quickly relaying information to one another in an emergent situation. This simple miscommunication will likely have no affect on whether a robbery charge would be successful.

In conclusion, while Logan may be able to argue that her alleged conduct did not cause fear in the property owner, the evidence more heavily favors the charge of robbery because the act was an intentional or knowing taking of the personal property of Ms. Owens, and it used enough force to put Ms. Owens in immediate danger for which she suffered an injury to her wrist. Therefore, we should pursue the charge of robbery against Iris Logan.

II. Felony Murder

Franklin Criminal Code § 970 defines first-degree felony murder as the "killing of another committed during the perpetration of, attempt to perpetrate, or immediate flight from the perpetration of or attempt to perpetrate," a requisite felony, including robbery. To meet the standard for felony murder, the death must occurr before the the defendant has reached "a place of temporary safety," and there must be adeuqate causation. State v. Clark (Fr. Ct. App. 2007). The causation required to prove felony murder is both "cause in fact," and "legal cause." State v. Finch (Fr. Sup. Ct. 2008).

(A) Place of Temporary Safety

Even when the facts make no dispute that the felony was completed prior to the killing, the killing is still felony-murder if the killing occurrs while the defendant is still egnaged in fleeing, and has yet to reach a place of temporary safety. State v. Clark (Fr. Ct. App. 2007). In Clark, the defendant burglarized a residence and then while driving away from it, she hit and killed a pedestrian. State v. Clark (Fr. Ct. App. 2007). Despite there being no evidence that she was driving recklessly, the court found that because the defendant had not reached a place of temporary safety, the defendant was still engaged in fleeing and was therefore responsible for the death. State v. Clark (Fr. Ct. App. 2007).

A place of temporary safety breaks the chain of events between the felony and the killing. In State v. Lowery, the court held that because the defendant had arrived home after robbing a store and fleeing, the subsequent death of his wife when an officer arrived at his home to arrest him did not give rise to felony murder. State v. Lowery (Fr. Sup. Ct. 1998).

Here, immediately after the alleged robbery, Officer Maria Torres observed a woman matching the description from the "Be On The Lookout" (BOLO), that was provided by the immediate witness to the robbery. Torres Testimony, Preliminary Hearing (January 26, 2024). The woman, alleged to be Logan, was getting into a specific green sedan with a man, now known as Jeremy Stewart. Officer Torres proceeded to follow the sedan for about ten minutes, at which point she saw the driver throw something out the window and Officer Torres attempted a traffic stop with her lights and sirens.

At the same moment that Officer Torres attempted her stop, the sedan was immediately struck by an SUV while going through an intersection of State Route 50 and State Route 75. Torres Testimony, Preliminary Hearing (January 26, 2024). Jeremy Stewart, the driver of the sedan and alleged accomplice of Logan, was not wearing a seatbelt and died as a result of his injuries in the crash. Torres Testimony, Preliminary Hearing (January 26, 2024).

There is nothing to indicate that in the mere moments between the robbery and when Officer Torres saw Logan and Stewart that they had reached a place of temporary safety.

In conclusion, because there is nothing to indicate that Logan had reached a place of temporary safety, and because they were still in their vehicle driving away from where the robbery took place, Logan will be unable to argue that she had reached a place of temporary safety sufficient to breach the chain of events.

(B) Causation

In State v. Finch, the court found that "cause in fact" is shown when but-for the conduct of the defendant, the death would not have occurred. For legal cause, Finch determined that the court would need to assess "whether the death is of a type that a reasonable person would see as a likely result of that person's felonious conduct." State v. Finch (Fr. Sup. Ct. 2008). There, the defendant was arguing that the death of his co-felon by a security guard did not meet the causation requirements for felony murder because "the death was not cause by any action that Finch [defendant] initiated," and that the arrival of the security guard who would carry out the killing was an indepedent intervening cause that broke the causal chain between the robbery and the death. State v. Finch (Fr. Sup. Ct. 2008).

This intervening independent force is known as a superseding cause, and the court provided four necessary factors to demonstrate a superseding cause: (1) the harmful effects of the superseding cause must have occurred after the original criminal acts, (2) the superseding cause must not have been brought about by the original criminal acts, (3) the superseding cause must have actively worked to bring about a result that would not have followed from the original criminal acts, and (4) the superseding cause must not have been reasonably foreseen by the defendant. State v. Finch (Fr. Sup. Ct. 2008). When all four elements are met, the superseding cause is considered to "supplant" the defendant's conduct as the legal cause for the death, rendering the defendant not legally responsible. State v. Finch (Fr. Sup. Ct. 2008) citing to Craig v. Bottoms (Fr. Sup. Ct. 1996).

When examining the scope of a superseding cause, the court in Finch had to look outside of Franklin, because superseding cause had not yet been analyzed in the context of felony murder in Franklin. Instead, they looked to the Olympia Supreme Court for guidance. In State v. Knowles, the Olympia Supreme Court held that gross negligence will generally rise to be considered a superseding cause, but ordinary negligence will not be, because it is reasonably foreseeable. State v. Finch (Fr. Sup. Ct. 2008) citing to State v. Knowles (Olympia Sup. Ct. 2000). For criminal jurisprudence, gross negligence is defined as "wantonness and disregard of the consequences to others that may ensue. State v. Finch (Fr. Sup. Ct. 2008).

In Knowles, the defendant committed an armed robbery that resulted in the victim sustaining two stab wounds. The victim was taken for medical care, but later died from an infection. It was later found that when the victim's wounds were sutured, the surgeon was intoxicated at the time and failed to properly disinfect the injury or the instruments. The Olympia court found that the surgeon's intoxication amounted to gross negligence, and was therefore a superseding cause that broke the chain of legal causation between the defendant's acts and the victim's death. State v. Finch (Fr. Sup. Ct. 2008) citing to State v. Knowles (Olympia Sup. Ct. 2000).

On the other hand, the court in Finch found that "when a person engages in a dangerous felony, that person should foresee that others might be harmed and need medical care," and that a simple negligence by a physician is insufficient to break the chain of causation. State v. Finch (Fr. Sup. Ct. 2008); see also State v. Johnson (Olympia Ct. App. 1999). In Finch, the court affirmed the conviction, because "a reasonable person would foresee that entering a store with a weapon, intending to rob it," would lead to an act by a security guard and violence that would follow. State v. Finch (Fr. Sup. Ct. 2008).

If it is presumed that Logan committed the robbery, a felony, it must first be shown that but-for her acts, the death of Stewart would not have occurred. Simply put, but-for the act of robbery and needing to flee, Logan and Stewart would not have been driving away and they would not have been struck, resulting in Stewart's death.

Next, it must be determined whether there was legal cause, or if the death was foreseeable as a result of the felonious conduct. Here, at the time that Officer Torres turned on her lights and sirens in an attempt to stop the vehicle Logan was travelling in, she "noticed that the traffic lights at that intersection were malfunctioning because they were green in all directions." Torres Testimony, Preliminary Hearing (January 26, 2024). The light malfunction was further confirmed in a report by the Franklin Department of Highway Safety on January 18, 2024, stating that despite the lights having been "inspected on December 1, 2023," as being in good working order, they had malfunctioned on January 17, 2024. Franklin Dept. Highway Safety Report. In fact, "until January 17, 2024, there had been no complaints or reports of malfunctioning" of those lights. Franklin Dept. Highway Safety Report. There is nothing to indicate that the lights malfunctioning were the result of gross negligence or ordinary negligence on the part of anyone. Further, both Stewart's sedan and the SUV that struck him were driving the speed limit, and there is no evidence that either driver was acting recklessly or negligently in their driving. Torres Testimony, Preliminary Hearing (January 26, 2024).

Contrary to Finch, here it was not reasonably foreseeable that the lights would malfunction, as shown by both Officer Torres and the Franklin Department of Highway Safety. Throuugh the report and Officer Torres's testimony, they both contend that they had never seen these lights malfunction in the past, nor had there been any reports or complaints alleging as much.

To determine whether the traffic lights were a superseding cause, we will look to the four factors in Finch. First, the harmful effects of the superseding cause, being the death of Stewart, occurred after the original robbery. Second, the malfunctioning traffic lights were not brought about by the original criminal act, the robbery. Third, the malfunctioning traffic lights actively brought about a crash due to a misunderstanding of who was able to cross the intersection. While this was in intself unforeseeable, a weak argument could be made that a traffic accident after a robbery is always foreseeable. Finally, the malfunctioning traffic lights were not reasonably foreseen by Logan, Stewart, and even the officials in Franklin, because these lights had never had a prior malfunction.

A weak counter argument that could be made against Logan include that Stewart was not wearing a seat belt. If it could be argued that Stewart had not put on his seat belt out of the negligent haste to flee Logan's act, it could be found that had he been wearing a seat belt, perhaps he would have survived his injuries. As ordinary negligence does not break the causal chain, Logan could be found liable still for felony murder.

In conclusion, despite the death of Stewart occurring before they had reached a place of temporary safety, it is very likely that Logan can prove that the malfuncitoning traffic lights were the superseding cause of Stewart's death, breaking the causal chain between the robbery and the death, rendering Logan not legally responsible for the death. Therefore, we should not pursue a charge of felony murder against Iris Logan.

CONCLUSION

In conclusion, the evidence to prove that Iris Logan committed the robbery favors a successful prosecution, and the charge for robbery should be pursued. However, despite the death having occurred immediately after the robbery, it is unlikely that a charge of felony murder could overcome a showing by the defense that the malfunctioning traffic lights were the superseding cause of the death. Therefore, while a charge for robbery should be pursued against Iris Logan, per office policy to not over-charge, a charge for felony murder should not be pursed, because the evidence favors a finding that Iris Logan was not legally responsible for the death.

Sample Answer

To: Deanna Gray, District Attorney

From: Examinee

Re: State v. Iris Logan

Dear Ms. Gray, you asked me to write you regarding whether we should seek an idictment on the charges of robbery and relony murder regarding Ms. Logan.

Our office does not over-charge in cases where the evidence is weak, and therefore I have set out arguments for the strength of Logan's charges along with possible arguments Logan may make in response. Under Franklin Criminal Code 901, robbery is the intentional or knowing theft of peroperty from the person of another by violence or putting htat person in fear, and robbery is a felony.

Franklin Criminal Code states that the causation required by the felony-murder statute encompasses two distinct requirements: the causation must be the "cause in fact" and "legal cause, or proximate cause". State v. Finch. Under Franklin Criminal Code 970, first degree felony murder is a killing of another committed during the perpetration of, attempt to perpetrate, or immediate flight from the perpetration of any first-degree murder, act of terroism, arson, rape, robbery, burglary, kidnapping, aggravated child abuse or neglect or aircraft piracy. Franklin's definition of felony murder also includes deaths occurring while the felon is fleeing from commission of a felony State v. Clark.

I. The State of Franklin should charge Iris Logan with robbery, even when found with probable cause at a preliminary hearing because Logan used enough force in the intentional nonconsenual taking of Owen's property to constitute robbery by shaking or struggling with Owen, under the Franklin Criminal Code.

Under Franklin Criminal Code 901, robbery is the intentional or knowing theft of peroperty from the person of another by violence or putting htat person in fear, and robbery is a felony.

Robbery requires proof of four elements: 1. intentional or knowing nonconsensual taking, 2. of money or other personal property, 3. from the person or presence of another, 4. by means of force, whether actual or constructive. Franklin case law clarified that for purposes of defining robbery, "violence" is coextensive with "force". The force necessary to constitute robbery is the posing of immediate danger to the owner of the propery State v. Schmidt (Fr. Ct. App. 2009). The immediacy of the danger can be demonstrated by either putting the vicitmin fear or by bodily injury to the victim. The Court in Driscoll found that taking something steathily without the owner's knowledge is simply theft, but shaking the owner or struggling with the owner while trying to take the item from the owner is robbery.

In State v. Driscoll (FCA 2019), the charged conduct did not meet statutory definition and the Court affirmed because he neither put the victim in dear nor used violence in theft. In that case, Driscoll pushed owner away and struggled with victim for control over a laptop, which was sufficient use of force to constitute robbery.

Here, Owens, the victim, in her direct examination testimony stated that she felt her purse being grabbed and let the defendant have it. She did not attempt to stop or struggle with the defendant. She said money is hardly worth getting hurt over. She heard a woman's voice say "let me have it." She sprained her wrist when the purse was pulled off her arm. It was a shoulder bag so even though she did not fight, the bag was twisted as it was getting taken off her shoulder. She was not in fear of the woman who was taking her purse because she did not know whether she had a weapon. She just wanted to give the defendant her purse and to end the encounter. However, her arm was twisted and injured as a result. Taking Owen's purse off her shoulder without her consent constitutes an intentional or knowing nonconsensual taking of Owen's personal property from her person. The question now is whether enough force was used to consitute the taking as a robbery.

Here, Logan may say that she did not use force because she did not pose an immediate danger to Owens since she did not put Logan in any fear, as demonstrated by her direct exam not did she cause bodily injury by causing a struggle with Owens. However, the Court should follow the reasoning set forth in Driscoll to determine that because Owen's arm was twisted as Logan was pulling it off her and injured her wrist as a result, therefore, it was not merely steathly theft but a shaking of the owner while trying to take the purse from Owen's possession. Though Logan may claim that she did not know the severity of the injury she caused, as Maria Torres claimed, this will be irrelavant to the analysis as she used enough force to cause an injury in the taking of the property, which will consitute sufficient force for a robbery. As a result, the use of force used by Logan in the intentional or knowing nonconsensual taking of Owen's personal property from her person was sufficient force to consitute robbery.

To conclude, the evidence is sufficient to consitute charging Logan with robbery because she engaged in the intentional or knowing nonconsensual taking of Owen's personal property from her person with sufficient force to consitute robbery because she shook down and struggled with Owen as she removed Owen's bag from her person.

II. The State of Franklin should charge Iris Logan with felony murder, even when found with probable cause at a preliminary hearing because a death occurred while she was still engaged in a felony since did not reach temporary saftey upon commission of the robbery after the car accident, so there was no break in the chain of events upon fleeing from the robbery.

Under Franklin Criminal Code 970, first degree felony murder is a killing of another committed during the perpetration of, attempt to perpetrate, or immediate flight from the perpetration of any first-degree murder, act of terroism, arson, rape, robbery, burglary, kidnapping, aggravated child abuse or neglect or aircraft piracy. Franklin's definition of felony murder also includes deaths occurring while the felon is fleeing from commission of a felony State v. Clark.

In assessing whether a defendant is still engaged in fleeing from the felony, it is critical to determine whether the fleeing felon has reached a place of "temporary safety." State v. Clark.

In State v. Clark (FCA 2007), the Defendant claimed she was no longer enaged in the burglary when the death occurred because she was driving away from the home she had burglarized, and hit a pedestrian on her drive home. However, the Court in Clark affirmed her conviction for felony murder because defendant was on her way to temporary safety, but had not yet reached that place, therefore there was no break in the chain of events because she was still engaged in the fleeing of the crime Id. This is contrasted with State v. Lowery, where the defendant had arrived at home after the commission of a robbery when the police arrived at his home to arrest him, however the defendant in that case had already reached temporary safety by way of coming home.

Here, as mentioned above, there is sufficient evidence to charge Logan with robbery, which is one of the mentioned felonies that are sufficient to consitute felony murder under Franklin Criminal Code. However, the death must occur while the felon is fleeing form the commission of a felony. Here, Logan got into a sedan upon committing the robbery, and drove for ten minutes before getting into a car accident and being pulled over by the police. As mentioned in Lowery, a defendant who fully returned to their home upon commission of a felony was deemed by the Courts to have reached temporary saftey, while in Clark, the Court affirmed that the death of a pedestrian that occurred while driving away from the commission of felony does not consittue reaching temporary safety. The Court should apply the reasoning of Clark and determine that the facts here are very similiar because Logan was driving away from the commission of a felony when she got into a car accident ten minutes later. She was immediately apprehended by the police and was taken into a police cruiser, which is not safety as it is police custody. Her partner in crime, Jeremy Stewart, who she met with and drove her away after the robbery died as a result of the crash. Here, there is no evidence Logan reached any temporary safety because she had not reached the place of saftey. As a result, there was no break in the chain of events because she was still engaged in the fleeing of the crime. The Court should not rule in favor of Logan's defense of reaching temporary safety upon commission of a crime for this reason.

To conclude, the Court should rule that Logan did not reach temporary safety because she got into a car crash, which did not break the chain of events because she was still engaged in the fleeing of the crime.

III. The State of Franklin should charge Iris Logan with felony murder, even when found with probable cause at a preliminary hearing because her actions were the cause in fact and proximate cause of Stewart's death, and there was no superceding cause to cut off her liability.

A. Cause in Fact

The cause in fact is commonly referred to as but-for causation, which means that but for the acts of the defendant, the death would not have results. State v. Finch. While cause in fact is an essential prerequisite for culpability, cause in fact alone is not sufficient to establish guilt because the cause in fact analysis would be too large to case a net. State v. Finch. This means the cause in fact must be limited by proximate or legal cause. State v. Finch.

Here, Logan committed a robbery and then got into the sedan of Jeremy Stewart. Here, Logan handed Jeremy the bag and together they ran away into the sedan upon the commission of the robbery. Then, the car was driving through an intersection as the police put their sirens on when it was struck by a SUV, and Stewart died as a result of the injuries from the crash. Here, but-for the acts of Logan in committing a robbery, the sedan would not have driven through the intersection at the exact time that it did, and the death would not have result. Therefore, cause in fact can be established because but-for the acts of Logan, the death of Stewart would not have occurred.

To conclude cause in fact can be established because but-for the acts of Logan, the death of Stewart would not have occurred.

B. Legal Cause

Under legal cause, the relevant inquiry is whether the death is of a type that a reasonable person would likely see as a result of that person's conduct. State v. Finch. Foreseeability is added to the cause in fact requirement because it would be unfair to hold a defendant responsible for outcomes that were outside their contemplation when committing the offense. State v. Finch. Moreover, the intent behind the felony-murder doctrine would be thwarted if felons were not held responsible for the foreseeable consequences of their actions. State v. Lamb. When a felon's attempts to commit a felony sets in motion a chain of events that were or should have been in their contemplation when the motion was initiated, they will be held responsible for any death that results from the intial criminal act. State v. Finch.

Here, it is foreseeable that running away from the commission of a felony in a car will result in a car crash, and death and serious bodily injuries are foreseeable consequences of car crashes. Here, while Logan may Claim that because the traffic lights were malfunctioning at the time of the crash, a crash was not foreseeable, her argument will fail because her commission of a robbery is a felony that set in motion the chain of events of her and Stewart getting into the sedan and driving away. This is further evidence by the fact that a bag was thrown immediately before the crash, and then police sirens were activated after that. Then, the crash resulted. It is also foreseeable that a crash resulted when police were chasing the alleged suspects after throwing the contraband out of a car because the crash could reasonably have occurred through ordinary negligence on behalf of Stewart. Further, prior to the date of the accident, the traffic lights that malfunctioned had been inspected recently and were in good working order, as evidenced by the state of Franklin's Department of Highway Safety. Further, prior to the date of the accident, there were no complaints or reports of malfunctioning traffic lights. The Court should hold that the malfunction of the traffic lights are also a foreseeable event because there is no evidence of gross negligence and may have occurred from ordinary negligence. Therefore, because the malfunctioning traffic lights were a foreseeable event, and it is foreseeable that driving away from the commission of a felony may cause a car crash, the Court should hold that the death is a foreseeable result of committing a felony, because it is reasonable to drive away and risk crashing the car upon commission of the felony.

C. Superceding Cause

The factors necessary to demonstrate superceding cause are:

1. the harmful effects of the superceding cause must have occurred after the original criminal acts

2. the superceding cause must not have been brought about by the original criminal acts

3. the superceding cause must have actively worked to bring about a result that would not have followed form the original criminal acts

4. The superceding cause must not have been reasonably foreseen by the defendant.

If all four elements are present, then there is an intervening cause which is said to be a superceding cause that breaks the chain of proximate causation. Because the superceding cause therefore supplants the defendant's conduct as the legal cause of the death, the defendant is not legally responsible for the death. See, Craig v. Bottoms.

Here, the harmful effects of the car crash occurred after the commission of the felony, and the harmful effects of the malfunctioning lights also accurred after the robbery as they were driving away. The car crash was brought about by the original crime because they were driving away from the crime, however the malfunctioning traffic lights were not brought about the by the robbery. Here, the malfunctioning lights actively worked to bring about a car crash as a result, because the traffic lights at the intersection where the accident occurred were all green. However the car crash may have also occurred from the fact that the defendant's were nervous or scared of being apprehended upon the police putting on their siren. Further, the malfunctioning lights were likely not reasonably foreseen by the defendant because there were no previous reports that the lights were not working properly prior to the car crash.

In Finch, Finch argued that the arrival of a security officer who fought with his armed partner when the gun discharged and caused a death was an intervening independent cause that broke the causal chain between his actions of robbing a store and the death of his partner. State v. Finch.

Here, the car crash may have been caused by malfunctioning traffic lights, and not the appearance of a third party, however, it may also have occurred because of the fact that police put on their sirens in an attempt to apprehend Logan and Stewart.

i. Gross or Ordinary Negligence

In State v. Knowles, the Olympia Supreme Court held that gross negligence will generally be considered a superceding cause but ordinary negligence will not be regarded as such because it is reasonably foreseeable. In criminal jurisprudense, gross negligence means "wantonness and disregard of the consequences to others that may ensue. The Court in Knowles held that a surgeon's intoxication of a victim's wound caused by defendant constituted gross negligence and was a superceding cause for that reason.

When a person engages in a dangerous felony, that person should foresee that others might be harmed and need medical care, and while negligent medical care could be foreseen, gross negligence cannot be. See also State v. Johnson.

Here, there is no evidence that the traffic lights malfuntioned from gross negligence because they had been previously inspected to be in good working order recently, and there were no complaints or reports of malfunctioning lights prior to the accident. The team was dispatched to fix the traffic lights, and they fixed them immediatey. This does not evidence wantonness and disregard of the consequences to others that may ensue because they fixed the issue promptly. Therefore, because there was no gross negligence on behalf on the State of Franklin in fixing or maintaining the lights, the malfuntioning lights will be considered to be ordinary negligence.

To conclude, because the malfunctioning lights were of ordinary negligence, it will not be a superceding cause and will not be an intervening cause which is said to be a superceding cause that breaks the chain of proximate causation in terms of the felony murder resulting from Logan's robbery.

III. Conclusion

To conclude, the State of Franklin should charge Iris Logan with robbery, even when found with probable cause at a preliminary hearing because Logan used enough force in the intentional nonconsenual taking of Owen's property to constitute robbery by shaking or struggling with Owen, under the Franklin Criminal Code. Also, the State of Franklin should charge Iris Logan with felony murder, even when found with probable cause at a preliminary hearing because her actions were the cause in fact and proximate cause of Stewart's death, and there was no superceding cause to cut off her liability. Lastly, the State of Franklin should charge Iris Logan with felony murder, even when found with probable cause at a preliminary hearing because a death occurred while she was still engaged in a felony since did not reach temporary saftey upon commission of the robbery after the car accident, so there was no break in the chain of events upon fleeing from the robbery.

Sincerely,

Examinee

MPT-2

Sample Answer

To: Michael Carter

From: Examinee

Date: February 27, 2024

Re: Draft Motion of Summary Judgment for Randall v. Bristol County

I. Captions

[omitted]

II. Statement of Facts

[omitted]

III. Legal Argument

For a Section 1983 action in violation of a public employees civil rights, the employee must prove that (1) their speech was a motivaitng factor in their firing, (2) the posts were made in the employee's position as a private citizen, (3) the speech addressed a matter of public concern, and (4) if found that the employee met those first three requirements, a balancing test must be done between the interests of the employee in expressing the speech against the employer's interest in prmoting effective public service. Dunn v City of Shelton Fire Department (15th Cir. 2018). The plaintiff has the burden of proving the first three factors. Smith v. Melton School District (15th Cir. 2015) (quoting Garcetti v. Ceballos (547 U.S. 410 (2006)).

Ms. Randall should be granted a Motion for Summary Judgment on the above mentioned Section 1983 action in violation of a public employees civil rights because her posts were the motivating factor of her firing. These posts made in her position as a private citizen and not as her position as Workforce-Readiness Program Director. The posts were about the county's used of grant funding, an issue similar to other matters of public concern found by the court. Finally, in a balancing test between the interests of Bristol County and that of the plaintiff, the court should find in favor of Ms. Randall due to the importance of criticizing government funding and the lack of disruption caused by her post.

Ms. Randall's Facebook posts were a motivating factor to her firing because multiple county employees confirmed as much.

For speech to found to be the motivating factor of the firing of an employee, there must be a nexus between the speech and the decision to cease employment. Smith v. Milton School District (15th Cir. 2015). This can be through testimony from the boss themselves or otherwise stellar reviews pointing to the posts as the only reason for firing. Id. In this case, the initial letter from the Personnel Office of Bristol County stated that Ms. Randall was suspended from her position as Workforce-Readiness Program Director due to insubordination. Assistant Corporation Counsel for Bristol County, Susan Burns, Esq., then clarified that Ms. Randall was specifically fired for her Facebook post. In addition, Marie Cook, who is the County Executive of Bristol County and is directly in charge of county functions, confirmed that she considered the Facebook posts to be insubordination. Therefore, it is extremely clear that Ms. Randall's Facebook posts were the reason for her firing.

Ms Randall's speech were made in her position as private citizen because posting on Facebook was not apart of her job as Workforce-Readiness Program Director.

For the question of whether or not speech is being made pursuant to the official duties of the employee, the question is whether the speech was made pursuant to ordinary job duties. Dunn v City of Shelton Fire Department (15th Cir. 2018) (quoting Lane v. Franks, 573 U.S. 228 (2014)). Ms. Randall's job includes training, developing curriculums and lesson plans, preparing grant reports, and creating policies for the program. Posting and promoting about the grant or the program online is not a part of those duties.

It could be argued that Ms. Randall's speech fell into her employement duties because she was tasked with connecting citizens with the grant program. In Smith v. Milton School District, it was found that simply because an employee is speaking on the subject of their job, does not mean they are speaking as an employee. Smith v. Milton School District (15th Cir. 2015). In this case, it was found that the employee was speaking as a citizen because he was warning parents about the overuse of testing prep in school materials. In this case, Ms. Randall's speech was made similarly to warn citizens about the grant running out and urge them to get it renewed. This is more akin to speaking as private citizen than speaking as a head of the program.

Ms. Randall's Facebook posts are a matter of public concern because they were made in a public forum with the purpose of informing the citizens of the grant and why it should be renewed.

Whether or not posts by a public employee are about matters of public concern is based on the speech's content, the speech's nature, and the context in which the speech occured. Dunn v City of Shelton Fire Department (15th Cir. 2018). This includes the motive and the audience. Id. In Dunn, the employee in question was a firefighter who the court found was not posting as a matter of public concern because he was complaining about a new generation of recruits and the new hiring process being weak in order to appease them. Id. The court concluded that because the posts had no ways of explaining the new hiring process or showing how it would effect other firefighters, his comments were considered "more like those of a disgruntled employee than those alllerting the public to an issue." Id. Secondly, because the firefighter made his claims in a private group for other first responders, the court found that the communication boiled down to essentially being internal. Id. In this case, the content of the Facebook posts outlined all of the successes of the Workforce-Readiness Program and urged citizens to keep the grant and why. It did not have the same tone of complaining as the case in Dunn. Secondly, Ms. Randall's Facebook posts were on her public account for citizens to see and take action.

It can be argued that the context of the messages were based in Ms. Randall being upset that she would lose her position as Workforce-Readiness Program Director. However, this speech did not occur out of a place of anger. Ms. Randall will still have her job at the library. They came from a place of believing in the program, wanting it to get renewed, and wanting the public to know it may not be available anymore. This kind of speech is more akin to the type found in Smith v. Milton School District,15th Cir. (2015) (a local teacher's Twitter posts about testing standard was found to be metters of public concern because they spoke on the effect of testing prep on classrooms) and Pickering v. Bd. of Education, 391 U.S. 563 (1968) (a school teacher's letters to the editor critcizing the Board of Education's use of tax revenues was found to be a matter of public concern because it informed residents of district budgeting decisions). Therefore, Ms. Randall's speech should be considered matters of public concern.

Ms. Randall's speech weighs out in a balancing test of factors because of the importance of criticizing public funding and the lack of disturbance in everyday county employment.

The balancing test that occurs if an employee proves that they spoke as a private citizen and addressed a matter of public concern is a balancing test between the employee's interest in the speech and the employer's interest in promoting "effective and efficient public service." Dunn v City of Shelton Fire Department (15th Cir. 2018). The court has found that favor in this balancing test tilts towards an employee when highlighting an important matter of public concern like district budget and use of tax revenue. Smith v. Milton School District,15th Cir. (2015). In this case, Ms. Randall was directly criticizing the use of funds by the county. She did not have an explanation as to why the gran would be cancelled because Marie Cook had not gotten back to her calls. She was simply highlighting the grant program and explaining why it should stay in the budget.

It could be argued that Ms. Randall's posts go against an interest of efficiency because she spoke out against Marie Cook specifically. In Dunn, the firefighter had criticized incoming firefighters by calling them "softies" that need to "toughen up". Dunn v City of Shelton Fire Department (15th Cir. 2018). This was understandably found to be bad for team morale and go strongly against the department's interest in having an unified firefighting squad. Id. However, in this case, Ms. Randall did not disturb team morale. At most she led to a dozen people contacting the County Executive. Marie Cook testified that this did not cause any substantial disruptions. In response to that, the 15th Circuit has held that "..annoyance is not enough to favor the employer." Smith v. Milton School District,15th Cir. (2015). The court followed this up by saying that "almost all public speech criticizing the government will incur some annoyance or embarassment." Id. In this case, Marie Cook testified that the Facebook posts mainly "embarassed her" and that is not enough to be considered a disruption of the workplace.

Sample Answer

Brief Re: Randall v. Bristol County

III. Legal Argument

A. Ms. Randall's Facebook Posts Were Made As A Private Citizen and are Therefore Protected by the First Amendment.

While Ms. Randall is a public employee, government employment does not deprive one entirely of the rights enjoyed by private citizens. As stated in Dunn v. City of Shelton Fire Department, "a public employee does not surrender all First Amendment rights merely because of the employment status. Garcetti v. Ceballos, 547 U.S. 410 (2006)." As established in Dunn, the first element in establishing that a public employee's speech is protected under the First Amendment is to demonstrate that the employee was speaking as a private citizen.

To determine whether one is speaking as a private citizen, the court looks towards the nature of the speaker's employment and towards any similarities between their speach and their public role and responsibilities. In Garcetti, the plaintiff was an assistant district attorney who had been disciplined as a result of criticized the legitimacy of a search warrant when advising his supervisor. There, the court concluded that the plaintiff spoke pursuant to his official duties as a prosecutor, not as a citizen, finding that his speech was not entitled to protection. Similarly, in Dunn, the court found that Kevin Dunn had spoken as a public employee, not as a citizen. The City of Shelton had demoted Dunn from assistant fire chief to firefighter first class in response to two social media posts Dunn had made. The City argued that Dunn's posts were not made as a citizen as he was responsible for consulting with the fire chief and communicating infromation and udpates concerning firefighter qualifications as part of his official continuing education duties. Dunn tried to argue that his speach was more akin to the protected speech in Pickering v. Bd. of Education, 291 U.S. 563 (1968), where a public school teacher wrote letters to the editor that criticized his employer's use of tax dollars. Pickering's letters educated the public within the school district on the ways in whch the district's budgeting decisions were made and on financial matters as whole. The court was unconvinced, finding that Dunn had made facebook posts about the firefighter education requirements in a facecbook page for first responders and that he had made these statements pursuant to his employment responsibilities as assistant fire chief. As such, his posts were deemed to be the speech of an emplyee, not a citizen.

Contrastingly, in Smith v. Milton Scchool District, (15th Cir. 2015), the court found that Smith, a school teacher in the Milton School District, had been speaking as a private citizen when he took to twitter to express his growing frustration with the nature of state-mandated standardizd testing. The court reasoned that the mere fact that the topic of an employee's speech may be focused on a topic relating to said employee's workplace does not necessarily mean the speaker is speaking as an employee. While teaching a lesson in a classroom would be considerred a part of a teacher's ordinary duties, posting on a pesronal social mediaa account typically is not. This alligns with the court's analysis in Pickering, as educating the public on matters of district spending and budgeting also falls outside the scope of a teacher's duties.

The matter before us alligns far more closely with Smith and Pickering than it does with Dunn or Garcetti. While the worforce-development grant from the State of Franklin was clearly relevant to Ms. Randall's position as the Workforce-Readiness Program Director, posting about the program to facebook or educating the public in any manner on the nature of the grant was not. Ms. Randall's duties included developing the cirriculum and lesson plans, reating materials, scheduling classes and assessments, training support staff, creating policies and procedures to connect participants with other count services and resourcces and making proper reports to comply with grant requirements. None of these duties include any interfacing with the public. Just as a school teacher may express their frustration with spending priorities through letters to the editor (the equivalent of social media in the 1960s) as was the case in Pickering, so too should Ms. Randall be permitted to educate and inform the public on the nature of the grant that she believed provided a great benefit to the public. Similarly to the teacher in Smith, Ms. Randall's posts were intended to rally the public towards addressing an issue of importance as evidencced by the renewed attention it garnered as admitted in Ms. Cook's deposition. As such, Ms. Randall's posts were made in her capacity as a private citizen, not as a public employee and should be granted first amendment protection.

B. Ms. Randall's Facebook Posts Were Made In Regard to a Matter of Public Concern and are Therefore Protected by the First Amendment.

When addressing whetehr speech is on a mtter of public conern, courts consider three factors: "the speech's content (what the employee was saying); the speech's nature (how the employee spoke and to whome); and the context in which the speech occured (the employee's motive and the situation surrounding the speech)" Dunn. When each of these factors is considered it is readily apparent that Ms. Randall's facebook posts were made in regard to a matter of public concern adn therefore should be protected by the first amendment.

i. Content

The content of Ms. Randall's posts were focused on matters of policy rather than personal complaints or issues at Ms. Randall's place of employment, the library. Matters such as school district finances,, public coruption, discrimination and sexual harassment by public employees have been found to be matters of public concern, rendering the matters protected. Contrastingly, complaints about work conditions are not public concerns. Smith. In Dunn, the court found that Dunn's speech failed to meet this burden as it was personally motivated, driven by a dissatisfaction wit the current generation. Dunn failed to explain how the new hiring qualifications would affect the public and similarly failed to offer facts showing how the new standards were lax or would lead to unqualified firefihgters, subjects that might be of interest to the public. His concerns were not only personal, they related to workplace condition, "sound[ing] more like those of a disgruntled employee than those alerting the public to a public issue.".

Ms. Randall's posts fall neatly in line with the criteria established by Smith. Like the teacher in Smith, Ms. Randall expressed concerns regarding the manner in which the public entity was being managed. She explained the beneficial programming the grant permitted and demonstrated its value to the community. She showed the results of the program. In contrast to Dunn, she explained how the grant's failure to be renewed would affect the public, a matter which is arguably of great interest to the public. She did not air out grievanes regarding her workplace conditions but rather sought to show how a matter near and dear to her that she was passionate about wa at risk of evaporating before her very eyes.

ii. Nature

The nature in which Ms. Randall's posts were made is fitting of the criteria required for first amendment protection. In Smith, the court found it compelling that Smith changed his settings from private to public, allowing anyone to read his posts. Contrastingly, in Dunn, the firefighter had aired his grievances to an audience of fellow first responders, limiting his reach to a page known to be a "sounding board for ripes and compaints". Dunn's communication was "essentially internal" retaining no possibility of constitutional protection.

Ms. Randall's posts similarly to those in Smith were made publicly. She did not take to a facebook page for disgruntled librarians or for those who's grants haven't been renewed. Rather she made posts on her personal Facebook page, enabling the setting to make her posts open to everyone, just as Smith made tweets to his personal twitter account with the setting enabled to allow all to see.

iii. Context

The context in which these posts were made is crucial. In Smith, the teacher's tweets went from the narrow tailoring of discussing the tests themsleves to the broader conversation on how the mandatory testing was effecting the broader curriculum, taking time awaay from other classroom activities and subjects. Similarly, Ms. Randall's initial post mentioned the program in simple terms and explained that the grant which allowed it to function was not going to e renwed, calling for the public to call the county executive to save the grant and the program as a whole. Two dys latter she expanded upon this initial salvo, explaining that she directs the program, that it helps residents get "job ready", how many individuals the program had already assisted and the urgent time sensitie nature of her call to action. Just as the teacher in Smith broadened his appeals so too did Ms. Randall. Furthermore, the context provided by the depositions of Ms. Randall and Ms. Cook alike that shows that Ms. Randall had initially tried to resolve the matter internally before she reached out to the public at large demonstrates the broadening scope and context of her messaging.

C. The Compelling Nature and Importance of Ms. Randall's Message Demonstrates an Interest in Expressing Speech that Far Outweighs Her Employer's Interest in Promoting Effective and Efficient Public Service.

While

D. Ms. Randall's Motion Should Prevail as her Facebook Posts were Clearly a Motivating Factor in her Suspension.

The last element required to establish that a public employee's free speach was protected is that the speech was a motivating factor in the adverse employee action Dunn v. City of Shelton Fire Department (15th Cir. 2018). Here this element is transparently aparrent.

In Smith v. Milton School District (15th Cir. 2015) the court found that the plaintiff had esetablished that his speech was the motivating factor in the decision not to renew his contract due to the evidence of his past performance reviews being positive. Furthermore, the superintendent had testified that the plaintiff's tweets had annoyed the school board. The courrt found that the superintendent's testim ony supplied the nexus between the plaintiff's speech and the school district's decision not to renew the plaintiff's contract.

By the admission of Ms. Cook herself in her deposition, she had no problems with Ms. Randall prior to her posting on Facebook. As in Smith, Ms. Cook stated that Ms. Randall's Facebook posts had embarassed her and teh county as a whole. She also complainted that the posts "failed to show respect for her". While Ms. Cook may try to hide this causal nexus behind the broader strokes of insubordination and an alleged failure to be a team player, Jean Pearsall and Susan Burns' communications put a snag in Ms. Cook's subterfuge. Ms. Pearsall communicated with Ms. Randall directly to inform her that she had been directed by Ms. Cook, the county executive, to inform her that she had been suspended without pay for 14 calendar days from her job as Workforce-Readiness Program Director for insubordination. In Ms. Burns' letter to our office responding to Ms. Randall's letter demanding that the county rescind her suspension, she admits clearly and plainly that "Ms. Randall was suspended because of her Facebook posts". Therefore the causal link between Ms. Randall's expression of free speach and the consequence of a two week suspension is more than apparant, it is admitted. As such this element is easily met.

MEE-1

Sample Answer

1a. The issue here is whether a general partnership has been formed between Wendy and Mary?

The rule of law here is, when more than one person engage in a venture for the purpose of making a profit that will create a partnership. There does not need to be a written agreement; the conduct alone will suffice. When a person contributes money to a business and in exchange will get a percentage of the profits, and agrees to incur the same percentage of losses, and in addition assist with the day to day operations of the business venture, that is a partnership.

Here, upon request from Wendy for financial assistance, Mary gave Wendy a check made out to Kibble the name of Wendy's business. In exchange she is receiving 15 percent share of the profits and is willing to incur 15 percent of the losses, and she is assisting Wendy by working at the store and helping to plan the business. All those actions show a partnership between Wendy and Mary.

Angelo, also wrote a check made out to Kibble, the business, and in exchange is receiving 15% of profits until the loan is paid up in full with interest. Angelo did not agree to incur 15% of the losses and he did not agree to assist with the day to day operations or the business planning. Angelo made a loan to the business and is not a partner in Kibble.

2. The issue here is whether Mary can assign all her interest in Kibble to her son Bob even without Wendy's consent?

The rule of law here is, when one partner wishes to assign all his or her interest to another party, they can only assign their distributions, they cannot assign full partnership status without consent of the other partners.

Here, Mary wished to assign all her interest in Kibble to Bob. The interest that she may assign is 15% of the profits that she receives from the business. Even though Wendy does not consent to Bob joining the business, Mary can still assign her rights to the profits to Bob even without Wendy's consent.

3. The issue here is whether Bob has the right to inspect the books and records now that he was assigned Mary's partnerhip interest in Kibble?

The rule of law here is, a partner can only assign their interest in the profits but cannot assign all partnership rights to the assignee. Only partners have the right to inspect the books and records of the business.

Here, Mary was only able to assign Bob her profits made as a partner in Kibble but she cannot assign Bob all her partnership rights without Wendy's consent. Wendy does not want Bob to have anything to do with the business. Therefore, Bob, as a nonpartner and merely an assignee, may have rights to Mary's distributions but does not have the right to look through the books and records of the partnership based on his assignee status alone.

4. The issue here is whether Wendy is breaching her duty of loyalty to the partnership by using the van for personal use on Sundays?

The rule of law here is, when there is property owned by the partnership, no partner can take that property and use it for personal purposes without permission from the rest of the partnership.

Here, Mary discovered that Wendy was using the van, which was purchased from the proceeds of Mary's distribution and Angelo's loan, both issuing checks made out to Kibble. The van was purchased with those checks under Kibble's name. Therefore, Wendy is breaching her fiduciary duty of loyalty as a partner by using Kibble property for her personal use, transporting nieces to softball games. Mary expressly "demanded that Wendy stop doing so" , showing that the partnership does not consent to this personal use of partnership property.

Therefore Wendy has no right to use the company van for personal use.

Sample Answer

Conclusion #1: Mary and Wendy are now likely in a General Partnership with one another in Kibble. Angelo is likely a general creditor to Kibble with no partnership interest.

Issue #1: What legal relationships have the parties established through their dealings?

Rule of Law #1: A general partnership is formed if two or more people enter into a partnership in writing with the intent to operate and/or run a business. Factors are considered in determining whether two or more people have entered into a general partnership are whether the parties share in ownership of the business, whether the parties share in control of the business, and/or whether the parties share in the profits of the business. A party who contributes capital to a business enterprise with the expectation of the return of principal and interest after a designated period of time with no contribution of any other capital or labor or expectation of control is deemed to be a creditor to the business enterprise, rather than an owner/partner.

Analysis #1: Here Mary is likely a general partner in Kibble with Wendy and Angelo is likely a general creditor of Kibble with no ownership interest. Mary contributed a cash contribution to Kibble in exchange for 15% of the monthly profits or loss of Kibble, which Mary started earning in June. Mary also began working at the Kibble store with wendy and helped Wendy with administrative duties, such as business planning, for Kibble. Given these facts, a court can infer that Mary and Wendy entered into a general partnership agreement in writing as Wendy and Mary now share in the profits and losses of Kibble and share in the control of Kibble's operations and business decision making.

Angelo is likely a general creditor to Kibble. Angelo also contibuted a cash check to Kibble. The memo on the check indicated that the check was for a "loan to Kibble." While angelo agreed in a signed writing to accept 15% of the monthly profits of Kibble, this was only for the repayment of his loan until the loan amount including interest was repaid. Angelo was also not exposed to any of the losses Kibble may incur, unlike Mary. Given that Angelo does not share in either the profits or control of Kibble despite his financial contribution, Angelo is more than likely a secured creditor to Kibble.

Conclusion #1: Mary and Wendy are now likely in a General Partnership with one another in Kibble. Angelo is likely a general creditor to Kibble with no partnership interest.

Conclusion #2: Bob is entitled to Mary's share of the monthly profits of Kibble as general partners are free to assign their partnership interests to a third party.

Issue #2: Is Bob entitled to Mary's share of the monthly profits of Kibble?

Rule of Law #2: Under a general partnership, any general partner may assign his or her interest in the profits and losses of the company to another person of their choosing. The partnership does not have to agree or vote upon who the intended beneficiary of the transferred interest will be.

Analysis #2: Here, Mary is entitled to assign all her interest in Kibble. Wendy's personal objection of not wanting Bob involved in Kibble has no legal bearing on Mary's ability to assign her partnership interest to Bob.

Conclusion #2: Bob is entitled to Mary's share of the monthly profits of Kibble as general partners are free to assign their partnership interests to a third party.

Conclusion #3: Bob is not entitled to inspect the books and records of Kibble because while Bob was properly assigned Mary's partnership interest, that does not automatically make him a partner in Kibble, and thus he is not entitled to inspect the books and records of Kibble.

Issue #3: Is Bob entitled to inspect the books and records of Kibble?

Rule of Law #3: While a general partner is free to assign his or her partnership interest to a third party, that assignment does not automatically make that third party beneficiary a partner in the general partnership. The only way for the third party to become a partner in the general partnership is if the other general partners agree to admit that party as a general partner. A person who is not a general partner is not entitled to inspect the books and records of the general partnership.

Analysis #3: Here, while Mary validly assigned her partnership interest to Bob, this did not make Bob a parter in the general partnership. In order for Bob to become a general partner in the partnership, Mary and Wendy would both have to agree to it. Here, Wendy clearly states that she does not want Bob involved in Kibble. While that was not sufficient basis to stop Mary from assigning her interest to Bob, it is sufficient basis to prevent Bob from becoming a partner in Kibble, and so, it is sufficient basis to prevent Bob from inspecting the books and records of Kibble.

Conclusion #4: Wendy is not entitled to use the delivery van on Sundays to take her nieces to their softball games because it is property of Kibble and Mary, as a general partner in Kibble, did not approve of Wendy's personal use of the partnership property.

Issue #4: Is Wendy entitled to use the delivery van on Sundays to take her nieces to their softball games?

Rule of Law #4: A general partner may not use property of the general partnership for personal reasons unless the partner has obtained approval from the other partners.

Analysis #4: Here, Wendy purchased the delivery van in Kibble's name using the capital obtained from Mary and Angelo. The delivery van is therefore property of Kibble. Mary is lawfully considered a general partner of Kibble, given her financial contribution, share of control, and share of profits and losses in Kibble. Mary, therefore, has a right to approve or disapprove Wendy from using Kibble property for Wendy's own personal use. The facts indicate that Mary demanded that Wendy stop using Kibble's delivery van on Sundays to transport her nieces to their softball games. It is irrelevant that the van was not in use for company purposes on Sunday's. Wendy is still required to attain approval from the other general partner, in this case Mary, to use the company equipment for personal use.

MEE-2

Sample Answer

1. The issue is if Grandson has breached an express warranty.

A contract is formed when there is offer that can be clearly undestood by the offeree and demonstrates a willingness to enter a contract, there is acceptance of the offer is a way that is readily understood, and there is consideration. Consideration is something of legal value this bargained. When a good is being sold, UCC Article 2 of contact law applies. A good is something that can be readily transported.

Here, UCC Article 2 applies because paintings are moveable goods. A contract was formed because Buyer made an offer to buy the painting for $350,00), expressing willingness to enter into a contact. Grandson agreed to that price. There was consideration in the legally bargained-for value of the collection of artworks. Therefore, a contract was formed.

An express warranty is created when party attempts to sell an item to another via a contract with the understanding that in good faith they are fulfilling exactly and precisely whatever statements they have made in the contract. An express warranty is invioable in that the statements made in an express warranty must be fulfilled and cannot be automatically remanded by any disclaimer, implied or express, by the buyer. When an express warranty has not been fulfilled, the contract has been breached.

Here, Grandson created an express warranty because the Art Purchase Agreement clearly and precisely indentified the painting as a "painting by Aristide." It turned out that after examination of the painting by chemical analysis that the painting was not the work of Artiste and was only worth $500. Therefore, Grandson has breached an express warranty because the painting he statred in the contract as not what it was stated to be, and because an express warranty cannot be automatically disclaimed by any warranty, express or implied.

Therefore, Grandson has breached an express warranty.

2. The issue is if Buyer has the right to rescind or avoid the contract on the basis of mutual mistake.

Mutual mistake in a contract is created when both parties are in error about a fact that is a critical part and fact of the understanding of what the contact is meant to accomplish. Mutual mistake does not apply if one party knows, or has reason to know, that the critical facet of the contract is untrue or that one party is mistaken about that fact.

Here, there is mutual mistake because both parties were honestly mistaken about the critical fact of the contract, namely the value of the painting, which was agreed upon as $350,000. Grandson was honestly mistaken becasue he arrived the value of the artowrks in his catalog that he hoped to sell with the help of art appraisal experts. Buyer was honestly mistaken becasue when he examined the painting for 30 minutes and did not notice anything that caused him to dount tht theh painitng was a genuine Artiste.

Also, neither party knew that the value was incorrect until the chemical testig proved it was so, with neither party indicating that they knew chemical tasting was the only way to detect the actual value, Grandon because he did not share his grandmother's interest in art, Buyer becuse he only suspected counterfeit via a news article.

Therefore, because both parties were honestly mistaken about a fundamental fact of the contract, there was mutual mistake of fact and the contract can be rescinded or avoided.

Sample Answer

1. Contracts are sets of promises enforceable by the law. Article 2 governs the sale of goods. Good are things movable. The sale of artwork, a movable thing, is considered a good, and thus subject to Article 2. Warranties are statments that become part of a contract. Article 2 contracts have three possible warranties an express warranty, implied warranty of merchanitabiliy, or warranty for fitness of a particular purpose. An express warranty is an statement regarding quality or design that becomes part of a contract. Remedies for express warranties may be limited, but express warranties may not be disclaimed. Here, the catalog created by the grandson specifically described the painting as an early work by Artiste. He made a specific statement about the quality and type of artwork that this painting was. The grandson also decribed the painting as a "painting by Artiste" in the art purchase agreement. Based on the facts, it is clear that the grandson is expressing a clear statement that the painting is in fact an Artiste. His attempt to disclaim all the warranties, express or implied, is invalid for the express warranty. As such, the express warranty the painting being an early work by Artiste remains, and the determination of the chemical analysis revealing that it is not and Artiste means the Grandson breached the express warranty.

2. Contracts are sets of promises enforceable by the law. Article 2 governs the sale of goods. Good are things movable. The sale of artwork, a movable thing, is considered a good, and thus subject to Article 2. Valid contracts as seen here, may otherwise be unenforceable due to certain contract defenses. Contract defenses allow a contract to be void, voidable, or unenforceable. One of the defenses to contract is mistake. Unilateral mistakes will not allow a party to rescind or avoid a contract unless the other party has reason to know of the mistake. But, mutual mistakes where both parties are mistaken as to the core aspect of the contract allows a party to rescind or avoid a contract because it lack mutual assent. Here, both parties believed in good faith that the painting was a genuine work of Artiste, but were both mistaken, the core aspect of the contract has been now deprived. As such, because both were mistaken in good faith, the Buyer has the right to to rescind or avoid a contract. It was not the type of contract that the parties believed they were getting into, which was for the sale of an Artiste.

MEE-3

Sample Answer

Whether the trial court erred by denying an opportunity to be heard before they took judicial notice of the weather on October 18.

Rules

Under the Federal Rules of Evidence, a court may take judicial notice of an adjudicative fact. An adjudicative fact is a fact where if proven to be true or false, may support or deny a claim. A party may object to a judicial notice if the that adjudicative fact is relevant to their claims or defenses.

Application

Here the relevant facts state that the trial court took judicial notice that the weather was raining all day and the temperature was 41 degrees Fahrenheit. In relation to the weather being an adjudicative fact at trial, the weather in question is an adjudicative fact because if accepted, the weather would support Cara's testimony that the weather was overcast, but not cold and not rainy. Additionally, the overcast weather supports and is relevant Cara's testimony that Cara wore shorts and a T-shirt, and never wears a coat or jacket while running on the track. On the other hand, if adjudicative fact of the weather was denied, then the weather would support Dana's testimony that the weather was cold and rainy, which is relevant to asupport her argument that Dana was wearing a heavy, bright orange coat.

Conclusion

Therefore, the trial court erred in denying Dana's opportunity to be heard on the weather.

Whether the trial court erred by taking judicial notice of the weather on October 18 assuming the trial did not err in denying Dana's opportunity to be heard.

Rules

Under the Federal Rules of Evidence, a court may take judicial notice of an adjudicative fact if the adjudicative fact is supported by a record. A record may be satisfied if it is a certied public record by a national agency.

Application

Here the relevant facts tate that Cara asked the court to take judicial notice on the weather on October 18 that it rained all day and the temperature was 41 degrees Fahrenheit. In relation to whether the adjudicative fact was supported by the record, the weather is sufficiently supported as a record because the record was a certified public record by a federal agency, the National Weather Service Agency.

Conclusion

Therefore, the trial court did not err in taking judicial notice of the weather on October 18.

Whether Dana's testimony that Cara was "careless' admissible character evidence.

Rules

Under the Federal Rules of Evidence, character evidence is evidence that a party (1) has a specific character trait, and (2) acted in accordance with that trait, is inadmissible. Character evidence may be admissible for a non-propensity purpose, such as motive, intent, opportunity, plan, absence of mistake, identity, common plan or scheme.

Application

Here the relevant facts state that Dana testified that Cara was careless.

In relation to having a Dana's testimony being character evidence, the Dana's testimony of Cara being "careless" constitutes character evidence because her testimony is used to prove Cara's specific character trait of being careless, and that character trait of being carless is being used to prove to show that Cara lost her cell phone at the gym. With regards to a non-propensity purpose, the Dana's testimony does not show a non-propensity purpose because there is no indication of any motive, intent, opportunity, plan, absence of mistake, identity, common plan or scheme

Conclusion

Therefore, Dana's testimony that Cara was "careless" is inadmissible caharacter evidence.

Whether Dana's testimony that Cara often misplaced or forgot her cell phone is inadmissible character evidence.

Rules

Under the Federal Rules of Evidence, character evidence is evidence that a party (1) has a specific character trait, and (2) acted in accordance with that trait. However, character evidence of a person's habit is admissible to show that the party in question has a tendency to commit the same habit.

Application

Here the relevant facts state that Dana testified that Cara often misplaced or forgot her cell phone. In relation to whether Dana's testimony of Cara's frequent misplacement or forgetting her cell phone being constitutes character evidence, the Dana's testimony of Cara often misplacing or forgotting her cell phone is not character evidence because Dana's testimony is not used to specify a specific character trait even though Dana's testimony is being used to prove to show that Cara lost her cell phone at the gym.

Even if Dana's testimony constitutes inadmissible character evidence, Dana's testimony would be admissible as habit because her testimony shows that Dana frequently misplaced or forgot her cellphone.

Conclusion

Therefore, Dana's testimony that Cara often misplaced or forgot her cell phone is not inadmissible character evidence.

Sample Answer

Judicial Notice

The issue here is whether the trial court erred by denying Dana the opportunity to be heard before it took juduical notive of the weather on October 18.

Under the federal rules of evidence, a trial court must not abuse its discretion and allow a party to be heard before judicial notice in the essence of fair justice and proper Due Process to a party. A party requesting an opportunity to be heard before a court takes juduical notice of a fact in the matter must be granted that request.

Here, while Dana requested that the Court afford her an opportunity to be heard before the court took judicial notice of the weather, the Court erred in denying her that opportunity as governed by the federal rules.

Therefore, the trial court did err in denying Dana the opportunity to be heard before it took judicial notice of the weather on October 18.

Dana's Opportunity to be Heard under the Presumption that the Trial Court did not err

The issue here is whether the trial court erred by taking judicial notice of the weather on October 18.

Under the federal rules of evidence, in a civil matter, a Court may take judicial notice of a fact that is of common knowledge to the community, verified in public records, or a specific scientific fact. Additionally, a Court in its discretion may take judicial notice of a fact without the notice being placed with either party to a case. Once the Court takes judicial notice of a fact, the jury is must accept the fact as established.

Here, the Court judicial notice of the weather was verified by the public records of the federal government's National Weather Service agency in accordance with the court rules. Therefore, the trial court did not err in rtaking judicial notice of the fact.

Dana's Testimony on Cara's Carelessness

The issue here is whether Dana's testimony that Caa was "careless" inadmissible as character evidence.

Under the federal rules of evidence, character evidence is generally inadmissible in a civil case unless the the main issue/element of the case is character. Court have provided that cases involving, negligent entrustment, defamation, fraud, or custody of a child.

Here, the suit between Dana and Cara involve the theft of a cellphone, a civil case that does not place the Defendant's character as the crucial element of the case.

Therefore, Dana's testimony that Cara is carelessness is inadmissible as character evidence.

Dana's Testimony on Cara's Behavior

The issue here is whether Dana's testimony that Cara often misplaced or forgot her cell phone inadmissible character evidence.

As more fully set forth in the previous section, character evidence is generally inadmissible in a civil matter unless the case involves character. However, evidence a habit and/or rountine is generally admissible if the habit is consistent. More specifically, the individual in which habit/routine evidence is being brought up against must have a propensity of doing the said habit daily.

Here, the habit of Cara's that Dana has offered is not a habit that happens everyday as required under the rules for habit evidence. Instead, Dana refers to Cara's habit as "often" not "everyday" or "everytime".

Therefore, Dana's testimony of Cara's "habit" is inadmissible as character evidence.

MEE-4

Sample Answer

1a. If a court were to hold that Tom could have rightfully terminated the lease because Helen held over on January 1, 2021, the issue is what rule would the court apply and what is the rationale.

The majority rule (English rule) is that a landlord has a duty to deliver actual possession of the property to the tenant. Actual possession consitutes physically living in a property. Failure to deliver actual possession is a material breach of the landlord's duty. Thus, a court could hold that Tom could have rightfully terminated the lease because the landlord failed to deliver actual possession of the apartment.

1b. If a court were to hold that Tom could not have rightfully terminated the lease because Helen held over on January 1, 2021, the issue is what rule would the court apply and what is the rationale.

The minority rule (American) is that a landlord has a duty to deliver legal possession of a property to a tenant. As opposed the majority rule which mandates that a tenant be in physical possession of property, the minority rule only deems that a tenant have legal control to the property. Thus, Tom having signed the lease agreement and having legal rights to possess the apartment would be sufficient. Physical possession is not required for the minority rule. Thus, a court could hold that Tom could not have rightfully terminated the lease because he had legal possession of the apartment.

2. The issue is whether the landlord rightfully refused to consent to Tom's proposed assignment of the lease to his friend.

When a lease agreement prevents a tenant from assigning or subleasing, a tenant may generally still assign/sublease, but a landlord may treat that as a breach. When a lease agreement states that a tenant cannot assign or sublease an apartment without "landlord's prior written consent," the traditional rule prevented a tenant from assigning/subleasing unless a landlord agreed. However, the modern rule states that a landlord consent's should be reasonable and based on non-prejudiced reasoning for refusing to consent to a tenant's proposed assignee/sublessee.

Here, Tom informed the landlord that he wished to assign his apartment lease to his friend. The landlord conducted a background check and discovered that the friend had a very low credit score. Conducting a background check and finding out that Tom's friend has a low credit score is a reasonable reason to reject the invidual from acquiring the assignment. The landlord is reasonable in being worried that someone with a low credit score would not be able to pay rent. Thus, under both the traditional and modern rules, the landlord rightfully refused to consent to Tom's proposed assignment of the lease to his friend.

3. Following Tom's failure to vacate the apartment, the issue is whether the landlord can rightfully treat Tom as a periodic tenant, subject to the provisions of the exprired lease.

A tenancy for years is a tenancy that lasts for year to year, month to month, etc, and is subject to the Statute of Frauds if longer than one year. A tenancy for years terminates automatically at the end of the lease agreement, and no notice is required. If a tenant remains in possession of the apartment past the tenancy time frame, he is considered a holdover tenant and it is a tenancy at sufferance. A tenant is not considered a holdover tenant if he only remains in possession of the property for a brief period of time (a few hours), if it is due to illness, or if due to an unforseeable delay. If a landlord has a holdover tenant in possession of the property, the landlord may either sue to evict or treat the tenant as a periodic tenant if he accepts new rent. If there is a periodic tenancy, the landlord cannot increase monthly payment if he did not previously inform the tenant of any changes.

Tom had a tenancy for years which began on January 1, 2021 and ended on December 31, 2023. When Tom did not vacate the apartment on December 31, and remained in possession on January 1, 2024, Tom became a holdover tenant. Tom's behavior does not qualify as one of the exceptions to holding over becuase his possession lasted more than just a few hours, as he remained several days - January 1 until at least January 4 when the landlord sent him the letter. Thus, Tom is a holdover tenant. Rather than suing to evict, the landlord wrote a letter to Tom informing him that he is treating him like a periodic tenant and expected Tom to be subjected to all of the terms in the tenancy for years lease, which included monthly rent of $1300. The landlord was in accordance with his rights when he continued to charge Tom a monthly fee of $1300 for rent. The landlord rightfully did not increase or change their terms. The landlord is not obligated to adhere to the current market value. Tom does not have to live there if he believes the rent is too high. Thus, the landlord acted appropriately.

Sample Answer

I. Did Tom Have a Right Terminate the Lease on January 1, 2021 due to the presence of a Holdover Tenant?

There are two views regarding the legal obligation of a landlord in delivering possession of a leasehold premises to a tenant. Under the "English Rule," a landlord must deliver both legal possession and actual physical possession to the tenant on the first day of the lease. Actual physical possession means the tenant is able to immediately enter the apartment without any holdover tenants or other title claimants, as well ass the implied warranty of habitability (not at issue here). Under the English rule, failure of a landlord to deliver both legal and physical possession would giver rise to a breach, and thus allow a tenant to rightfully terminate the lease. The other rule is the "American Rule." Under this view, the landlord is only under the obligation to deliver legal possession, not physical possession. Legal possession means the legal rights of a tenant have vested in the tenant, and the tenant themselves could now sue to evict any holdover tenant that remains. Under the American rule, a holdover tenant remaining on the premises would not give rise to the tenant being able to rightfully terminate the lease.

a.) If a court ruled that Tom could rightfully terminate the lease because Helen was still occupying the apartment on January 1, 2021, the court would be applying the English Rule. The Landlord clerly violated the duty to hand over physical possession by the first day of the lease: Helen remained as a holdover tenant. A holdover tenant occupying the premises serves as "construcive eviction" of the new tenant. Tom, being constructively evicted by the Landlord's failure, would be able to get a court to grant termination of the lease.

b.) If a court ruled that Tom could not rightfully terminate the lease on January 1, 2021, it was because the court was following the American Rule. Under this rule, all that was needed was for legal possession to be delivered. Once Tom himself had legal possession, he himself could sue for a writ of eviction against Helen (or alternatively, do what he did in the fact pattern which was get a hotel for a few days and have the landlord handle the eviciton).

II. Can a Landlord Refuse to Consent to an Assignment of a Leashold Estate?

An assignment of a leasehold estate occurs when the tenant, the assignor, assigns the full remainder of his leasehold interest to an assignee. For example, if a tenant had a two year lease, and after 12 months, assigned an assignee the right to live in the space for the remaining 12 months, this is an assignment. This is different from a sublease, in which the sublessor leases to the sublessee just a portion of the interest in the leasehold estate. For example, on a two year lease, leasing the sublessee a 3 month period in the summer to stay in the space. When a valid assignment takes place, the assignee is in privity of contract with the landlord, and the assignee will owe rent directly to the landlord. This is in contrast with a sublease, where the sublessee is not in privity of contract with the landlord, and it is the sublessor who still owes rent directly to the landlord (depending on the arrangement, the sublessee will either pay money to the sublessor who then pays to landlord, or sublessee can directly pay landlord, with understanding that it is on behalf of sublessor). Being in privity of contract allows a landlord to sue a tenant for missed rent (or other failures on behalf of a tenant to uphold their duties). Thus, when there is a valid assignment, and rent has not been paid, then the landlord can sue the assignee directly for the rent. In fact, in a proper assignment, the assignor has actually been released from privity of contract, and thus can no longer be sued by the landlord. Generally, assignments (or subleases) can be freely entered into, unless expressly prohibted in the original lease.

Here, the express terms of the leasehold between Tom and Landlord provided that Tom was not allowed to sublet or lease his interest "without the Landlord's prior written consent." These express terms were signed by both parties in a written agreement (because the lease was for three years, it had to be in writing to satisfy the Statute of Frauds writing requirement of leases longer than one year). Tom did seek Landlord's permission, but Landlord refused because she did the background check on Friend and found that she had a low credit rating. It makes sense that the Landlord would want to deny such an assignment from Tom to Friend. Because the assignment would put Friend and Landlord in privity of contract, and release Tom from privity of contract with Landlord, Landlord would be at risk of having to possibly sue Friend for rent and not get paid because Friend has a low credit rating which means Friend likely has not paid other people in the past. Thus, It was rightful for Landlord to refuse Tom's proposed assignment to Friend.

III. Can a Tenant Staying Three Days Past the expiration of the leasehold be treated as a holdover tenant and be held subject to a new periodic tenancy?

When a tenant stays past the expiration of the lease, this is called a tenancy at sufference. A tenancy at sufference will not be created if the tenant has only stayed a few extra hours, or if the cause of the tenant staying past the expiration was outside their control (e.g., severe illness). Once a tenancy at sufference exists due to a holdover tenant, the landlord has the option of reneweing the periodic tenancy. In creating the new periodic tenancy, the rent will remain the same as the rent was in the prior lease, unless the landlord previously told the tenant that rent would be raised, and the tenant remained, then rent will go up.

Here, Tom was still in the apartment three days after the expiration of the lease. This created a tenancy at sufference, at which point Landlord could have sued for eviction, or take the steps that she did, which was renew the periodic tenancy for the exact same amount of rent that had been paid throughout the previous lease. It does not matter that the fair market value for comparable units is $1,300.00. Tom will still have to pay because it is the amount that was charged (and paid) monthly in the previous lease. As long as Landlord did not raise the rent without prior warning, the rent amount is fine. Landlord rightfully created a new periodic tenancy due to Tom's holdover, and the terms of the expired lease apply.

MEE-5

Sample Answer

1. Is the State B hate-crime prosecution barred by the United States Constitution's double jeopardy clause? Explain

No, the State B hate-crime prosecution is not barred by the United States Constitution's double jeopardy clause. Double jeopardy clause protects a defendant from being retried for the same crime if the crime was actually litigated and a final judgment was rendered. Double jeopardy is triggered when a jury is impaneld or if a bench trial, when the first witness is called. Double jeopardy is not triggered even if the facts of the case are the same when the parties are different. The parties are different when the first case was filed in State court and now the new case is in Federal court, or vice-versa. The parties are not the same when the litigation is in different states, here State A and State B. Here, State B is not barred because it is a different sovereignty. In the first litigation against the defendant, the prosecuting party was the City, in State A and the officer ("Defendant"). Defendant is not able to use the judgment from State A as a defense for double jeorpardy. City and State B are not the same party, therefore, State-B will not be barred from prosecuting the officer in State B court for violating that state's hate-crime statute.

2. Is the federal hate-crime prosecution barred by the United States Constitution's double jeopardy clause? Explain

No, the United States Attorney for the federal district of State A is not barred by the United States Constitution's double jeopardy clause from prosecuting the officer. (Please see point one about different sovereignties).

Different sovereignty, as stated in point 1.
Although the statutes are almost identical to each other, it will not barr the federal district of State A from prosecuting the officer because the first case was litigated in State A, state court.
The Federal government has an interest in prosecuting such a case as a matter of public interest--to protect the people against other hate-crimes.

3. Is the State A hate-crime prosecution barred by the United States Constitution's double jeopardy clause? Explain

Yes, the State A hate-crime prosecution will be barred by the United states Constitution's double jeopardy clause. The man was initially tried, and convicted in his minicipal court--state court. The case was filed by a City attorney. The man spend three days in jail. It is irrelevant that the state statute is stricter than the City ordinance in that it provides for a longer jail time. The officer's case was litigated in state court, and he was convicted. Here, a second trial for the same crime, by the same parties would be barred by the United States Constitution's double jeopardy clause.

4. Is the State A assault prosecution barred by the United States Constitution's jeopardy clause? Explain.

The State A prosecuter is not barred from prosecuting the man for the State's assault statute. Here the two charges are completely different from each other with completely different elements to be proven by the State. Although one can argue the assault charge should have been attached to the first case because the stemmed from the same incident, it will not negate the fact that the charges are completely different from each other. Double jeopardy clause protects a defendant from being tried twice for the same crime if the crime was litigated and a final judgment was rendered. Here, the officer was never tried for the assault crime.

Sample Answer

1. The issue is whether State B's hate-crime prosecution is barred by the U.S. Constitution's double jeopardy clause.

Under the Sixth Amendment of the U.S. Constitution, criminal defendant may not be prosecuted twice by the same sovereign, for the same crime, and applies if a person has been acquitted or convicted of a certain crime. Under the Blockberger test, a crime must not include elements of any other crime to consitute a seperate offense. A defendant may not be charged for a lesser included crime if they have been acquitted or served time for a greater offense that includes the lesser included crime.

Two separate sovereigns, the U.S. governement and a state, may prosecute a criminal defendant for violating both federal law and state law. Also, different states may prosecute the same defendant who violates the same laws of both states.

Here, in City, located in State A, has an ordinance that reads that any person who assaults another person because of that person's religious expression commits a serious misdemeanor punishable for up to six months in jail. The City attorney filed a charge alleging that the officer violated this ordinance by striking the driver with a rock, while the officer was standing in State A and the victim was in State B, because of the driver's religious beliefs and religious expression. Then, the officer pleaded guilty and that the allegations were true and the Officer was sentenced to three days in jail. After his conviction for violating the City ordinance, officer was charged with additional crimes based off the same set of circumstances.

Here, State B's criminal officer with violating State B's hate crime statute, which, like City's ordinance, provides for the punishment of "any person who assaults another person because of that person's religious expression", and the conduct is a felony punishable for one to two years in prison. While both statutes prosecute assaults because of a person's religious expression, and while the officer served his conviction in State A, because State B is a separate sovereign from State A, and because the officer committed the crime in both State A and State B, State B may prosecute the officer and it will not violate double-jeopardy because the officer broke the law of two different states.

To conclude, State B's hate-crime prosecution is not barred by the U.S. Constitution's double jeopardy clause because State B is a separate sovereign.

2. The issue is whether the federal hate-crime prosecution is barred by the U.S. Constitution's double jeopardy clause.

Here, officer was charged with a federal crime by the U.S. Attorney which states that it is "unlawful to any person acting under color of state or local law to assault another person because of that person's religious expression", and makes the crime punishable by a term of imprisonment of not more than two years. However, because the federal government is a sperate sovereign from State A, who first prosecuted the officer for the crime, the federal government may prosecute the officer without violating the double-jeopardy clause.

To conclude, the federal hate-crime prosecution is not barred by the double-jeopardy clause because the federal government is a separate sovereign from State A, and thus may prosecute the officer for violating the federal law.

3. The issue is whether the State A's hate-crime prosecution is barred by the U.S. Constitution's double jeopardy clause.

Here, State A also has charged the officer with violating a hate-crime statute, which reads that "any officer who assaults another perosn because of that person's religious expression and thereby causes injury to that person commits a felony punishable by 1-5 years in prison." Because the officer is being prosecuted by the same sovereign, which is State A, for a crime the defendant has already been convicted of, the Court should apply the Blockburger test to determine if the prosecution under State A's hate-crime statute is a separate offense. Here, the staute provides the same element of assault because of a person's religious expression must be met, and also that the element of causing an injury must be met in order to be convicted of the hate-crime statute. However, the first State A statute that officer was convicted under, as mentioned above, also includes the element of causing an injury, which is not a required element of the first State A statute. However, because the hate-crime statute requires proof of an element that is contained in the first State A statute officer was convicted of, which is committing assault because of that person's religious expression, it will not consitute a separate offence, and will be considered the same offense for purposes of double-jeopardy.

To conclude, the State A hate-crime prosecution should be barred by the U.S. Constitution's double jeopardy clause.

4. The issue is whether State A's assault prosecution is barred by the U.S. Constitution's double jeopardy clause.

Under the Sixth Amendment of the U.S. Constitution, criminal defendant may not be prosecuted twice by the same sovereign, for the same crime, and applies if a person has been acquitted or convicted of a certain crime. Under the Blockberger test, a crime must include elements of a crime that the second crime does not, in order to consitute a seperate offense. A defendant may not be charged for a lesser included crime if they have been acquitted or served time for a greater offense that includes the lesser included crime.

Here, State A also has charged the officer with violating an assault statute, which reads that "any person who assaults another person with intent to cause injury is guilty of a felony punishable by not more than two years in prison." Because the officer is being prosecuted by the same sovereign, which is State A, for a crime the defendant has already been convicted of, the Court should apply the Blockburger test to determine if the prosecution under State A's hate-crime statute is a separate offense. Here, the second State A statute states that the crime needs the element of assault, which is not included in the first State A statute because that statute requires assault because of that person's religoius expression, not merely assault. Along with the element of assault, is the element of intent to cause injury, which is not included in the first State A statute. Because this crime includes elements of a crime that is not included in the crime the defendant was convicted of, it will not consitute a second persecution for the same crime becuse they include elements that the other does not.

To conclude, the State A assault prosecution should not be barred by the U.S. Constitution's double jeopardy clause.

MEE-6

Sample Answer

The jurisdiction has adopted the Uniform Probate Code (UPC). The facts are clear that the Testator made a properly executed will and the will contained several dispositive provisions. The facts also provide the none of the devises were subject to a survivorship contingency and the will contained no residuary clause. Property that is not devised through a will is probated through intestacy, i.e., the property not mentioned and distributed pursuant to the terms of the will, will be distributed as if the decedent died intestate, based on the default rules of the Uniform Probate Code.

I. The 300 shares of ABC stock.

The will provides that the 200 shares of the ABC stocks initially owned by the Testator should be distributed to the cousin, Donna. Thus Donna is entitled to receive the original 200 shares of the ABC stocks upon the death of the Testator pursuant to the will. Moreover, the facts provides that ABC made a stock divident of additional 100 shares of its shares to the Testator. Based on UPC, cash dividends would be part of the Testator's estate subject to the terms of the will or intestacy, while stock dividends belong to the intended beneficiary under the will. Thus Donna is also entitled the receive the additional 100 shares. So all 300 shares of ABC stocks should be distributed to Donna.

II. The home.

The will provides that the home should be distributed to the brother, Edward. The facts also provide that the Testator borrowed $125,000 to make home renovations and the loan is secured by a mortgage on Testator's home. Testator was personally liable on this debt. Under the Common Law, if the real estate property is subject to a lien/loan, it requries that the lien/loan be paid off from the estate before its distribution. However, under UPC, the beneficiary takes the property subject to the lien/loan but without personal liability (no personal assumption of the loan/lien). Thus the home should be distributed to Edward subject to the lien/loan on the property.

III. The piano and te $10,000 insurance claim.

The will provides that the piano should be distributed to the sister, Faye. However, Faye died intestate leaving Testator and Edward as her only heirs prior to the death of the Testator. Thus the beneficiary predeceased the Testator and this creates the issue of lapse. UPC has adopted the anto-lapse statute such that the issue of the beneficiary would take in the predeceased beneficiary's share of the distribution. Thus Faye's estate would receive the piano and distribute the piano to her issue if possible.

However, the facts also provide that the pinao was substantially damaged and the Testator has filed a $10,000 casualty-loss claim and the insurer agrees that the Testator's estate is entitled to receive the $10,000 on Testator's claim. The piano's destruction also brings the issue of ademption since the damaged piano is no longer part of the estate of the Testator and the piano is replaced by the insurance claim and entitlement to receive the $10,000. The UPC holds that the since the Faye is the intended beneficiary of the piano, due to the anti-lapse statute, her estate is entitled to the piano. The UPC also holds that the insurance claim and entitlement would follow the gift to the beneficiary. Thus the insurance claim and entitlement would not ademped and would go to Faye's estate.

The facts mentioned that Faye's estate is still in administration and her estate's debts are greater than its current assets. Thus Faye's personal representative can recover the piano and the insurance proceeds payable to the Testator's estate to cover the debts on Faye's estate. Once the debts are satisfied, Faye's estate would be distributed based on UPC intestacy rules.

IV. $200,000 cash.

Since the will has no residuary cclause and the will contains no provision for the distribution of the $200,000. Thus the $200,000 would not pass by the will and it would pass by intestacy default rules provided by the UPC.

The facts provides that Testator gave $30,000 to her son, George. Usually, without a specific writing with clear language to the contrary, any payment/distribution made by the Testator during her lifetime is treated as a simple gift, and not treated as a part of any distribution as advancement of the payment to the heirs such that the receiving heir's proportional share would be reduced by the amount of the payment. However, UPC also provides that if there is a specific writing to the effect with clear langauge showing the paymetn is intended as an advancement, the payment would reduce the share of beneficiary might be entitled to.

In this case, Testator made $30,000 payment to George with a written letter stating that the payment is intended as an advvancement that would reduce George's share ofo her estate. Thus the Testator's intension should be respected in distribution of the estate

Note that due to the anti-lapse statute enacted by the UPC ,Issac would inherit the distribution made to Geroge despite the fact that George predeceased the Testator.

The $200,000 cash would be distributed following the intestacy rules of the UPS, to the issues of the Testator, Issac (taking George's share) and Haarriet equally. Thus $115,00 should be distributed to Harriet and $85,000 should be distributed to Issac taking into the $30,000 advancement into account.

Sample Answer

The issue is how the testators estate shall be distibuted

300 Shares

Under the UPC, all specific devises include reeinvested dividends. Therefore, all 300 shares of ABC will go to Donna under the will. This is so because the will creates as specific devise of 200 shares to Donna. As such, under the UPC all reinvested dividends go together to the devisee of the shares

Piano

When a devisee predeceases the testator, the gift lapses. However, antilapse statute prevent gifts from lapsing when the devisee are specific relatives, which includes sisters. When antilapse kicks in, it goes to the devisee's heirs. Because her estate is still in administration, the piano will go to the estate.

Additionally, whenever a specific devise is created, the devisee is entitle to proceeds arising from the devise, including insurance proceeds. As such, the insurance claim will follow along with the piano.

House

As a general rule, property devised in a will is not exonerated from all debts. Meaning, the devisee takes the property subject to the mortgage. When a testator declares that all just debts shall be paid, it has been held to be insufficient to establish that liens be exonerated. Therefore, Edward will receive the house pursuant to the will subject to the mortgage.

$200,000 Cash

When property is not distributed through the will, it goes intestate. Here, the will did not mention the cash nor did it include a residuary clause. Therefore, it will go intestate. When property goes intestate, the UPC provides priority in how it gets distibuted. Generally, the surviving spouse is favored, followed by the children.

In our case, there is no surviving spouse, so it should be split between George and Hariet. However, the testator gave George an inter vivos gift of $30,000 and declared in writing that it is to be an advancement of his inheritance. Under the UPC, an advancement is established if the testator declares in a contemporonous writing that the gift shall be an advancement, or the recipient decares such. As such, George will only receive $70,000 and Harriet receives $130,000. Because George predeceased and meets the qualification of the relatives entitled to antilapse protection (as previously discussed), Isaac will receive the $70,000.

NEW JERSEY BOARD of BAR EXAMINERS

February 2024 Questions and Sample Answers