fucking_bar_practice_questions_copy_20190724170123

Question 1

02/09: Tools [D] wants to object to the jurisdiction of the Nueces County district court on the ground that it is not amenable to process issued by a Texas court. What pleading, if any, must Tools [D] file to present such objection and when must it file such pleading? Explain fully.

Answer 1

Tools should file a special appearance. Under the due order of pleading rule, the special appearance must be filed before any other plea, pleading, or motion; however, the special appearance may be consolidated with other pleadings in a single instrument.

Question 2

02/09: Assume that Tools [D] properly presents its objection to the Court’s jurisdiction over it. What may the Court consider in ruling on the objection? How should the Court rule on the objection? Explain fully.

Answer 2

The court may consider pleadings, stipulations, affidavits, the results of discovery processes, and any oral testimony. The court should deny the objection to jurisdiction. Tools has minimum contacts with Texas. The foreign corporation, Tools, purposefully acted in Texas (regularly advertised and sold products), the cause of action arises from Tool’s activities in Texas (Paul bought the product and was injured in Texas), and the assumption of jurisdiction would not offend traditional notions of fair play and substantial justice.

Question 3

02/09: Assume that Tools [D] is considering removing the case to federal court on the basis of diversity of citizenship, given that it is a Delaware corporation. Does Tools have a valid basis for removing the case on diversity grounds? Explain.

Answer 3

Tools does not have a valid basis for removing the case on diversity grounds. Diversity jurisdiction requires that there must be complete diversity. Here, Paul (Texas domicile) is not diverse from David (Texas domicile) and Supplies (a Texas corporation with its principal place of business in Texas). The lack of complete diversity makes removal improper. Even if the parties were diverse, the presence of D’s (David and Supplies) who are residents of the forum state (Texas) would defeat removal based on diversity.

Question 4

02/09: David does not want the case to proceed against him in Nueces County because he does not live in the county. What pleading must David file to present his objection to the case proceeding against him in Nueces County, and when must David file the pleading? Explain fully.

Answer 4

David must file a motion to transfer venue. Under the due order of pleading rule, a motion to transfer venue must be filed before any other plea or pleading other than a special appearance.

Question 5

02/09: Assume David properly files his objection to the case proceeding against him in Nueces County. How should Paul respond, and how should the Court rule? Explain fully.

Answer 5

Paul should respond presenting prima facie proof (affidavits and discovery materials) of matters specifically denied by David and specifically denying any of David’s pleaded venue facts which Paul wishes to contest. The court should deny David’s motion. Under the general venue rule, venue is proper in Nueces county because it is the county in which all or a substantial part of the events or omissions giving rise to the claim occurred ad it is also the county of D-Supplies’s principal office.

Question 6

02/09: Assume that Paul’s original petition did not state the total amount of damages that he is seeking. Supplies wants to know the maximum amount of damages that Paul seeks. What pleading can Supplies file to require Paul to state the amount of damages that he seeks? Assume Supplies files the proper pleading. How should the Court rule? Explain fully.

Answer 6

Supplies can file a special exception seeking specification of damages and asking the court to require Paul to amend so as to specify the maximum amount claimed. Supplies must object in writing, call for a hearing, and get a ruling on the exception on the record. Here, the court should order Paul to replead.

Question 7

02/09: When Paul filed his original petition, he also filed a Request for Production, which was served on each of the Defendants along with the citation and a copy of the original petition. When must each Defendant file an answer to the petition to avoid a default judgment and what is the deadline for each Defendant to file responses to the Requests for Production? Explain fully.

Answer 7

In order to avoid a default judgment, each defendant must file an answer by 10 AM on the first Monday after expiration of 20 days from the date the D was served with process. Each D has 50 days from the date of service of the request to respond because it was served before the D’s answer to Paul’s petition was due.

Question 8

02/09: Assume the lawsuit proceeds in the Nueces County district court against all of the named Defendants. The parties want to proceed with written discovery before scheduling oral depositions. Identify five permissible forms of discovery under the Texas Rules of Civil Procedure.

Answer 8

1) Request for Disclosure2) Request for Production3) Requests for Admission4) Interrogatories5) Written and Oral Depositions

Question 9

02/09: Paul’s atty sends Tools atty a request for admission asking Tools to admit within 31 days of service of the request, that Tools was the manufacturer of the electric saw in question. Forty (40) days after Tools attorney received the request for admission, he served Paul’s attorney with a response denying the request for admission. What is the effect of that response and what mustTool’s attorney do and show to change that result? Explain fully.

Answer 9

Tool’s denial was not effective because its response to the request for admission was due within 30 days after service. The request for admission is deemed admitted without the need of a court order because it was not timely served. To change this result, Tool’s atty must file a motion to withdraw the deemed admission and demonstrate two things: good cause and that parties relying on the admission will not be unduly prejudiced.

Question 10

02/09: All of the Defendants want to independently verify the nature and extent of Paul’s injuries. How can that be accomplished? Explain fully.

Answer 10

The D’s can file a motion to compel a medical exam of another party, Paul, by a qualified physician. The motion must be filed more than 30 days before the end of the discovery period, be served on all parties and the person to be examined, show good cause for the examination, and indicate that the party’s physical condition is in controversy.

Question 11

02/09: Assume that Paul receives a discovery request from a Defendant calling for the production of material thatPaul’s attorney considers to be privileged. How can Paul’s attorney preserve the privilege? Explain fully.

Answer 11

Paul’s atty can preserve the privilege by using a withholding statement. In a response to the discovery request or in separate document, within the time for the response to the request, Paul’s atty must state that information responsive to the request has been withheld, the request to which the material relates, and the privilege asserted.

Question 12

02/09: In response to a request for production from Paul, Supplies’ atty inadvertently produces communications between Supplies and its attorneys. What must Supplies’ attorney do to avoid a waiver of the attorney-client privilege with respect to the communications that were produced? Explain fully.

Answer 12

The producing party, Supplies, does not waive the privilege, if, within 10 days of discovering that the communications were produced, it amends the response identifying the material produced and states the privilege asserted. After the timely amendment, the requesting party, Paul, must promptly return the privileged material and any copies pending any ruling by the court denying the privilege.

Question 13

02/09: During Paul’s deposition, his attorney wants to object to questions being asked by Supplies’ attorney. What objections to questions can Paul’s attorney make during the deposition? What objections to testimony can be made during the deposition?

Answer 13

Objections to questions during oral deposition are limited to “objection, leading” and “objection, form.” Objections to testimony during the oral deposition are limited to “objection, nonresponsive.”

Question 14

02/09: In the course of discovery, Paul identifies an expert witness who states in his expert’s report that the electric saw was defective. How and on what basis can Tools challenge the expert and his opinion? Explain fully.

Answer 14

Tools can file a motion to exclude the expert’s testimony on the ground he is not qualified by reason of his skill, knowledge, training, education, or experience. Tools might also be able to exclude the expert’s testimony on the ground that the principles and methodologies the expert applies are not sufficiently reliable.

Question 15

02/09: Assume that the Court sustains Tools pretrial objection to Paul’s expert and that Paul has no other evidence to support his claim that the electric saw was defective. What pretrial procedure is available to Tools to avoid the necessity of a trial on this claim? Assume that Tools follows the applicable procedure, how should the Court rule? Explain fully.

Answer 15

Tools can file a motion for summary judgement. After adequate time for discovery, a party may move for summary judgement on the ground that there is no evidence of one or more essential elements of a claim on which the nonmoving party would have that burden of proof at trial. The court should grant the motion because there is no evidence of defect, an element essential to Paul’s claim and on which he would bear the burden of proof at trial.

Question 16

02/09: The case proceeds to trial. Prior to jury selection, Paul wants to keep the attorneys for the Defendants from disclosing to the jury panel certain information regarding his relationship with his ex-wife. How can Paul’s attorney keep the information from the jury panel and what must he show? Explain fully.

Answer 16

Paul should file a motion in limine, which, if granted, would preclude the Ds’ attys from mentioning the facts of concern to the panel during jury selection or during opening statement and would allow them to obtain a ruling on admissibility outside the presence of the jury before referencing it during trial. In his motion, Paul should show that the evidence is both likely inadmissible and unfairly prejudicial to him.

Question 17

02/09: During trial, Paul calls a witness who he had failed to identify in his discovery responses. The attorneys for all of the Defendants object to the witness. What must Paul show in order for the witness to be able to testify? Explain fully.

Answer 17

In order for the witness to testify, Paul must show good cause for the nondisclosure or that the opposing parties will suffer no prejudice or surprise.

Question 18

02/09: At the conclusion of his case in chief, Paul rests. David’s attorney believes that Paul failed to present any evidence to support the negligence claim that Paul had filed against David. What procedure is available to David’s attorney at this point in the trial to bring the matter to the attention of the Court? Explain fully.

Answer 18

David’s atty can file a motion for directed/instructed verdict. David may move for a directed verdict by showing the court that Paul has failed to produce any evidence on at least one element of a ground of recovery, negligence.

Question 19

02/09: The case proceeds to verdict. The jury returns a verdict in favor of Paul. The Defendants believe that the evidence does not support the jury’s verdict. What pleadings can the Defendants file to prevent the entry of a judgment in favor of Paul? Explain fully.

Answer 19

The proper pleading would be a motion for a judgment notwithstanding the verdict. Here, the Ds can ask the court to render a judgment based on one or more findings that are supported by no evidence.

Question 20

02/09: The Court enters judgment on the verdict. The Defendants want to file a motion for a new trial. When must such a motion be filed in order for it to be timely? Assume a motion for new trial is timely filed, what happens if the Court never rules on the motion? Explain fully.

Answer 20

The motion for new trial must be filed within 30 days after the judgment is signed. The motion for new trial will be deemed overruled by operation of law on the 75th day after the court signs the judgment.

Question 21

07/09: What county or counties would be proper venue for such a lawsuit? Explain fully.

Answer 21

Venue would be proper in Kleburg County (where the events giving rise to the claim occurred) and Brooks County (Ray’s residence at the time the cause of action accrued). If venue is proper against one defendant, it is proper as to all D’s. Venue may be proper in Nueces County because that is where D-Extra resides as a “natural person” because a sole proprietorship has no separate legal existence apart from the sole proprietor.

Question 22

07/09: Bill sues Extra and Ray in Brooks County. Extra wants to contest venue in Brooks County and move the case to Nueces County. What pleading must Extra file to challenge venue in Brooks County? When must the pleading be filed? Explain fully.

Answer 22

Extra mus file a motion to transfer venue to challenge Bill’s choice of venue. Under the due order of pleading rule, the motion to transfer must be filed before any other plea or pleading other than a special appearance. The defendant may file a consolidated response without waiving the motion.

Question 23

07/09: Extra wants to add Parts to the case as a party defendant, alleging negligence and product liability causes of action. What pleading must Extra file and when must it file the pleading to add this party to the case? Explain fully.

Answer 23

At any time after the commencement of the action, the defendant may file a third-party petition. The third-party plaintiff need not obtain leave of court to make the service if he files the third-party petition not later than 30 days after service of his original answer. Otherwise, the D must obtain leave of court upon motion after giving all parties notice of the motion.

Question 24

07/09: How must service of process be accomplished with respect to Parts, since it is a corporation and is not registered with the Texas Secretary of State? Explain fully.

Answer 24

Extra can serve Parts by serving the Texas secretary of state under the Texas long arm statute. Use of the long arm statute is proper when the corporation served is a nonresident, has no regular place of business in Texas, has no registered agent in Texas, and has been doing business in Texas.

Question 25

07/09: Parts wishes to contest the jurisdiction of the Texas trial court. What pleading must Parts file to contest the jurisdiction of Texas over it in this case? Explain fully.

Answer 25

Parts should file a special appearance to challenge the court’s exercise of personal jurisdiction. The special appearance must be filed before any other plea or pleading to avoid waiver. The special appearance can be filed as part of a consolidated response.

Question 26

07/09: Parts contends that it is not a Texas corporation and does not conduct business in Texas. How should the court rule on Parts’ plea to the Texas trial court’s jurisdiction? Explain fully.

Answer 26

The court should deny Parts’s special appearance. Here, Parts purposefully acted out of state to cause foreseeable in-state consequences. Bill’s cause of action arises from and is connected with Part’s activity. The exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. It also can be argued the Parts had substantial and systematic contacts with Texas supporting the exercise of general rather than specific personal jurisdiction.

Question 27

07/09: Bill’s attorney wants to know if Extra has liability insurance for this case and if Extra, its lawyers or its insurance company have any statements concerning this case. How can he secure this information? Explain fully.

Answer 27

Bill may use a request for disclosure to obtain any indemnity and insuring agreements and any “witness statements.”

Question 28

07/09: Bill’s attorney retains and designates as an expert an engineer to investigate the explosion and fire. The engineer does not prepare a written report. Extra wants to know what facts Bill’s expert’s investigation revealed and what his expert opinions are. How can Extra obtain this information? Explain fully.

Answer 28

Information sought concerning testifying expert witnesses may be obtained from a party through a request for disclosure or deposition. The request for disclosure allows Extra to obtain the expert’s mental impressions and opinions and a summary of the basis for them along with any “data compilations” prepared by the expert. Because no expert report was furnished at the time the expert was designated, the expert must be made available for deposition reasonably promptly after designation.

Question 29

07/09: Bill claims the explosion and fire have caused him to acquire post traumatic stress disorder (PTSD). Bill is a veteran and has been treated by the Veterans Administration Medical Center. Bill refuses to produce any medical records for health care prior to the explosion. He refuses to sign a medical authorization for such records. What steps should Extra and Ray take to obtain these prior medical records or obtain an authorization for the records? Explain fully.

Answer 29

The D’s can obtain the medical records or an authorization using a request for disclosure. The D’s may subpoena production of the records by serving the physicians and parties with a notice to produce 10 days before the subpoena is served in connections with a deposition on written questions. Finally, the D’s could obtain a court order for the production of records. If Bill fails to respond to discovery demands, the D’s can move for sanctions or an order compelling discovery, as appropriate.

Question 30

07/09: The parties file cross-notices for party depositions. Bill notices the depositions in Kleberg County, Texas and Extra notices the depositions in Nueces County, Texas. Both parties timely file motions to quash the other parties’ notices. Upon a hearing on the motions to quash, in what county should the trial court order the depositions be taken? Explain fully.

Answer 30

If the deponent is a party, the deposition may be taken in the county in which suit is filed (Brooks County); the county of the deponent’s residence; the county where the deponent is employed; and the county where the deponent was served with a subpoena. Bill’s deposition may be taken in Kleburg County (residence) and Brooks County (suit), but not Nueces County where it was set itn the notice. Extra’s deposition may be taken in Nueces County (residence and employed) and Brooks County (suit), but not in Kleburg County where it was set in the notice. Ray’s deposition may be taken in Brooks County (residence and suit). Parts’s deposition may be taken in Brooks County (suit). All depositions may be taken in Brooks County and the court should so order.

Question 31

07/09: Parts contends it has no person, employee, or agent who can or will testify as a witness because no one in the company has any personal knowledge about the explosion and fire. How can Bill’s lawyer compel Parts to produce a witness for deposition in the case? Explain fully.

Answer 31

Bill’s notice of deposition must describe with reasonable particularity the matters on which examination is requested. In response, Parts must, a reasonable time before deposition, designate one or more individuals to testify on its behalf on specified areas. If Parts fails to designate an individual, Bill may move for an order compelling a designation or apply to the court for the imposition of sanctions.

Question 32

07/09: Parts’ expert and the Fire Marshall believe that the valve in question was not defective, but rather that the valve was improperly installed by Ray and that the valve’s design was not a cause in fact of the explosion and fire. Discovery is complete. What motion or motions should Parts file in order to be dismissed from the case? What documents should be attached to the motion or motions? Explain fully.

Answer 32

Parts can file a motion for summary judgment alleging that there is no genuine issue as to any material fact concerning defect or causation and that it is entitled to judgment as a matter of law. Parts should attach any supporting affidavits and any discovery material such as depositions not on file with the clerk.

Question 33

07/09: Bill requested a jury trial in his Original Petition but did not pay a jury fee. The case is on the non-jury docket and is set for trial. Forty-five days before trial, Bill pays the jury fee and requests a setting on the jury docket. Extra, Ray and Parts file objections to Bill’s attempt to move the case to the jury docket. The motion is set for a hearing. How should the court rule? Explain fully.

Answer 33

Overrule the objection and move the case to the jury docket. To perfect the right to a jury trial, a litigant must file a written request for a jury trial and pay the jury fee a reasonable time before the date set for trial on the nonjury docket, but not less than 30 days before the trial date. A demand made more than 30 days in advance will usually be a reasonable time.

Question 34

07/09: In voir dire, a prospective juror says, “Extra did a lousy job at my home last year, but I think I could be fair.” What steps should Extra’s lawyer take to challenge that potential juror? Explain fully.

Answer 34

Extra’s a lawyer should the juror for cause on the ground that the juror has a bias or prejudice against Extra. A perspective juror who has expressed equivocal bias, as here, is not disqualified as a matter of law. Additional voir dire questions may be allowed to determine if the person could be fair and objective.

Question 35

07/09: As the trial begins, Bill’s attorneys call Ray as Bill’s first witness. Ray and Extra object on the basis that Bill must testify first and lay a foundation for his claims against Ray and Extra. How should the court rule? Explain fully.

Answer 35

The court should overrule the objection. A civil case, a plaintiff may call the defendant adversely at any time during his case in chief, even as his first witness. The plaintiff need not testify before calling the defendant or otherwise lay a foundation for his claims.

Question 36

07/09: During discovery the parties obtain the report of the Fire Marshal. Later, the Fire Marshal is deposed. The Fire Marshal is listed as a trial witness by all parties, except Parts. Parts calls the Fire Marshal as a witness at trial. Extra objects to the Fire Marshal being called by Parts because Parts did not list him as a witness. How should the court rule? Explain fully.

Answer 36

The court should overrule the objection. If “listed” means that Parts failed to identify the witness in response to discovery requests, then Parts will have to show good cause for the nondisclosure or that the opposing party will suffer no prejudice or surprise (i.e. the fire marshal was listed as a witness by all other parties). If “listed” refers to the pretrial order, the court may allow modification for good reason to prevent manifest injustice.

Question 37

07/09: In order to impeach Ray, Bill proffers evidence that Ray has five convictions for moving violations in the last twelve months. Ray objects to the admission of this evidence. How should the court rule? Explain fully.

Answer 37

The court should sustain the objection. Convictions are not admissible to impeach a witness unless the convictions are felonies or crimes of moral turpitude. Moving violations are neither felonies nor crimes of moral turpitude.

Question 38

07/09: After the first day of trial, Parts offers to pay Bill $10,000 for a release of all claims and an agreement to indemnify Parts from the claims of Extra. The next morning, Extra seeks to offer into evidence the fact that Parts sought indemnity from the claims of Extra against Parts, as an admission that Parts was liable for the explosion. Parts objects to the offer of such evidence. How should the court rule? Explain fully.

Answer 38

The court should sustain the objection. Offers to provide valuable consideration to compromise a disputed claim are not admissible to prove liability, nor are statements made during compromise negotiations. The “disputed claim” element of the rule does not require that a legal claim has already been asserted against the offering party. The litigation demonstrates that there is already a dispute as to Parts’s liability, and Parts’s settlement efforts were to prevent Bill from asserting a future claim. Moreover, the request for indemnification was a statement made during negotiations and is therefore also inadmissible.

Question 39

07/09: After the parties rest and close, the defendants move for instructed verdicts. The court grants the motion of Parts and denies all other motions for instructed verdict. In the court’s charge, which of the parties’ proportionate responsibility should be submitted to the jury? Explain fully.

Answer 39

The court’s charge should submit all of the parties’ proportionate responsibility to the jury except Parts’s responsibility. Each question in the charge must be raised by the evidence and a question should not be submitted if it has no support in the evidence. By granting Parts’s motion, the court found that there are no controverted fact issues concerning Parts’s responsibility for the jury’s determination and that Parts was entitled to a verdict as a matter of law.

Question 40

07/09: The jury finds Extra to be responsible for the explosion through negligent staffing. Extra believes there is no evidence to support a finding of negligent staffing against it. Before a judgment is entered, what motion should Extra file to bring this issue to the trial court’s attention? Explain fully.

Answer 40

Extra should file a motion for judgment notwithstanding the verdict. This motion asks the court to render judgment based upon one or more findings that are supported by no evidence. Extra would be entitled to a judgment if no evidence supports the only ground on which the jury found extra responsible—negligent staffing.

Question 41

02/10: After Trey files his lawsuit, what documents must be served upon the defendants in order to compel them to file an answer? Explain fully.

Answer 41

A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendants to file an answer, the plaintiff must obtain service on each defendant of the citation issued by the clerk and a copy of the petition.

Question 42

02/10: What pleading should Home file to contest the filing of the suit in Dallas County and when should the pleading be filed? Explain fully.

Answer 42

Home should file a motion to transfer venue to contest the filing of the suit in Dallas County. The motion should be filed within the time allowed for filing an answer and, under the due order of pleading rule, must be filed before any other plea or pleading other than a special appearance. Home may file a consolidated response without waiving the venue challenge.

Question 43

02/10: If the court decides to grant relief to Home regarding the county of suit, what county or counties constitute a proper location for the suit and why? Explain fully.

Answer 43

Collin County because it is a county in which all or a substantial part of the events or omissions giving rise to the claim occurred. Venue also would be proper and Parker County because it is the county of Ice’s principal office in the state (assuming that ice is not a natural person).

Question 44

02/10: Ice alleges that the district court has no jurisdiction over the parties and subject matter of the suit. Ice moves the court to dismiss the case for lack of jurisdiction.How should the court rule? Explain fully.

Answer 44

Motion denied. The court has personal jurisdiction over the parties, even if neither were incorporated in Texas. It appears that home’s only contacts with any state are in Texas, and ice must have minimum contacts with Texas, since Texas is where its principle place of business is. The event that either is not a Texas Corp., The Texas long arm statute would provide jurisdiction based on commission of a tort in Texas. The court has subject matter jurisdiction assuming the amount in controversy exceeds of $500, which is the jurisdictional floor for district courts.

Question 45

02/10: Trey’s original petition is very broad and makes general allegations of negligence against both defendants.What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations? Explain fully.

Answer 45

File a special exception to Trey’s original petition. A special exception is used to indicate formal defects in particular allegations such as excessively general, uncertain or ambiguous allegations which fail to give fair notice. Defendants must object in writing, call for a hearing, and get a ruling on the record. If sustained, Trey will be allowed to amend the petition to correct the defects.

Question 46

02/10: Home is actually a Texas corporation and not a sole proprietorship as pleaded by Trey. How should Home give notice to the parties and the court that it is a corporation and intends to seek the protection ofthat status for its shareholders? Explain fully.

Answer 46

First, Home should file a verified denial as it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Trey notice that home intends to invoke its status as a corporation. Then, Home should allege the same matters in a verified plea in abatement. The plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.

Question 47

02/10: Ice believes that Trey’s suit against Ice is barred by the statute oflimitations. Ice does not want to disclose this defense for strategic reasons.Must Ice raise this issue before the case goes to trial and ifso, how should Ice assert the defense of limitations? Explain fully.

Answer 47

Ice must raise this issue before trial and should assert the defense of limitations as an affirmative defense in its answer. The statute of limitations must be pleaded as a ground of defense on which Ice has the burden of proof. Failure to plead the defense of limitations waives the defense. Adding the defense as a trial amendment would be a poor strategy because Trey would likely show surprise or prejudice which would cause the court to deny Ice’s motion for leave to file a trial amendment.

Question 48

02/10: Trey and his attorney want to know if Home and Ice have liability insurance to cover any of the claims brought in this suit. Ice’s attorney informally tells Trey’s attorney that Ice has no insurance. Home’s attorney makes no reply about insurance coverage.What document can Trey serve to determine whether either defendant is covered by insurance?Explain fully.

Answer 48

Trey can use a request for disclosure to obtain discovery of the existence and contents of any insurance agreement under which any person may be liable to satisfy all or any part of a judgment.

Question 49

02/10: By way of interrogatories, Home inquires of Trey whether he has sustained other accidental personal injuries, before or after the incident made the basis of the lawsuit. Trey objects to the interrogatory as being irrelevant. Home sets the objection for hearing.How should the court rule? Explain fully.

Answer 49

Deny the objection. Home may obtain discovery regarding any manner that is not privileged, relevant to the subject of the pending action, or which is reasonably calculated to lead to the discovery of admissible evidence. The evidence sought by Home relates to the causal connection between its alleged negligence and Trey’s current alleged injuries. This information is within the scope of discovery allowed by the discovery rules.

Question 50

02/10: Following Trey’s fall, Home requests that Ice move the ice machine to an area of the store where there is less customer traffic. Trey plans to offer this fact into evidence to prove knowledge of a dangerous condition. Home and Ice believe that the evidence is not admissible and is prejudicial.What document should Home and Ice file to bring this matter to the attention ofthe court and to keep this matter from being presented to the jury? Explain fully.

Answer 50

Home and Ice should file a motion in limine. If granted, neither Trey nor his counsel could mention the machines relocation in voir dire, opening statement, or during the presentation of evidence without first obtaining a ruling on admissibility outside the presence and hearing of the jury.

Question 51

02/10: Should Trey’s counsel attempt to offer the fact of the post-accident re-location of the ice machine into evidence, what substantive objection should Home and Ice make regarding this evidence? Explain fully.

Answer 51

Home and Ice should object that evidence of the re-location of the machine is an inadmissible subsequent remedial measure. The court should sustain this objection because evidence of a post accident measure taken to make the injury or harm less likely is inadmissible to prove negligence or other culpable conduct. Here, the post accident relocation of the ice machine is designed to prevent customer slipping and is therefore an inadmissible subsequent remedial measure.

Question 52

02/10: In his first amended original petition, Trey alleges direct acts of negligence and alleges claims of negligent hiring, staffing, and supervision against Ice due to its high employee turnover rate. Discovery is complete and Trey has produced no evidence to support the negligent hiring, staffing, or supervision claims. Ice fears this pleading will be prejudicial to its defense.What pleading should Ice file to attack these allegations of negligent hiring, staffing, and supervision, so as to remove them from the court’s and jury’s consideration? Explain fully.

Answer 52

Ice should file a no evidence motion for summary judgment to attack Trey’s allegations. After adequate time for discovery, Ice may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim on which Trey would have the burden of proof at trial. Ice’s motion would state that Trey has produced no evidence of negligent hiring, staffing, or supervision.

Question 53

02/10: Trey requested a jury trial and paid a jury fee. Home and Ice requested a jury trial. Trey filed a motion to remove the case from the jury docket and place it on the non-jury docket. Home and Ice object to the motion.How should the court rule? Explain fully.

Answer 53

Sustain the objection and deny the motion. A demand for jury trial, once made by one party, inures to the benefit of all parties. An opposing party (Home and Ice) may rely on the first party’s (Trey) jury request a first party has both made a request and paid the fee. In such a case, the trial court may not remove the case from the jury docket over the objections of the opposing party.

Question 54

02/10: The parties attended a mediation conference. The mediation failed. During the mediation, an Ice representative disclosed that the machine in question was old and needed repair. Trey subpoenas the mediator to testify about the disclosure at trial. The mediator files a motion to quash the subpoena.How should the court rule? Explain fully.

Answer 54

Grant the motion. There is a statutory privilege that provides that a mediator may not be called to testify or disclose any information given to the mediator by any party during the mediation.

Question 55

02/10: On the second day of trial, one of the jurors is seriously injured and can no longer serve as a juror. There are no alternate jurors. Home asks the court for a mistrial. Trey opposes the motion for mistrial.How should the court rule? Explain fully.

Answer 55

Deny the motion. In the district court, a verdict may be rendered by the concurrence of 10 members of the original 12 person jury. Where as many as three jurors die or become disabled from sitting, the remaining jurors may render and return a verdict. When the missing juror meets the definition of being “disabled from sitting,” as in this case, the case can proceed even without the consent of both parties.

Question 56

02/10: Trey discovers that prior to his fall, Ice had been to Home’s store on four occasions to repair leaks in the machine in question. Prior to Trey’s fall, an Ice employee told Home to obtain rubber mats to protect customers. Trey offers these facts into evidence. Home objects on the basis that the witness is not its employee, that Home denies the conversation, and that the alleged statements are not binding on Home.How should the court rule? Explain fully.

Answer 56

Court should overrule what amounts to a hearsay objection. Statement is not hearsay because it is not offered to prove the truth of the matter asserted. Instead, the statement shows that Home had notice of a dangerous condition. Because the statement is not hearsay, it need not qualify as a vicarious admission, and Home can try to establish that the conversation did not occur on cross examination.

Question 57

02/10: In a video deposition, a Home employee testifies that he saw Trey spill a soda, step in the soda he spilled, and fall. At trial, Home offers video clips of this deposition testimony. Trey’s attorney objects to the video clips because Home has not shown that the witness is dead or is otherwise unavailable to testify in person. How should the court rule? Explain fully.

Answer 57

The court should overrule the objection. The Texas rules of evidence provide that a video deposition taken in a civil case is not hearsay when offered in the same proceeding, even though the deponent is available to testify at trial.

Question 58

02/10: Ice calls Trey’s wife as an adverse witness. Out of the presence of the jury, Ice’s lawyer tells the court that he intends to ask the witness if Trey told her that he fell because he slipped in the soda. Trey objects to this line of questioning.How should the court rule? Explain fully.

Answer 58

The objection should be sustained. The spousal communication privilege makes confidential communications between spouses during marriage inadmissible. Either spouse may invoke this privilege, not just the witness spouse. Trey’s objection invokes the privilege and makes inadmissible the confidential communication he made to her during marriage.

Question 59

02/10: During trial, the court refuses to admit into evidence Trey’s unauthenticated medical bills and wage statements. Trey then offers his own sworn answers to interrogatories to authenticate and prove his medical expenses and lost wages. Home objects to this evidence.How should the court rule? Explain fully.

Answer 59

The court should sustain the objection. Documents must be authenticated through admissible evidence, not through hearsay statements such as the interrogatories. Trey should take the stand and attempt to authenticate the documents with his live testimony or that of another qualified witness, such as a custodian of records.

Question 60

02/10: After the trial court signs a judgment in favor of Trey, Home and Ice file a motion for new trial based upon jury misconduct. They attach an affidavit of one of the jurors. In that affidavit that juror swears: “The presiding juror was rude and hateful to the other jurors. The presiding juror told the other jurors that all the defendants’ witnesses were liars, and the presiding juror said the jury needed to award the plaintiff a substantial sum of money because he was badly injured.” The affiant testifies to these facts at the jury misconduct hearing. No other evidence is offered to support the motion.How should the court rule? Explain fully.

Answer 60

Deny the motion if. A juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations, except that a juror may testify at whether any outside influence was improperly brought to bear upon any juror. Outside influence means a force external to the jury and it must come from a non juror. Information introduced into deliberations by a juror is not outside influence.

Question 61

07/10: What pleading should DAN and ABC file if they intend to contest venue in Brown County, Texas, and when must the pleading be filed? Explain fully.

Answer 61

DAN and ABC should file a motion to transfer venue to contest venue in Brown County. The motion must be filed before any other plea or pleading except a special appearance. The motion may be presented in a consolidated response so long as the due order of pleading is preserved.

Question 62

07/10: DAN and ABC aver that the case should be filed in McLennan County. Paul files an alternative pleading asking the Brown County court to transfer the case to Harris County, since it is where Paul resides. DAN and ABC object to venue in Harris County, Texas.How should the Brown County court rule? Explain fully.

Answer 62

The court should transfer the case to McLennan County which is a proper venue because all the events giving rise to the claim occurred in that county and also both defendants (not natural persons) appear to have their principal office is in the county. Harris County is not a proper venue because proper venues exist and the plaintiff’s residence is a proper venue only if there is no other proper venue under the general venue provisions.

Question 63

07/10: By way of a broad and general pleading, Paul sues DAN and ABC for negligence and gross negligence.What pleading must DAN and ABC file in order to require Paul to plead the specific allegations supporting his negligence and gross negligence claims? Explain fully.

Answer 63

DAN and ABC should file a special exception tell more specific pleadings. Defendants must make the special exception in writing, call for a hearing, and get a ruling on the exception on the record.

Question 64

07/10: Paul re-pleads his case with specific allegations of negligence, but does not specify the allegations of gross negligence asserted against DAN and ABC. The defendants aver that the pleading regarding gross negligence has defects that are incurable.What pleading should DAN and ABC file regarding Paul’s new petition, what relief should they seek, and how should the court rule? Explain fully.

Answer 64

DAN and ABC should file a motion to dismiss or strike asking the court to dismiss or strike plaintiffs gross negligence allegations. Having granted defendants’ national exception (see answer to previous question) the court may dismiss or strike the objectionable pleading because plaintiff elected to “stand” on his gross negligence allegations and refuse to amend despite the opportunity to do so.

Question 65

07/10: Paul’s petition names “Dan Construction” and not “Dan Construction, Inc.” as a defendant.What pleading should DAN file to assert its corporate capacity in order to protect its officers, directors, and shareholders from personal liability? Explain fully.

Answer 65

First, DAN should file a verified denial because it is not liable in the capacity in which it is sued and is not doing business under an assumed name. A verified denial will give Paul notice that DAN intends to invoke its status as a corporation. Then, DAN should allege the same matters in a verified plea in abatement. A plea in abatement sets forth an obstacle to further prosecution of the suit, the effective cure, and asks the court to suspend the suit until plaintiff has corrected the defect. The plea in abatement will raise the capacity issue and ask the court to take action based on the alleged defects in the petition.

Question 66

07/10: Pursuant to the general construction contract between DAN and REYNA, Paul signed a pre-injury release and arbitration agreement. DAN believes this agreement constitutes an affirmative defense to Paul’s claims.What pleading, if any, should DAN file in order to assert the protection of the release and arbitration agreement, and when must the pleading, if any, be filed? Explain fully.

Answer 66

DAN should raise the release as an affirmative defense in his answer or amended answer. The amended answer should be filed at least seven days before trial. DAN should also file a motion to compel arbitration. Arbitration and award is an affirmative defense, but the right to compel arbitration is not. There is no fixed time to file the motion, but delay can cause waiver if the party seeking arbitration substantially invokes the judicial process and the opponent suffers prejudice as a result of the delay.

Question 67

07/10: Name five categories of discovery authorized by the Texas Rules of Civil Procedure.

Answer 67

Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions.

Question 68

07/10: DAN’s attorney submits to Paul and his attorney interrogatories requiring 50 separate answers and 50 requests for production.What pleading should Paul file to object to these discovery requests and how should the court rule? Explain fully.

Answer 68

Paul must make his objection to the interrogatories in writing, either in his response or in a separate document, within the time for his response. The court should sustain the objection because the number of interrogatories is limited to 25 by the rules unless this is a level three discovery case and a court order authorizes a greater number of interrogatories. There appears to be no objection based on the number of requests for production based on these facts. (!!!Check recent changes!!! Verify verity)

Question 69

07/10: In response to Request for Disclosures, ABC objects to Paul’s request that it disclose its insurance coverage. ABC objects to the request for disclosure claiming ABC is a large company with plenty of assets and its insurance coverage is irrelevant. What pleading should Paul file to bring ABC’s objection to the court’s attention and how should the court rule? Explain fully.

Answer 69

Paul May file a motion for an order compelling discovery after attempting to resolve the dispute. Court should overrule the objection because the rules expressly authorize the use of a request for disclosure to obtain any indemnity or insurance agreement under which any person may be liable to satisfy all or part of a judgment.

Question 70

07/10: In response to Request for Disclosures, Paul produces his relevant medical records but refuses to produce a properly executed medical authorization. Paul avers that his production of the records is a valid substitute for the authorization. ABC moves the court to order Paul to produce a properly executed medical authorization in addition to the medical records.How should the court rule on ABC’s motion and request for a medical authorization?Explain fully.

Answer 70

The court should grant the motion and order the production of a properly executed medical authorization. The request for disclosure rule provides for production of medical records or, in lieu thereof, a medical authorization. One court has interpreted this to mean that the party requesting the disclosure has the option of seeking an authorization instead of medical records.

Question 71

07/10: The parties agree on a date for the party depositions. The parties notice and cross-notice each other for the depositions of the parties. Paul and his wife attend the deposition, and a representative of DAN attends the deposition to testifY as a party witness for DAN along with the president of DAN. ABC, without explanation or agreement, does not produce any witness to respond to the notices and cross­ notices for deposition. All of the respective attorneys appear at the depositions as noticed.What recourse is available to DAN and Paul for ABC’s failure to produce a witness at the deposition as noticed? Explain fully.

Answer 71

DAN or Paul could file a motion for sanctions or an order compelling discovery based on ABC’s and produce a witness at a properly noticed deposition. As a party, the notice of deposition of ABC had the same effect as a subpoena which ABC ignored. As a corporate party, ABC had a duty to designate and produce a witness to testify on its behalf in response to the notice which presumably described the matters on which examination was requested. A court may order ABC pay the atty fees of DAN and Paul incurred in obtaining the order as well as a broad range of other sanctions.

Question 72

Paul’s attorney serves a notice for the deposition of Paul’s treating doctor, with the deposition to be taken on Monday July I. ABC’s attorney immediately notifies Paul’s counsel he is set for trial in another case on July I and does not have another lawyer to cover the deposition. Paul’s attorney refuses to reschedule the deposition.12. What pleading should ABC’s attorney file to object to and abate the doctor’s deposition, and when should it be filed? If the pleading is timely filed, what is the effect of the filing? Explain fully.

Answer 72

ABC should file a motion for a protective order or motion to quash the notice of deposition. The motion must be filed before the time specified in the notice. If the motion is filed by the third business day after service, an objection to the time of the deposition stays the deposition until the motion can be determined.

Question 73

07/10: DAN develops evidence that Paul’s employer, REYNA, was negligent m instructing an inexperienced driver to operate the forklift.What pleading should DAN file to support its evidence of REYNA’s negligence and to support a jury question concerning the negligence of REYNA? Explain fully.

Answer 73

DAN should file a third party petition seeking contribution or indemnity. However, this option may be futile because REYNA may have workers compensation immunity. In the alternative, file a motion for leave to designate REYNA, a nonparty, as a responsible third party whose conduct caused or contributed to the harm for which recovery is sought.

Question 74

07/10: REYNA objects to its conduct being submitted to the jury on the grounds that it is Paul’s employer, and is covered by workers’ compensation insurance, which as a matter of law means that its conduct should not be submitted to the jury.How should the court rule on REYNA’s objection? Explain fully.

Answer 74

The court should overrule REYNA’s objection if it was designated as a responsible third party. A jury is allowed to consider the responsible third party’s conduct when allocating fault for plaintiff’s injuries despite the responsible third party’s status as an employer with workers compensation immunity.

Question 75

07/10: Paul’s expert engineer has testified by deposition that, according to industry standards, DAN was grossly negligent in its maintenance of the forklift in question and that DAN’s gross negligence was a proximate cause of Paul’s injuries. DAN files a motion for summary judgment attacking Paul’s cause of action for gross negligence.What documents should Paul provide to the court with his response to the motion for summary judgment, and when should this response be filed? Explain fully.

Answer 75

Discovery materials not on file with the clerk may be used as summary judgment evidence if they are filed and served on all other parties with a statement of intent to use the material as summary judgment proof. As the party opposing the motion, Paul must file and serve the deposition seven days before the hearing on the motion. Paul May then reference or set forth the deposition transcript/testimony in his response to the motion.

Question 76

07/10: Following the accident, DAN repaired the failed hydraulic system on the forklift in question. DANasserts that this is a subsequent remedial measure and not admissible.What pleading should DAN file to preventthis evidence from being presented to the jury and admitted as evidence in the trial? Explain fully.

Answer 76

DAN file a motion in limine. If granted, Paul will not be able to mention the post accident repair during jury selection or opening statement and will have to approach the bench and get a ruling on the admissibility of the evidence outside the hearing of the jury

Question 77

07/10: After voir dire examination by all parties, the court announces that it will allow each side 15 minutes to make their jury strikes. Considering the claims, counterclaims, and cross-claims, the court finds that there is antagonism between all of the parties. DAN and ABC agree to cooperate with each other in making their strikes. Paul objects to DAN and ABC making their strikes together, arguing that each party must make their strikes separately.How should the court rule on Paul’s objection and why? Explain fully.

Answer 77

The court should deny paul’s objection. Court granted additional strikes to the codefendants based on their “antagonism,” Paul should proceed by filing a motion to equalize the jury strikes so that no “side” has an unfair advantage. A court would consider any matter related to achieving a just result and eliminating an unfair advantage.

Question 78

07/10: Paul introduces into evidence $100,000 in past medical expenses. The parties have stipulated outside the presence of the jury that the workers’ compensation carrier paid all of Paul’s medical bills in the amount of $60,000. The jury returns a verdictfor past medical bills in an amount of $100,000. Can the court award Paul $100,000 for past medical expenses? Explain fully.

Answer 78

Yes, the court should set aside the extra $40,000 because a plaintiff may only recover for medical expenses actually paid or incurred on his behalf, and the stipulation makes clear that only $60,000 was paid or incurred on his behalf.

Question 79

07/10: The jury returns a verdict for Paul finding DAN grossly negligent. DAN believes there is no evidence, or insufficient evidence, to support the finding of gross negligence.What pleading, if any, should DAN file to bring this issue to the court’s attention before a judgment is entered? Explain fully.

Answer 79

DAN file a motion for a judgment notwithstanding the verdict (“JNOV”). The motion is proper when “knocking out” (i.e. No evidence) a jury finding and entitles the Movant to judgment. DAN is attacking the evidence supporting Paul’s prima facie case of gross negligence. Because Paul has the burden of proof on gross negligence, DAN is entitled to judgment on that claim if Paul’s evidence is legally insufficient.

Question 80

07/10: The court signs and enters a judgment for Paul. DAN and ABC file a motion for new trial ten days after the judgment is signed, but do not request a hearing on the motion.If no other action is taken by any party, when, if ever, will the judgment become final?Explain fully.

Answer 80

The motion is considered overruled by operation of law 75 days after the court signs the judgment. If a timely motion for new trial is filed, a trial court has plenary power over the judgment until 30 days after the motion is overruled, either by written order or by operation of law. If no action is taken by any party after filing the motion, the judgment will become final on the 105th day after the court signs the judgment.

Question 81

02/11: Dan ran a stop sign and collided with Ike’s car in Webb County, Texas. Because of Ike’s excessive speed, Ike’s car spun around and collided with Joan’s car. Joan was not injured, but her passenger Tracy was injured.Dan resides in Cameron County, Texas. Ike resides in Webb County, Texas. Joan and Tracy reside in Starr County, Texas.Tracy filed suit against Dan in Starr County, Texas.Although Dan does not believe Starr County is a proper county for the suit, Dan files his answer in Starr County. One week later, Dan files a plea to the court’s jurisdiction and a motion to transfer the case to Cameron County.How should the court rule on Dan’s plea and motion? Explain fully.

Answer 81

The court should deny Dan’s plea bc the court generally presumes in favor of subject matter jurisdiction unless the lack of jurisdiction affirmatively appears on the face of the petition. The court should also deny Dan’s motion to transfer venue bc the motion to transfer venue was waived by filing his answer and plea to jurisdiction before filing his motion to transfer venue.

Question 82

02/11:If the court errs in its ruling on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal with respect to any final judgment rendered in the case? Explain fully.

Answer 82

If determined on appeal that the ruling on venue was improper, the judgment must be reversed and the case remanded to the trial court. Venue determinations are incidental trial rulings correctable on appeal following a final judgment as a reversible error.

Question 83

02/11:What are the counties of proper venue under these facts? Explain fully.

Answer 83

Webb county is a county of proper venue bc it was the county in which all or a substantial part of the events giving rise to the claim occurred. Also Cameron county is proper bc it is the county in which the defendant Dan resided at the time the cause of action accrued. Under the general venue rule, proper venues are cumulative.

Question 84

02/11: Dan files a motion adding Ike as a Responsible Third Party. After a hearing on Dan’s motion, tbe court enters an order adding Ike to tbe case as a Responsible Third Party. The next day Tracy sues Ike for damages as a party defendant. Ike asserts the defense of limitations against Tracy’s claims. How can Tracy defeat Ike’s claim? Explain fully.

Answer 84

Tracy cannot defeat Ike’s defense of limitations. The RTP statute allows the defendant (Dan) to have absentee (Ike) designated as an RTP, but the limitations defense will defeat plaintiff’s (Tracy’s) claim directly against Ike as a “party defendant” bc a previously existing saving clause in the RTP statute has been repealed.

Question 85

02/11: Dan plans to assert a limitations defense later in the case. What pleading should Dan file to assert the defense of limitations and when must it be filed? Explain fully.

Answer 85

Dan should file an amended answer alleging the affirmative defense of statute of limitations. The amendment may be made without leave of court if it is made more than seven days prior to trial, but a motion seeking leave of court is required if the amended pleading is filed within seven days prior to trial.

Question 86

02/11:Name five types of discovery specifically authorized by the Texas Rules of Civil Procedure.

Answer 86

Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions.

Question 87

02/11: Which form of discovery authorized by the Texas Rules of Civil Procedure, if any, is not subject to any objection?

Answer 87

No objection or assertion of work product is permitted in response to a request for disclosure

Question 88

02/11: Tracy submits Requests for Admissions to Dan. Dan fails to respond within 30 days because Dan’s attorney suffered a temporary but serious illness. What action or actions should Dan’s attorney take to avoid having the unanswered Requests for Admissions used at trial? Explain fully.

Answer 88

Dan’s failure to timely response to the requests for admissions means that those matters are deemed admitted. Dan should file a motion seeking withdrawal of the admissions. Court may allow withdrawal of the admissions if Dan shows good cause (IE health of his Atty.) And the court finds that Tracy will not be unduly prejudiced by the withdrawal

Question 89

02/11: Dan submits Interrogatories to Tracy inquiring who her trial witnesses will be. Tracy responds with an objection that she is not required to disclose trial witnesses and directs Dan to her list of persons with knowledge of relevant facts. Dan moves to compel Tracy to respond to his request to disclose her trial witnesses. How should the court rule? Explain fully.

Answer 89

The court should grant the motion to compel because the rules specifically allowed discovery of any person who is expected to be called to testify at trial

Question 90

02/11: After some discovery is completed, Dan believes there is evidence that Tracy was actually driving Joan’s car on the date of the collision and that Tracy caused the collision by being distracted by her cell phone. Can Dan wait until the present case is reduced to a final judgment and then file another suit for damages against Tracy? Explain fully.

Answer 90

Dan cannot wait to assert his claim against Tracy. A counterclaim is a claim by one party against an opposing party. The counter-claim is compulsory if it arises out of the same occurrence that is the subject matter of the principal action. Failure to assert a compulsory counterclaim the present suit means that its subject matter will thereafter be barred in subsequent litigation. Dan’s transactionally related counterclaim must be asserted in the pending suit

Question 91

02/11: The parties attended a mediation. Tracy presented witness statements and a video statement of her doctor regarding the extent and duration of her injuries, all of which are prepared for the mediation. The case did not settle at mediation. Dan then makes discovery requests for copies of the written statements and the video statement. Tracy objects on the basis that the written statements and video statement were prepared for the mediation only, are privileged, and not subject to discovery. Dan moves to compel production ofthe statements. How should the court rule? Explain fully.

Answer 91

Court should grant the motion to compel production of the statements. Communications and material made or produced at a mediation are privileged and all are generally not subject to disclosure. However, materials used in or made a part of a mediation is discoverable if it is discoverable independent of the procedure. The discovery rules allow the discovery of any witness statements including written statements and other types of recording a witness’s oral statement

Question 92

02/11: [NO LONGER RELEVANT] Dan discovers that Tracy has failed to plead the maximum amount of money damages being sought. How can Dan raise the issue ofthe maximum amount sought by Tracy, and how should the court rule?

Answer 92

This question is no longer relevant. Amendments to the Texas rules of civil procedure now require that the plaintiff plead the amount of damages sought within certain designated ranges.

Question 93

02/11: Tracy lost custody of her daughter in a recent divorce. Tracy’s lawyer fears that Dan’s lawyer will try to discuss this divorce case in jury selection and in opening statement. What pleading should Tracy’s lawyer file to bring this matter to the attention of the judge and prevent its discussion prior to the presentation of any evidence? Explain fully.

Answer 93

Tracy’s lawyer should file a motion in limine, which, if granted, would prohibit Dan’s lawyer from mentioning the divorce case in voir dire and opening statement and require Dan’s lawyer to approach the bench for a ruling on admissibility before presenting itto the jury

Question 94

02/11: At trial, a police officer who investigated the collision is asked the following question by Tracy’s attorney:”Isn’t it true that you gave Dan a ticket because a pedestrian told you Dan ran the stop sign?” What objection, if any, should Dan’s attorney make and how should the court rule? Explain fully.

Answer 94

Dan should object on hearsay grounds. The pedestrian statement is an out of court statement offered to prove the truth of the matter asserted in the statement—that Dan ran the stop sign. Dan might also object to the ticket reference on the grounds that it may confuse or mislead the jury as to the difference between criminal standards of guilt and civil standards of liability

Question 95

02/11: While cross examining Tracy, Dan’s lawyer asks Tracy:”At mediation, did you state that for the purposes of mediation, you were not going to claim future medical expenses as damages in this case?” What objection, if any, should Tracy’s lawyer make and bow should the court rule? Explain fully.

Answer 95

Object on the ground that the statement is privileged. The ADR statute provides a communication made by a participant in mediation is confidential, is not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding. The court should sustain the objection on this ground.

Question 96

02/11: Prior to trial, Tracy amends her petition and adds Joan as a party defendant. At trial no party presents evidence that the conduct of Joan contributed to or caused the collision. At the conclusion of Tracy’s case, what plea or motion should Joan’s lawyer make and how should the court rule? Explain fully.

Answer 96

Joan’s lawyer should make a motion for directed verdict which is based on Joan’s argument that there are no controverted fact issues for the jury’s determination (i.e. Challenging the legal sufficiency of tracy’s evidence). Based on the facts, a court should grant the motion because Tracy failed to produce any evidence that Joan’s conduct caused or contributed to the collision

Question 97

02/11: The court gives the lawyers its proposed charge. Dan has pleaded the defenses of unavoidable accident and sudden emergency, and offered evidence on each theory. The court bas not included an instruction on unavoidable accident or sudden emergency. What objection, if any, should Dan make, and what should Dan do to preserve the error of omitting these defenses from the court’s charge? Explain fully.

Answer 97

Dan’s lawyer should respond to the admission of instructions in the charge concerning unavoidable accident and sudden emergency by requesting submission of these matters in the charge on the ground that these issues were raised in the pleadings and supported by “some evidence” at trial. To preserve the error, Dan should make written requests for instructions, tender in writing substantially correctly worded instructions, and obtain a written ruling on the submissions

Question 98

02/11: During deliberations, one of the jurors becomes very ill,is taken to the hospital, and is unable to return to court. Dan moves for a mistrial because there are only eleven jurors left and no alternates. How should the court rule? Explain fully.

Answer 98

Deny the motion. A verdict may be rendered by the concurrence of 10 members of the original 12person jury. When the missing juror is “disabled from sitting,” as in this case, the case can proceed even without the consent of both parties.

Question 99

02/11: The jury returns a verdict. The jury has not answered all of the questions as instructed. Tracy moves for a mistrial. How should the court rule? Explain fully.

Answer 99

Deny the motion. If a material questions have not been answered, a court should reject the verdict and, with proper instructions pointing out the defect, retire the jury for additional deliberations.

Question 100

02/11: The jury returns a complete verdict. The jury finds Joan to be 25% responsible for the collision. Joan believes there is no evidence that she was negligent and no support for the jury’s finding of her fault. What pleading should Joan file to persuade the court to disregard the finding offault against her? Explain fully.

Answer 100

File a motion for judgment notwithstanding the verdict challenging the legal sufficiency of the evidence supporting the jury’s finding of fault. This motion is proper when “knocking out” (IE no evidence supports) one or more jury findings entitles the movant to judgment.

Question 101

07/11: What must Pat allege in his lawsuit and who must Pat serve in order to acquire subject matter jurisdiction over Plus? Explain fully.

Answer 101

With respect to subject matter jurisdiction, pat should allege in his petition that “the damages sought are within the jurisdictional limit of this court.” Pat should serve green in state and serve plus by serving the secretary of state using the Texas long arm statute. The petition should allege that plus has minimum contacts with Texas and also allege that plus is a nonresident, has no regular place of business in Texas, has no registered agent in Texas, and has been doing business in Texas.

Question 102

07/11: Plus is served with the citation and suit but avers that it does not have employees, agents or any office in Texas.What pleading must Plus file in order to object to being sued in Texas as a defendant, and when should the pleading be filed? Explain fully.

Answer 102

Plus must file a special appearance challenging the courts exercise of personal jurisdiction. Under the due order of pleading, the special appearance must be filed before any other plea or pleading, but plus may file a consolidated response without waiving the special appearance

Question 103

07/11: What are the counties of proper venue for Pat’s lawsuit? Explain fully.

Answer 103

Counties of proper venue for Pat’s lawsuit include Comal county (in which all or a substantial part of the events giving rise to the claim occurred) and Bexar county (greens residence and principal office, and also a county in which events giving rise to the claim occurred).

Question 104

07/11: Green files a motion to transfer venue. Pat demands a jury trial regarding the motion to transfer venue. Green objects to the demand for a jury trial on the venue issues.How should the Court rule on Green’s objection? Explain fully.

Answer 104

The court should sustain greens objection and deny the demand for a jury trial on the venue issues. The court determines the venue issue based on the pleadings, stipulations, and any affidavits and attachments. By rule, all venue challenges are decided by the court without the aid of the jury

Question 105

07/11: The trial court denies the motion to transfer venue.Is Green entitled to an interlocutory appeal of the Court’s order denying the motion to transfer venue? Explain fully.

Answer 105

Green is not entitled to an interlocutory appeal of the court’s order denying the motion to transfer venue. Venue determinations are incidental trial rulings that are correctable on appeal following a final judgment on the merits and a finding of reversible error on appeal

Question 106

07/11: Green submits 50 separate interrogatories and 50 requests for admission to Pat. Pat objects to the discovery requests as being in violation of the Texas Rules of Civil Procedure. How should the Court rule on Pat’s objections? Explain fully.

Answer 106

The court should sustain Pat’s objection to the interrogatories because interrogatories are limited to 25 unless modified by court order. The court should deny Pat’s objection to the requests for admission because there are no limits on the number of requests. Editor’s note: this answer is no longer completely correct. The answer is still correct with respect to discovery control plan levels 2 and 3. However, amendments to the rules now limit interrogatories and requests for admissions to 15 for level 1 cases.

Question 107

07/11: After the explosion, an attorney for Green interviewed several witnesses. Although the attorney made and kept notes, the attorney took no witness statements. Pat requests production of the attorney’s written notes as well as the names and addresses of those persons interviewed.What pleading, if any, should Green file in order to avoid production of the notes? How should the Court rule? Explain fully.

Answer 107

Green should claim work product privilege in its response or in a separate document within the time for the response. This is known as a withholding statement. A court should sustain the claim of privilege. Work product includes any material prepared or mental impressions developed in anticipation of litigation, and the attorneys notes and mental impressions are core work product which is absolutely privileged.

Question 108

07/11: At the scheduling conference, an attorney for Green declines to advise the Court or Pat’s attorney whether Green is covered in whole or in part by insurance.What pleading or instrument should Pat file to determine whether Green has insurance coverage for Pat’s claim and lawsuit? Explain fully.

Answer 108

Pat should file a request for disclosure which allows a party to obtain disclosure of any insurance or indemnity agreements.

Question 109

07/11: The Parties agree on a date to depose the primary parties and party representatives, but do not agree on the location for the depositions. Green files a motion that the depositions be taken in Bexar County because Bexar County is its principal place of business. Pat objects.How should the Court rule on the location of the depositions absent an agreement? Explain fully.

Answer 109

The court should sustain the objection to the location of Pat’s deposition. The place designated for taking the deposition must be reasonable. The rule states that Pat’s deposition may be taken in the county of his residence in (Webb), where he is employed (n/a) or regularly transacts business in person (perhaps Bexar where purchased Clean Engine), where he was served (n/a), and where suit is filed (Webb). The deposition also may be taken at another convenient place directed by the court

Question 110

07/11: An investigation by Plus reveals that Pat and Green failed to heed its warning label regarding use ofClean Engine on hot surfaces. What pleading, if any, must Plus file in order to raise this issue with the Court and to support a jury question on these issues, and when should such pleading be filed? Explain fully.

Answer 110

Plus can raise this issue against pat as an affirmative defense in its answer. If pleaded and evidence is produced by plus, it is entitled to have this affirmative defense submitted as a question to the jury. Plus can raise this issue against green by asserting a cross claim based on these facts. Plus must file its answer by 10:00 AM on the first Monday after the expiration of 20 days from the date it was served with process. If plus fails to plead the defense or cross claim in its original answer, it can file a pretrial amendment without leave of court if it is made more than seven days prior to trial. Otherwise, a motion seeking leave of court is required.

Question 111

07/11: Pat filed a jury demand with his original petition. Pat files a motion to withdraw his jury demand. Green and Plus object to removal of the case from the jury docket. How should the Court rule? Explain fully.

Answer 111

A court should grant Pat’s motion to withdraw his jury demand. A party must take the procedural steps necessary to secure its right to a jury trial by filing a timely written request for a jury trial and pay the requisite fee. Once a party pays the fee for a jury trial, he is not permitted to withdraw the cause from the jury docket over the objections of the adverse parties. Here, did not pay his jury fee and, under the rules, may withdraw his demand * This answer is actually wrong according to BOLE Answer sheet*

Question 112

07/11: Five years before the explosion, Pat was indicted for the assault ofhis mistress, but the indictment was dismissed. Pat fears this indictment may be mentioned in jury selection or in opening statements.What pleading should Pat file to preclude the mention or proffer of such evidence? Explain fully.

Answer 112

Pat should file a motion in limine. If granted, the court’s order in limine will prohibit the parties from mentioning the assault indictment during opening statement and jury selection and require them to obtain a ruling on its admissibility outside the presence of the jury

Question 113

07/11: Green and Plus gathered evidence that Pat’s neighbor, Tom, actually sprayed Clean Engine onto the gas grill.What pleading should Green and Plus file to support its evidence of Tom’s negligence and to support a jury question on the issue of Tom’s negligence. Explain fully.

Answer 113

Green and plus could file a third party petition naming Tom as a third party defendant alleging that Tom is liable for all or part of Pat’s claim against them. In the alternative, green and plus could file a motion for leave to designate Tom as a responsible third party which would let the jury consider Tom’s conduct when allocating fault for Pat’s injuries. The defendants may make this designation, on motion, without joining the responsible third party

Question 114

07/11: Green and Plus allege, generally, that Pat’s contributory negligence was a cause of the accident in question. What pleading must Pat file in order to determine what facts Green and Plus rely upon to support their defense of contributory negligence? Explain fully.

Answer 114

That can obtain this information by filing an interrogatory. Interrogatories may inquire about the other parties legal contentions and the factual basis for those contentions. The contention interrogatories must comply with all other rules governing interrogatories generally

Question 115

07/11: After discovery is complete, Plus believes that there is no evidence that its product was defective or that Plus was negligent in causing the occurrence in question.What pleading(s) should Plus file in order to bring this issue of no liability before the Court?Explain fully.

Answer 115

Plus should file a no evidence summary judgment motion based on the lack of evidence of defect or negligence. A party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense (defect and negligence) on which the nonmoving party (Pat) would have the burden of proof at trial (issues are one part of Pat’s Prima facie a case as plaintiff)

Question 116

07/11: Discovery reveals that Plus is not covered by liability insurance. Plus advises the Court that it intends to tell the jury panel that it has no insurance and that a large verdict will financially destroy Plus. Pat objects, files a motion to exclude this evidence and requests the Court to order Plus not to advise the jury panel that it has no insurance.How should the Court rule? Explain fully.

Answer 116

A court should exclude evidence of liability insurance. Evidence that a party has or does not have liability insurance is inadmissible on the issue of whether the person acted negligently or otherwise wrongfully. Since plus intends to offer the evidence to persuade the jury not to hold it liable, this evidence is inadmissible

Question 117

07/11: At trial, Green calls Pat’s neighbor, Tom, as a witness to testify that Pat told Tom, after his purchase of Clean Engine but before the occurrence, Pat thought that Clean Engine was very combustible and could cause a fire. Pat objects to this testimony as hearsay.How should the Court rule? Explain fully.

Answer 117

Court should overrule the objection because this testimony is not hearsay. Statements made by a party and offered against the party are party admissions and are deemed not hearsay by the Texas rules of evidence. Here, green, a defendant, as offering evidence of what pat, the plaintiff, said. Therefore, the statement is a party admission and is admissible over a hearsay objection.

Question 118

07/11: At a court-ordered mediation, Green’s store manager told the mediator that Green will not contest liability for the purposes of the mediation. Pat subpoenas the mediator to testify at trial. Green objects to any testimony from the mediator.How should the Court rule on Green’s objection? Explain fully.

Answer 118

A court should sustain greens objection. Texas ADR statute provides that communications made by a participant in a mediation are confidential, and not subject to disclosure, and may not be used as evidence against the participant in any judicial proceeding. The mediators testimony is protected by this statutory privilege

Question 119

07/11: After Pat has presented all of his evidence, he rests. Green and Plus believe that the evidence is legally insufficient to support jury findings and judgment against them as defendants.What pleading should Green and Plus file to bring this legal issue to the attention of the Court?

Answer 119

Green and plus should file a motion for a directed or instructed verdict. This is the method to present an argument, after an opponent rests, that there are no controverted fact issues for the jury’s determination (IE challenges to the legal sufficiency of the opponents evidence). Here, defendant’s alleged that pat has failed to produce any evidence on at least one element of each ground of recovery.

Question 120

07/11: The jury returns a verdict awarding Pat $50,000 for past medical expenses. The parties stipulated before trial that Pat’s group health carrier had paid $30,000 for his past medical expenses and that these payments completely satisfied Pat’s medical accounts. Pat files a motion for judgment for $50,000 for his past medical expenses; Green and Plus move the Court for a judgment of$30,000 for Pat’s past medical expenses.How should the Court rule? Explain fully.

Answer 120

The court should deny Pat’s motion and grant green and plus’s motion and enter judgment for $30,000. A jury’s verdict is contrary to the parties stipulation and, therefore, should be set aside, particularly where, as here, there is no indication of contrary evidence offered or of the defendants waiving the stipulation by failing to object to the contrary evidence

Question 121

02/12: What steps must Paul take to file a civil suit for damages and require other parties to respond to his suit?

Answer 121

A civil suit is commenced by a petition filed in the office of the clerk. In order to compel the defendant to respond to this suit, Paul must obtain service on the defendant of the citation issued by the clerk and a copy of the petition.

Question 122

02/12: Paul filed suit against Dan as a single defendant in Harris County, Texas. Dan believes Harris County is not a county of proper venue.What pleading must Dan file to contest venue in Harris County and when must the pleading be filed?

Answer 122

Dan must file a motion to transfer venue. Under the due order of pleading rule, the motion must be filed before any other plea or pleading other than a special appearance contesting personal jurisdiction. Dan may file a consolidated response to the petition within the time to answer without waiving the motion.

Question 123

02/12: What are the counties of proper venue authorized by the Texas Civil Practice and Remedies Code under these facts?

Answer 123

Counties of proper venue include Lubbock County, where all or part of the events giving rise to the claim occurred, and Hockley county, where the defendant, Dan, resided at the time a cause of action accrued. Under the general venue rule, these proper venues are cumulative.

Question 124

02/12: Anticipating that an objection to venue may be granted, Paul contemplates an appeal of an adverse venue ruling.Is an interlocutory appeal authorized from an order granting a motion to transfer venue?Explain fully.

Answer 124

No interlocutory appeal of the order granting the motion is allowed. A party must appeal the venue decision after a final judgment.

Question 125

02/12: If the trial court rules incorrectly on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal regarding any final judgment? Explain fully.

Answer 125

if it is determined on appeal that venue was improper, the judgment of the trial court must be reversed and the case remanded to the trial court for new trial. The standard on appeal will be the “reversible error” standard

Question 126

02/12: Paul’s original petition simply alleges negligence without stating the facts upon which he relies to support the claim of negligence. What pleading should Dan file in order to require Paul to specifically plead the facts upon which Paul relies to support his claims? Explain fully.

Answer 126

Dan can file a special exception seeking a specification of the facts on which Paul relies to support his claims and asking the court to require Paul to amend so as to allege the relevant facts. Dan should object in writing, call for a hearing, and get a ruling on the exception on the record.

Question 127

02/12: Evidence indicates that, even though Paul knew Fred was intoxicated, he allowed Fred to drive his car while he was a passenger.What procedural steps should Dan take to allow him to submit a jury question on Paul’s contributory negligence or comparative responsibility? Explain fully.

Answer 127

Dan should allege these issues as affirmative defenses in his reply to paul’s petition. Affirmative defenses must be pleaded as grounds of defense and Dan will have the burden of proof on these issues. If pleaded and evidence is produced, Dan is entitled to have his affirmative defenses submitted as questions to the jury

Question 128

02/12: Name five types of discovery authorized by the Texas Rules of Civil Procedure.

Answer 128

Requests for disclosure, requests for production, requests for admissions, interrogatories, and depositions (oral and written).

Question 129

02/12: The police report indicates that Dan was unable to show proof of financial responsibility at the scene of the collision.Nam two types of written discovery available to Paul to determine if Dan has insurance and, if so, the extent of his policy limits? Explain fully.

Answer 129

Paul can obtain the desired information either a request for disclosure or interrogatories

Question 130

02/12: In response to Dan’s Requests for Disclosure as authorized by the Texas Rules of Civil Procedure, Paul produces copies of his medical bills and records. Dan requested a medical authorization. Paul objects to Dan’s request for a medical authorization upon privacy concerns.Dan sets a hearing on Paul’s discovery objection regarding a medical authorization, asserting that Paul must produce a medical authorization and that the production of records and bills is not sufficient.How should the court rule on Paul’s objection? Explain fully.

Answer 130

a court should overrule paul’s objection. The request for disclosure rule provides for production of medical records, or in lieu thereof, an authorization. However, it has been held that the requesting party has the option of seeking an authorization instead of medical records.

Question 131

02/12: Paul, Dan, and Fred were all deposed. Following the transcription and delivery of the depositions, Paul served a Request for Admissions on Dan. Dan objected to the Request for Admissions on the basis that the matters addressed in the Request for Admissions could have been raised and addressed in the deposition of Dan and therefore have been waived by Paul.How should the court rule on Dan’s objection? Explain fully.

Answer 131

the court should overrule Dan’s objection. Depositions and requests for admissions are both permissible forms of discovery and may take place in any order or sequence. The rules do not require the use of oral depositions for matters that are within the scope of the request for admissions rules.

Question 132

02/12: Dan served a notice to take a deposition by written questions of the investigating police officer along with a subpoena duces tecum for his report and field notes. Paul objected to the notice on the basis that therehas been no showing that the officer cannot be available for trial in person, and therefore the notice of deposition by written questions is not authorized by the Texas Rules of Civil Procedure.How should the court rule on Paul’s objection? Explain fully.

Answer 132

the court should overrule paul’s objection. Depositions are authorized for any person who may have information related to the litigation. There is simply no prerequisite that the deponent be unavailable at trial to take a deposition on written questions.

Question 133

02/12: Paul amends the lawsuit to add Fred as a party defendant and seeks money damages from Fred. Foilowing the completion of all discovery, Fred believes there is no evidence to support a jury question on the issue of his negligence.What pleading should Fred file to bring this issue to the attention of the trial court? Explain fully.

Answer 133

Fred should file a no evidence motion for summary judgment. After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements (i.e. negligence) on which the opposing party (i.e. Paul) would have the burden of proof at trial.

Question 134

02/12: During the investigation of the accident by the police, Fred tells the police that the wreck was his fault because he was going the wrong way on a one way street and Dan could not have seen him coming. Dan offers this evidence at trial through the investigating police officer. Fred objects and asserts that his statement is privileged and not admissible, because he made the statement to the police during an official investigation.How should the court rule on the objection? Explain fully.

Answer 134

the court should overrule the privilege objection. Under Texas law, there is no “official investigation privilege.” Statements made to police officers investigating crimes and accidents are frequently admitted.

Question 135

02/12: Paul was previously indicted for felony forgery. The indictment was later dismissed with prejudice.What pleading should Paul file to prevent this former indictment from being mentioned to the jury panel during opening statement? Explain fully.

Answer 135

Paul should file a motion in limine. If granted, the parties will not be able to mention the indictment during jury selection or opening statement and must obtain a ruling on the of admissibility of evidence of the indictment outside the presence and hearing of the jury for referring to it during the presentation of evidence.

Question 136

02/12: At the pre-trial conference three days before trial, Dan reminded the parties and the court that he has retained an accident reconstructionist and plans to call the expert at trial. Although the expert had presented a report (which had been served on all parties) and had been deposed (with notice to all parties), Dan’s attorney had not listed the reconstructionist as a testifying expert in discovery responses.Paul filed a motion to strike Dan’s reconstruction expert. Dan objected to the motion to strike. How should the court rule? Explain fully.

Answer 136

the court should deny paul’s motion to strike Dan’s expert. In order to overcome the motion and his own failure to list the expert in discovery responses, Dan will have to show good cause for the nondisclosure or that the opposing party (i.e. Paul) will suffer no surprise or prejudice. Paul had the expert’s report, deposed the expert, and was reminded of the fact that the witness would testify at trial. Paul suffered neither surprise nor prejudice as a result of Dan’s nondisclosure in his discovery responses.

Question 137

02/12: At trial, Paul proffered unauthenticated copies of his medical records and medical bills to support his claim for damages.Fred and Dan objected to the proffer on the basis of hearsay. Paul responded that these copies were produced to all parties in his discovery responses and that all parties had notice of the proffered evidence. Further, Paul noted that no prior objection to the proffered evidence had been urged.How should the court rule on the hearsay objections of Fred and Dan? Explain fully.

Answer 137

A court should sustain the hearsay objections. Producing hearsay in response to discovery requests is not make inadmissible hearsay admissible, even in the absence of a prior objection. Production of a document in response to written discovery authenticates the document for use against the producing party in the absence of prior objection. Here, however, the objection is not lack of authentication, but hearsay. Moreover, since Paul is the producing party, the documents are authenticated for use against Paul, not for paul’s use against others.

Question 138

02/12: At the conclusion of Paul’s case, Dan believed that Paul failed to prove that Dan was negligent on the occasion in question or that his conduct was a cause of the collision.What action should Dan take to bring this issue to the attention of the trial court? Explain fully.

Answer 138

Dan should file a motion for a directed or an instructed verdict. When an opponent rests or closes, a party can seek a directed verdict on the ground that the opponent (Paul) has failed to produce any evidence on at least one element of a ground of recovery (negligence or causation). The question states that Dan believes that Paul has “failed to prove” that Dan was negligent or caused the accident. The standard requires that Dan that Paul failed to produce any evidence of these elements, not merely his “belief” that the proof was insufficient.

Question 139

02/12: After several hours of deliberations, the presiding juror reported to the court (by way of a written note) that nine of the twelve jurors agreed on their answers to all of the jury questions propounded to them. The presiding juror asked the court to accept the verdict.Is the trial court authorized to accept a verdict of nine jurors, if all nine jurors agree on the answers to all questions propounded to them? Explain fully.

Answer 139

no. In the absence of an agreement by the parties, a verdict may be rendered by the concurrence, as to each and all answers made, of the same 10 or more members of the original jury of 12. The verdict is the written declaration by a jury of its verdict. The verdict is ordinarily recorded on the instrument containing the courts charge in a space prepared by the court, not on a “note” from the presiding juror.

Question 140

02/12: The jury awarded $20,000 to Paul for his past medical expenses. The parties had previously stipulated that Paul’s health insurance carrier paid $12,000 to Paul’s health care providers and that as a result all of Paul’s remaining medical expenses were completely discharged.Paul filed a motion for a judgment for $20,000 for his past medical expenses. How should the court rule? Explain fully.

Answer 140

the court should deny the motion, unless it believes the defendants waived the stipulation by failing to object to evidence of additional past medical expenses. If Paul offered no evidence beyond the $12,000 stipulated, then the court should set aside the award on no evidence grounds. If Paul did offer evidence to support the $20,000 award, then the court may consider whether the defendants waived enforcement of the stipulation.

Question 141

07/12: Assuming Mercy and Prime contest venue, what are the counties of proper venue for Wilda’s lawsuit? Explain fully.

Answer 141

the counties of proper venue for Wilda’s suit are Travis county and Dallas County. Venue is proper in the county where all or a substantial part of the events or omissions giving rise to the claim occurred, making Travis county a proper venue because all of the events giving rise to Wilda’s suit occurred there. Venue is also proper in the county of a non natural defendants principal office in this state, making Dallas County a proper venue because Prime’s principal place of business is in Dallas County.

Question 142

07/12: Wilda files suit against Mercy and Prime, and each defendant is served pursuant to the Civil Practice and Remedies Code.What pleading must Mercy and Prime file in order to avoid the entry of a default judgment against them, and when must that pleading be filed? Explain fully.

Answer 142

the defendants can file pre-answer pleadings—known as dilatory pleas—such as a special appearance or a motion to transfer venue, or they can file an answer raising matters—known as Pleas in bar—such as a denials or affirmative defenses. Finally, the defendants can file aconsolidated reply raising both types of matters. The pleading chosen by the defendant’s must be filed within the time for the answer: by 10:00 AM on the first Monday after the expiration of 20 days from the date of service of process

Question 143

07/12: Wilda sues “Prime Pizza” as a named defendant. The shareholders of Prime Pizza, Inc. want to seek the protection of their corporate entity and avoid individual liability, if any. What pleading must Prime file in order to assert its corporate status and protect its shareholders from individual liability? Explain fully.

Answer 143

prime should file a verified denial because it is not liable in the capacity in which it has been sued. Then, prime should allege the same matters in a verified plea in abatement, which raises the capacity issue and asks the court to take action on the defect.

Question 144

07/12: Following the accident, Wilda accepted free medical care in the emergency room of Mercy. She signed several documents while she was in the emergency room. Mercy believes that one of these documents releases all of Wilda’s claims.What pleading must Mercy file to bring this alleged defense to the attention of the court, and when should it be filed?

Answer 144

mercy should raise this issue as an affirmative defense in its reply to Wilda’s petition. The affirmative defense should be filed within the time for filing the answer. If the defense is not raised in the original answer, it may be added in an amended answer without leave of court if it is made more than seven days before trial. Otherwise, a motion seeking leave of court is required.

Question 145

07/12: Prime believes that Big is responsible for the accident because Big’s employees had a chance to pick up the sign or warn Wilda of the sign. Big is now in bankruptcy.What pleading must Prime file in order to secure a jury question on Big’s liability, if any, for the accident? Explain fully.

Answer 145

prime could file a third party petition against big, but it would be futile because of big’s bankruptcy. Instead, prime should file a motion for leave to designate big as a responsible third party. If the motion is granted, big’s conduct will be considered by the jury when allocating fault for Wilda’s injuries, despite big’s bankruptcy

Question 146

07/12: Name five types of discovery authorized by the Texas Rules of Civil Procedure.

Answer 146

requests for production, requests for admissions, requests for disclosure, interrogatories, oral and written depositions

Question 147

07/12: Mercy’s lawyer tells Wilda’s lawyer that he knows what caused the accident because he has the names and addresses of five or six witnesses to the accident.What documents can Wilda serve upon Mercy to secure the names of potential witnesses to the accident? Explain fully.

Answer 147

the scope of discovery includes the name, address, and telephone number of persons having knowledge of relevant facts, such as a witness to an accident. Wilda can get this information by serving mercy with a request for disclosure or interrogatories.

Question 148

07/12: Prime’s attorney conducted an investigation of the accident and interviewed several potential witnesses to the accident. Although no statements were taken, the attorney for Prime made and kept copious notes about these interviews. Wilda serves a request for production upon Prime seeking production of the attorney’s notes.Prime objects to the request for production of its attorney’s notes as being protected from discovery. How should the court rule? Explain fully.

Answer 148

a court should sustain Prime’s objection. Work product includes any material or mental impressions developed in anticipation of litigation or for trial. “Core” work product of an atty includes the attorneys mental impressions, opinions, and conclusions and is absolutely privileged. The notes made by Prime’s lawyer are protected from disclosure by the work product privilege.

Question 149

07/12: Mercy serves 30 requests for admissions and 30 interrogatories upon Wilda. Wilda objects to the requests for admissions and interrogatories because the number of admissions and interrogatories served is in violation of the Rules of Civil Procedure. How should the court rule on Wilda’s objections to the requests for admissions and interrogatories? Explain fully.

Answer 149

The court should deny Wilda’s objection to the requests for admissions because there is no limit to the number of requests for admissions in the rules. The court should sustain the objection to the interrogatories because interrogatories are limited to 15 in cases of a level 1 discovery control plan and to 25 in cases with a level 2 discovery control plan, and there is no mention in the facts of the order creating a level 3 plan allowing a greater number of interrogatories. But note that interrogatories asking a party to identify or authenticate a document are unlimited.

Question 150

07/12: Prime’s store manager took several photographs immediately after Wilda fell. Wilda serves a request for production on Prime seeking production of the photographs. Prime asserts that the photographs are privileged and not subject to production under the investigatory privilege.How should the court rule on the assertion of privilege? Explain fully.

Answer 150

the court should deny the claim of privilege to the requests for production of photographs. There is no “investigatory privilege.” Instead, there is a work product privilege. Initially, the photos appear to be work product because they were made in anticipation of litigation by a party or the parties representative. Ordinarily, this “other” work product is discoverable only on a showing that the party seeking discovery has a substantial need of the material and is unable to obtain the substantial equivalent. However, there is a specific rule providing that photographs of the underlying facts like the scene of the accident are not work product protected from discovery. The photographs are discoverable.

Question 151

07/12: Mercy serves interrogatories on Wilda seeking the names and addresses of any and all medical providers from whom she sought treatment for the ten years immediately preceding the accident.Wilda objects to the interrogatories on the basis of an invasion of her privacy, immateriality, and relevancy. How should the court rule? Explain fully.

Answer 151

these objections should be overruled. In general, a party may obtain discovery of any matter that is not privileged and is relevant to the subject matter of the pending action. The objecting party must do more than state an objection. The objecting party must also demonstrate that it is a valid objection. Here, the objecting party must demonstrate why the evidence is irrelevant and immaterial. Because Wilda has not done that, the objection should be overruled. As to the invasion of privacy objection, the doctor-patient privilege exists, in part, to ensure patient privacy. A party should not, however, object, as the plaintiff does here, to assert a privilege. Instead, the party must state a privilege asserted, which would be the doctor-patient privilege. NOTE: BOLE SAYS THAT PRIOR MED HISTORY IS ALWAYS RELEVANT AND SUBJECT TO DISCOVERY IN PERSONAL INJURY CASES.

Question 152

07/12: Wilda’s deposition reveals that she was talking on her cell phone when the accident occurred. What pleading should Mercy and Prime file in order to support a jury question on Wilda’s responsibility, if any, for causing the accident? Explain fully.

Answer 152

mercy and Prime should raise the issue as an affirmative defense based on an allegation that Wilda’s conduct caused or contributed to causing the accident and her injuries. If not included in the original answer, the issue can be added in an amended answer without leave of court if filed more than seven days before trial. This pleading will support a jury question dealing with Wilda’s responsibility for the accident

Question 153

07/12: Quick Clean was an independent contractor whose job was to clean the hospital cafeteria twice a day. In the ordinary course of its business, Quick Clean kept records of all of its activities. Wilda obtains copies of the business records of Quick Clean and a business records affidavit. Wilda advises the parties that she plans to use them as pre-trial and trial evidence.Mercy and Prime object on the basis that the “records” are hearsay as to them, although they could be used against Quick Clean. How should the court rule? Explain fully.

Answer 153

the court should overrule the objection. The business records exception to the hearsay rule provides that records of regularly conducted activity are not excluded by the hearsay rule, even if offered against a party who did not make the record. Here, the records were regularly kept in the ordinary course of Quick Clean’s business and therefore are admissible, even against mercy and prime.

Question 154

07/12: After discovery is complete, Mercy believes that there is no evidence that it is factually or legally liable for the accident and injury to Wilda.What pleading should Mercy file to bring to the court’s attention the issue of no factual or legal basis for Wilda’s claims against Mercy? Explain fully.

Answer 154

mercy should file a no evidence motion for summary judgment. After adequate time for discovery, a party may file a motion for summary judgment on the ground that there was no evidence of one or more essential elements of a claim on which the nonmoving party, Wilda, would have the burden of proof at trial. The motion must specifically state the element as to which there is no evidence and challenge the legal sufficiency of the evidence in the record.

Question 155

07/12: During Mercy’s investigation of the accident, it discovers a written statement given by Jane (a Prime manager) to the hospital, that she had also slipped on the sign and told the Prime maintenance department that the sign was a problem. Wilda seeks production of Jane’s statement. Prime objects to the production of the statement because: (1) Jane was not authorized to give a statement and therefore it cannot be admissible against Prime; and (2) the statement is privileged because it was given during an internal investigation by Prime. How should the court rule? Explain fully.

Answer 155

the hearsay objection should be overruled because Jane’s statement is a vicarious party admission and, therefore, not hearsay. A statement made by an employee of a party during the employment about a matter within the scope of that employment is admissible when offered against the employer. An employer need not specifically authorize an employee to make a particular statement in order for this hearsay exclusion to apply. Jane’s statement was made during her employment with Prime and was about the matter within the scope of her employment, the safety of its signage. Prime’s second objection should also be overruled. There is no “investigation privilege.”

Question 156

07/12: The trial court sets the case for trial for the first time with thirty days (30) notice to all counsel.Mercy objects to the trial setting. How should the court rule? Explain fully.

Answer 156

the court should sustain the objection. The rules provide that a party is entitled to reasonable notice of not less than 45 days of a first setting for trial.

Question 157

07/12: Prime was recently cited by the USDA for food safety violations. The citations, however, were subsequently dismissed.What pleading should Prime file to prevent these matters from being discussed during voir dire or opening statement? Explain fully.

Answer 157

prime should file a motion in limine. If granted, the parties will not be able to mention the USDA citation during jury selection or opening statement and will have to approach the bench and get a ruling on the admissibility of the evidence outside of the hearing of the jury.

Question 158

07/12: On the first day of trial the weather is terrible, and very few potential jurors show up for jury duty. The trial court tells the lawyers that each side will receive four peremptory strikes in addition to their challenges for cause. Wilda objects to the court’s decision to limit her to four peremptory strikes even though all parties are given the same number of peremptory strikes. Is the trial court authorized to limit the parties to an equal number of peremptory strikes under these circumstances? Explain fully.

Answer 158

no. The rules provide that each party is entitled to six peremptory challenges in a case tried in a district court. The rules do not provide for a reduction of the number of challenges. The rules do give the court discretion to equalize challenges upon motion of a party to avoid giving an unfair advantage to one side as a result of being given additional challenges, but these facts do not raise a case of an unfair allocation of charges.

Question 159

07/12: At the conclusion of Wilda’s case, Mercy files a motion for directed verdict. which the trial court denies. Following the return of the jury verdict, Mercy still believes that there is legally insufficient evidence to support the jury verdict and moves the trial court for a judgment notwithstanding the verdict.Is the trial court authorized to grant the motion for judgment nonvithstanding the verdict in spite of the fact that it overruled the motion for directed verdict? Explain fully.

Answer 159

yes. The motion for a directed verdict and a motion for JNOV both challenge the legal sufficiency of the evidence. However, the motion for a directed verdict is based on the evidence in the record when an opponent rests or closes, while a motion for judgment JNOV is based on the record after the court receives a verdict adverse to the moving party. Although both motions challenging the legal sufficiency of the evidence, the evidentiary record on which the motions are based is different and a party may make both motions in the same case without any conflict.

Question 160

07/12: Following the entry of a judgment by the trial court finding Mercy liable, Mercy files a motion for new trial. Assuming no other action is taken by any party, and the trial court docs not rule on the motion for new trial. When will the judgment become final? Explain fully.

Answer 160

if a party moves for new trial, the trial court’s plenary power extends to 30 days from the date the motion is overruled either by written order or by operation of law. Because the motion is deemed overruled by operation of law on the 75th day after the court signs the judgment, a trial court’s plenary power expire on the 105th day after it signs the judgment, and the judgment will be final.

Question 161

02/13: How should the court rule on Dave’s motion to transfer venue? Explain your answer.

Answer 161

The court should deny the motion to transfer venue. Venue is proper in the county in which all or a substantial part of the events or omissions giving rise to the claim occurred. The events giving rise to Paula’s claim occurred at the big box store in Travis county. Therefore, venue is proper in Travis county. Venue would also have been proper in Hay’s county, as the county of defendant’s residence, but the plaintiff chose not to file suit there.

Question 162

02/13: Dave is properly served with citation.When is Dave’s answer due?

Answer 162

Dave’s is due at 10:00 AM on the first Monday after the expiration of 20 days from the date of service, unless that Monday is a legal holiday, in which case the answer is due at the end of the next day that is not a Saturday, Sunday, or legal holiday.

Question 163

02/13: Dave fails to timely file his answer. Paula files a motion for a default judgment and the motion is set for a hearing. The day before the hearing, Dave files his original answer to Paula’s suit. At the hearing, Paula urges the court to enter a default judgment against Dave. How should the court rule? Explain your answer.

Answer 163

The court should deny Paula’s motion. A court may not render a default judgment against a defendant when the defendant has filed an answer, even if the defendants answer was late.

Question 164

02/13:Dan sues Box as a third party defendant. Dave’s pleading regarding the responsibility of Box simply alleges, “Box’s negligence was a proximate cause of the occurrence in question and the injury to Paula.”What pleading should Box file in order to require Dave to state in detail the facts and circumstances upon which Dave relies to support his claim of negligence and causation against Box? Explain your answer.

Answer 164

box should file a special exception. The special exception must be in writing, point out the pleading excepted to—here, Dan’s third party petition—and point out intelligently and with particularity a defect in the pleading—here, the generality of Dan’s negligence allegation. Box must also request a hearing, and get a ruling on the special exception or any pleading defects are waived

Question 165

02/13: Name five types of discovery authorized by the Texas Rules of Civil Procedure.

Answer 165

requests for disclosure, requests for production, requests for admissions, interrogatories, oral and written depositions

Question 166

02/13: Name one type of discovery authorized by the Texas Rules of Civil Procedure that will allow Paula’s attorney to determine if any defendant is covered by liability insurance?

Answer 166

a party may obtain information regarding indemnity and insurance agreements through a request for disclosure.

Question 167

02/13: Through duly served discovery, Dave requests that Paula produce a properly executed medical authorization. Paula declines to produce the authorization relying on privacy concerns, but does agree to produce the medical records and bills that resulted from the occurrence in question.Dave files a motion to compel Paula to produce a medical authorization. How should the court rule? Explain your answer.

Answer 167

a court should probably grant the motion. In a personal injury suit, a party may request all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. Some Texas case law holds that the requesting party may choose which he prefers, the authorization or the records themselves.

Question 168

02/13: At the time of the occurrence in question, Box’s store manager recorded and transcribed three statements about the incident, including a statement from Paula. Through authorized discovery, Paula requests a copy of all three statements. Box produces a copy of Paula’s statement, but refuses to produce a copy of the other two transcribed statements claiming the statements are part of its investigation. Paula files a motion to compel production of the two other statements. How should the court rule?

Answer 168

the motion to compel should be granted. With a request for disclosure, a party may obtain any witness statement another party has, regardless of when the statement was made. A witness statement includes a stenographic recording and a substantially identical transcript of such a recording. The definition of work product does not include such witness statements, even if made in anticipation of litigation.BOLE: “statements” of what ever source are always subject to discovery and requests for production

Question 169

02/13: Box contends that at the time Paula gave a statement, she executed a full and final release of all claims against Box regarding the occurrence in question. Paula disputes the ‘ release” and its effectiveness.What pleading should Box file to bring this defense to the attention of the court and jury, and to support the admission of evidence on the release issue? Explain your answer.

Answer 169

box must file an answer that sets forth the affirmative defense of release. Failure to do so will ultimately waives the defense and would prohibit box from offering evidence to support the defense.

Question 170

02/13: Paula serves thirty (30) separate Requests for Production of Documents on Box through its attorney.Box objects to the Requests for Production for the reason that it is required to respond to only twenty-five separate Requests for Production of Documents. How should the court rule on Box’s objection? Explain your answer.

Answer 170

the court should overrule Box’s objection. None of the three discovery control plan levels impose a limit on the number of requests for production. [editor’s note: as of March 2013, parties are limited to 15 requests for production in cases governed by control plan level 1]

Question 171

02/13: Paula amends her petition and adds Box as a party defendant and seeks money damages from Box for her personal injuries received as a result of the occurrence in question. Discovery is ongoing and the case is not set for trial.Box objects to Paula’s amended petition adding Box as a party defendant. Box avers that Paula was required to make Box a party defendant in her original petition and that she has to file a second lawsuit, making her claims for damages against Box in that suit.How should the court rule on Box’s objection? Explain your answer.

Answer 171

the objection should be overruled. A party may amend a pleading so long as it does not operate as a surprise, except a party must seek court leave to amend within seven days of trial. A plaintiff may amend to join a claim against a third party defendant so long as the claim arises out of the same transaction or occurrence that is the subject of the plaintiff’s claim against the third party plaintiff (i.e. the defendant). Here Paula’s amendment is not within seven days of trial, Box asserts no surprise, and Paula’s claim arises from the same transaction or occurrence as for claim against Dave.

Question 172

02/13: One hundred and twenty (120) days before the court’s published “ready for trial” date, Dave requests a jury trial and pays a jury fee. Paula files a motion to strike the jury demand because the discovery and pleading deadlines have passed. How should the court rule on Paula’s motion to strike Dave’s jury demand? Explain your answer.

Answer 172

Paula’s motion should be denied. A written request for a jury trial must be filed and the jury fee must be paid a reasonable time before trial, but not less than 30 days before trial. More than 30 days before trial, the burden is on the objecting party to show unreasonableness. Paula is unlikely to be able to show that filing the request and paying the fee 120 days ahead of trial is unreasonable.

Question 173

02/13: The case proceeds to trial, and a jury panel is brought to the court for voir dire.How many peremptory challenges are available to each party and can the court preventDave and Box from collaborating in making their challenges?

Answer 173

each party is entitled to six peremptory challenges in district court as a general rule (three in county court). In multiparty cases, a court must determine whether parties aligned on the same side of the docket are antagonistic with respect to any jury issue. If there is no antagonism, a court may equalize the number of strikes so that no party is given an unfair advantage. While the Texas rules of civil procedure do not authorize a court to prevent collaboration amongst parties, case law does and, in any event, collaboration amongst the defendants is an indication of no antagonism, in which case the two defendants should together share the same number of strikes as the plaintiff

Question 174

02/13: As the trial begins, Paula calls Dave as her first witness. Dave objects, stating that Paula cannot call him as her first witness since she has the burden of proof. Dave contends that Paula must present other evidence to establish a prima facia case, before she can call a defendant as a witness.How should the court rule on Dave’s objection? Explain your answer.

Answer 174

the objection should be overruled. A plaintiff may call the defendant as a witness in her case in chief and there is no rule requiring proof of a Prima facie case before calling a party witness adversely

Question 175

02/13: Box’s store manager testifies that Dave told him on the day of the occurrence. “I did not see the rack because I was on my cell phone talking to my Mother; that rack was not there last week.”Dave objects to the statements as hearsay. How should the court rule? Explain your answer.

Answer 175

the objection should be overruled. The statement is an admission by a party opponent. The statement of a party is not hearsay when offered against that party. Here the statement is dave’s, a party to the suit, and is being offered against him by another party.

Question 176

02/13: Paula intends to prove that Dave is often distracted. She proffers as evidence a certified copy of Dave’s driving record which shows that Dave has six class C misdemeanor convictions for traffic violations.Dave objects to the proffer. 1-low should the court rule? Explain your answer.

Answer 176

a court should sustain the objection. The evidence is impermissible character evidence. In a civil case, generally evidence of a person’s disposition or propensity is not admissible to prove conduct in conformity with the disposition or propensity on a particular occasion. Here, Paula is attempting to prove Dave has a general disposition to be distracted in order to prove he was distracted in the store at the time of the accident

Question 177

02/13: Prior to trial, the parties attended a mediation conference. At the mediation, Box’s store manager tells the Mediator that the rack in question lacked the store’s mandated shelf-protection device, which is designed to prevent the very accident that occurred. He also tells the Mediator that Box was responsible for the accident, but disputes the extent and duration of Paula’s injuries.Paula calls the Mediator as a witness at trial to elicit testimony about the manager’s prior statement. Box objects to this evidence and line of questioning. How should the court rule? Explain your answer.

Answer 177

a court should sustain the objection. Statements of fact made in the context of discussing the settlement of a claim that is disputed at the time of the discussions either as to amount or validity or not admissible. Here, the statement was made during the mediation to reach settlement and the claim was disputed as to amount and, therefore,a statement of fact is not admissibleBOLE: all matter and information exchanged in mediation is confidential and settlement negotiations/offers are not admissible.

Question 178

02/13: At trial, Paula claims she will incur significant future medical expenses. Box proffers a copy of her personal group health insurance policy to show that Paula will not really incur the medical expenses because they will be covered by that policy.Paula objects to the proffer of this evidence. Ho\v should the court rule? Explain your answer.

Answer 178

the court should sustain the objection. The collateral source rule prohibits evidence of insurance to prove that the parties medical expenses may be covered by insurance.

Question 179

02/13: The jury returns a verdict favorable to Paula. Box and its attorney believe that the evidence presented at trial is insufficient to support a judgment against Box.What pleading should Box file to bring this issue to the attention of the trial court?Explain your answer.

Answer 179

box should file a motion for judgment notwithstanding the verdict. The motion for judgment notwithstanding the verdict challenges the legal sufficiency of the evidence. A motion for new trial should be filed if box also wishes to challenge the factual sufficiency of the evidence.

Question 180

02/13: The trial court enters a judgment for Paula. Box files a motion for new trial.If no other action is taken by any party or the trial court, when will the judgment become final? Explain your answer.

Answer 180

the trial court’s plenary power to set aside, modify, or amend the judgment expires 30 days after the motion for new trial is denied. The motion for new trial will be overruled by operation of law (because we are told the trial court will do nothing else) 75 days after the signing of the judgment. So, the courts plenary power expires 105 days after the signing of the judgment. Where, as here, any party has filed a motion for new trial, a party must perfect its appeal within 90 days of the day the judgment is signed

Question 181

1. During the final days of his presidency, many of the President’s Cabinet members began leaking rather embarrassing stories about the President to the press. In one such story, which appeared in a newspaper, an unidentified Cabinet member was quoted as saying that the President pardoned the owner of a professional baseball team, for a previous felony conviction because the owner promised to give the President a lifetime pass to all future games. Upset by these news “leaks,” the President, in his last official act, issued an executive order banning all executive employees from having conversations with members of the press unless prior permission had been obtained from an administrative supervisor. The executive order called for the dismissal of any employee willfully in violation of that order.After the President left office, the press made repeated references to the executive order and derisively referred to it as the President’s legacy. Nonetheless, after the new President took office he promised to abide by the order. Thereafter one of the Vice President’s senior advisers, leaked a story to a magazine stating that the Vice President told staff members that the only reason he visited a city following an earthquake was because he wanted to play golf at a nearby golf course. The magazine printed the story and named the senior adviser as the source. In compliance with civil service regulations, a hearing was conducted and the senior adviser was found to have violated the executive order barring unauthorized conununications with print media. Subsequently, the senior adviser was summarily dismissed from his executive staff position.The senior adviser brings an appropriate action seeking reinstatement and challenges the constitutionality of the executive order. If this case reaches the U.S. Supreme Court, the justices should rule the executive order is(A) constitutional, because governmental employment is a privilege and not a right.(B) constitutional, because the President has plenary power to set forth employment regulations for executive department employees.(C) unconstitutional, because Congress, not the President, has authority to regulate the terms and conditions of federal employment.(D) unconstitutional, because the President cannot broadly limit all executive employees’ freedom of speech and association.

Answer 181

1. (D) Choice (A) is incorrect. As a general rule, the President may terminate, without Congress’s approval, those appointees, like his advisers. However, the President may not violate the federal Constitution in doing so. In this instance, the President’s order requiring his appointees to obtain prior permission to speak probably violates the FirstAmendment. Choice (B) is incorrect. The President may not draft regulations that violate the constitutional rights of the employees. After all, the President is no mere employer; he or she is a state actor, and the Constitution protects people, including governmental employees, from constitutional violations by state actors in their official capacity. Choice (C) is too narrow. The President has the authority to regulate the terms and conditions of federal employment for certain employees, especially those, like his advisers who are directly and solely responsible to the President. While the President has the power both to issue executive orders and to remove purely executive officers appointed by him without being subject to any Congressional limitation, the scope of these powers must not contravene federal constitutional limitations, such as the First Amendment rights of freedom of speech and association. The executive order banning all executive employees from having conversations with members of the press unless prior permission has been obtained from an administrative supervisor probably violates the First Amendment as an overbroad prior restraint limiting otherwise protected speech. The executive order is, therefore, unconstitutional. Therefore, choice (D) is the correct answer.

Question 182

2. A devastating earthquake struck a foreign country. The earthquake destroyed hundreds of homes and buildings. Thousands of residents were killed, injured, and left homeless by the earthquake. The leader of the foreign country sought the assistance of the United States in providing emergency aid.The President initially wanted to send troops from a west coast military base but learned that they were out on training maneuvers. As a result, the President issued an executive order directing members of a federal agency under the supervision of the Immigration and Naturalization Service, to travel to the foreign country to engage in emergency rescue operations. This federal agency’s main function is to patrol the borders to prevent illegal aliens from entering the United States.A member of this federal agency refused to comply with the executive order and assist in the relief effort. He claimed that participating in such operations in a foreign country is beyond the scope of his job responsibilities. He brought suit in federal court challenging the validity of the President’s executive order. Assuming the member of the federal agency has adequate standing, the court should rule the executive order(A) valid, because as commander-in-chief, the President has unfettered authority to require federal employees to participate in an international relief effort.(B) valid, because employees of an executive agency can be required to perform such emergency functions.(C) invalid, because the executive order is beyond the scope of presidential power absent congressional authorization.(D) invalid, because the director of the INS, not the President, has the power to issue directives to federal agencies under its supervision.

Answer 182

2. (B) The Constitution gives the President broad authority with respect to foreign affairs. Article II, Section 2 explicitly enumerates a number of powers given him in this area (e.g., commander-in-chief power, treaty-making power, and the right to appoint am bassadors). However, the President’s power over foreign affairs is not plenary or absolute. Rather, the President and Congress have concurrent powers over foreign affairs. To be sure, Congress is given war power authority and treaties must be ratified by two-thirds of the Senate. In this regard, choice (A) is not the best answer for two reasons. First, it is doubtful that the President would have authority as commander- in-chief to mobilize nonmilitary federal employees in this manner. Second, the President’s authority to direct foreign affairs is not “unfettered” or absolute. Choice (B) would be a better answer, since the President as Chief Executive would probably have authority to direct executive employees to engage in such an international relief effort. Choice (C) is incorrect. This is a little too strong. To avoid violating the principle of the separation of powers, it is wise for the President to seek congressional approval for an executive order. However, it is not necessary in all instances that the President seek approval from Congress before issuing his executive order. This is especially true for issues that are related to foreign affairs. Choice (D) is a bit too narrow. The INS is encompassed under the Department of Homeland Security, which, in turn, is housed under the Executive Branch.

Question 183

3. Congress enacted a statute wherein the government would purchase and operate all of the nation’s airlines.In all likelihood, Congress’s power to enact this legislation will derive from(A) its power to tax and provide for the general welfare.(B) its power to raise and support an army and declare war.(C) its power to regulate commerce.(D) its power to make laws regarding territory and other property belonging to the United States.

Answer 183

3. (C) Since Congress has the power to regulate interstate commerce under Article I, Section 8, choice (C) is the best answer. Choice (B) is incorrect because the facts do not state that the United States is at war. Similarly, you may not assume that the airline takeover was a wartime or war-related act. Choice (A) is incorrect. In order to purchase aLL of these airlines, it’s possible that Congress will have to levy higher taxes on Americans. But the question asks under what power Congress may purchase the airlines, not how and if it will pay for them. And Congress can use its commerce clause powers to purchase the airlines. Finally, choice (D) is incorrect. The airlines didn’t belong to the United States at the time of purchase.

Question 184

4. Congress enacted a statute designed to make the stabilization of rents more effective throughout the United States. The statute will be applicable to all leasehold contracts hereafter entered into between landlords and tenants involving residential and commercial properties. The new federal statute is intended to protect tenants from spiraling rents and “profiteering” by landlords without curtailing the supply of rental units or depriving landlords of substantial constitutional rights.The new federal statute would be most clearly constitutional as applied to(A) the rental of a state-owned office building by a state to a privately owned business.(B) the rental of residential property located in the District of Columbia by an individual landlord to a family of six.(C) the rental of an apartment located by a real estate company to an individual tenant.(D) the rental of an office building to a city by an individual landlord.

Answer 184

4. (B) ArticLe IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needfuL ruLes and regulations respecting” lands of the United States. Since the District of Columbia is under federal jurisdiction, choice (B) is the best answer. Choice (A) is incorrect. ArticLe IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a state does not fall within Congress’s federal jurisdiction. Choice (C) is incorrect. Article IV, Section 3, CLause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a state does not faLL within Congress’s federaL jurisdiction. Choice (D) is not the best choice. Article IV, Section 3, Clause 2 gives Congress power “to dispose of and make all needful rules and regulations respecting” Lands of the United States. For purposes of this clause, a city does not faLl within Congress’s federal jurisdiction.

Question 185

5. Congress has recently enacted a statute designed to prevent price gouging of gasoline by private retail sellers. To help administer the new statute Congress created a seven-member agency, four members of which were appointed by the President, two by the Senate, and one by the Speaker of the House. The agency was authorized to issue rules interpreting regulations prescribed under existing federal law. It was also authorized to issue “cease and desist” orders after hearings against private retail sellers of gasoline who “intentionally engaged in price gouging.” In this regard, violations of the cease and desist orders were made punishable by fine and/or imprisonment.Which of the following is the strongest constitutional argument against the authority of this agency?(A) Congress may not delegate to the agency power to make interpretations of existing federal laws.(B) Congress may not delegate to the agency power to make “cease and desist” orders, the violation of which is punishable by imprisonment.(C) Congress may not delegate enforcement of a federal law in any governmental body other than the U.S. Attorney General or the courts.(D) Congress may not retain the power to appoint even a minority of members of such an agency.

Answer 185

5. (D) Article II, Section 2 specifies that the President shall appoint “with the advice and consent of the Senate,” all “Ambassadors, other public Ministers and Consuls, judges of the Supreme Court, and all other Officers of the United States.” Note that although Congress may appoint officials to exercise such investigative power as it might delegate to one of its own committees, it maynotappoint members oran agency or commission with administrative powers. Such persons are deemed “officers of the United States” and must be appointed pursuant to Article II, Section 2 [Buckleyv. Valeo, 424 U.S. 1 (1976)]. Choice (A) is incorrect. In the fact situation, Congress authorized the agency to do more than interpret the laws. Congress authorized it to punish violators. But such authorization goes beyond what Congress is permitted to do. Under Article II, Section 2, the President shall appoint “with the advice and consent of the Senate,” all “Ambassadors, other public Ministers and ConsuLs, judges of the Supreme Court, and all other Officers of the United States.” In other words, only the President may appoint those with administrative powers to punish law violators. Choice (B) is a good choice, but it’s not the best choice. The problem is larger than one of “cease and desist” orders. For Congress lacks the authority to appoint members to an agency that has any administrative powers, including any powers to punish law violators. Congress would do no better if it had substituted the right to issue cease and desist orders with some other form of punishment. Only the President has authority to appoint members who may exercise administrative power [Buckleyv. Valeo, 424 U.S. 1 (1976)], construing Article II, Section 2. Finally, choice (C) is incorrect. The Attorney General certainly has enforcement powers, given that he is an officer of the Executive Branch. So, too, the courts may issue cease and desist orders. Congress also has the authority under Article I to create agencies that may enforce the law. Congress may not, however, appoint members to these agencies; only the President may do so [Buckleyv. Valeo, 424 U.S. 1 (1976)], construing Article II, Section 2.

Question 186

6. The navy wanted to build a naval base on the north shore of an island in Hawaii. Situated along the north shore of this island were coral reefs which are the home of a very rare species of fish that are found only along the north shore area.Congress conducted hearings to decide whether to authorize the construction of the naval base. During the hearings, one of the speakers who addressed the congressional committee was a famous expert on oceanography and marine biology. The expert vehemently opposed the naval plan and stated that the construction would, in his opinion, result in the extinction of the rare species of fish. Congress thereafter approved the construction of the naval base and passed a bill providing necessary authorization and funding for the project.The expert has filed an action in federal district court seeking to enjoin the construction of the naval base on ecological grounds. Does the expert have adequate standing?(A) Yes, because he has a personal stake in the litigation.(B) Yes, because he is a recognized expert on marine biology and he testified at the congressional hearings.(C) No, because the suit presents a nonjusticiable political question.(D) No, because he is not suffering any actual harm or injury.

Answer 186

6. (D) The Supreme Court has said that the core of Article Ill’s requirement for cases and controversies is found in the rule that standing is limited to those who allege that they personally have suffered or imminently will suffer an injury. In City of Los Angeles v. Lyons, 461 U.S. 95 (1983), the Court stated that “the plaintiff must show that he has sustained or is immediately in danger of sustaining some direct iniury as a result of the challenged action.” With respect to standing in environmental cases, the Supreme Court has handed down two conflicting rulings. In Sierra Club v. Morton, 405 U.S. 727 (1972), the Sierra Club sought to prevent construction of a ski resort in Mineral Valley in California. The Court ruled that the Sierra Club lacked standing because there was no allegation that any of the Sierra Club’s members ever had used Mineral Valley. By contrast, in United States v. Students Challenging RegulatoryAgency Procedures, 412 U.S. 669 (1973), the Court upheld the standing of a group of George Washington law students alleging that an administrative rate hike would decrease recycling, which would lead to more use of natural resources and increased pollution. The students maintained that their enjoyment of the forests, streams, and mountains in the Washington, D.C., area would be lessened as a result. The Court upheld the group’s standing because the plaintiffs actually used the environmental area for hikes, biking, and other recreational purposes. In this hypo, there is no showing that the expert is making any personal use of the coral reef area. Therefore, he would lack standing on environmental grounds. Choice (A) is incorrect. The Supreme Court has said that the core of Article Ill’s requirement for cases and controversies is found in the rule that standing is limited to those who allege that they personally have suffered or imminently will suffer an injury [City of LosAngeles v. Lyons, 461 U.S. 95 (1983)]. Professor has not suffered nor will suffer some personal injury. His grievance can be shared by anyone who is interested in preventing damage to the environment. Answer (B) is incorrect. This would seem an intelligent answer, but the expert still lacks standing because standing is limited to those who allege that they personally have suffered or imminently will suffer on injury [City of Los Angeles v. Lyons, 461 U.S. 95 (1983)]. The expert’s expertise cannot compensate for his lack of personal injury. Choice (C) is not correct. The political question doctrine would not permit the court to consider the case because of one or more of the following reasons. One, if the U.S. has appropriated the decision- making on this issue to another branch of the federal government. For example, the judiciary cannot hear cases interpreting the rules for impeachment; only the Senate may do so [U.S. v. Nixon, 418 U.S. 683 (1974)]. Two, if the court feels that, for practical reasons, it should not hear the case. For example, the Supreme Court felt it impractical to supervise electoral districts to prevent partisan gerrymandering. [ Vieth vjubelirer, 541 U.S. 267 (2004)].The extinction of the rare species of fish may present serious environmental problems but does not present issues that are related to the political question doctrine.

Question 187

7. There are 2,000 insurance agents licensed under the general licensing laws of a state. The state legislature recently passed a highly controversial bill that, inter alia, reduces “good driver” automobile insurance rates and prohibits price-fixing and discrimination by insurance companies. This bill passed despite a well-financed and intense lobbying effort mounted by the insurance industry. After this law was enacted, an insurance agent who is a resident of the state, was interviewed by the local newspaper and publicly stated, “the legislature is a bunch of self-serving crooks.” After the statement made newspaper headlines, the state legislature enacted a statute providing that “the state insurance license of the insurance agent is henceforth revoked.” Astonished by the legislature’s action, the insurance agent, who remains unrepentant, seeks your legal advice.You should advise the insurance agent that the state statute revoking her state insurance license is(A) constitutional, because a state license is a privilege and not a right and, therefore, it is not protected by the due process clause.(B) unconstitutional, because it denies her the equal protection of the laws.(C) unconstitutional, because it is a prohibited bill of attainder.(D) unconstitutional, because it is a denial of a privilege or immunity protected by Article IV.

Answer 187

7. (C) A bill of attainder is any form of legislative punishment of a named group or individual without judicial trial. Under Article I, Sections 9 and 10, federal and state governments are prohibited from enacting bills of attainder. The statute revoking the state insurance license of the insurance agent is a sufficient form of legislative “punishment” to constitute an impermissible bill of attainder. Choice (A) is incorrect. A state-issued license can be a right protected under the due process clause. Here, the insurance agent did not receive fair notice and a hearing, normal requirements of due process. Choice (B) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The insurance agent may have been the subject of discrimination by the legislature but not because she is a member of a suspect or quasi-suspect class. Answer (D) is not the best choice. The privileges and immunities clause of Article IV would prevent the state legislature from discriminating against those who are out-of-staters. Even if the legislature discriminated against the insurance agent by revoking her license, it did not discriminate against her because she is an out-of-stater.

Question 188

8. Evidence at Congressional hearings has indicated that thousands of elderly citizens die each year because they cannot afford proper medical and hospital treatment. Based on the evidence presented at these hearings, a senator wishes to introduce a bill providing free medical and hospital care for all citizens 70 years of age and older. The senator, however, intends to include a provision in the bill denying such medical and hospital care benefits to aliens (in the same age category) unless they have been legally admitted for permanent U.S. residency. The senator has asked for your advice regarding his proposed bill. You are understandably concerned about the legality of the aliens proviso.Which of the following is the strongest argument in support of the constitutionality of the provision disqualifying aliens from receiving such medical and hospital benefits?(A) Due to the fact that the medical and hospital benefits will be paid for by the government, they are a privilege not a right and, therefore, are not within the meaning of the Fifth Amendment.(B) The disqualifying provision does not unduly burden either interstate commerce or the right of aliens to travel freely from state to state.(C) The principles of equal protection apply against the states and not against the federal government.(D) The disqualifying provision is reasonably related to legitimate congressional objectives under its immigration, citizenship, and spending powers.

Answer 188

8. (D) In light of the decision in Mathews v. Diaz, 426 u.s. 67 (1976), choice (D) is the best answer. In Mathews, the Court applied “relaxed scrutiny” in upholding the validity of a federal statute that conditioned an alien’s eligibility for participation in a federal medical insurance program on the satisfaction of a durational residency requirement, but imposed no similar burden on citizens. The Court was at pains to emphasize that Congress, as an aspect of its broad power over immigration and naturalization, enjoys rights to distinguish among aliens that are not shared by the states. Although (C) is a correct statement of law, it does not provide any rationale supporting or justifying the federal government’s treatment of aliens. Choice (A) is incorrect. That the government is paying for something does not necessarily turn something from a right (which is presumably protected) to a privilege (which presumably isn’t). We still have “state action” and thus the government is bound to respect the Constitution even as it doles out supposed privileges. Choice (B) is incorrect. This seems to be a plausible answer because the dormant commerce clause only governs states and local governments; here, we have Congress. But the fact that Congress does not violate the dormant commerce clause is not the best answer because the call of the question focuses on aliens and, hence, on issues of equal protection. Choice (C) is incorrect. It’s true that the 5th Amendment’s Due Process Clause does not contain an equal protection clause. But the Supreme Court has read into it a doctrine of equal protection that is analogous to the 14th Amendment’s Equal Protection Clause [Boiling v. Sharpe, 347 u.s. 497 (1954)].

Question 189

9. A city has undergone a massive redevelopment project aimed at remodeling and beautifying the downtown area. Recently the city council passed an ordinance prohibiting the placement of any sign with dimensions larger than six feet on the exterior of any commercial building. Furthermore, signs within the guidelines of the ordinance could only relate to advertising the business of the property’s occupant. The intended purpose of the ordinance was to advance the municipality’s interests in traffic safety and aesthetics.An owner of an office building in the newly developed section of town, placed a 10-foot sign on the outside of his building endorsing his brother’s political candidacy. The city council has ordered the owner to remove the sign from his building, but he has refused to take it down until after the election.If the owner challenges the city ordinance, the most likely result is that he will(A) prevail, because the ordinance violates his freedom of speech.(B) prevail, because such a time, place, and manner restriction on private property is discriminatory and overbroad.(C) not prevail, because although commercial speech is protected by the First Amendment, it is subject to greater regulation than other forms of protected speech.(D) not prevail, because the ordinance is rationally related to a legitimate state interest.

Answer 189

9. (B) In Metromedia, Inc. v. San Diego, 453 u.s. 490 (1981), the Court struck down a San Diego ordinance which, inter alia, prohibited all billboards containing non-corn mercial messages, except for those messages falling within certain defined categories (e.g., temporary politicaL campaign signs, signs carrying news items or telling the time or temperature, etc.). The Court objected to this handling of non-commercial speech on the grounds that “the city may not choose the appropriate subjects for public discourse”; the city was required to either allow all, or no, non-commercial messages. Here, the Middletown ordinance would have been valid if it were limited to restricting the size of billboards. But since the ordinance also attempted to impose non-content-neutral regulations (by requiring that signs relate only to advertising the business of the owner-occupant), it probably will be struck down under the strict (and often fatal) scrutiny test. Choice (A) is not the best choice. This is an alluring answer, but it’s not the best choice. We want to see what, if anything, is defective with the statute that regulates the speech. So Choice (B) is a stronger choice. Choice (C) is incorrect. It’s true that commercial speech is subject to greater regulation than, say, political speech. But the ordinance in the example indulges in content regulation. So the ordinance will be subject to strict scrutiny and most likely will fail such scrutiny. Choice (D) is incorrect. Strict scrutiny review applies to speech—except for unprotected speech, which is governed by the rational basis test, and time, place, and manner restrictions.

Question 190

10. For many years, persons engaged in real estate transactions in a state have utilized installment land contracts. The so-called installment land contract has been popular as a substitute for the mortgage or deed of trust. Under such a contract, the seller agrees to accept, and the buyer agrees to pay, the purchase price in installments over a stipulated period of time. The vendor retains legal title as security for the payment of the purchase price; and the vendee has equitable title under the doctrine of equitable conversion. The most important characteristic of the installment land contract, however, is the forfeiture clause, which provides that if the vendee is in default for 30 days, the vendor may, at his option, declare a forfeiture of the contract, in which case all payments made shall be forfeited as “liquidated” damages and the buyer shall become a tenant at will of the seller.Over the years, many sellers of property under such installment land contracts have declared forfeitures in situations where the prospective buyers were delinquent in their payments, even when the buyer was late with a single payment after nearly all the other payments had been made. In order to remedy this inequitable situation, the state legislature enacted a statute requiring any seller attempting to declare a forfeiture of an installment land contract to do so by instituting a formal foreclosure action in the courts. The new law also provided that prior to the commencement of such a foreclosure action, the seller under such an arrangement must give the buyer a 60-day grace period to make up any delinquent installment payment with interest. The new law expressly applied both to installment land contracts entered into subsequent to its enactment and to installment land contracts already in existence at the time of its enactment.Is this new state statute likely to be held constitutional?(A) Yes, because it is a reasonable regulation of the procedure to be followed in such cases and does not substantially diminish the underlying obligations of the buyer.(B) Yes, because the authority to enact laws regulating real estate sales transactions occurring within the boundaries of individual states is reserved exclusively to the states by the Tenth Amendment.(C) No, because application of the law to installment land contracts entered into prior to its enactment is a violation of the obligation of contracts.(D) No, because application of the law to installment land contracts entered into before or after its enactment is a deprivation of a proprietary interest without due process of the law.

Answer 190

10. (A) Although nowhere mentioned in the Constitution, the concept of police powers in the 10th Amendment has developed closely with that of the dormant commerce power to enable a state to regulate issues relating to health, safety, morals, and welfare, including economic welfare. As a general rule, “where the state regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits” [Pike v. Bruce Church, Inc. 397 U.s. 137 (1970)]. The state law requiring sellers under “installment land contracts” to institute foreclosure actions to relieve the harsh effect of forfeiture by allowing the buyer a 60-day reinstatement period serves a legitimate purpose and leaves unchanged the initial monetary obligations of both parties. Therefore, it will be upheld. Choice (A) is correct. In order to protect the health, safety, morals, and welfare of its citizens, a state may enact legislation that impairs contracts under certain conditions. The action of the Utah legislature may be viewed reasonably as a permissible police power modification of the “installment land contract” because no prior underlying contractual obligation has been impaired, since the buyer must still pay in full the original bargained-for purchase price. In general, private parties who enter into contracts may not stop the legislature from exercising its proper police power for the public good. Nowak, p. 376. Choice (B) is incorrect because the authority to enact laws regulating intrastate real estate sales transactions is not reserved exclusively to the states under the 10th Amendment. Such transactions have a cumulative impact on interstate commerce and are subject to the federal commerce power. The court has refused to use the 10th Amendment to reserve subject areas of commerce for state regulation. Choice (C) is also incorrect. Remember that there is no fundamental right to contract in the Constitution. The state’s regulation thus will be subject to rational review. Under rational review, the court probably will find that there is a legitimate government interest in the state’s desire to protect buyers against unfair contracts. Next, the court probably will find that there are rationally related means. In fact, for the right of contract, the Supreme Court has gone so far as to surmise potential justifications under rational review forthe state. [Williamson v. Lee Optical, 348 U.S. 483 (1955)]. Choice (D) is incorrect. Subsequent to the state’s legislation, the bank still retains its right to foreclose on the property. Accordingly, there is most likely no deprivation of property under the due process clause.

Question 191

11. Congress enacted a statute aimed at “countries assisting or furnishing aid or support to nations or movements engaged in hostilities with the United States.” Section 5 of that act authorized and directed the Treasury Department “to issue orders barring entry into the United States any category of goods the sale of which in the United States is likely to improve the economic or balance of payments posture of an assisting country.” The Secretary of State was authorized by Section 6 to define “assisting countries.” Pursuant to Section 5, the Treasury Department issued a regulation, which provided in part that:“Imports of the following categories of goods from assisting countries are hereby prohibited:• . (c) Bulk shipments for resale within the United States of books, pamphlets, flags, decorations or other symbols, excepting, however, scientific, technical, and literary works intended for scholarly purpose…”The State Department designated a foreign country, as an “assisting country,” on the basis of its determination that medical supplies collected by public donation in this country had been sent to another country currently engaged in hostilities with the United States. As a consequence, the Treasury Department issued an order barring practically all products and goods from this foreign country into the United States.A distributor of state and foreign flags, has had a lucrative contract with the foreign country for the importation and sale of their flags in the United States. However, because of the Treasury Department’s order, the foreign country is now barred from importing any of its flags into the United States.In an appropriate federal court, the distributor brings a suit against the Secretary of State and the Treasury Department to set aside the order barring the foreign country’s imports on the grounds that it is inconsistent with the principles of our constitutional form of government. Which of the following is the most proper disposition of the distributor’s suit by the federal court?(A) Suit dismissed, because the distributor does not have standing to bring this action.(B) Suit dismissed, because there is no adversity between the distributor and the defendants.(C) Suit dismissed, because it presents a nonjusticiable political question.(D) Suit dismissed, because it presents a moot issue.

Answer 191

11. (C) The doctrine of political questions precludes federal judicial review of nonjusticiable issues (i.e., matters not capable of judicial resolution due to inherent separation of powers limitations). The leading case of Baker v. Carr, 369 U.S. 186 (1962), established a test to identify such nonjusticiable issues. For example, where a textually demonstrable commitment to a coordinate political branch of government has been made, or where there is a lack of judicially manageable standards to resolve the issue, or where judicial resolution would create the potential for embarrassment from multifarious pronouncements by various branches of government, then the judiciary will decline resolution of such nonjusticiabie political questions. Choice (C) is correct because foreign affairs is a nonjusticiable political question over which federal courts will not exercise jurisdiction. Choice (A) is incorrect. Actually, the distributor does have standing insofar as it can show that: The distributor has suffered a direct harm from the governmental law; the governmental law is a “but for” cause of the distributor’s harm; and there is a “substantial likelihood” that the relief sought from the court by the distributor, if granted, would remedy the harm. Choice (B) is incorrect. In order to sue, the distributor would have to show that it has suffered a material harm under the adversity requirement. The facts tell us that the distributor has a “lucrative” contract with the foreign country. Hence, we may assume that the governmental law, by prohibiting this contract, would satisfy the adversity requirement. Choice (D) is incorrect. The case will not be dismissed for mootness because an actual controversy does exist, however the court will refrain from hearing that controversy because it is a nonjusticiable political question.

Question 192

12. A state enacted a statute prohibiting any motor vehicle traveling within the state from having window tinting or glass coating of any kind. The bill passed the state legislature at the urging of state and local law enforcement agencies who argued that tinted windows prevented them from observing interior car activity. Most citizens also supported the bill, especially after a state trooper was killed by an occupant in a window-tinted limousine. The trooper was unable to see that his assailant was armed and dangerous when he approached the vehicle for a speeding infraction.A limousine company operates a limo service in a neighboring state and has a fleet of 68 limos, all of which have tinted windows. Each year, the company makes thousands of trips into the state to transport passengers to the international airport situated 10 miles from the border separating the two states. Since all of its limos are manufactured with tinted windows, the company will incur great expense in ordering limos without tinting.The company brings suit to challenge the constitutionality of the state statute. Assuming that the company has proper standing to assert such an action, which of the following is their strongest constitutional argument to invalidate the aforesaid statute?(A) Because window tinting is permitted on vehicles in neighboring states, this law denies the company the equal protection of laws.(B) Because this law burdens interstate commerce by prohibiting all vehicles with window tinting from entering the state, this law violates the commerce clause.(C) Because window tinting on vehicles is legal in their home state, this law violates the contract clause by preventing the company from fulfilling its obligation to transport passengers into a neighboring state.(D) Because interstate travel is a fundamental right that may not be burdened by state law, it violates the company’s substantive due process rights by arbitrarily and unreasonably regulating economic activity.

Answer 192

12. (B) Under Article I, Section 8, Congress shall have the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This plenary federal commerce power is held concurrently with the states, which may freely govern matters that do not require uniform national regulation. For a state regulation affecting interstate commerce to pass judicial scrutiny, the statute must be found reasonable and nondiscriminatoryupon balancing the benefit to the state against the burden imposed on interstate commerce such that no less-restrictive alternative means of regulation is available. Where a state statute imposes a discriminatory burden on out-of-state interests, its validity is seriously in question. The statute effectively prevents the company from doing business in its state. The company’s strongest constitutional argument to invalidate the statute would be the Commerce Clause challenge presented in choice (B). Choice (A) is incorrect because all motorvehicles in the state are treated equally under the law. Choice (D) is incorrect because strong support is given in the facts to demonstrate that the purpose for enacting the statute was neither arbitrary nor unreasonable. Finally, choice (C) is incorrect because the contracts clause of Article I, Section 10 states that no state shall impair the obligation of contracts. Here, no state has prevented the company from fulfilling its contractual obligations, although it may now have to pay more to do so.

Question 193

13. The state registrar of elections refused to put a candidate’s name on the ballot because the registrar believed that the candidate was not a resident of the state. The registrar contended that Article I, Section 2 of the U.S. Constitution specifically required a candidate for the House of Representatives “be an Inhabitant of that State in which he shall be chosen.” As a consequence, the candidate filed suit in state court against the registrar of elections seeking to have her name placed on the ballot. The state court ruled in her favor and determined that the candidate did, in fact, qualify as a resident of the state. The registrar appealed the decision to the state supreme court which, in turn, affirmed the lower court ruling. Thereafter, the candidate’s name was placed on the ballot. After a hotly contested election, the candidate narrowly defeated the incumbent.However, at the time that the candidate was to be seated as a House member, the House of Representatives held hearings on her qualifications and eligibility. By a two-thirds vote, the House determined that the candidate was not a resident of the state at the time of her election and refused to seat her. The candidate then brought suit in federal district court against the Speaker and other officers of the House, seeking back pay and an order that she be seated in the House of Representatives. The defendants demurred, claiming lack of subject matter jurisdiction.Which of the following is the strongest constitutional argument supporting the defendants’ demurrer?(A) There is no case or controversy between the candidate and the officers of the House of Representatives.(B) The case presents a nonjusticiable political question.(C) The suit should have been brought as an original action in the U.S. Supreme Court.(D) Under Article III of the Constitution, the federal courts are not empowered to render advisory opinions.

Answer 193

13. (B) This Constitutional Law question focuses on the specific case of Powell v. McCormack, 395 U.S. 486 (1969), but there is an important twist. In Powell, the House of Representatives refused to seat him (after he had been elected) due to the fact that he had wrongfully diverted House funds for his own personal use. In brief, the Court held that the House did not have authority to exclude him since he met all the requirements for membership expressly prescribed in Article I, Section 2 (namely, age, citizenship, and residency). Thus, the Court held that Powell’s claim did not present a political question. In this example, however the issue is whether Kennedy fulfilled the “residency” requirements set forth in Article I, Section 2. Since the House has the unreviewablepowerto determine the “residency” (as well as “age” and “citizenship”) qualifications for its members, the case presents a nonjusticiable political question. Choice (A) is incorrect. Because Powell had demanded back pay (as the candidate had done), the Court held that “a prayer for specific relief prevented a finding of mootness and demonstrated that there was, in fact, a ‘case or controversy.” See Powell, 395 U.S. at 497. Choice (C) is incorrect. Artide Ill, Section 2 states: “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.” The candidate’s lawsuit does involve governmental officials but not those who are covered by the Supreme Court’s original jurisdiction. Choice (D) is not the best choice. While this summation of Article Ill is correct, the federal court is not being invited to issue an advisory opinion. The court is being invited to adjudicate an actual controversy.

Question 194

14. There has been a great deal of news media coverage regarding the problem of underage drinking. Many high school and college students have been purchasing fraudulent driver’s licenses with phony birthdates showing “proof’ of being 21 years of age or older. As a consequence, many teenagers are able to purchase alcoholic beverages at liquor stores, restaurants, and bars. The situation is becoming especially alarming on many college campuses. A magazine article reported that the majority of freshmen between the ages of 18 and 19 at many colleges had illegally purchased evidence of phony “proof.”With underage drinking reaching epidemic proportions, Congress enacted a statute establishing a federal commission to monitor and curtail alcoholic beverage sales to underage drinkers. To implement the program on a national scale, the bill required each state to pass legislation establishing a local “watchdog” agency to facilitate compliance with congressional intent.A state has filed suit challenging the constitutionality of the federal statute. The law is likely to be held(A) valid, because the sale of alcoholic beverages has a substantial impact on interstate commerce.(B) valid, because the establishment of a state watchdog agency under the auspices of a federal regulatory scheme is consistent with the provisions of the Twenty First Amendment.(C) invalid, because it violates the fundamental principles of state sovereignty embodied by the Eleventh Amendment.(D) invalid, because the federal government may not compel state legislatures to enact and enforce a federal regulatory program.

Answer 194

14. (D) The landmark case of New York v. United States, 505 U.S. 144 (1992) clearly limited Congress’s right to interfere with a state’s ability to make and apply laws through legislative, judicial, and administrative functions. Based on principles of state sovereignty under the 10th Amendment, Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. The Court explained that allowing Congress to commandeer state governments would undermine government accountability because Congress could make a decision but the states would take the political heat and be held financially and legally responsible for a decision that was not theirs. Therefore, if a federal law compels state legislative or regulatory activity, the statute is unconstitutional even if there is a compelling need for the federal action. Chemerinsky, p. 233. Under its commerce power, Congress could clearly pass legislation to establish a federal commission to monitor and curtail alcoholic beverage sales to underage drinkers. However, a 10th Amendment violation arises when implementation of the bill requires each state to pass legislation to establish a local “watchdog” agency to facilitate compliance with congressional intent. Congress cannot compel state regulatory activity. The federal statute will be held invalid under the 10th Amendment. Therefore, choice (D) is the correct answer. Choice (A) is not the best answer. It is true that the sale of alcoholic beverages has a substantial impact on interstate commerce. And the commerce clause of Article I, Section 8 states that Congress may regulate commerce with foreign nations, amongthe states, and with the Indian tribes. Accordingly, it would seem likely that Congress may create a watchdog agency to regulate some aspect of alcohol sales. However, New York v. United States, 505 U.S. 144 (1992) held that Congress’s exercise of its commerce clause powers may not infringe on the states’ rights under the 10th Amendment. Specifically, the Supreme Court explained that Congress may not simply commandeer the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program. That would be deemed coercive and violate of the 10th Amendment. Choice (B) is incorrect. The 21st Amendment repealed the 18th Amendment, which had prohibited the manufacture, sale, or transportation of intoxicating liquors. Congress probably will not turn to the 21st Amendment to justify its law. Even if Congress did, it would probably violate the states’ 10th Amendment rights against the federal commandeering of state governments. Choice (C) is incorrect. The 11th Amendment states: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The 11th Amendment thus prevents lawsuits by private citizens against the states; it does not protect states from the federal government.

Question 195

15. A women’s action group attempted for many months, unsuccessfully, to reach an agreement with the local professional men’s club to admit women to membership. The women’s group instituted a suit for a declaratory judgment in federal court to determine whether the men’s club was subject to the state’s anti-discrimination act.Prior to the elections for city officials, four members of the women’s group were sent to picket the offices of the mayor and district attorney, both prominent members of the men’s club. Two members walked outside the front of the mayor’s office building, carrying signs that read, “The mayor is supposed to serve all the people but his lunch club is for men ONLY. So don’t vote for him.” The other two pickets walked outside the rear of the district attorney’s office building, carrying similar signs, telling the public not to vote for him. This picketing was carried on from 9 A.M. to 5 P.M.The same day, two more pickets were assigned to carry identical signs in front of the mayor’s official residence. Two pickets also carried duplicate signs in front of the district attorney’s suburban home during the early evening hours. The picketing at all sites was held peacefully without any disturbance. The relevant city ordinances concerning picketing read as follows:“Section 201. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to, city hall, without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.Section 202. It shall be unlawful for any person to engage in picketing before or about the residence of an individual. Nothing herein shall be deemed to prohibit the holding of a meeting or assembly on any premises used for the discussion of subjects of general public interest.”The federal district court will most likely avoid making a decision on the merits of the suit for declaratory judgment because(A) the case lacks adequate ripeness.(B) there is no case or controversy.(C) the relief sought is essentially for an advisory opinion.(D) the women’s group lacks standing.

Answer 195

15. (C) When a federal constitutional claim is premised on an unsettled question of state law, the federal court should “stay its hand” (abstain temporarily), so as to give state courts a chance to settle underlying state law questions. In the present case, the women’s group initially should have brought suit in state court (thereby exhausting all state remedies) before seeking federal judicial review. Clearly, the women’s group is presently “harmed” by the men’s club’s exclusionary membership policy. Therefore, choice (A) is incorrect. Choice (B) is wrong since an actual “case and controversy” is presented by the men’s club’s exclusion of women members. Choice (D) is incorrect. The women’s group would seem to possess standing here: The men’s club has inflicted injury against the women’s group’s members by excluding them; the court can offer a remedy for its injury.

Question 196

16. A teachers union, a nongovernmental entity, seeks to picket the local city school board for its decision to require higher certification for instructors who wish to teach in the gifted and talented classes in elementary school. After a few days of picketing, the school board seeks a temporary injunction in the state court to restrain further picketing of the school board. The school board insists that the teachers union has violated Section 101 of the city’s picketing ordinance. Section 101 reads as follows:“Section 101. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to public elementary and secondary schools without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.”The court will most likely(A) grant relief, because the teachers unionfailed to follow the procedure outlined in theordinance.(B) grant relief, because the ordinance isconstitutional.(C) deny relief, because the picketing ordinancewas unconstitutional on its face.(D) deny relief, because the ordinance does notprovide procedural due process.

Answer 196

16. (C) A frequently tested Constitutional Law area deaLs with Licensing statutes. As ageneral rule, whenever an ordinance is “void on its face,” the defendant need notapply for a permit. In this situation, he is entitled to deliver his speech and can successfuLly defend any subsequent prosecution. An ordinance may be deemed to befacially invalid for the following three reasons: (1) “vagueness,” (2) “overbreadth,”(3) “unfettered discretion” in the licensing official. On the other hand, when an ordinance is valid on its face (although a permit may be arbitrarily denied), the applicant must seek judicial relief before engaging in his speech. See Poulos v. New Hampshire, 345 U.S. 395 (1953). Choice (A) is incorrect. This would be true if the ordinance were constitutional. Here, the ordinance is invalid on its face because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable. Choice (B) is incorrect. The ordinance is unconstitutional because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable. Choice (D) is not the strongest answer. This is a potentially good answer. However, the ordinance will be struck down on its face because it affords the mayor unfettered discretion to deny permits for picketing. Under the ordinance, the mayor may deny permits to those advocating viewpoints that he finds objectionable.

Question 197

17. A group of students from a public state college decide to picket the college for raising tuition. After three days of picketing, the college asks a court to grant a temporary injunction against the picketers. The college claims that the picketers have violated Section 201 of the city’s picketing ordinance. Assume that the court granted the temporary injunction against the students for picketing the college.“Section 201. No picketing shall be permitted inside of, or on any sidewalk or street immediately adjacent or contiguous to public colleges without express permission of the mayor. Applications for such permission shall be filed at least three days before such picketing is intended to begin and shall state the purpose, place, and time of the proposed picketing.”In a subsequent action challenging the constitutionality of Section 201 of the city’s picketing ordinance, the court will most likely rule that the section is(A) constitutional, because the ordinance is a valid exercise of the state’s police power.(B) constitutional, because the ordinance is within the reserved rights of the states under the Tenth Amendment.(C) unconstitutional, because the ordinance is void for vagueness and overbreadth.(D) unconstitutional, because the ordinance violates petitioner’s rights under the First Amendment.

Answer 197

17. (D) In Coxv. Louisiana, 379 U.S. 537 (1965), the U.S. Supreme Court held that an analogous ordinance prohibiting “parades or demonstrations along any street except in accordance with a permit issued by the police chief’ was clearly unconstitutional. The Court reasoned that it would be an arbitrary exercise of state police power to enable a public official to determine which expressions of view will be permitted and which will not. Allowing unfettered discretion in local officials in the regulation of the use of streets is an unwarranted abridgement of one’s freedom of speech and assembly as secured by the 1st Amendment and applied to the States by the 14th Amendment. Choice (C) is not the best answer because the statute is neither over- broad nor vague; it is invalid because it gives the mayor the “unfettered discretion” to approve or disapprove permit applications. Choice (A) is incorrect. Courts have stated that the 10th Amendment contains “police powers,” which beLong to local governments. Those police powers permit local governments to regulate speech for purposes of health, safety, welfare, and morals. However, local governments may not pass laws that regulate speech and which are invalid on their face. We have such a law here because it gives the government unfettered discretion to discriminate against certain viewpoints. Such a law is facially invalid. Finally, choice (B) is incorrect. The state is said to have “police powers” under the 10th Amendment, rather than “reserved powers.” Regardless of the term, a state may not use its 10th Amendment powers to pass a law that can permit the state to enjoy unfettered discretion to discriminate against certain viewpoints. Such a law is facially invalid.

Question 198

18. A city passed a picketing ordinance. Section 202 of that ordinance reads:“Section 202. It shall be unlawful for any person to engage in picketing before or about the residence of an individual. Nothing herein shall be deemed to prohibit the holding of a meeting or assembly on any premises used for the discussion of subjects of general public interest.”A group of teachers who work for a public school inside of the city were angry that the principal decreased their salaries. The teachers reacted by picketing on the lawn of the principal’s privately owned house. The teachers were charged with violating Section 202 of the ordinance. The teachers have filed suit attacking the constitutionality of Section 202.The court will most likely declare Section 202(A) constitutional, as a permissible time, place, and manner regulation.(B) constitutional, as a valid exercise of a state’s reserved powers under the Tenth Amendment.(C) unconstitutional, as discriminatory on its face. (D) unconstitutional, as vague and overbroad.

Answer 198

18. (A) The government may place reasonable restraints on the time, place, and manner of speech in public areas, such as streets, sidewalks, and parks. A public street does not lose its status as a traditional public forum simply because it runs through a residential neighborhood. A three-part test is used to determine the constitutionality of time, place, or manner regulations of speech and assembly in public places. The regulation must: (1) be content-neutral; (2) be narrowlytailored to serve a significant government interest; and (3) leave alternative channels of communication open. Section 202 is content-neutral (the regulation does not prefer some messages over others). It serves the significant government interest of protecting residential privacy. An important aspect of such privacy is the protection of unwilling listeners within their homes from the intrusion of objectionable or unwanted speech. Moreover, Section 202 is narrowly tailored to serve that governmental interest, since, although its ban is complete, it targets and eliminates no more than the exact source of the “evil” it seeks to remedy: offensive and disturbing picketing focused on a “captive” home audience. It does not prohibit more generally directed means of public communication that may not be completely banned in residential areas [Frisby v. Schultz, 487 U.S. 474 (1988)]. Therefore, choice (A) is correct as it comes to the right conclusion and highlights the correct legal issue. Choice (B) is a potentially good answer but certainly it is less precise than (A). Choice (C) is incorrect. For a law that regulates free speech to be declared invalid on its face, it must suffer from one or more of these: (1) “vagueness,” (2) “overbreadth,” (3) “unfettered discretion” in the licensing official. Section 202 does not suffer from any of these. Choice (D) is incorrect. Section 202 is not so vague or overbroad as to be unconstitutional. Alaw is deemed unduly vague if a reasonable person is unable to distinguish what is permitted [City of Chicago v. Morales, 527 U.S. 41 (1999)]. Here, the law is not unduly vague because a reasonable person should be able to determine when picketing is taking place before or about the residence of an individual. A law suffers from overbreadth when it punishes speech that is otherwise protected [Schad v. Borough of Mt. Emphraim, 452 U.S. 61 (1981)]. Here, a person has limited constitutional right of free speech before or about a person’s private property, especially that of a home.

Question 199

19. A state imposes a graduated income tax upon net income calculated under federal law. Section 22 of the city’s reform act of 2010, which is to become effective on January 1, 2010, provides: “Any parent or guardian financially responsible for the education of his ward may claim a direct tax credit against his income tax liability equal to the amount of tuition of a child or children of high school age who does not attend a public high school.” Other provisions define “tuition” very broadly but limit the credit to tuition paid to schools meeting the educational requirements as determined by the state.On December 1, 2009, the parents of two students who attend a public high school in the state sue for a declaratory judgment and injunction in federal court, claiming that Section 22 violates the establishment clause of the First Amendment. The federal court will most likely(A) dismiss the action, because the suit involves a political question.(B) dismiss the action, because the plaintiffs lack standing as taxpayers.(C) dismiss the action, because the issues are not ripe.(D) dismiss the action, because the issues being litigated are moot.

Answer 199

19. (C) Since the reform act will not become effective until January 1, 2010, the court will dismiss this action for lack of ripeness. It is crucial that a person asking the court to hold a statute unconstitutional be able to show, not only that the statute is invalid, but also that “he has sustained or is immediately in danger of sustaining some direct injury” as a result of its enforcement. Here, the parents must wait until after the reform act has gone into effect before initiating suit. Choice (A) is incorrect. The court cannot hear the case because the cause of action lacks ripeness. Had the case been ripe, the court would not have been precluded from hearing the case because there is no political question at issue on these facts. A political question is defined as an issue that has been committed to another branch of government. Choice (B) is incorrect because taxpayers generally do not have standing to sue as such [Lujan v. Defenders of Wildlife, 504 u.s. 555 (1992)]. There is a reference to taxes, but the aggrieved parents are not suing as taxpayers. The aggrieved parents are instead arguing that they will suffer a specific harm because they send their children to public schools and thus cannot take advantage of the tax credit. Choice (D) is not the best choice. Article Ill states that the jurisdiction of federal courts only extends to “cases or controversies.” That means federal courts generally may not hear cases that are moot, in other words, those cases where the issues being litigated no longer affect the litigants. For example, there is a probLem of mootness in a suit to overturn a criminal conviction after the convicted dies. In this case, the issues are not moot since the aggrieved parents might suffer harm from the statute.

Question 200

20. A state passed a statute stating that it will pay for one-half of the tuition for any student attending a private school, whether religious or secular, as long as the school meets the educational requirements established by the department of education.The parents of two students who attend a public high school in the state sue for a declaratory judgment and injunction in federal court, claiming that the state statute violates the establishment clause of the First Amendment. Assume that the federal court decides to hear the case on its merits.Which of the following is the state’s LEAST persuasive argument for sustaining the validity of the statute?(A) The state statute benefits the parents or guardians of all the children in private schools, religious and nonreligious.(B) The primary effect of the state statute is not to advance or inhibit religion.(C) The administration of the state statute by the department of education does not foster excessive governmental entanglement with religion.(D) The state statute is a valid exercise of state regulatory action in the field of education.

Answer 200

20. (D) Choice (D) is the least persuasive argument because it does not address the establishment clause issue clearly raised by the statute, which forms the basis for the parents’ claims. Even if the statute were a valid exercise of state regulatory action in the field of education, the issue of a potential establishment clause violation would remain. Choices (A), (B), and (C) are correct applications of the law and address the claim raised by the parents. Choice (A) would tend to support the view that the state statute does not violate the establishment clause, since both religionists and nonreligionists can benefit. Choice (B) is a plausible argument insofar as both religionists and non-religionists can benefit from the state statute. Finally, choice (C) is a plausible argument insofar as the government is not required to make determinations about what is a religion.

Question 201

21. A state enacts a statute that will allocate funds generated by state taxes to pay for one-half of the annual salaries of teachers in private schools, whether the schools are public or private, as long as the schools satisfy the requirements established by the United States Department of Education.In an action brought by several state taxpayers, all avowed atheists, to challenge the constitutionality of the statute, the enactment will most likely be declared(A) unconstitutional, as violative of the First Amendment’s establishment clause.(B) unconstitutional, as violative of the First Amendment’s establishment clause as applicable through the Fourteenth Amendment.(C) constitutional, as nonviolative of the First Amendment’s establishment clause.(D) constitutional, as being within the area of compelling state interest.

Answer 201

21. (B) In Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court held unconstitutional a statute that provided for payment of salary supplements to parochial schoolteachers who taught solely secular subjects. The Court concluded that the degree of government surveillance necessary to ensure that the supplements would be restricted to teachers of secular subjects would entangle the government excessively. Choice (A) is not the strongest answer. This is a good answer, but there is one glitch. Remember that the Establishment Clause, on its face, prohibits “Congress” from establishing a religion. The Establishment Clause applies to local governments via the 14th Amendment’s Due Process Clause. Choice (C) is incorrect. Most likely, the statute wilL be deemed to violate the Establishment Clause. The Supreme Court rejected as unconstitutional a statute that provided for payment of salary supplements to parochial schoolteachers who taught solely secular subjects. The Court concluded that the degree of government surveillance necessary to ensure that the supplements would be restricted to teachers of secular subjects would entangle the government excessively [Lemon v. Kurtzman, 403 U.S. 602 (1971)]. Choice CD) is incorrect. It is unlikely that the Court will deem Section 40’s interest to be compelling. The Supreme Court has already rejected as unconstitutional a statute that provided for payment of salary supplements to parochial schoolteachers who taught solely secular subjects. The Court concluded that the degree of government surveillance necessary to ensure that the supplements would be restricted to teachers of secular subjects would entangle the government excessively [Lemon v. Kurtzman, 403 U.S. 602 (1971)].

Question 202

22. A man entered into a franchise contract with a company to operate a fast-food restaurant in a city. The company’s national headquarters is located in another state. After the contract was executed, the man leased a store in a shopping center where he planned to open his restaurant. City public officials, however, refused to grant the man the necessary food vendor’s license despite the fact that he could prove that his restaurant complied with all provisions of the municipal licensing ordinance. Section 1287 of the city food vending ordinance provides, in part, that “a food vendor’s license shall be issued to any applicant who properly complies with all of the health requirements of this ordinance.” After the man’s application for a food vendor’s license was rejected, he requested a hearing to establish his qualifications. City officials refused this request and also declined to give any reason for his license denial.Which of the following is the strongest constitutional argument that the man may use to challenge the refusal of the city officials to grant him a food vendor’s license?(A) The city action denies him procedural due process.(B) The city action denies him substantive due process by arbitrarily regulating economic activity.(C) The city action constitutes an undue burden on the potential interstate commerce between the man and his out-of-state franchisor.(D) The city action impairs the obligation of the man’s contract with the franchising company and his rental agreement with the shopping mall.

Answer 202

22. (A) Procedural due process guarantees a fair decision-making process before the government takes some action directly impairing an individual’s life, liberty, or property interests under the 5th and 14th Amendments. Where such a deprivation occurs that is serious in nature, the procedural safeguards of notice and opportunity to be heard (i.e., hearing) are available. Choice (B) is incorrect. There is no fundamental right of contract or “economic activity” under the “substantive due process” clause of the 14th Amendment [West Coast Hotel v. Parish, 300 U.S. 379 (1937)}. Choice (C) is incorrect because in order to establish that a local government is presenting an undue burden on interstate commerce and, thus, violating the commerce clause of Article I, Section 8, there must be a showing that a local government is requiring out-of-staters to comply with a law whose benefits to the local government are outweighed by its burdens on out-of-staters. Choice (D) is incorrect. Article I, Section 10 contains the “contract clause,” which states that no state shall pass any law impairing the obligation of contracts. To sue under this clause, a party would have to show that the state action affected a preexisting contract. The contract at issue in this question does preexist the city’s denial of the license. However, according to Energy Reserves Group v. Kansas Power & Light, 459 u.S. 400 (1973), there must also be a “substantial impairment” of the obligation of contracts. In this instance, the denial does not “substantially impair” the obligation because the company theoretically can still enforce its terms against the man and seek damages.

Question 203

23. Congress has recently enacted a statute requiring all males between the ages of 18 and 30 to take a physical examination each year. The results of the exam are sent to a government data information center for the purpose of keeping information about men who may be drafted into the military.A 25-year-old law school graduate has herpes. He has recently sent resumes to many governmental agencies. Fearful that the information about his herpes condition will become available, he seeks a declaratory judgment that would forbid the government from requiring him to take a physical examination.Which of the following is the best constitutional basis in support of the federal law?(A) The commerce clause.(B) The dormant commerce clause.(C) To raise and support an army and navy.(D) To provide for the general welfare.

Answer 203

23. (C) Here, choice (C) is the best answer. under Article I, Section 8, Clauses 11 and 12,Congress has wide war power authority. Certainly, the draft and selective servicesystems have been repeatedly upheld as a proper exercise of Congress’s war powers. Based on the decision in United States v. O’Brien, 391 u.s. 367 (1968), individuals may be constitutionally required to register and submit to examinationsreasonably required by the selective service system to facilitate the conscriptionof manpower for military service. Choice (A) is incorrect. The Commerce Clauseof Article I, Section. 8 states that Congress may regulate commerce with foreignnations, among the several states, and with the Indian tribes. There does notappear to be any commercial transactions in our example, however. Choice (B)is incorrect. No congressional statute can be deemed unconstitutional becauseit violates the dormant commerce clause. The concept of the dormant commerceclause pertains only to local governments, as when a Local government passes a lawthat discriminates against out-of-staters or places an undue burden on interstatecommerce. In our example, Congress has passed a law and hence its law cannot bedeemed to violate the dormant commerce clause. Choice (D) is incorrect. Article I,Section 8, reads: “The Congress shall have Power to lay and collect Taxes, Duties,Imposts and Excises, to pay the Debts and provide for the common Defence andgeneral Welfare of the united States.” The Supreme Court has taken the reference to“general welfare” to mean that Congress enjoys great discretion in how it choosesto allocate money for the pubLic [United States v. Butler, 297 U.S. 1 (1936)]. There isno such allocation of money in our example; just a regulation.

Question 204

24. The civic auditorium is owned by the city. The auditorium is rented out to various organizations throughout the year. With a seating capacity of 1,500, it is customarily leased for rock concerts, rodeos, sporting events, fashion shows, etc. In January, a rock star held a week-long concert there, drawing a full house each night. Generally, the city leases the auditorium’s facilities for a charge of $2,000 per day.In February, a religious sect applied to rent the auditorium for its annual celebration. However, the city council voted 7 to 3 against permitting the group from using the auditorium. When their rental application was denied, the religious sect threatened to take legal action against the city council. They contended unfair discrimination inasmuch as other religious organizations had leased the auditorium in previous months for their religious gatherings. Amid this controversy, the city council passed an ordinance prohibiting the rental of the auditorium to any religious group. The ordinance was passed in a “closed door” session, which did not permit any debate or hearings on the matter.Is this newly enacted city ordinance likely to be held constitutional?(A) No, because it violates the due process rights of religious groups by not affording them an opportunity for a hearing.(B) No, because the ordinance discriminates against religious groups in violation of the free exercise clause of the First Amendment, as applied to the states via the Fourteenth Amendment’s due process clause.(C) Yes, because the ordinance treats all religious groups equally.(D) Yes, because a city ordinance is not a state action, per Se, and, therefore, is not subject to the limitations of the Fourteenth Amendment.

Answer 204

24. (B) During the 1940s and 19505, the Supreme Court invalidated a number of laws that restricted religious practices primarily on the basis that they interfered with the free speech protection of the 1st Amendment. These decisions overturned statutes regulating the dissemination of religious views because they interfered with both the freedom of speech and religion. In sum, the Court struck down ‘icensing systems for demonstrations or meetings that gave government officials discretion to deny licenses on the basis of the content of speech, while upholding others that had permit requirements based on nondiscriminatory “time, place, or manner” factors. In these cases, the fact that religious meetings were suppressed under discretionary statutes indicated a violation of free exercise rights, but the statutes were invalid in total as they conflicted with the free speech clause. By analogy, the city ordinance would be unconstitutional because it unfairly burdens the freedom of religion (as well as speech). Here, the city ordinance does not further a “compelling state interest,” as less restrictive means are available. Choice (A) is incorrect. According to the 14th Amendment’s due process clause, no state (or other local government) may deprive a person of her life, liberty, or property without due process of law. Generally, no hearing or advance notice is required for laws that are passed and do not target a discrete group of individ ua Is [Bi-Metallic Investment Co. v. State Board of Equalization, 239 u.s. 441 (191 5)1. Here, the religionists, while a defined group, probably do not constitute a group that is sufficiently discrete as to merit a hearing. Of course, this preclusion does not close other legal channels forthe religionists. Choice (C) is incorrect. This may be true, but the equal treatment does not negate the city council’s violation of the religious groups’ free exercise rights under the 1st Amendment. Note, too, the 14th Amendment’s equal protection clause, which states that no person shall be denied the equal protection of the laws. Religious groups are considered to be a “suspect class” under the equal protection clause and discrimination against them will be subject to strict scrutiny. The city council probably will be unable to show that it possesses a “compelling governmental interest” under strict scrutiny. Choice (D) is incorrect. The 14th Amendment, like the other amendments to the Bill of Rights (the first eight Amendments), onLy protect a person from governmental abuse. This is known as the “state action” requirement, even though “state action” refers to any governmental action—including action by any federal or any local governmental body. The city ordinance would thus qualify as state action.

Question 205

25. A state has enacted a statute imposing a tax on the extraction of all platinum in the state. The extraction of other minerals is not taxed by the state. This is true even though there is considerable mining of silver, turquoise, sulfur, and stone within the state. As a result, the largest platinum mining company in the state has filed suit challenging the constitutionality of the state’s platinum tax statute.Which of the following best states the burden of persuasion if the mining company attacks the statute as violating the equal protection of the laws?(A) The state must convince the court that the classification in the statute is rationally related to the advancement of a legitimate state interest.(B) The state must convince the court that the classification in this statute is the least restrictive means by which to advance a compelling state interest.(C) The mining company must convince the court that the classification in this statute is not necessary to advance a compelling state interest.(D) The mining company must convince the court that the classification in this statute is not rationally related to the advancement of a legitimate state interest.

Answer 205

25. (D) A highly tested area of Constitutional Law deals with the standards of review used by the courts in equal protection challenges and, specifically, what is the burden of persuasion in each situation? In this question, the state has imposed a statute taxing the extraction of platinum. The tax discriminates against the state’s largest platinum mining company, raising an equal protection challenge, since the state is not taxing the extraction of any other mineral. The standard of review that the court will use in this case will be the traditional rational-basis test. The rational-basis test, which is used for classifications relating to non-suspect classes and to non-fundamental rights, includes the following: classifications based on poverty, wealth, age, public housing, and welfare benefits. See Nowak, Constitutional Law pp. 620-623. under the rational- basis test, the burden is on the plaintiff to prove that the challenged measure is not rationally related to a legitimate state interest. Choice (D) is correct. Note that it is extremely difficult for the plaintiff to prevail under the “mere rationality,” or rational- basis test, because any legitimate interest that is reasonably furthered by enactment of the challenged measure will be purportedly valid. Choice (A) is incorrect. We do not have a suspect or “quasi suspect” cLass that is being created by the law. Hence, the law will be subject to rational review, under rational review, the challenger—not the state—bears the burden of showing that the law does not advance a legitimate governmental interest or that the law’s means are not rationally related. Choice (B) is incorrect. If the state’s law had created a suspect class, it would be subject to strict scrutiny. Under strict scrutiny, one of the things that the state would have to show is that the means were least restrictive. Unlike race, ethnicity, nationality, or religion, the mining company is not a member of a suspect class. Thus, no strict scrutiny is warranted; rational review will be applied. Choice (C) is incorrect. If the state’s law had created a suspect class, it would be subject to strict scrutiny. Under strict scrutiny, one of the things that the state would have to show is that the government’s interests were compelling. Unlike race, ethnicity, nationality, or religion, the mining company is not a member of a suspect class. Thus, no strict scrutiny is warranted; rational review will be applied.

Question 206

26. A woman attended a private university. One afternoon she was approached by a photographer for a magazine, who asked her if she would be interested in posing nude for an upcoming issue. The woman, who was an aspiring model, agreed and posed for a number of nude pictures, which subsequently appeared in the magazine.Afterward, administrators and professors at the university began to harass her for what they considered to be imprudent behavior. During class, her instructors frequently called her “Playmate” and “Stripper.” Consequently, the woman brought suit in federal court against the university, alleging harassment, and seeking an injunction and damages. After this action was instituted, the university signed a stipulation agreeing not to harass her in the future.The federal court should now(A) hear the case.(B) dismiss the action as moot.(C) dismiss the action since the issues are no longer ripe.(D) dismiss the action because there is no case or controversy.

Answer 206

26. (A) The doctrine of standing requires that a person asserting the violation of a constitutional (or statutory) right must show a direct and immediate personal injury due to the challenged action. Choice (B) is incorrect since it is irrelevant whether the university signed a stipulation agreeing not to harass the woman in the future. The facts clearly indicate that the plaintiff suffered personal injury (humiliation and damage to reputation), which can be traced to the challenged action. The federal court will likely hear the case because a genuine “controversy” is presented. Choice (C) is incorrect. A case is said to lack ripeness and, thus, not justiciable if the alleged injury is only speculative. Here, the woman has already suffered injury from her instructors because of their harassing remarks. Finally, choice (D) is incorrect. In orderfora federal court to review a case under Article Ill, there must be a “case or controversy.” That means that there must be some injury orthreat of an injury. Here, the woman is able to show that she has suffered injury from her instructors because of their harassing remarks.

Question 207

27. Section 2022(a) of a state’s medical licensing code provides:“For the purposes of this statute, only those persons who have graduated from an optometry school located in the state and accredited by the board of optometrists shall be licensed to conduct the practice of optometry within the state.”A doctor graduated from a school of optometry located in a neighboring state. The following month, the doctor was granted a license to practice optometry in that neighboring state by its board of optometrists. For approximately one year, the doctor was engaged in the practice of optometry in the neighboring state. Subsequently, the doctor decided to relocate his practice to the state for which Section 2022(a) applies.The doctor re-domiciled in the state, where he opened a new office for the practice of optometry. When he initially opened his office, the doctor was unaware of the state’s licensing provision for optometrists. Since the doctor was a licensed optometrist for 10 years, he assumed that he could practice optometry in the state by reciprocity.The doctor received notification from the state’s board of optometrists that he was illegally practicing optometry and that he must immediately cease and desist from such practice.If the doctor challenges the constitutionality of Section 2022(a) of the medical licensing statute as violating the Commerce Clause, which of the following, if factually true, is the WEAKEST defense that the state could offer?(A) The statute will help to ensure that only the most qualified optometrists practice in the state.(B) The statute will help protect the optometrists in the state from competition outside the state.(C) The statute will help to ensure a continuously available number of practicing optometrists within the state.(D) The statute will help to ensure that the practicing optometrists in the state are subject to standards of a regulatory body.

Answer 207

27. (B) The WEAKEST defense to the doctor’s constitutional challenge of the statute under the Commerce Clause is that the statute will help protect optometrists in the state from out-of-state competitors. State regulations, such as the medical licensing statute, that appear primarily to favor local economic interest as against outside competition are generally found to be unconstitutional as unreasonable burdens on interstate commerce. However, if the regulation is perceived as within a legitimate health and safety measure that cannot readily be achieved by less drastic means, a court will uphold even a regulation that is discriminatory. While a state may legislate to protect the health of its citizens, the statutory purpose regarding the licensing provision could be achieved by “reasonable nondiscriminatory alternatives, adequate to conserve the legitimate interests of the local optometrists.” Therefore, the statute could be challenged as a discriminatory burden on interstate commerce. Students should refer to Dean Milk Co. v. Madison, 340 U.S. 349 (1951), where the Supreme Court invalidated a Local health ordinance under the “unreasonable burdens” rule. Choice (A) is not the best answer. By favoring optometrists who are trained in the state, the state is in danger of presenting an undue burden on interstate commerce and, thus, violating the dormant commerce clause of Article I, Section 8. Under dormant commerce clause analysis, the only acceptable justification for such discrimination is safety or health. The state might be able to argue that its requirements, while discriminating against out-of-staters, are likely to produce optometrists who are better skilled and, thus, more likely to render service that will promote health and safety. Choice (C) is not the best choice. By favoring optometrists who are trained in the state, the state is in danger of presenting an undue burden on interstate commerce and, thus, violating the dormant commerce clause of Article I, Section 8. Under dormant commerce clause analysis, the only acceptable justification for such discrimination is safety or health. The state might be able to argue that its requirements, while discriminating against outof-staters, will produce a continuously available number of practicing optometrists within the state; hence, the state’s law will contribute to the visual health and perhaps even safety of the state’s residents. Choice (D) is not correct. By favoring optometrists who are trained in the state, the state is in danger of presenting an undue burden on interstate commerce and, thus, violating the dormant commerce clause of Article I, Section 8. Under dormant commerce clause analysis, the only acceptable justification for such discrimination is safety or health. The state might be able to argue that its requirements, while discriminating against out-of-staters, will produce a continuously available number of practicing optometrists within the state; hence, the state’s law will contribute to the visual health and perhaps even safety of the state’s residents.

Question 208

28. A security guard relocated to a state which required all persons wishing to practice private security to have graduated from a security training program within the state. The security guard, having already graduated from a program in his former state, wishes to work again as a private security guard. He began to advertise his services but was informed by the state that he must cease and desist from working as a private security guard until he complied with state law and graduated from an in-state program.The security guard challenges the constitutionality of the licensing statute on grounds that it violates the due process clause of the Fourteenth Amendment. Which of the following statements is most accurate?(A) The security guard has the burden of persuasion to show that the state does not have a compelling state interest in enacting such legislation.(B) The security guard has the burden of persuasion to show that the denial of a license to work in private security violates his rights of due process.(C) The state has the burden of persuasion to show a compelling state interest in enacting such legislation.(D) The state has the burden of persuasion to show that the denial of a license to work in private security does not violate the petitioner’s rights of due process.

Answer 208

28. (B) Since the security guard is challenging the constitutionality of the licensing statute, he has the burden of persuasion to show that the denial of the license violates his rights of due process. Upon such a showing, the burden then shifts to the state to prove that it has a compelling state interest in enacting such legislation. In In re Ruffalo, 390 U.S. 544 (1968), the Supreme Court held that if the government terminates an individual’s ability to engage in a profession, it must grant that individual a procedure to determine his fitness to be a member of the profession. Thus, an individual must be afforded a fair hearing before a government agency may revoke his license to practice a profession, such as, in this case, security. Choice (A) is incorrect. The security guard will first need to show that his due process rights have been violated when the state prohibited him from using his out of state private security license. If the security guard succeeds, the state will have the burden of showing that its licensing requirement furthers a compelling governmental interest. Choice (C) is incorrect. The security guard will first need to show that his due process rights were violated when the state prohibited him from using his out of state private security license. It is only after such a showing that the state bears the burden to prove that its denial furthered a compelling state interest. Choice (D) is incorrect. The security guard has the initial burden to show that the denial of his license violated his fundamental rights of due process. If the security guard is able to show this, the state then bears the burden of showing that its denial constitutes a compelling governmental interest and that the denial was the least restrictive means available to advance the compelling governmental interest.

Question 209

29. A state recently enacted a statute requiring the following of all firms that do business with and for the state (defined generally as selling goods or providing services to the state, its agencies, or subdivisions):— Such businesses must purchase insurance only from insurance companies chartered in the state and thus be subject to regulation by the state insurance commissioner;— In hiring any unskilled laborers for employment in connection with state business, preference must be given to citizens of the state;— Nonresident aliens shall be prohibited from engaging in any state related business activities;— All buildings constructed for the state must have roofs composed of adobe, which is composed of yellow silt or clay deposits found only in the state.The proposed statute’s preamble recites that its provisions will ensure:— responsible insurance coverage for all those who do business with the state;— an increased standard of living for the citizens who comprise the state’s labor force;— the lowest possible expenditures by the state government; and— a beautiful, uniform aesthetic decor for all new state buildings.In evaluating the constitutionality of the state statute under the Supremacy Clause of Article VI, which of the following would be most relevant?(A) The number of aliens presently residing in the state.(B) The necessity for the enactment of this particular statute.(C) The treaties and immigration laws of the United States.(D) The overall unemployment rate in the United States.

Answer 209

29. (C) Under the Supremacy Clause of Article VI, federal treaties are the supreme law of the land and supersede any state statutes which are in conflict therewith. According to the Supreme Court, Congress is vested under Article I, Section 8 with the primary authority to regulate immigration and aliens. Any state legislation that affects aliens is thus likely to be preempted (depending, however, in part on the activity regulated). Note that the Supreme Court has upheld a state law forbidding employment of illegal aliens under the state’s police power, since it did not interfere with the exclusive federal power over aliens. Choice (A) is incorrect. According to the Supreme Court, Congress is vested under Article I, Section 8 with the primary authority to regulate immigration and aliens. If Congress passes a law that is valid under this power to regulate immigration and aliens, the law, according to the Supremacy Clause, takes priority over any conflicting state laws. So, too, in some fields, such as immigration, Congress enjoys “field preemption” under the Supremacy Clause; under field preemption, any state statute that overlaps Congress’s field of regulation is also deemed unconstitutional. The number of aliens presently residing in the state is not relevant in determining whether the state statute conflicts with a congressional statute or whetherthere is field preemption. Choice (B) is incorrect. The necessity for the enactment of the state statute is mostly irrelevant in determining its constitutionality under the Supremacy Clause. Even if the state could show that its reasons for the statute were fabulous, the state could not save its statute from being preempted if the statute either conflicted with an otherwise constitutional federal statute or regulated in a field like immigration that was deemed by the Supreme Court to be an exclusively federal domain. Choice (D) is incorrect. The overall unemployment rate in the United States is mostly irrelevant in determining the constitutionality of the state statute under the Supremacy Clause. Much more important is to determine whether the state statute either violates an otherwise constitutional federal statute or whether the state statute regulates in a field like immigration that was deemed by the Supreme Court to be an exclusively federal domain.

Question 210

30. A state recently enacted a statute requiring the following of all construction companies that do business with and for the state (defined generally as selling goods or providing services to the state, its agencies, or subdivisions):Such businesses must purchase insurance only from insurance companies chartered in the state and thus be subject to regulation by the state insurance commissioner;— In hiring any unskilled laborers for employment in connection with state business, preference must be given to citizens of the state;Nonresident aliens shall be prohibited from engaging in any state related business activities;— All buildings constructed for the state must have roofs composed of adobe, which is composed of yellow silt or clay deposits found only in the state.The proposed statute’s preamble recites that its provisions will ensure:— responsible insurance coverage for all those who do business with the state;an increased standard of living for the citizens who comprise the state’s labor force;— the lowest possible expenditures by the state government; and— a beautiful, uniform aesthetic decor for all new state buildings.If the state statute is attacked as violating the commerce clause, which of the following statements is most accurate?(A) The statute is a valid exercise of the state’s police power to legislate to protect the health, safety, morals, and welfare of its citizens.(B) The statute falls within the reserved powers under the Tenth Amendment.(C) The statute should be invalidated if there are nondiscriminatory reasonable alternatives available to serve legitimate local interests.(D) The statute is a valid exercise of state action only if the federal government has not previously “occupied the field” in this area.

Answer 210

30. (C) If the state statute is challenged on commerce clause grounds, the court would apply the unreasonable burdens rule (also referred to as the least restrictive means test). State regulations, even in areas generally described as local, cannot be accepted if they impose an unreasonable burden on interstate commerce. In orderto determine the reasonableness of the burden, the court will balance the nature and extent of the burden that the state regulation would impose on interstate commerce against the purposes of the state regulation. Subsection (d) of the statute would place a discriminatory burden on producers of other building materials, both within and outside the state. Choice (A) is incorrect. Under commerce clause analysis, the court will determine whether a state’s benefits outweigh the burdens on interstate commerce. Here, Subsection (d) of the statute would place a discriminatory burden on producers of other building materials, both within and outside the state. Choice (B) is incorrect. The 10th Amendment contains the so-called police powers to regulate health, safety, welfare, and morals. The invocation of police powers, however, will be insufficient to help the state against the conclusion that it violates the dormant commerce clause. Choice (D) is incorrect. Actually, the state statute can still be held invalid for violating the commerce clause, irrespective of whether the state statute has occupied a field that is exclusive to the federal government. The Supremacy Clause of Article VI would invalidate local laws that conflict with the U.S. Constitution, including the commerce clauses therein.

Question 211

31. A state has recently enacted a statute prohibiting the sale of beer in glass bottles. In accordance with the new law, all beer consumed within the state must be sold in aluminum cans that are recyclable. There is a provision of the statute that does permit breweries to distribute beer to bars, taverns, and restaurants in kegs for “on-site” consumption by patrons.Before the passage of the law, approximately 28% of all beer consumed in the state was packaged in glass bottles. Of that total, 75% of the beer was bottled outside the state, while 25% was bottled by companies in-state. The legislature passed the law at the strong urging of the aluminum can industry. It was estimated that one aluminum company alone spent over $5,000,000 in its lobbying campaign for the passage of the bill. Ironically, the new law even received strong support from environmentalists who believed that recyclable cans would help prevent littering and unsightly trash accumulation.The strongest federal constitutional argument against the validity of the law is that it violates the(A) equal protection clause of the Fourteenth Amendment by discriminating against beer bottlers.(B) privileges or immunities clause of the Fourteenth Amendment by preventing out-of-state beer bottlers from conducting their business in the state.(C) commerce clause by violating the negative implications on interstate commerce.(D) contracts clause by impairing the ability of beer bottlers to honor existing contracts for the sale of bottled beer in the state.

Answer 211

31. (C) Although the federal commerce power is plenary, the states may also regulate commerce among themselves, subject to implications flowing from the Supremacy Clause. State regulation of interstate commerce must be reasonable and non-discriminatory, and the states may not interfere with the free flow of interstate commerce by favoring local interests or burdening out-of-state competition. The state statute, which prohibits the sale of beer in glass bottles, will effectively curtail outof-state production of 21% (75% of 28%) of all the beer consumed in the state. It is arguable that this large proportion is not only discriminatory against out-of-state bottlers, but unreasonable as well, since the urging of the aluminum can industry was the basis on which the state legislature passed the bill. Based on these facts, the strongest argument against the validity of the state statute would be that it vioLates the Commerce Clause and the negative implications flowing from it. Choice CD) is not the strongest answer because the Commerce Clause is a broader and stronger source of power than the contracts clause. Choice (A) is incorrect. The equal protection clause is not as strong an argument because even though the statute does arguably discriminate against out-of-state bottlers, the standard of review the court would use to determine its validity would be the rational-basis test, under which the state could prevail upon a showing of any rational basis for enacting the bill. Choice (B) is incorrect. Remember that the Privileges or Immunities Clause of 14th Amendment (as well as the Privileges and Immunities Clause of Article IV) only applies to U.S. citizens. A company is not a citizen.

Question 212

32. A state has recently enacted a statute prohibiting the sale of computer printer ink cartridges in plastic bags. In accordance with the new law, all ink cartridges within the state must be sold in paper cartons that are recyclable.Before the passage of the law, approximately 28% of all ink cartridges used in the state was packaged in plastic bags. Of that total, 75% of the ink cartridges was packaged outside the state, while 25% was packaged by companies in-state. The legislature passed the bill at the strong urging of the paper industry. It was estimated that one paper company alone spent over $5,000,000 in its lobbying campaign for the passage of the bill. Ironically, the new law even received strong support from environmentalists who believed that recyclable paper would help prevent littering.Assume that the state Supreme Court adjudges the law to be unconstitutional on the grounds that it violates the contracts clauses of both the federal and the state Constitutions. The contracts clause of the state Constitution is similar to the one in the federal Constitution. The court so held because, in its judgment, the statute retroactively impairs the ability of plastic bag packagers to honor their existing contracts for the sale of ink cartridges packaged in plastic bags. The state attorney general now seeks review of this decision in the U.S. Supreme Court.How should the U.S. Supreme Court rule on this case?(A) Refuse to review this case on the merits because there is an adequate and independent state ground for the decision rendered below.(B) Reverse the decision on the merits with respect to the state constitutional issue because the federal constitutional holding rendered below makes such a state constitutional decision unnecessary.(C) Affirm the decision on the merits with respect to the federal constitutional issue and abstain from reviewing the state constitutional issue.(D) Affirm the decision on the merits with respect to both the federal and state constitutional issues because the state constitution must substantially conform with the federal constitution on this issue.

Answer 212

32. (A) The Supreme Court may properly deny review of any matter that rests upon an adequate and independent state ground, since resolution of the “state” issue by the state court might preclude the need for federal review. As a general rule, the Supreme Court, upon reviewing a decision of a state court, reviews only the federal questions and not the state law questions [Nowak, Constitutional Law, p. 85]. Since the law was found by the state court to be unconstitutional as violative of the contracts clause of the state constitution, the Supreme Court would avoid review of the case on the merits because a separate and sufficient state law basis for unconstitutionality exists. Choice (A) is correct in stating this conclusion under the doctrine of adequate and independent state grounds. Choice (B) is incorrect as a misstatement of this doctrine, since the Supreme Court will decline to hear the case, not reverse the decision. Choices (C) and (D) reach the wrong conclusions because the Supreme Court will refuse review altogether, as long as any adequate state ground for state court review exists.

Question 213

33. A state has recently released medical statistics showing that the number of new AIDS cases within the state has quadrupled from the preceding year. In 2008, the state reported that 2,250 people were diagnosed as being stricken with the AIDS virus. However, in 2009 the state confirmed that over 9,000 new persons contracted the deadly virus. In an effort to improve the health care of AIDS patients in the state, the Legislature has enacted a law providing public funds to assist privately owned hospitals.According to the law, every hospital in the state would receive $5,000 annually for each AIDS patient who was admitted to that hospital, and whose period of hospitalization exceeded one week. Although this bill was initially opposed by several churches and other organizations, the state’s legislature re-drafted the bill in a compromise effort to appease the opposition. In its final re-draft, the bill provided that the $5,000 annual subsidy “would not be paid to any hospital performing abortions.”Which of the following is the strongest argument against the constitutionality of the state’s statute?(A) The statute violates the establishment clause of the First Amendment, as incorporated into the Fourteenth Amendment, by adopting the controversial views of particular churches on abortion.(B) The statute violates the Fourteenth Amendment by conditioning the availability of public funds upon the recipient’s agreement to act in a way that makes more difficult the exercise by others of their fundamental constitutional rights.(C) The statute violates the equal protection clause of the Fourteenth Amendment by denying nonAIDS patients the same subsidy benefits as those received by AIDS patients.(D) The state will be unable to show it is advancing a legitimate governmental interest.

Answer 213

33. (B) This fact situation is extremely representative of both the difficulty of Constitutional Law questions on the bar and of the closeness between long, and often similar, answer choices. The substantive guarantees of due process under the 14th Amendment require that legislation, to be constitutional, have a rational relationship to a legitimate end of government. In the area of fundamental rights, such as privacy (and including abortion), governmental power is limited to the extent that individuals may be afforded freedom of choice in matters relating to their personal life. The state statute limits the availability of funds for AIDS patients only to hospitals refusing to perform abortions. While the statute does not preclude individuals from having abortions performed, it does make more difficult the exercise of that right. Since legislation restricting fundamental rights is viewed under the strict scrutiny standard of review, the state then has a heavy burden to show that the measure is necessary to further a compelling interest. Choice (B) is the strongest argument presented and is, therefore, correct. Choice (A) is not the strongest answer. This is a potentially good choice, but it is uncertain whether the statute was motivated by religious views; the reference to churches in the facts are not conclusive. One could theoretically be opposed to abortion on strictly secular grounds. Choice (C) is incorrect. Under equal protection clause scrutiny, strict scrutiny will be applied to those laws that create suspect classes: race, ethnicity, nationality, and religion. Intermediate review will be applied to legal classifications based on gender and illegitimacy. All other legal classifications are subject to rational review, which is relatively easy for the state to pass. Here, non-AIDS patients will only be entitled to rational review under the equal protection clause. Finally, choice (D) is incorrect. The state statute will probably be subject to strict scrutiny because it is infringing a woman’s fundamental right to an abortion. Hence, the state will have to show that it is advancing something greater than a legitimate governmental interest; the state will have to show that it is advancing a compelling governmental interest.

Question 214

34. In an effort to improve the health care of cancer patients, a state’s legislature has enacted a law providing public funds to assist privately owned hospitals. According to the law, every hospital in the state would receive $5,000 annually for each cancer patient who was admitted to that hospital, and whose period of hospitalization exceeded one week. Although this bill was initially opposed by several churches and other organizations, the state’s legislature re-drafted the bill in a compromise effort to appease the opposition. In its final re-draft, the bill provided that the $5,000 annual subsidy “would not be paid to any hospital performing abortions.”Which of the following is the strongest argument in support of the constitutionality of the state statute?(A) The Tenth Amendment reserves to the states plenary power over the allocation of their public funds.(B) Public subsidies in hospitals are privileges rather than rights and, therefore, are not entitlements protected by the due process clause of the Fourteenth Amendment.(C) The funding limitation in this statute does not directly prohibit or penalize the exercise of a fundamental right and is rationally related to the achievement of a legitimate state interest.(D) The statute promotes a compelling state interest in advancing the health, safety, and welfare of its citizenry.

Answer 214

34. (C) Choice (A) is incorrect since the 10th Amendment’s reserved powers do not authorize plenary power to the states regarding allocation of public funds. Choice (B) is incorrect since the court would generally examine the purpose and circumstances underlying the authorization of public subsidies before mechanically applying the rights-privilege rationale. Choices (C) and (D) are both very persuasive. To determine which one is stronger, consider that the primary purpose of the statute itself is to provide public funding to hospitals for cancer patients, not to directly restrict abortion. This purpose promotes a legitimate interestwhich, under equal protection analysis, would be reviewed using the rational-basis standard, as stated in choice (C). Since choice (C) presents a federal constitutional basis of analysis, whereas choice (D) addresses merely a source of state power (i.e., police powers), choice (C) is preferred and, therefore, the correct answer.

Question 215

35. A company operates passenger buses to all the major cities on the east coast. This service is authorized under a certificate of convenience and necessity issued by the Interstate Commerce Commission, pursuant to federal statute. The certificate does not, however, specify particular highways, streets, or locations for the bus service. The company’s advertising stresses that it picks up and delivers passengers at the center of each city that it serves. The company’s management regards this as a particularly effective advertising point in competition with the airlines and the railroads, because short-haul traffic supplies a major part of the bus company’s revenues.One of the major cities on the east coast, acting to relieve traffic congestion and air pollution, has recently enacted an ordinance that prohibits (a) the operation of all trucks and buses in a five- square- mile central business area, known as center city, between the hours of 10:00 A.M. and 4:00 P.M. on weekdays, and (b) all on-street parking of passenger automobiles in center city between the same weekday hours.The company’s bus station in this city is located in the heart of the center city area. According to its transportation schedules, more than 75 buses either enter or leave this station between the hours of 10:00 A.M. and 4:00 P.M. each weekday.If the company brings suit challenging the constitutionality of the city ordinance, the court will most likely declare the ordinance(A) constitutional, because it is within the city’s police power to regulate transportation services in the center city business district.(B) constitutional, because it is a valid exercise of municipal regulation in the area of intrastate commerce.(C) unconstitutional, because it violates the dormant commerce clause.(D) unconstitutional, because the ordinance is discriminatory per Se.

Answer 215

35. (C) In all likelihood, the city ordinance prohibiting the operation of all trucks and buses within its center city business area between 10:00 A.M. and 4:00 P.M. would be violative of the dormant Commerce Clause, if less restrictive alternatives are available. Choice (A) is incorrect. It is true that the city council does have the police power under the 10th Amendment to regulate transportation within its jurisdiction because the state’s police powers of the 10th Amendment include the right to regulate matters concerning health, safety, morals, and welfare. However, the city council does not enjoy an unqualified right to exercise its police powers. Here, the city council appears to have violated the dormant Commerce Clause of Article I, Section 8 by presenting an undue burden on interstate commerce. Choice (B) is incorrect. The city council’s ordinance does regulate activities within its borders. But it also appears to present an undue burden on interstate commerce and, thus, will likely be deemed to violate the dormant Commerce Clause of Article I, Section 8. Choice (D) is incorrect. Actually, the law is not discriminatory, perse, since it affects intrastate commerce as well. However, the law does appear to present an undue burden on interstate commerce and will likely be deemed unconstitutional under the dormant Commerce Clause of Article I, Section 8.

Question 216

36. A city ordinance provides that it shall be unlawful for any person to litter in a public park, and that a violation of this ordinance shall be punished by a fine of not more than $100 or imprisonment for not more than 30 days.A protestor organized a demonstration against federal governmental support to rebels in a foreign country. The rally took place in a city park, and attracted about 100 supporters. During the rally, the protestor delivered a speech to the attendees. At the conclusion of his speech, the protestor said, “I’m sick and tired of the garbage this administration is getting away with. Here’s what I think about its policy of rebel aid …“ At which point, the protestor walked over to a trash can and dumped its contents on the ground. As the crowd cheered wildly, the protestor shouted, “No more rebel aid … let’s stop this garbage now!” After littering the park, the protestor and his supporters left without picking up the trash.As a matter of constitutional law, may the protestor be prosecuted under the aforementioned city ordinance for littering the public park?(A) No, because littering the park in these circumstances could be construed as symbolic speech and, thus, it is protected from government regulation by the First and Fourteenth Amendments.(B) No, because the facts do not indicate that the protestor’s actions presented a clear and present danger that was likely to produce or incite imminent lawless action, thereby necessitating an abridgment of his freedom of speech.(C) Yes, because the city ordinance advances an important and legitimate public interest and is not directed at the suppression of communication.(D) Yes, because littering the park is conduct, not speech and, therefore, it may not be treated by the law as communication.

Answer 216

36. (C) When the government regulates speech in a traditional public forum, it may only base its restriction on the content of the speech being regulated (1) if that content falls within a category of speech that the court has found unprotected by the 1st Amendment, or (2) if the government can demonstrate a compelling interest in suppressing the speech. However, the government may employ a time, place, or manner regulation to regulate speech in a traditional pubLic forum (streets, parks) so long as the regulation promotes an important interest unrelated to the suppression of a particular message and does not unnecessarily restrict the ability to communicate the message. Nowak, Constitutional Law pp. 975-76. In this question, the test maker is trying to trick students into thinking the Rosemont city ordinance regulates a protected 1st Amendment area. In fact, the littering ordinance regulates neither speech-related conduct nor speech-related content. The regulation promotes a legitimate objective by advancing a health and safety interest under the state’s police powers, and the ordinance passes 1st Amendment scrutiny since it is not directed at the suppression of communication. Choice (C) is correct. Choice (A) is incorrect. Even if the speech were considered as symbolic speech, it can still be regulated under the circumstances. The city has passed a proper time, place, and manner regulation that regulates the secondary effects of speech—not the speech itself—and provides reasonable alternatives for the protestor to say more or less the same thing without littering. Here, the city is advancing an important governmental interest in preventing littering (a secondary effect of the protestor’s speech), not deterring speech. Choice (B) is incorrect. In order to regulate the protestor’s littering, the city does not have to show that his speech constituted a clear and present danger. All that is required is that the city show it has passed a proper time, place, and manner regulation that regulates the secondary effects of speech—not the speech itself—and provides reasonable alternatives for the protestor to say more or less the same thing without littering. Here, the city is advancing an important governmental interest in preventing littering (a secondary effect of the protestor’s speech), not deterring speech. Choice (D) is incorrect. Littering might constitute symbolic speech since it is a combination of both conduct and speech. However, even if it were symbolic speech, the city is justified in regulating it because the city has used a proper time, place, and manner regulation that regulates the secondary effects of speech—not the speech itself—and provides reasonable alternatives for the protestor to say more or less the same thing without littering. Here, the city is advancing an important governmental interest in preventing littering (a secondary effect of protestor’s speech), not deterring speech.

Question 217

37. A march was held to call attention to the fact that minorities are still disenfranchised from the electoral process. A congressional report revealed that in the certain parts of the country, only 42% of minorities eligible to vote were, in fact, registered. The report also indicated that certain states had residency laws restricting a person’s right to vote. As a consequence, Congress enacted a statute that makes any law denying minorities the right to vote shall be deemed unconstitutional.This federal statute will most likely be upheld under which of the following constitutional provisions?(A) Thirteenth Amendment.(B) Fourteenth Amendment.(C) Fifteenth Amendment.(D) Twentieth Amendment.

Answer 217

37. (C) The 15th Amendment is a limitation prohibiting the states and the federal government from denying any citizen the right to vote on accountof race orcolor. Note, too, that the 15th Amendment has an “enabling clause” that allows Congress to enact legislation protecting against discrimination affecting the right to vote. Choice (A) is incorrect because the 13th Amendment provides that slavery shall not exist in the United States. Choice (B) is wrong because the 14th Amendment prohibits states from depriving any person of life, liberty, or property without due process and equal protection of the laws. Finally, choice (0) is incorrect because the 20th Amendment deals with presidential and congressional terms, not voting rights.

Question 218

38. An illegal alien and her three children live in a U.S. city. The city council has enacted an ordinance requiring illegal aliens to pay a $100 “school fee” for each child enrolled in a city public school. Citizens and legal aliens are not required to pay the school fee.The city council has enacted this law to raise funds to hire additional teachers who are bilingual. The city determined that over 15% of children attending public schools in the city were illegal aliens. Furthermore, the city conducted a study and found that the overwhelming majority of illegal aliens residing in the city did not pay any local property taxes. As a result, since the city provided educational benefits to the children of illegal aliens, the school fee furthered a significant governmental interest.The illegal alien, who is indigent, is unable to pay the city school fee. The city will not allow her children to attend school unless the fee is paid. If she seeks your legal advice regarding the constitutionality of the fee, you should advise her that the ordinance is(A) valid, because the city can demonstrate that the school fee is necessary to further a compelling governmental interest.(B) valid, because the imposition of the school fee is substantially related to a legitimate governmental interest.(C) invalid, because denying educational services to children of undocumented aliens is not substantially related to an important governmental interest.(D) invalid, because the cost of educating the children imposed an undue burden on the public school system by requiring the school board to hire additional bilingual teachers.

Answer 218

38. (C) In Plylerv. Doe, 457 U.S. 202 (1982), the Supreme Court held that illegal alien children are entitled to a free public education. In Plyler, the Court struck down a Texasstatute that (1) denied local school districts funds for education of illegal alienchildren, and (2) allowed school districts to deny a free public education to thesechildren. The majority of justices determined that the Equal Protection Clause ofthe 14th Amendment was intended to cover any person physically within a state’sborders regardless of the legality of his presence. Also, the Court rejected the notion that illegal aliens be treated as a “suspect” class. Instead, the Courtapplied “intermediate-level” scrutiny based on the following two factors: (1) the importance of public education, and (2) the powerless nature of the group. Thus, choice (C) is correct. Choice (A) is incorrect. The city probably will be unable to show that its school fee is necessary—the least restrictive means—to further a compelling governmental interest. In this instance, the city could have raised taxes for everyone, for example, to cover the cost for bilingual teachers. Choice (B) is incorrect. The problem with this answer is that the city’s school fee will be subject to strict scrutiny. The facts here are similar to those in Plyler v. Doe, 457 U.S. 202 (1982), where the Supreme Court rejected as unconstitutional, under the 14th Amendment’s Equal Protection Clause, a Texas statute that denied public education to children who were undocumented aliens. Plyler subjected Texas’s statute to strict scrutiny. The language of “substantially related” and “legitimate means” suggests a level of scrutiny below strict scrutiny. Choice CD) is incorrect. The language of “undue burden” generally comes from dormant commerce clause analysis. But, as phrased, the reference to undue burden in this answer does not involve any dormant commerce clause issues.

Question 219

39. A state highway runs through the center of a city’s business district. As the highway passes through this business district, there is a stretch where the highway is too narrow to satisfS’ the safety standards for state roadways. Along this narrow stretch and on opposite sides of the street are located two businesses. Situated on the east side of the street is a bar and grill; directly across the street on the west side is a lounge.In order to comply with state highway regulations, the state highway department, acting pursuant to state statute, ordered the city to prohibit parking on one side of the highway within the business district. The city council convened a special meeting to determine whether parking should be prohibited on the east or west side of the street. During the meeting, the council was unable to resolve the issue. Finally, the city council president decided the only fair way to resolve the matter was to flip a coin. After the coin flip, the city prohibited parking at all times on the west side of the highway. On account of this decision, parking in front of the lounge was permanently prohibited. This caused the lounge to suffer a substantial decline in business because of the unavailability of on-street parking.As a consequence, the owner of the lounge brought suit for declarative relief against the city alleging that the parking ban on his side of the street was unconstitutional. In all likelihood, will the plaintiff be successful in this cause of action?(A) No, because as a governmental entity, the city enjoys immunity from such suits under the Eleventh Amendment.(B) No, because the city’s action was reasonable.(C) Yes, because the action of the city violated the equal protection clause of the Fourteenth Amendment.(D) Yes, because responsible government officials cannot conduct or formulate their decisionmaking processes by means of coin flips.

Answer 219

39. (B) In dealing with the area of state economic regulation enacted so as to affect the health or safety of the citizenry, the Court will not strike down the state legislation if the benefit to health and safety outweighs the burden imposed on interstate commerce. The challenged legislation must pass a commerce clause test of “reasonableness” that is stricter than that used for due process and equal protection cases. Nowak, p. 271. Following the holding in South Carolina v. Barnwell, 303 U.S.177 (1938), where the Court upheld a width restriction on trucks using South Carolina state highways due to the safety concern arising from the state’s narrow roads, the city’s parking ban on one side of the highway due to the narrowness of the highway as it passes through the business district promotes a safety interest that is reasonable, and it will be upheld. Choice (A) is incorrect because the 11th Amendment generally prohibits people from suing the state for monetary damages. Here, the lounge is not suing the city for monetary damages. Choice (C) is incorrect. Under equal protection clause scrutiny, strict scrutiny will be applied to those laws that create suspect classes: race, ethnicity, nationality, and religion. Intermediate review will be applied to legal classifications based on gender and illegitimacy. All other legal classifications are subject to rational review, which is relatively easy for the state to pass. Here, the lounge does not constitute either a suspect class or quasi-suspect class. Thus, the city’s discrimination against the lounge, even if true, would only merit rational review under equal protection clause analysis; the city will easily pass such rational review. Choice (D) is incorrect. Under rational basis review, even something as silly as a coin flip may suffice under some circumstances where everything else is pretty much equal.

Question 220

40. An industrial town with a population of 100,000, is located on the north side of a river. On the south side of the river is situated a rural community with a population of 40,000. For many years, various civic groups have urged that both communities merge into one township with a single governmental body. Independent studies have indicated that such a merger would result in an enormous tax savings to the residents of both municipalities by eliminating the duplication of services. On one previous occasion, proponents of the merger pian succeeded in having the proposal appear as an election referendum in each community. Although the merger referendum passed in the industrial town by a sizable margin, the voters of the rural community rejected the measure, fearing the combined government would be dominated and controlled by its neighbor’s larger representation.In order to alleviate the concern of the rural community’s voters regarding under representation in a merged governmental system, the respective city councils of both municipalities appointed a steering committee to formulate a new proposal. Accordingly, the steering committee devised a merger scheme wherein the city council of the united city, would consist of eight members. Within this proposed new system of government, each former municipality would be divided into four districts. With respect to the industrial town, each district would consist of 25,000 persons and each would have one elected city council member. By the same token, the rural community would be divided into four elective districts, each containing 10,000 residents. One city council member would be elected from each of these districts as well. The mayor would be elected at large by a popular vote of all residents in the newly created eight districts.Before this merger proposal was placed on the ballot, the state attorney general issued an advisory opinion stating that the measure did not, in her opinion, violate any statutory or constitutional provisions. Thereafter, the proposal was placed on the ballot and was overwhelmingly passed by the voters in both municipalities. After the election, but before the merger had officially been carried out, two taxpayers from the industrial town initiated suit to enjoin the unification, attacking the constitutionality of the disproportionate representative districts.Which of the following represents the plaintiffs’ strongest constitutional argument in support of their action?(A) The plaintiffs and other residents of the industrial town have been denied the equal protection of the law.(B) The plaintiffs and other residents of the industrial town have been denied the due process of the law.(C) The plaintiffs and other residents of the industrial town have been denied the privileges and immunities of citizenship as guaranteed by Article IV, Section 2.(D) The merged city would not constitute a republican form of government.

Answer 220

40. (A) State control over the right to vote is not expressly limited by the federal Constitution. However, any inequality in allocating the right to vote based on using electoral districts established on criteria other than street population dilutes the “one man, one vote” principle and will be subject to strict scrutiny review by the Court. In Reynolds v. Sims, 377 U.S. 533 (1964), justice Warren formulated the one person, one vote rule: “If a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. The Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Nowak, Constitutional Law, p. 754. Choice (B) is incorrect. It seems unlikely that due process was denied to the plaintiffs given that the members of their city council voiced their concerns with the members of the other city council and a steering committee was formulated to represent the collective interests of both cities. Choice (C) is incorrect. The privileges and immunities clause of Article IV has been interpreted by the Supreme Court to prohibit discrimination by a city, even if the city’s policies discriminate against other in-staters, if the effect of the policy is to discriminate against out-ofstaters [United Building & Construction Trades Council v. Mayor and Council of Camden, 465 U.S. 208 (1984)]. However, in this instance, the aggrieved party consists entirely of in-staters. Choice (D) is incorrect. The Supreme Court faced a challenge to the use of statewide initiatives in Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912). In that case, the Court held that challenges to a state’s republican character are nonjusticiable political questions, and that the decision of whether a state is “republican” in conformance with the guarantee clause may be decided only by Congress, and the Court would not get involved.

Question 221

41. Before a proposal to merge two towns was placed on a ballot, the state attorney general issued an advisory opinion stating that the measure did not, in her opinion, violate any statutory or constitutional provisions. Thereafter, the proposal was placed on the ballot and was overwhelmingly passed by the voters in both towns. After the election, but before the merger had officially been carried out, two taxpayers from one of the towns initiated suit to enjoin the unification, attacking the constitutionality of the proposal. The suit reached the state supreme court and was found to be constitutional under both state and federal law.The plaintiffs now file a motion seeking to have thiscase reviewed by the U.S. Supreme Court. The Court may(A) not hear the case, because it was decided on independent state grounds.(B) not hear the case, but may have it remanded to federal district court.(C) hear the federal issues involved, but decline to rule on the state issue.(D) rely on the advisory opinion rendered by the state attorney general and not hear the case on its merits.

Answer 221

41. (A) Where a state court clearly holds that a state law violates (or does not violate) a state law or provision of the state constitution, that decision will be an adequate and independent state ground. This is true regardless of whether or not the opinion also decides that the state law violates a federal law as well. Indeed, where a state court holds that a state law violates both the state and federal constitutions, the doctrine of adequate state grounds will apply. This is precisely the case addressed by the question, because it is evident that the state court found the proposal constitutional under both state and federal law. Without more information (such as, for example, evidence that the opinion is based upon federal interpretation of a similar federal law), there is no reason to assume anything beyond the fact that the Supreme Court will decline the case, because the decision of the state court rests on an independent and adequate state ground. Choice (A) is thus correct. Choice (B) is incorrect, as it confuses the situation presented here with one where it is unclear whether the state made their decision based upon state or federal interpretations of statutes. In that situation, the Supreme Court may take the case, although it also has the power in that situation to dismiss or remand the case for clarification from the state court (not a federal district court). Choice (C) is incorrect because the Court will not hear the case exclusively on federal issues, because it will decline the case altogether, in light of the adequate state ground.

Question 222

42. A federal grand jury was convened to investigate the alleged bribery by a foreign government of a special adviser to the President. The grand jury was probing the foreign government’s efforts to obtain delivery of transport planes, which were embargoed by the State Department. The Justice Department was trying to ascertain whether the foreign government had offered bribes to the special adviser and other members of the U.S. government in order to secure delivery of the transport planes.The special adviser testified before the grand jury that both he and the President had several conferences with the foreign government’s ambassador to the United States. He stated that during these meetings, they discussed problems in their region in general. He denied, however, any involvement in the foreign government’s efforts to secure delivery of the transport planes.Two weeks after the special adviser testified, the grand jury returned an indictment, charging him and two other members of the President’s staff with conspiracy to commit bribery and conspiracy to defraud the U.S. government. A special prosecutor was then appointed by the Justice Department to prepare the government’s case.Upon motion by the special prosecutor, a subpoena duces tecum was issued directing the President to produce the minutes of his meetings with the special adviser and ambassador of the foreign government. The special prosecutor was able to determine the exact dates of the meetings through appointment records that had been previously subpoenaed. The President released several edited transcripts of these conversations. On the same day, the President’s counsel filed a motion to quash the subpoena duces tecum, claiming an absolute executive privilege.Which of the following is the most accurate statement with regard to the President’s claim of executive privilege?(A) Under the separation of powers doctrine, the federal judiciary is without authority to review an assertion of executive privilege by the President.(B) The need for the confidentiality of high-level communications will sustain an absolute unqualified presidential privilege of immunity from judicial process on all occasions.(C) Article III does not vest the federal courts with power to resolve an intrabranch dispute.(D) Article II does not vest the President with an absolute, unqualified privilege to withhold evidence from a criminal prosecution.

Answer 222

42. (D) Article II does not vest the President with an absolute, unqualified executive pri vilege as against a subpoena essential to enforcement of criminal statutes. To vest the President with such powers would upset the separation of powers doctrine and gravely impair the role of the courts under Article III. The Supreme Court, in United States v. Nixon, 418 U.S. 683 (1974), held that the courts have the power of judicial review and are the final arbiter ofa claim of executive privilege. Moreover, the Court concluded that the executive privilege may not be asserted as to subpoenaed materials sought for use in a criminal trial, since the Constitution requires the courts to adhere to the due process of law. Choice (A) is incorrect. In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court held that courts have ultimate authority for determining whether an invocation of executive privilege is justified. Otherwise, the executive branch would undermine the judiciary and thus violate the principle of the separation of powers. Choice (B) is incorrect. While confidentiality is obviously important for the executive branch, there is no unqualified immunity under the Constitution. In United States v. Nixon, 418 U.s. 683 (1974), the Supreme Court held that courts have ultimate authority for determining whether an invocation of executive privilege is justified. Otherwise, the executive branch would undermine the judiciary and thus violate the principle of the separation of powers. Finally, choice (C) is incorrect. Article Ill says: “The [federal] judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls.” Ambassadors and public ministers serve in the executive branch; the President himself is one such example. Thus, the federal courts may review the President.

Question 223

43. Pursuant to a newly enacted statute, Congress created a nine-member agency empowered to promulgate rules governing air quality standards for the nation. In accordance with the statute, the President was authorized to appoint a majority of six members to the agency, and the other three positions were to be filled by the Senate.The nine members were duly appointed to the agency, and all appointees were subsequently approved in confirmation hearings. Thereafter, the agency issued the following regulations:(a) Requiring each motor vehicle operating in the United States to be equipped with a specified air/fuel control device;(b) Requiring each gas or oil furnace located in the United States to be fitted with a specified device to reduce emissions;(c) Requiring each State to establish and maintain a program under which each vehicle and each furnace shall be tested annually for compliance with federal emissions standards.Which of the following arguments would provide the strongest constitutional grounds against the authority of the statute?(A) The President does not have the constitutional power to appoint a majority of members to an administrative agency.(B) Congress does not have the executive authority to appoint members to an administrative agency.(C) An administrative agency does not have the constitutional authority to promulgate regulations that unduly burden interstate commerce.(D) An administrative agency does not have the constitutional authority to require states to supervise federal regulatory guidelines such as those enumerated in Subsection (c).

Answer 223

43. (B) The power of the President to appoint and remove officers of the United States stems in part from express provisions of the Constitution and in part from the implications of express grants of power. Article II, Section 2, Clause 2 establishes in the President the power to appoint officers of the United States; it also provides that Congress may vest the appointment of inferior officers in either the President alone, in the courts, or in the heads of departments. At no time, however, may the legislative branch exercise executive authority by retaining the power to appoint those who will execute its laws. Thus, in Buckley v. Valeo, 424 U.S. 1 (1976), the U.S. Supreme Court held that Congress had violated Article II in allowing the President pro tern of the Senate and the Speaker of the House to appoint a majority of the voting members of the Federal Election Commission. Choice (A) is incorrect. Article II, Section 2 says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” Choice (C) is incorrect. This language of “undue burden” in regard to the commerce clause applies only to states and other local governments when their actions are analyzed under the dormant commerce clause. An administrative agency, acting as the federal government, can regulate commerce under the commerce clause, as long as the agency meets the requirements under Article I, Section 8 of the commerce clause. Choice (D) is incorrect. An administrative agency does have constitutional authority to require states to supervise federal guidelines regarding commerce, as long as the federal agency does not violate the state’s 10th Amendment rights against the federal government conscripting the state’s governmental resources [New York v. United States, 505 U.S. 144 (1992)].

Question 224

44. Voters in a city passed a referendum legalizing gambling in a certain section of the city. The law established a commission, consisting of five individuals, that was in charge of licensing and overseeing the activities of the casinos. The members of the commission were to be appointed by the mayor. Pursuant to his statutory power, the mayor appointed four private citizens and a clergy member to the Commission.There is a constitutional challenge to the appointment of the clergy member as violating the establishment clause of the First Amendment. The mayor’s action is(A) unconstitutional, because the appointment of a clergy member to the commission fosters excessive governmental entanglement with religion.(B) unconstitutional on its face, because members of the commission are vested with enforcement powers.(C) constitutional, because the primary effect of appointing only one religious member to the commission does not, per Se, advance or inhibit religion.(D) constitutional, because commission membership is an appointive privilege and not an elective right.

Answer 224

44. (C) Another issue commonly tested on the MBE deals with whetherreligious members are precluded from holding government offices. In McDaniel v. Paty, 435 U.S. 618 (1978), the Supreme Court declared unconstitutional a state law that prevented “Minister(s) of the GospeL, or priest(s) of any denomination whatever from serving as delegates to the state constitutional convention.” Interestingly enough, the disqualification of clergy members from legislative office existed in England and was followed by seven of the original states. The Supreme Court, however, found that this history was not decisive and invalidated the state Law. The majority of justices ruled that the free exercise of religion allowed members of the clergy to hold government office. Based on the holding in McDaniel, the appointment of a member of the clergy to a governmental agency or commission would not, perse, be violative of the establishment clause. Choice (A) is incorrect. In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Court found that there was an establishment of religion if there was “excessive entangLement” between religion and government. For example, there was excessive entanglement if the government had to supervise a religious school to ensure that government subsidies for the teachers were not being used to teach religious subjects. Here, the clergy member is being hired to perform an avowedly religious purpose in maintaining good morals. Thus, no such ongoing supervision is required by the government. Choice (B) is incorrect. Under the 10th Amendment, a state—including local city agencies—is vested with police powers to regulate (and enforce) laws regarding health, safety, welfare, and morals. Choice (D) is incorrect. The distinction between privilege and right would not protect the government from violations against the Establishment Clause. If, say, the government gave $1 million to a church to spread religion, the government aid would clearly violate the Establishment Clause, even though it is a privilege, not a right, for the church to receive the money.

Question 225

45. A state has enacted an abortion statute in an attempt to reconcile the conflicting interests involved when a woman chooses to terminate a pregnancy by abortion. The state’s statute provided that during the first trimester of pregnancy, a woman’s right to choose to terminate the pregnancy was paramount and could not be restricted in any manner. After the first trimester, the right of a woman to obtain an abortion was limited to cases where it was demonstrated by a physician that an abortion was necessary to protect the life or health of the woman seeking the abortion.In all likelihood, this abortion statute is(A) constitutional, because the state’s statutestrikes a proper balance between the fundamental right of a woman to choose to terminatea pregnancy by abortion and the due processright to life of the unborn child.(B) constitutional, because the state’s statute issubstantially related to the important stateinterest in protecting the health and life of themother.(C) unconstitutional, because the state’s statuteimposes an undue burden on the right to obtainan abortion.(D) unconstitutional, because it isirrational to impose virtually norestrictions on the right to obtain anabortion in the first trimester whileimposing significant restrictionson the right to obtain an abortionthereafter.

Answer 225

45. (C) With respect to abortions, the trimester test of Roe has been partially overruled by Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). As a result of Casey, the state may restrict abortions so long as they do not place “undue burdens” on the woman’s right to choose. Here, the state’s statute does place an “undue burden” on the right to abortion because after the first trimester, a woman can only have an abortion to protect her health and life. Choice (A) is not the best answer because it utilizes the “fundamental” right to privacy language articulated in Roe v. Wade. However, the Court in Casey appeared to reject the Roe view that abortion was a “fundamental” right and restrictions are no longer to be strictlyscrutinized.Choice (B) is wrong because the Court applies the undue burden test to abortions, not an intermediate scrutiny standard as applied in gender discrimination. Choice (D) is incorrect. This option captures the general meaning of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). There, the Supreme Court explained that a state is entitled to place more burdens on a woman’s right to an abortion as she progresses in her pregnancy. The rationale was that after viability, the state may seek to prohibit abortion to save the life of the fetus.

Question 226

46. Congress recently enacted a statute that prohibits racial discrimination in the sale, transfer, or rental of real estate, either privately or publicly.Which of the following constitutional provisions would provide the best rationale for the enactment of this federal statute?(A) Under Article I, Congress has the power to enact laws that are “necessary and proper” to the general welfare.(B) The enforcement provision of Section 2 of the Thirteenth Amendment.(C) The enforcement provision of Section 5 of the Fourteenth Amendment.(D) The due process clause of the Fifth Amendment.

Answer 226

46. (B) The 13th Amendment is unique in two respects. First, it contains an absolute bar to the existence of slavery or involuntary servitude; there is no requirement of “state action.” Thus, it is applicable to individuals as well as states. Second, like the 14th and 15th Amendments, it contains an enforcement clause enabling Congress to pass all necessary legislation. In this regard, the Court has held that the enforcement provision of the 13th Amendment has extended Section 1982 of the 1866 Civil Rights Act “to insure minorities the freedom to inherit, purchase, lease, sell, hold and convey real and personal property.” Most important, the 13th Amendment has been construed to prohibit both public and private racial discrimination in housing. Choice (A) is a potentially good option insofar as the necessary and proper clause can be invoked to further Congress’s powers under the commerce clause. But choice (B) is a better option. That is because the 13th Amendment provides an absolute bar to the existence of slavery or involuntary servitude, whether committed by the government or private individuals, and there is a clause in the 13th Amendment that permits Congress to pass all appropriate legislation to enforce the 13th Amendment. Choice (C) is incorrect. Remember that the 14th Amendment only protects a person from the actions of local governments, not private actors. Thus, the 14th Amendment will not help Congress to prevent racial discrimination by private individuals. Finally, choice (D) is incorrect. Like the 14th Amendment, the 5th Amendment only protects a person from discrimination by the federal government. Thus, the 5th Amendment will not help Congress to prevent racial discrimination by private individuals.

Question 227

47. A staff assistant for a state agency was convicted in federal court of taking bribes from a foreign government for the purpose of influencing an upcoming vote on a waterworks bill. He was sentenced to probation. The staff assistant had served in the agency long enough to become fully qualified for his pension upon retirement under the terms of an agreement between the pensions board and the union. The staff assistant retired and immediately started receiving monthly pension checks.Subsequently, the governor signed into law an act, which provided in part:“Section 8. Any member of a state agency’s staff who is convicted of… bribery … shall not beentitled to receive any retirement or other benefit or payment of any kind from the state … Such conviction shall be considered a breach of the staff member’s employment contract.”The staff assistant received a letter from the state which stated that pursuant to this new act the state is immediately discontinuing pension benefit payments to you on account of your bribery conviction.The staff assistant contacted an attorney, who challenged the discontinuance of benefits on the grounds that the new law was unconstitutional.To counter one of the attorney’s possible arguments regarding the unconstitutionality of Section 8 of the act, the state’s best rebuttal would be that(A) the staff assistant was afforded an opportunity to express his views about the new legislation at public hearings, prior to the enactment of the statute.(B) deprivation of pension benefits is not cruel and unusual punishment.(C) a letter sent through ordinary mail is sufficient notice to satisfj due process for discontinuation of pension benefits.(D) it is implicit that one of the conditions of the state’s contract of employment with a state agency staff member is that he shall not engage in bribery.

Answer 227

47. (D) This question requires a two-step analysis to select the best alternative. First, you must determine the constitutional issue involved and then, second, apply the appropriate constitutional principle to the question asked, i.e., the state’s best rebuttal to a constitutional challenge to the pension forfeiture statute. Choice (D) is correct since the argument concerning a condition of employment contract with a agency staff member affects the Contract Clause of the Constitution. The staff member’s attorney, could validly challenge the constitutionality of the statute, alleging unconstitutional impairment of the obligation to contract. The pension forfeiture statute would be violative of the Contract Clause since under the circumstances, the staff member has satisfied the conditions of retirement eligibility (he became fully qualified for his pension on retirement, as stated in the facts). His retirement pay has ripened into a full contractual obligation and has become a vested right. Therefore, the pension forfeiture statute would be an unconstitutional impairment of his vested right to receive retirement benefits (his pension). Choices (A) and (B) are irrelevant to the constitutional issues involved. Answer (C) is inapplicable, since notice is not an issue here.

Question 228

48. A state’s attorney was convicted in federal court of taking bribes to drop charges against an oil company. He was sentenced to probation. The state’s attorney had served long enough to become fully qualified for his pension upon retirement. The state’s attorney retired and immediately started receiving monthly pension checks.Subsequently, the governor signed into law a statute which provided in part:“Section 8. Any member of the state attorneys staff who is convicted of… bribery … shall not beentitled to receive any retirement or other benefit or payment of any kind from the state . Such conviction shall be considered a breach of the staff member’s employment contract.”Following the enactment of the statute, the state’s attorney received a letter from the state which stated they are immediately discontinuing pension benefit payments to him on account of his bribery conviction.The state’s attorney contacted an attorney, who challenged the discontinuance of benefits on the grounds that the new law was unconstitutional.In order to reinstate the state attorney’s pension on the grounds that the statute is unconstitutional, the attorney’s strongest argument would be that(A) the state attorney was retroactively punished.(B) the statute is an ex post facto law(C) the supremacy clause invalidates the state law, because there is federal legislation regulating pension and profit sharing plans.(D) the statute has a chilling effecton legislators’ rights to freely discuss pending bills with members of their staff.

Answer 228

48. (B) The two ex post facto clauses in the U.S. Constitution prohibit Congress and the state legislatures from enacting laws that have a retroactive effect. The statute is an example of an expost facto law that renders an act punishable in a manner in which it was not punishable when committed under the facts presented (since the state’s attorney qualified for pension benefits before the pension forfeiture statute was enacted). Thus, the statute, which denied the state’s attorney a pension because of the bribery conviction during his employment applied retroactively to the state’s attorney. Hence, the pension forfeiture statute would be held violative of the expost facto clauses of the U.S. Constitution. Be aware that although choice (A) is a correct statement of fact, choice (B) is preferred, because it is the correct statement of law. When you are confronted with correct statements of fact and law, the latter is the preferred alternative. Choice (C) is incorrect because even if this were factually true, there would not necessarily be any violation of the Supremacy Clause unless the federal and state laws conflicted with each other or the state legislation regulated in a field that was reserved exclusively for the federal government. Neither appears to be the case. Choice (D) is incorrect. Usually, statutes are deemed to violate the 1st Amendment if they are so ambiguous as to scare people—”chill them”—into forgoing their speech. That does not appear to be the situation in our example.

Question 229

49. A state trooper was convicted in federal court in 2008 of taking bribes. He was sentenced to probation. He had served as a state trooper since 1978, and in 1998, he became fully qualified for his pension upon retirement. In 2006, the trooper retired and immediately started receiving monthly state pension checks.In 2009, the governor of the state signed into law a statute, which provided in part:“Section 8. Any member of the state law enforcement staff… who is convicted of… briberyshall not be entitled to receive any retirement or other benefit or payment of any kind from the stateSuch conviction shall be considered a breach of the staff member’s employment contractSection 12. The provisions of this Act shall be retroactive to December 31, 1975.Section 14. This Act shall take effect immediately.”Following the enactment of the statute, the state trooper received a letter from the state which stated that pursuant to the statute, the state is immediately discontinuing pension benefit payments to you on account of your 2008 bribery conviction.”The trooper contacted an attorney, who challenged the discontinuance of benefits on the grounds that the new law was unconstitutional.Assume that the state’s highest court holds the statute constitutional. The trooper might still be able to eventually have his pension reinstated if(A) he exercises his constitutional right to discretionary review in the U.S. Supreme Court.(B) he receives a presidential pardon for his bribery offense.(C) he can show that he was convicted before the effective date of thestatute.(D) he can show that the statute violates the dormant commerce clause.

Answer 229

49. (B) Of the four choices listed, only (B) provides a correct statement regarding the possibility of the reinstatement of the trooper’s pension. Article II empowers the President to grant reprieves and pardons for offenses against the United States. The President may pardon absolutely or conditionally commute sentences, and remit fines, penalties, and forfeitures. The facts state that the trooper was convicted of bribery in federal court. In all likelihood, therefore, he was being prosecuted for a federal criminal offense. Choice (A) is incorrect since he does not have a constitutional right to discretionary review in the U.S. Supreme Court. Such right of appeal to the U.S. Supreme Court is not a constitutional right, but a statutory right; Congress has enacted legislation regarding the appellate review of the Supreme Court. Choice (C) is incorrect because even if this were factually true, it would not make any legal difference because the State is not punishing him and, thus, the State is not violating the prohibition against ex post facto laws in Article I, Section 9. Choice (D) is wrong because there is nothing on these facts to suggest that the statute places a burden on interstate commerce.

Question 230

50. Within the last two years, the number of cases coming before the U.S. Supreme Court has quadrupled. Because of this increased work load, the Court has complained that it is unable to properly review all of its cases. As a consequence, Congress formed a committee to conduct a study on improving the functioning and operation of the Court. Based on the committee’s recommendations, Congress enacted a statute dividing the Court into two panels. One panel would be assigned to handle criminal cases exclusively, while the other panel would handle all non-criminal matters. Each panel would be composed of four associate justices and a chief justice. According to the new law, the decisions of each panel would be final and not reviewable by any other court or judiciary.Which of the following is the strongest argument against the constitutionality of this federal statute?(A) The statute contravenes the requirement in the Constitution that there be one Supreme Court.(B) The statute does not fall within the enumerated powers of Congress and is not necessary and proper for the effectuation of those powers.(C) Based on the doctrine ofjudicial supremacy, Congress does not have authority to legislate with respect to the jurisdiction of the Supreme Court.(D) Based on the separate sovereignty doctrine, Congress does not have authority to interfere with the procedural machinery of the Supreme Court.

Answer 230

50. (A) The Supreme Court is the only federal court created directly by the Constitution. Article III, Section 1 mandates that judicial power be vested in “one Supreme Court.” See Nowak, Constitutional Law, p. 24. Therefore, the Congressional statute to divide the Supreme Court into two panels is unconstitutional since it contravenesArticle III of the Constitution. Choice (B) is factually true, but its rationale is not as precise as choice (A). Students should be aware that Article III, Section 1 vests judicial power as to the inferior courts—including federal district courts and courts of appeal only “as the Congress may from time to time ordain and establish.” This plenary power of Congress includes not only the establishment of such courts, but also the authorization of their jurisdiction, the power to remove jurisdiction of certain classes of cases, and the power to terminate the courts’ existence. Article Ill judges are appointed for life, and their compensation may not be diminished during their term in office. Choice (C) is incorrect. The concept of “judicial supremacy” finds no explicit mention in the Constitution. In Marbury v. Madison, 5 U.S. (Cranch 1) 137 (1803), the Court stated that it is emphatically the province of the judicial branch to say what the law means. Yet this, in itself, does not explain why the congressional statute in the example is unconstitutional. A better explanation is that Article Ill, Section 1 mandates that judicial power be vested in “one Supreme Court.” Therefore, the Congressional statute to divide the Supreme Court into two panels is unconstitutional since it contravenes Article III of the Constitution. Choice (D) is incorrect. The separate sovereignty doctrine means that different powers of jurisdiction belong to different states and that the federal government’s sovereignty differs from that of the state governments. For example, a person could be prosecuted forthe same crime under both federal and state laws without violating the constitutional prohibition against double jeopardy. Congress and the Supreme Court are governed less by “separate sovereignty doctrine” than by the principle of the separation of powers.

Question 231

51. The President appointed a delegation to enter into negotiations with representatives of a foreign government to study the problem of preventing the extinction of certain species of seals. The delegation’s goal was twofold: to study the problem and to formulate regulations in a bilateral agreement that would protect the endangered species and provide for a permanent commission that would continually monitor enforcement of the proposed regulations. After compiling their findings and drafting the necessary regulations, the President and the leader of the foreign government entered into a treaty to form a permanent commission to oversee the problem and to grant it the necessary enforcement powers.The validity of this treaty would most likely be upheld under which of the following principles?(A) The presidential power to conduct foreign affairs.(B) An ancillary power of the President under his treaty-making power.(C) The treaty-making power, but only if the treaty is ratified by two-thirds of the Senate.(D) The treaty-making power, but only if the treaty is ratified by a majority in Congress.

Answer 231

51. (C) Under Article II, Section 2, the only constitutional limitation upon the President’s power “to conduct foreign affairs” is with regard to treaties, which become valid only when ratified by two-thirds of the Senate. Choice (A) is not a bad answer, but a better option is available in Choice (C), given that there is explicit constitutional support in Article II, Section 2 for the President’s power to make treaties, whereas there is no explicit mention of the President’s power to conduct “foreign affairs”. Besides, the President must, under Article II, Section 2, receive ratification by two- thirds of the Senate to complete a treaty; the president cannot rely on his “foreign affairs” powers to do that. Choice (B) is incorrect. The President cannot rely on his ancillary powers under his broader treaty-making power. He does, however, have to rely on the Senate, as Article II, Section 2 requires that he receive ratification by two-thirds of the Senate to complete a treaty. Finally, choice (D) is incorrect. Article II, Section 2 requires that the President receive ratification by two-thirds of the Senate to complete a treaty.

Question 232

52. The President appointed a delegation to enter into negotiations with representatives of a foreign government to study the problem of preventing the extinction of certain species of rabbits. The delegation’s goal was twofold: to study the problem and to formulate regulations in a bilateral agreement that would protect the endangered species and provide for a permanent commission that would continually monitor enforcement of the proposed regulations. After compiling their findings and drafting the necessary regulations, the President and the leader of the foreign government entered into a treaty to form a permanent commission to oversee the problem and to grant it the necessary enforcement powers.Assume that after the treaty goes into effect, a state legislature enacts a statute that provides that “any licensed rabbit-hunter in the state and its surrounding environs may increase his monthly catch of rabbits from 10 to 15 in each of the specified months of the authorized rabbit-hunting season from the first day of October until the last day of February.” If challenged, the enactment of the aforementioned statute would most likely be declared(A) constitutional, because the regulation of hunting is within the area of state action.(B) constitutional, because the enactment falls within the Tenth Amendment’s reservedpowers.(C) unconstitutional, because it violates the commerce clause.(D) unconstitutional, because all treaties are the supreme law of the land.

Answer 232

52. (D) UnderArticleVi, Paragraph 2, alL treaties “which shall be made underthe authorityof the U.S.” are the “Supreme law of the land” (along with the Constitution itselfand laws of the U.S. made in pursuance thereof). As a consequence, it is clear thatany state action in conflict with a treaty is invalid. Choice (A) is incorrect. Even ifthere is state action in this example (and there does appear to be), that alone wouldnot make the statute constitutional. In fact, state action simply means that there isgovernmental involvement. Choice (B) is incorrect. As a matter of law, this is truebecause of the state’s police powers under the 10th Amendment to regulate health,safety, welfare, and morals. However, in this instance, the state statute conflictswith the treaty. Under Article VI, Paragraph 2, aLl treaties “which shall be madeunder the authority of the U.S.” are the “Supreme law of the land” (along with theConstitution itself and laws of the U.S. made in pursuance thereof). As a consequence, it is clear that any state action in conflict with a treaty is invalid. Choice (C)is not a bad answer, since the state’s actions would seem to have some effect oncommerce between the state and the foreign government, and under Article I, Section 8, only Congress has the authority to regulate commerce with foreign nations.But a better answer is available in choice (D) because there is explicit and directsupport for it in the Constitution.

Question 233

53. During a three-month period, a city was stunned by a series of mysterious deaths, which claimed the lives of 20 people. Although all the victims had apparently died from poisoning, the police were in a quandary as to who was responsible for the killings. There was finally a breakthrough in the investigation when a police toxicologist determined that all the victims had died after eating poisoned apples which had been purchased at a local market. The apples had all been contaminated with a pesticide. The police then received a letter from a person who claimed responsibility for the poisonings. The letter stated that the killings were in retaliation for the city’s new policy of prosecuting toxic polluters.Acting upon an anonymous tip, the police arrested the owner of a pest control company engaged in the manufacture of pesticides, and charged him with 20 counts of murder. Thereafter, the city’s largest newspaper ran a series of articles on the killings and referred to the owner as the pesticide poisoner. After the preliminary hearing, the state trial judge issued an exparte injunction against the newspaper prohibiting it from publishing any news during the trial that might be prejudicial to the owner. The newspaper appealed.In light of the U.S. Supreme Court cases to date, the state appellate court should(A) dissolve the injunction, because a news story about a matter of public interest is absolutely privileged.(B) dissolve the injunction, because it is an impermissible prior restraint on the freedom of the press.(C) uphold the injunction, because the inference of guilt in any prejudicial coverage would deny the defendant his constitutional right of a fair trial.(D) uphold the injunction, because reference to the defendant by the name pesticide poisoner would be inflammatory and prejudicial.

Answer 233

53. (A) or (B) According to Justice Berger, “the compatibility of a commitment to an uninhibited, robust, and wide-open discussion of public issues in a free press with a commitment to a criminal process in which the conclusions to be reached in a case will be induced only by evidence and argument in open court has been the subject of long standing debate.” See Nebraska Press Association v. Stuart, 427 U.S. 539 (1976). In this area, the rights of the press often conflict with the rights of the accused. AccordingLy, the Supreme Court offered a qualified response to this question when it invalidated a Nebraska District Court “gag order” that prohibited the press from the publication of certain implicative evidence pertaining to a murder suspect until the jury selection process was completed. Based on the Nebraska decision, choices (A) and (B) would both be arguably correct. Choices (C) and CD) are incorrect because these would not necessarily prejudice the defendant’s right to a fair trial because it does not suggest a connection between the owner and the killings.

Question 234

54. A defendant was charged with murder. The killing took place on February 1. At the time that the crime occurred, this jurisdiction required a unanimous verdict of all 12 jury members for a conviction on a capital offense. On November 1, the state legislature enacted a new law requiring a majority vote of seven of 12 jurors to convict on a capital offense. The defendant’s trial began on December 1. He was subsequently convicted of murder by an eight- to-four vote. Following the trial, the defendant’s attorney filed a motion to set aside the verdict.Which of the following would provide the strongest constitutional grounds to overturn the verdict?(A) The ex post facto clause.(B) The contracts clause.(C) The due process clause of the Fourteenth Amendment.(D) The Sixth Amendment right to a fair trial.

Answer 234

54. (A) The ex post facto clause forbids both the states and the federal government from enacting retroactive criminal laws. The most common sort of ex post facto law is one that creates a new crime and applies it retroactively to conduct not criminal at the time it was committed. In addition, the ex post facto clause prohibits the retroactive application of an increase in the punishment for a crime that carried a lesser penalty when committed. Another aspect of the ex post facto prohibition is concern with retroactive changes in evidence and procedure that operate to the disadvantage of the criminal defendant by making conviction easier. Thus, a statute that changes the burden of proof on the prosecution from the usual rule of beyond a reasonable doubt to one of the preponderance of the evidence is ex post facto if retroactive. By analogy, in this hypo we have a situation where the legislature changed the unanimity jury verdict requirement for capital offenses afterthe defendant was arrested and charged with murder. As such, choice (A) is correct. Choice (B) is incorrect. Article I, Section 10, the so-called “Contracts Clause,” states that no state shall pass any “Law impairing the Obligation of Contracts.” There are no contracts at issue in this example. Choice (C) is incorrect because the defendant wilL receive due process of law insofar as he will be given a trial and afforded the protections thereof. Choice (D) is not a bad answer, but the defendant will receive a fair trial insofar as he has been guaranteed a jury as required by Article III, Section 2.

Question 235

55. The Pentagon has recently released a civil defense plan in the event of nuclear war. According to the Pentagon’s study, certain essential citizens would be evacuated once it was determined that a nuclear war was imminent. Essential citizens would include scientists, carpenters, and the young. The study also recommended that certain non-essential citizens such as the elderly, the infirm, and persons in penal institutions not be evacuated since their future contributions would be less important in the rebuilding of the country following a nuclear war.An employee of the Pentagon, was instructed to conduct a public opinion survey regarding the controversial plan. Pentagon officials directed the employee to interview citizens in a door-to- door canvass to determine public opinion for the civil defense plan. After the employee conducted his door-to-door interview canvassing, he was prosecuted for not obtaining prior consent of the citizens he interviewed.The employee’s strongest argument is that the prosecution(A) violates his right to free speech.(B) violates the intergovernmental immunity of a federal employee.(C) deprives him of his employment interest without due process.(D) impairs the obligation of his employment contract.

Answer 235

55. (B) Although a city ordinance may prohibit the business practice of soliciting magazinesubscriptions door-to-door without prior invitation of the homeowner, in Beard v.Alexandria, 341 U.S. 622 (1951), the Court specifically relied on the commercialnature of the transactions in question. On the other hand, in Martin v. Struthers,319 U.S. 141 (1943), the Court held an ordinance invalid that forbade any personto knock on doors, ring doorbells, or otherwise summon any residents to the dooras violative of the freedom of speech and press. In this regard, the substantive guarantee of due process requires that legislation have a rational relationship to theLegitimate ends of government. If a law does not have such a relationship, it wouldbe an unconstitutional deprivation of liberty as to those persons affected. Here,the employee’s strongest argument is that the prosecution violates the intergovernmental immunity of a federal employee. Note that the employee was performingessentiaLly a governmental, not a proprietary, function (in the door-to-door canvassing). Thus, choice (B) is the best answer. Choice (A) is incorrect. Although a cityordinance may prohibit the business practice of soliciting magazine subscriptionsdoor-to-door without prior invitation of the homeowner, in Beard v. Alexandria, 341U.S. 622 (1951), the Court specifically relied on the commercial nature of the transactions in question. On the other hand, in Martin v. Struthers, 319 U.S. 141 (1943),the Court held an ordinance invalid that forbade any person to knock on doors, ringdoorbells, or otherwise summon any residents to the door as violative of the freedom of speech and press. But choice (B) is the best answer because the employeewas not exercising his free speech rights as a private citizen but as an employee ofthe federal government. Choice (C) is incorrect, the employee was working for thefederal government and, thus, was performing a governmental, not a proprietary,function. Accordingly, the due process clause is not the best answer. FinalLy, choice(D) is incorrect. Article I, Section 10, the so-called “Contracts CLause,” states that no state shall pass any “Law impairing the Obligation of Contracts.” However, the prosecution does not impair the employee’s obligation because he could have conducted the survey without going door-to-door.

Question 236

56. A state is concerned with the increase in teenage use of alcohol. In an effort to decrease exposure to alcohol, which poses harmful health risk, the state legislature has enacted a statute to restrict various methods of advertising by alcohol manufacturers. One of the provisions of the law states that advertising of alcohol prices is not permitted except by placement of a sticker on the bottle or container. An alcohol company who was a major distributor of alcohol in the state, claims the advertising restriction violates its constitutional rights protected by the First and Fourteenth Amendments.If the alcohol company files suit challenging the validity of the state statute, the court should rule the statute(A) constitutional, because the state law is rationally related to the health and safety of the state’s citizens.(B) constitutional, because the restriction on commercial speech directly advances a substantial government interest.(C) unconstitutional, because the regulation on commercial speech is not necessary to further an important government interest.(D) unconstitutional, because the state could achieve its objective by a less restrictive means.

Answer 236

56. (D) Quite often, Multistate Constitutional Law questions are based upon case precedent. This question, for example, is based upon the ruling in 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996), in which a Rhode Island statute prohibited all advertising of liquor prices, except for price tags displayed with the merchandise. The Supreme Court invalidated the law because regulations of commercial speech must be “narrowly tailored” and should be no more extensive than is necessary. In both 44 Liquormartand in this question, the state is attempting to prohibit the dissemination of truthful, nonmisleading advertising. Choice (D) is correct because a state will not be permitted to completely ban commercial advertising but must use a means narrowly tailored to achieve the desired objective. Choice (A) is incorrect. Commercial speech, which is what we have in our example, may not get as much protection as political speech, but it may be entitled to more than you might think. Under 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996), the Court rejected a state statute that prohibited all advertising of liquor prices, except for price tags displayed with the merchandise. In doing so, the Court subjected the statute to strict scrutiny. The facts in our example look similar to 44 Liquormart insofar as our example also contains a statute that prohibits nearly all advertising of alcohol. But choice (A) suggests in its reference to “rationally related” that the Court will use rational review, not strict scrutiny. Choice (B) is incorrect. Under strict scrutiny, the court will ask whether the statute furthers a compelling government interest (although sometimes the Court will use the language of “substantial” government interest). The statute’s concern for health would certainly seem to be a compelling (or substantial) government interest, but the statute probably will be unable to satisfy the second part of strict scrutiny: are the means chosen “narrowly tailored”? In other words, are there less-restrictive alternatives? Choice (C) is incorrect. The statute’s concern for health would certainly seem to be a compelling (or substantial or important) government interest.

Question 237

57. An American franchise operates as an importer and distributor of bicycles manufactured by a foreign country, and maintains several warehouses for the wholesale distribution of the bicycles. A warehouse located in a county handles the distribution of bicycles for several states. The bikes and bike tires are shipped separately to the county warehouse. The tires are mingled, stacked, and stored in the warehouse along with various other tires. The bicycles, on the other hand, arrive completely assembled in their shipping crates and remain on the loading docks. The county imposes an ad valorem property tax on the bikes and tires.The county’s ad valorem tax may properly be assessed against the(A) tires only.(B) bicycles only.(C) tires and bicycles.(D) neither the tires nor the bicycles.

Answer 237

57. (A) Article I, Section 10, Clause 2, of the U.S. Constitution provides that “No State shallwithout the consent of Congress, lay any Imposts or Duties on Imports or Exports,except what may be absolutely necessary for executing its Inspection Laws.”In Michelin Tire Corp. v. W. L. Wages Tax Comm., 423 U.S. 276 (1976), the U.S.Supreme Court held that while tubes in their corrugated shipping cartons wereimmune from ad valorem taxation, the tires lost their status as imports and becamesubject to taxation because they had been mingled with other tires imported inbulk, sorted, and arranged for sale. Similarly, in this hypo, the bikes were immunefrom the tax, since they remained “imports” in transit, whereas the tires lost their“import status” once they became part of the tire inventory at the distribution warehouse. Therefore, choices (B), (C), and (D) are aLl incorrect under this analysis.

Question 238

58. An American company operates as an importer and distributor of guitars manufactured by a foreign company, and maintains several warehouses throughout the U.S. for the wholesale distribution of the guitars. A warehouse located in a city handles the distribution of guitars for several state areas. The guitars and guitar strings are shipped separately to the city warehouse. The guitar strings are mingled, stacked, and stored in the warehouse along with various other guitar strings. The guitars, on the other hand, arrive completely assembled in their shipping crates and remain on the loading docks. The city imposes an ad valorem property tax on the guitars and strings.The power of the city to impose an ad valorem tax on the foreign company’s guitars and/or strings would most likely be upheld under(A) the commerce clause.(B) the reserved power of the states as granted under the Tenth Amendment.(C) the necessary and proper clause. (D) the import and export clause.

Answer 238

58. (B) The state’s power to enact such property taxes is derived from the 10th Amendment’s reserved powers. All other choices are incorrect, since they reflect powers of the federal government. Choice (A) is incorrect. Under Article I, Section 8, only Congress has the authority to exercise commerce clause powers. Choice (C) is incorrect. Under Article I, Section 8, only Congress has the authority to exercise powers under the necessary and proper clause. Choice (D) is incorrect. Article I, Section 10 contains the import and export clause. This clause prohibits the states: “No State shall without the consent of Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing its Inspection Laws.” The clause, therefore, does not bestow any powers upon the states.

Question 239

59. A pharmaceutical company manufactured a new contraceptive sponge. The pharmaceutical company initially intended for the contraceptive to be available for purchase without a doctor’s prescription. However, a study by the Food and Drug Administration revealed that the contraceptive might prove harmful to some users with preexisting health problems. As a result, Congress enacted legislation prohibiting the shipment and sale of the contraceptive across state lines to those who do not have a doctor’s prescription.This law is probably(A) constitutional, because Congress has the power to provide for the general welfare.(B) constitutional, because Congresshas the power to regulate interstatecommerce.(C) unconstitutional, because it deprives the manufacturer a property right without just compensation.(D) unconstitutional, because it interferes with the right of privacy of contraceptive users.

Answer 239

59. (B) Under the commerce clause, Congress has the very broad power to regulate interstate commerce. Generally speaking, Congress has the power to regulate any activity (whether carried on in one state or many) that has any appreciable effect—direct or indirect—upon interstate commerce. This is the so-called “affectation doctrine.” Choice (A) is incorrect. Article I, Section 8, reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and General Welfare of the United States.” The Supreme Court has taken the reference to “general welfare” to mean that Congress enjoys great discretion in how it chooses to allocate money for the public [United States v. Butler, 297 U.S. 1 (1936)]. There is no such allocation of money in our example; just a regulation. Choice (C) is incorrect. The 5th Amendment’s takings clause states: “No person. . . shall have property be taken for public use, without just compensation.” In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court stated that a taking occurs where “regulation denies all economically beneficial or productive use of the land.” Here, the pharmaceutical company can still sell Autonomy to anyone who has a doctor’s prescription. Choice (D) is incorrect. The Supreme Court has stated that there is a fundamental right to contraceptives [Griswoldv. Connecticut, 381 U.S. 479 (1965) and Eisenstadt v. Baird, 405 U.S. 438 (1972)]. For a law to be deemed invalid as violating this fundamental right, there must be a showing that the law infringes on the right. Here, the federal statute does not appear to be an infringement, since anyone with a doctor’s prescription may obtain the contraceptive.

Question 240

60. A company created a new brand of pies. However, a study by the federal Food and Drug Administration revealed that the pies contain potentially harmful levels of nuts for some consumers with nut allergies. As a result, Congress enacted legislation prohibiting the shipment and sale of the pies across state lines.A state has a statute that regulates the shipment and sale of the pies within its territory. In light of the federal legislation prohibiting the shipment and sale of the pies across state lines, the state statute is probably(A) constitutional, because it is within the state’s police power.(B) constitutional, because Congress may not regulate an economic activity where both buyer and seller reside in the same state.(C) unconstitutional, because it affects interstate commerce.(D) unconstitutional, because the federal law preempts any conflicting state legislation regarding the sale and shipment of the pies.

Answer 240

60. (A) In this question, the Vermont statute simply regulates the shipment and sale of the pieswithin the state’s borders (or intrastate). As a result, where Congress has not acted,the states do have police powers to reguLate any phase of local business (production,marketing, sales, etc.) provided that such regulations neither discriminate against norburden interstate commerce [Parker v. Brown, 317 U.S. 341 (1943)] or violate otherprovisions of the Constitution. Choice (B) is incorrect. Congress, using its commerceclause powers under Article I, Section 8, may regulate economic activities where bothbuyer and seller reside in the same state,if such activities have a “substantial effect”on interstate commerce. [Katzenbach v. McClung, 379 U.S. 641 (1966)]. Choice (C) isincorrect. Even if the state regulation affects interstate commerce, the state is entitledto pass such Legislation under its 10th Amendment police powers to regulate health,safety, weLfare, and morals. However, the state regulation may not impose any undueburdens on interstate commerce; in that case, the regulation would be deemed toviolate the dormant commerce clause of Article I, Section 8. Choice (D) is incorrectbecause there is no conflict between the federal law and the state law. Nor is Congressregulating a field, like immigration, that is exclusive to it.

Question 241

61. A manufacturer created a new brand of fish tackle which they sold throughout the country. Congress now imposes a tax of 14 cents on each set of tackle sold in the United States.This tax is(A) unconstitutional, because the tackle is sold in interstate commerce.(B) unconstitutional, because it interferes with the sovereign right of state governments to engage in intrastate commerce.(C) constitutional, because the supremacy clause validates laws enacted by Congress.(D) constitutional, because it is within the power of Congress to raise revenue.

Answer 241

61. (D) Article I, Section 8 provides: “The Congress shall have Power to ay and coLLect Taxes, Duties, Imposts and Excises….” As a generaL rule, if Congress has no power to regulate the activity taxed, the validity of the tax ultimately depends on its validity as a revenue-raising measure. Choice (D) is correct because as long as the dominant intent of the taxis revenue raising, it will be upheld even though the tax may have substantial regulatory effect. Choice (A) is incorrect, as Congress’s ability to tax under the tax and spend clause is not contingent upon whether the taxed object is sold interstate. Choice (B) is incorrect. State governments do have police powers under the 10th Amendment to regulate health, safety, welfare, and morals. Such powers also include the right to regulate intrastate commerce. However, Congress, under its tax and spend powers in Article I, Section 8, can levy taxes on commerce that is intrastate. Choice (C) is incorrect. The Supremacy Clause of Article VI states that the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The Supremacy Clause does not contain any substantive powers for Congress; instead, the clause declares that any state law that conflicts with an otherwise valid federal law will be deemed unconstitutional. Congress’s power to tax derives from the Tax and Spend Clause of Article I, Section 8.

Question 242

62. A company created a drug to lower high blood pressure. The President issues an executive order prohibiting the shipment and sale of the drug within the United States. Under this executive order, federal agents are empowered to prosecute all interstate shippers and sellers of the drug. The President claims that he is acting upon conclusive evidence that the drug causes cervical cancer in laboratory monkeys.This executive order is(A) valid, because the President has the authority to ensure that laws are faithfully executed.(B) valid, because the President has the authority to impose economic regulations unless overruled by Congress.(C) invalid, because it is an unauthorized extension of executive power.(D) invalid, because the President does not have the power to regulate interstate commerce.

Answer 242

62. (D) Article I, Section 8 grants Congress (not the President) the power to regulate interstate commerce. The President does not have any constitutionally delegated legislative power that is inherently law-making in nature. See Youngstown Sheet& Tube v. Sawyer, 343 U.S. 579 (1952), holding invalid a presidential order directing seizure of steel miLls to prevent a threatened strike. Note that choice (D) is more narrowly correct than choice (C) because it addresses executive intrusion in the area of interstate commerce. Choices (A), (B), and (C) are incorrect. In Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), the Court stated that the President does not possess any legislative powers; the President may act only if there is explicit authorization in the Constitution or in a federal statute. Here, the President lacks such authorization and, thus, violates the principle of the separation of powers.

Question 243

63. A city imposes a municipal excise tax of $200 per year on commercial photographic studios in the city. It also imposes an excise tax of $100 per year on every itinerant commercial photographer for the privilege of using the streets and sidewalks. A credit is allowed against this latter tax for any excise tax paid to the city by the photographer or his employer in respect to the maintenance of a photographic studio in the city.In an action by a studio located in the city challenging the constitutionality of the $200 per year excise tax, the court will most likely declare the tax(A) constitutional, as a nondiscriminatory license tax.(B) constitutional, as within the powers of the state to tax the instruments of interstate commerce.(C) unconstitutional, as an undue burden on interstate commerce.(D) unconstitutional, as a discriminatory tax on the privilege of doing business within the state.

Answer 243

63. (A) The $200 per year excise tax on the commercial photographic studios operating in the city would be upheld as a valid license tax. Such license taxes (as well as privilege, franchise, and occupation taxes) when applied to local activities—separate from the interstate commerce, of which they are a part—are generally upheld if nondiscriminatory and not unreasonably burdensome in their impact on the interstate commerce involved. Choice (B) is incorrect. Under the commerce clause of Article I, Section 8, only Congress may regulate interstate commerce, including the instruments thereof. A local government lacks constitutional power to regulate such instruments. Choices (C) and (D) are incorrect. Under the dormant commerce clause of Article I, Section 8, local governments like the city may not unduly burden interstate commerce. In our example, the city is not discriminating against out-ofstaters engaged in commerce. Nor does it seem that the city’s benefits from the tax disproportionately hurt out-of-staters.

Question 244

64. A city imposes a municipal excise tax of $200 per year on commercial artists’ studios in that city. It also imposes an excise tax of $100 per year on every itinerant commercial figure drawer for the privilege of using the streets and sidewalks. A credit is allowed against this latter tax for any excise tax paid to the city by the drawer or his employer in respect to the maintenance of an artist’s studio in the city.A gallery, located in a neighboring state, has been sending two itinerant artists into the city. Their practice is to draw a picture of a pedestrian, ask him to order a finished painting, and collect a payment of $2.00. The drawing is sent to a studio, which frames it and mails the framed painting to the customer. The neighboring state does not impose a tax on artists’ studios.The gallery challenges the constitutionality of the $100 per year excise tax that is imposed upon its itinerant artists in the city. The court will most likely declare this tax(A) constitutional, as a valid ad valorem tax on interstate commerce.(B) constitutional, since the tax was levied not on the commercial art business as a whole but on the local activity of drawing pictures.(C) unconstitutional, since a state or municipality may not impose a license tax on orders for goods or services to be perfonned in another state.(D) unconstitutional, as a discriminatory privilege tax.

Answer 244

64. (B) The $100 per year excise tax that is imposed upon the itinerant artists would be upheLd. In Dunbar-StanleyStudios v. Alabama (1969), a similar fixed fee on transient photographers was upheld as constitutional when applied to an out-of-state firm taking photographs in the taxing state, the rationale being that the tax was levied not on the business as a whole but on a local activity of taking photographs, as opposed to their development and processing. Under this rationa’e, choice (B) is correct, and choice (C) is incorrect. Choice (A) is also incorrect because, underthe commerce clause of Article I, Section 8, only Congress may regulate interstate commerce. Therefore, a state lacks authority to tax interstate commerce. Finally, choice (D) is incorrect. Under the dormant commerce clause of Article I, Section 8, local governments like the city may not unduly burden interstate commerce. In our example, the city is not discriminating against out-of-staters engaged in commerce. Nor does it seem that the city’s benefits from the tax disproportionately hurt out-of-staters.

Question 245

65. A state imposes a tax on nonresident photographers who operate photographic studios in the state at a rate of 2% of their state-derived income above $12,000. This income tax exempts taxable income earned outside of the state by photographers who live in the state. Moreover, resident-photographers of the state are not taxed on their in-state earned income. A photographer who operates a studio in the state but is a resident of another state, challenges the constitutionality of this tax.Which of the following provisions would furnish the most applicable basis for this constitutional challenge?(A) The equal protection clause of the Fourteenth Amendment.(B) The due process clause of the Fourteenth Amendment.(C) The commerce clause.(D) The privileges and immunities clause of ArticleIv.

Answer 245

65. (D) Article IV, Section 2, so far as relevant, reads as follows: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” It was designed to ensure to a citizen of State A who ventures into State B the same privileges that the citizens of State B enjoy. In line with this underlying purpose, it was long ago decided that one of the privileges that the clause guarantees to citizens of State A is that of doing business in State B on terms of substantial equality with the citizens of that State. Like many other constitutional provisions, the Privileges and Immunities Clause is not an absolute. It does bar, nevertheless, discrimination against citizens of other states where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other states. Therefore, the state tax on nonresident photographers should properly be declared unconstitutional as violative of the Privileges and Immunities Clause. Choice (A) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The photographer may have been the subject of discrimination by the Legislature, but he is not a member of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (B) is incorrect. Generally, a property interest is not protected under the 14th Amendment’s Due Process Clause unless there is a reasonable expectation to continued receipt of the benefit [Board of Regents v. Roth, 408 U.S. 564 (1972)]. In our example, no such reasonable expectation to continued tax benefits appears to exist. Choice (C) is incorrect. States and other local governments have no powers under the Commerce Clause of Article I, Section 8.

Question 246

66. A state enacts a statute that prohibits “anyone over60 years of age to run for public office.” A state senator has been in office for three terms and wishes to seek re-election. The senator, who is 61, brings suit challenging the constitutionality of the state statute.Which of the following best states the burden of persuasion?(A) Since a fundamental right is involved, the state must show the regulation is necessary to vindicate a compelling government interest.(B) Since no fundamental right is involved, the petitioner must show the age restriction is not rationally related to a legitimate government interest.(C) The state must show the age regulation substantially furthers an important government objective and does not impair the fundamental right to vote.(D) The petitioner must show the statute violates due process by depriving her of the right to be a candidate.

Answer 246

66. (B) The Constitution contains no express provision that guarantees the right to be a candidate. The states are free, therefore, to create restrictions on the ability to become a candidate. Certainly, states have used several methods to qualify the right to become a candidate. Even though the Supreme Court has not ruled directly on candidacy age restrictions, interestingly enough, this issue was tested on the Multistate exam recently. Choice (B) is correct because in dicta from previously decided cases, the Supreme Court apparently is applying minimal scrutiny to age restrictions. See “Age and Durational Residency Requirements as Qualifications for Candidacy: A VioLation of Equal Protection?,” 1973, U.Ill. Law Review, 161. Choice (A) is incorrect. There is no fundamental right to run for state office. Accordingly, from the perspective of fundamental rights anaLysis, the court will apply rational review. Choice (C) is incorrect because there is no fundamental right to run for state office. Finally, choice (D) is incorrect because the right to run for public office is not a right protected under the due process clause of the 14th Amendment.Exam Tip: This question needs to be distinguished from Question 67. In Question 67, the state enacted a party affiliation statute placing restrictions on independent candidates. States usually impose demonstrated support requirements on independent candidates or minor political parties. Typically, the demonstrated support statute requires independent candidates or minor parties to submit petitions containing a certain number of signatures from qualified voters before they can receive access to the ballot. In such cases, the Supreme Court generally “has stated that the state needs a compelling or overriding interestto justify classifications and restrictions on political association.” Nowak, pg. 891. On the contrary, this Multistate hypo deals with age restrictions on the right of candidacy. With respect to age classifications, the Supreme Court appears to apply the rational-basis test. Although the Supreme Court has not ruled directly on this age candidacy issue, all related cases involving age discrimination have been adjudged under the minimal scrutiny-rational basistest. In Trafeletv. Thompson, 100 S.Ct. 219 (1979), the Supreme Court refused to review a state law imposing a mandatory retirement age for elected state court judges that was challenged as an age classification violative of equal protection.

Question 247

67. A state has enacted a party affiliation statute prohibiting a person from being an independent candidate in a general election if she had either (1) registered with a political party during the year prior to the immediately preceding primary, or (2) voted in that primary. The state adopted the so-called “disaffiliation” statute in order to have intraparty feuds resolved in primary elections rather than in the general election. Moreover, the state’s elections director strongly supported the law and argued that it was necessary to avoid voter confusion and to ensure that the general election winner received a majority.A man, who was a registered Democrat in 2008, now wishes to run as an independent candidate in the November, 2009, general election. However, the elections director ruled that his candidacy violated the state’s “disaffiliation” statute and barred him from appearing on the ballot.If the man files suit in federal district court challenging the constitutionality of the state’s election statute, which of the following best states the burden of persuasion?(A) The state must demonstrate that the law is necessary to further an important state interest under equal protection analysis.(B) The state must demonstrate that the law is necessary to further a compelling state interest under fundamental rights analysis.(C) The man must demonstrate that the law is not rationally related to any legitimate state interest under fundamental rights analysis.(D) The man must demonstrate under fundamental rights analysis that the state has less restrictive alternative means available for independent candidates to get a ballot position.

Answer 247

67. (B) The right to be a candidate is related to the fundamental right to vote. In general, the state’s interest in limiting ballot access is twofold: (1) to reduce voter confusion, and (2) to maximize the probability that the winning candidate will have received a majority of the popular vote. In Storer v. Brown, 415 U.S. 724, (1974), a California provision that prohibited independent candidates from running in the general election if they had eithervoted in the immediately preceding party primary or registered their party affiliation with a qualified party within one year of the primary was upheld. The Court determined that the “disaffiliation” statute furthered the state’s compelling interest in the stability of the political system and its interest in having “intraparty feuds” resolved in primaries rather than in the general election. Based on the Court’s application of the strict scrutinystandard of review, (B) is the correct answer. The Court noted further in Storer that the state must adopt reasonable alternative means for independent candidates and minor political parties to get a ballot position, and the alternative means must not place too heavy a burden on the right to vote and the right to associate. Choice (A) is incorrect. The language of “important” state interest is usually associated with “intermediate review” in equal protection clause analysis. Intermediate review is reserved for legal classifications based on gender and illegitimacy. In our example, there is no reference to either classification. Choice (C) is incorrect because the right to be a candidate is related to the fundamental right to vote [Storer v. Brown, 415 U.S. 724, (1974)]. Therefore, the court will apply strict scrutiny to any law that infringes such a right. Choice (D) is incorrect. The court will likely apply strict scrutiny (see explanation for Choice B). In that case, the state will have the burden to show that no less-restrictive alternatives exist.

Question 248

68. A defendant was charged with the crime of rape. The judge denied him bail pursuant to a state law which states that for the crimes of rape, sexual assault on a child, and sexual assault, no person who stands accused thereof shall be entitled to bail prior to a trial in the courts of this state.The defendant was brought to trial and found guilty. After being sentenced to five to ten years in prison, the defendant appealed his conviction to the highest court in the state. The ground for his appeal was an argument that he was denied his right to counsel at the time of his arrest.While his appeal was pending, the defendant filed a civil rights action in federal court against the judge. The defendant claimed that the judge violated his rights under the excessive bail clause of the Eighth Amendment.The federal court should refuse to hear the case, because(A) the federal court would violate the principle of the separation of powers.(B) the issues are not ripe.(C) the case is moot.(D) the issue of bail is capable of repetition, yet evading review.

Answer 248

68. (C) In Murphy v. Hunt, 71 L Ed 2d 353, 102 5.Ct 1181 (1982), the U.S. Supreme Court held that a petitioner’s claim against Nebraska’s prohibition of pretriaL bail to a person charged with sexual offenses had violated his constitutional rights under the 8th Amendment was moot, since the petitioner-defendant had already been convicted of the offenses. As a general rule, a case becomes “moot” when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome of the case. Choice (A) is incorrect. Article III, Section 2 states that the judicial power of the federal courts “shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States…” Issues pertaining to the 8th Amendment are related to the Constitution. Accordingly, if a federal court were prohibited by the Constitution from hearing this case, the prohibition is not attributable to the principle of the separation of powers. Choice (B) is not the strongest choice. In a sense, this is true. However, the issues in the example will never become ripe; they are moot. Hence, choice (C) is the stronger answer. Choice (D) is incorrect because the bail issue is capable of repetition, but the next aggrieved person can, before conviction, present it for review.

Question 249

69. In an attempt to promote safe sex a foundation began sending condoms in the mail. Thousands of Americans became incensed and objected to this type of unsolicited advertising. A group of people started a nationwide campaign against the use of condoms. This new organization also started a strong lobbying movement to have Congress pass legislation prohibiting the distribution of condoms by using the U.S. postal system.Assume that the lobbying effort was successful, and Congress passed a law prohibiting any unsolicited advertising for condoms to be distributed through the U.S. postal system. The foundation has challenged the constitutionality of this federal statute. The best argument against the constitutionality of this law is which of the following?(A) The statute is invalid because it violates the First Amendment protection of commercial free speech.(B) The statute is invalid because it unduly burdens interstate commerce.(C) The statute is invalid because it violates the Fifth Amendment right of privacy.(D) The statute is invalid because it violates the equal protection clause of the Fourteenth Amendment.

Answer 249

69. (A) This is an extremely difficult Constitutional Law Multistate question. Choice (A) is correct because in Bolger v. Young’s Drug Products Corp., 463 U.S. 60 (1983), a law prohibiting the mailing of unsolicited advertisements for contraceptives was held invalid as violating 1st Amendment’s protection of commercial free speech.The Court held that the government’s interest in protecting recipients from mailthey find “offensive” is insubstantial. Choice (B) is wrong: this is not a state law that unduly burdens interstate commerce but rather a federal law. Choice (C) is wrong because the use of contraceptives is a fundamental right under the protected zone of “marital privacy.” There is a subtle distinction, because this question does not dealwith a statute restricting use of contraceptives. On the contrary, the Law restricts “unsolicited advertising” for contraceptives. Choice (B) is incorrect. The Commerce Clause of Article I, Section 8 permits Congress (and Congress alone) to regulate interstate commerce. Thus, Congress cannot be said to present an “undue burden” on interstate commerce; only local governments can do that and, thus, violate the dormant commerce clause of Article I, Section 8. Choice (C) is incorrect because the 5th Amendment’s right of privacy pertains to the right against self-incrimination, not the right to be Left alone suggested in our example. Finally, choice (D) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The foundation may have been the subject of discrimination by Congress, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which Congress probably will pass with ease.

Question 250

70. In recent years there has been much publicity regarding juries approving excessively high multi- million dollar damage awards in personal injury actions. As a result, Congress enacted a statute that limited recovery in personal injury actions filed in state court(s) to $400,000, and punitive action recovery to a maximum of $750,000.A man was injured in an automobile accident when a car driven by a woman drove through a red light and struck his vehicle. The man was paralyzed from the accident and became a paraplegic. The man brought a personal injury action against the woman in state court. The jury returned a verdict on the man’s behalf and awarded him $1,000,000 in damages.After the jury verdict, the woman filed an appeal challenging the amount of the award, claiming that it was excessive and violated the federal guidelines set forth in the statute.The man has filed suit challenging the constitutionality of the statute. The statute should be ruled(A) unconstitutional, because Congress cannot enact legislation involving local matters, such as automobile accidents, unless it involves interstate commerce.(B) unconstitutional, because a limitation on damage awards in tort actions would violate the equal protection clause of the Fourteenth Amendment as applicable to the states by operation of the Fifth Amendment.(C) constitutional, because under Article III, Congress has plenary power to regulate the jurisdiction and scope ofjudicial review of federal and lower state courts.(D) constitutional, because under the supremacy clause, when there is a conflict between federal law and state law, the federal law preempts and takes precedence over the conflicting state law.

Answer 250

70. (A) Under its commerce power, Congress has plenary power to regulate interstate commerce and commerce with foreign nations. Obviously, the power of Congress to regulate commerce is very broad. It does, however, have limits so as not to obliterate the distinction between what is national and what is local. To be within Congress’s power under the Commerce Clause, a federal law must either (1) regulate the channels of interstate commerce; (2) regulate the instrumentalities of interstate commerce; or (3) regulate activities thathave a substantial effect on interstate commerce. Since the Tort Liability Reform Act does not affect interstate commerce, it will be invalidated as an impermissible intrusion on local affairs. Therefore, choice (A) is correct. Choice (B) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). People like the defendant may have been the subject of discrimination by Congress, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which Congress probably will pass with ease. Choice (C) is incorrect. Article Ill, Section 2 contains an “exceptions clause”: “In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Congress may not use its exceptions clause powers to curtail those powers that belong to the judiciary; such abuse would violate the principle of the separation of powers [ExParteMcCardle, 74 U.S. 506 (1869)1. In our example, Congress would appearto limit unduly the court’s discretion regarding what the plaintiff is owed. Choice (D) is incorrect because under the Supremacy Clause of Article VI, a federal law preempts a state law only if the federal law is constitutional. Here, the federal law lacks constitutional basis.

Question 251

71. Litigation arose in the courts of a state when the Secretary of Commerce attempted to stop a man from sending his new advertising brochures through the mail. Under the Secretary’s interpretation, the new brochures contained obscene photographs and sexually suggestive language. The Secretary was acting under authority given to him by Section 1123(b) of state statute, which provided:“Whenever the Secretary of Commerce shall determine that a commercial mailing to residents of the state is inappropriate for minors, the Secretary shall have the authority to prohibit such mailing.”The case reached the highest court in the state, which held that the statute was unconstitutional, being in violation of both the commerce clause and the supremacy clause.If this case is reviewed by the U.S. Supreme Court, it will reach that court(A) by appeal.(B) by certiorari.(C) if five justices vote to review it.(D) despite the doctrine of adequate and independent state grounds.

Answer 251

71. (B) In accordance with 28 U.S.C. Section 1257, when astate statute is declared unconstitutional by the highest state court, the route of appeal is by certiorari. The highest court of the state held that Section 1123(b) of the state statute was unconstitutional. Therefore, choice (B) is the best answer. Choice (A) is incorrect because in 1988, Congress practically eliminated obligatory Supreme Court review by appeal with a couple of minor exceptions. (See Constitutional Law Outline, supra, pg. 2.) Choice (D) is incorrect, as the doctrine of adequate and independent state grounds is inapplicable because the state court decision was not based on state grounds. Under this doctrine, the Supreme Court may only review cases involving a “federal question.” Last, choice (C) is incorrect because only four justices are necessary for the Supreme Court to grant certiorari.

Question 252

72. A state legislature has recently enacted an obscenity statute prohibiting “the selling or offering for sale of any obscene printed or video materials.” Following numerous complaints from a local citizens’ group, the police entered an adult bookstore, examined materials on the shelves, and purchased magazines that depicted actual pictures of sexual intercourse. The owner was subsequently arrested and charged with violating the state obscenity law. At his trial, the owner’s defense was that the sale of the materials complained of was constitutionally protected speech.Which of the following, if established, would be most helpful to the owner’s defense?(A) The particular materials involved depicted normal, not deviant, sexual conduct.(B) The particular materials involved consisted of serious scientific studies of human sexual urges.(C) The police did not have a search warrant when they entered the bookstore to purchase the particular materials involved in this obscenity prosecution.(D) 85% of the citizens of the state believe that the sale of sexually explicit material does not contribute to antisocial sexual behavior.

Answer 252

72. (B) The case of MilIerv. California 413 U.S. 15 (1973) states the present rule for obscenity. The basic guidelines for the trier of fact must be (a) whether “the average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specificaLly defined by the applicable state law, and Cc) whether the work, taken as a whole, Lacks serious literary, artistic, political, or scientific value. Applying this test, the best defense for the owner would be choice (B), which addresses the third element of Miller. If the materials the police purchased consisted of serious, scientific studies of human sexual urges, then the materiaLs, taken as a whole, would not be obscene. Choice (A) is incorrect since normal sexual conduct is irrelevant to the elements defined by the Miller standard. Choice (C) is incorrect. Probable cause wouLd also suffice to avoid 4th Amendment prohibitions against unreasonabLe search and seizure. The police may have acquired probable cause after reviewing the materials. Choice (D) is incorrect because, even if true, this is irrelevant as a matter of Law in determining whetherthe material is obscene.

Question 253

73. Congress enacts a statute that makes Pennsylvania Avenue a one-way street. Congress has enacted the statute solely for the purpose of enabling members of Congress to travel back and forth to the Capital without being tied up in heavy traffic each day. Before Congress enacted this law, the Washington, D.C., City Council had previously passed an ordinance designating Pennsylvania Avenue as a two-lane street.Which of the following is the most accurate statement regarding the constitutionality of the federal statute designating Pennsylvania Avenue a one-way street?(A) It is valid because Congress has exclusive power over the District of Columbia.(B) It is valid because it is a proper exercise of Congress’s enumerated property power.(C) It is invalid because the Washington, D.C., City Council has exclusive power over the public thoroughfares within the District of Columbia.(D) It is invalid because it is a discriminatory burden on interstate commerce.

Answer 253

73. (A) Under Article 1, Section 8, Clause 17, Congress has the powerto exercise exclusive legislation overthe District of Columbia and to govern places where the government has purchased and erected forts, arsenaLs, dockyards, and other needful buildings. Based on this enumerated power, Congress may properLy legislate to make Pennsylvania Avenue a one-way street, and the federal law wILL predominate over any conflicting ordinance passed by the District of Columbia City Council. Choice (A) is correct. Choice (B) is a potentially good answer but there is explicit support for Congress’s power in Article I, Section 8, Clause 17 to regulate Washington, D.C. Choice (C) is incorrect. As stated above, Congress has exclusive power to legislate over the District of Columbia. Choice (D) is incorrect. Under the Commerce Clause of Article I, Section 8, Congress has authority to regulate interstate commerce. Thus, Congress, as a matter of Law, cannot be deemed to present an undue burden on interstate commerce; onLy state and other local governments can present such a burden and, thus, violate the dormant commerce clause of Article I, Section 8.

Question 254

74. A city housing code limits the occupancy of all dwelling units in the city to members of a single family. The chief purpose of the code is to limit traffic congestion and noise in the neighborhood. One provision in the code provides that a “family” means a number of individuals related to the nominal head of the household or to the latter’s spouse living as a single housekeeping unit in a single dwelling unit, but is limited to the following:(a) husband or wife of the nominal head of the household;(b) married or unmarried children of the nominal head of the household or the latter’s spouse, provided, however, that such married or unmarried children have no children of their own residing with them;(c) father or mother of the nominal head of the household or of the latter’s spouse.A resident of the city lives in her home together with her son and his two children. She received a notice of violation from the city which stated that both grandchildren were illegal occupants of her home and that she must comply with the code. After she fails to remove her two grandchildren, the city brings criminal charges against the resident.In an action by the resident challenging the constitutionality of the code provision, the court will most likely declare the provision(A) constitutional, on the grounds that the housing provision bears a rational relationship to permissible state objectives.(B) constitutional, under the state police power. (C) unconstitutional, as violative of the due process clause of the Fourteenth Amendment.(D) unconstitutional, as having no substantial relation to the public health, safety, morals, and general welfare of the state.

Answer 254

74. (C) In Moore v. City of East Cleveland, Ohio, 97 S.Ct. 1932 (1977), the U.S. Supreme Court held that a housing ordinance limiting occupancy of a dwelling unit to members of a singLe family and recognizing as a “family” only a few categories of reLated individuals, under which it was a crime for a grandmother to have certain grandchildren living with her, was violative of the Due Process Clause of the 14th Amendment. The Court recognized that freedom of personal choice in matters of marriage and family Life is one of the liberties protected bythe Due Process Clause of the 14th Amendment. Thus, a city may not regulate the occupancy of its housing by selecting certain categories of relatives who may live together and declaring that others may not. This case is distinguished from Village of Belle Terre v. Boraas, 416 U.S. 1 (1914), where the housing ordinance affected only unrelated individuals. Choice (A) is incorrect because the court will apply strict scrutiny. Choice (B) is incorrect. In Moore v. City of East Cleveland, Ohio, 97 S.Ct. 1932 (1977), the U.S. Supreme Court suggested that the right to organize one’s family is a fundamental right under the liberty interest protected by the 14th Amendment’s Due Process Clause. The city ordinance wouLd seem to infringe on this fundamental right. Accordingly, the court will apply strict scrutiny. Under strict scrutiny, the court will ask whether the ends are compelling and the means chosen are the least restrictive with respect to the fundamental right. Here, the ends are to limit traffic congestion and noise; such ends likely will constitute compelling governmental interests. However, the means chosen are not the least restrictive because the city could have created laws to curb traffic congestion (or hired more police to do so) and to limit noise (or had more intense police enforcement of preexisting codes). Choice (D) is incorrect. The code will, most likely, be struck down, but not because it lacks a “substantial relation” to public health, safety, morals, and welfare. Rather, the code will be subject to strict scrutiny because the right to familial organization is a fundamental right protected under the liberty interest of the 14th Amendment [Moore v. City of East Cleveland, Ohio, 97 S.Ct. 1932 (1977)]. As such, the code, which infringes this fundamental right, will be subject to strict scrutiny. Under strict scrutiny, the court asks whether there is a compelling governmental interest and whether the means chosen are the least restrictive. The language in choice (D) suggests that the city will lose because there is “no substantial relation” to health, safety, and so on.

Question 255

75. A state legislature has proposed a bill setting up a postal service. Under the proposal, the postal service would be established as a separate state agency under the direction of a postmaster general. The postal service would be responsible for the overnight or express delivery of official governmental mailings within the state. The bill further provides that all state government employees may utilize the overnight postal service at no charge for sending mailings to persons or corporations within the state.Assume that no other state has established such a postal service to date. Moreover, assume there is uncontradicted evidence that the establishment of such an independent state postal service will diminish the revenues of the U.S. Postal Service.Which of the following, if established, is the strongest argument in support of the proposed legislation?(A) Under the Tenth Amendment, a state has exclusive authority to regulate transactions that are wholly intrastate.(B) Since the proposed bill is not inconsistent with congressional postal power, it is valid under the supremacy clause.(C) State employees may be exempt from paying for mailing charges under intergovernmental immunity provided Congress has enacted a similar exemption for federal governmental employees.(D) There is a legitimate state interest in ensuring that governmental mailings are delivered expeditiously.

Answer 255

75. (D) Use process of elimination here. Choice (A) is wrong because a state does not have exclusive authority to regulate intrastate transactions. Under the Commerce Clause, Congress has the power to regulate any activity that has a direct or immediate effect on interstate commerce, even though the activity takes place within a single state. Choice (B) is incorrect because the Supremacy Clause does not validate state laws. On the contrary, the effect of this clause is that to whatever extent Congress has exercised its powers, any “inconsistent” state laws are prohibited. Similarly, choice (C) is not the best answer because intergovernmental immunity, in general, places certain limitations on the state’s power to regulate and tax the property and activities of the federal government. By process of elimination, choice (D) is the best answer.

Question 256

76. A state was facing a fiscal problem. In order to raise funds, the state decided to consider the creation of a state postal service that only its residents may use for intrastate mail. The price for stamps printed by the state postal service would be half the cost of stamps printed by the U.S. Postal Service and would always be guaranteed to arrive within 24 hours. In addition, any employees of the state would be able to send their mail for free through the state postal service.Which of the following is the strongest constitutional argument against the proposed legislation?(A) It constitutes a denial of equal protection of the laws, because employees of the state receive personal benefits that are not enjoyed by employees of other states.(B) The negative implications that flow from the delegation to Congress of the power to establish a post office prohibit such a state postal service.(C) It denies citizens of the state who are not state government employees their rights under the privileges or immunities clause of the Fourteenth Amendment.(D) It interferes with the sovereign autonomy of the U.S. Postal Service to operate as an independent federal agency.

Answer 256

76. (B) In the area of Constitutional Law, students are often presented with a proposed state statute and are required to determine the strongest argument IN SUPPORT of the legislation and the strongest argument AGAINST it. The strongest argument AGAINST an independent state postal service was held to be the negative implications that flow from the delegation to Congress of its postal power under Article I, Section 8. This is so because the facts indicate that a state postal service will diminish the revenues of the U.S. Postal Service. Choice (A) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). Those not employed by the state may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (C) is incorrect. In order to show a violation of the 14th Amendment’s privileges or immunities clause, one must show that he is being denied the privilege or immunity by a state because he is not a citizen of the state. In our example, the state confers benefits not along the lines of state citizenship but along the lines of employment by the state. Finally, choice (D) is incorrect. According to Article I, Section 8, Congress has authority to regulate the U.S. Postal Service. Therefore, the U.S. Postal Service does not exercise “sovereign autonomy.”

Question 257

77. A resident announced his candidacy for state representative. A law in the state requires new political entrants (regardless of party affiliation) to obtain three times the number of signatures as other candidates who have run for office previously. The resident, however, failed to obtain the necessary number of authenticating signatures to have his name placed on the ballot.The resident filed a complaint in federal district court alleging the unconstitutionality of the authenticating requirement. Which of the following, if established, is the state’s strongest argument for sustaining the validity of the authenticating requirement?(A) The resident’s petition contained a large number of false signatures.(B) A similar authenticating statute was held to be constitutional in another state the previous year.(C) The authenticating requirement was necessary to further a compelling state interest.(D) Two other candidates had successfully petitioned to have their names included on the ballot.

Answer 257

77. (C) In Jenness v. Fortson, 403 U.S. 431 (1971), the U.S. Supreme Court uphe(d a Georgia law requiring candidates for elective office who ran without winning a primary election to file petitions with signatures from qualified voters equaling 5% of the vote cast in the last general election for that office. The Court held that such state requirements (whereby a candidate or new political party demonstrate public support in order to get on the ballot) further a “compelling state interest,” i.e., preserving the integrity of the electoral process by preventing the ballot from becoming unmanageable and confusing. Choice (A) is incorrect. As suggested by jenness v. Fortson, 403 U.S. 431 (1971), the strongest argument by the state is probably its interest in preventing confusion and an unmanageable litany of candidates’ names on the ballet. The Jenness Court recognized such interests to be “compelling” under strict scrutiny. Choice (B) is incorrect because even if this were true, it would not be the state’s strongest argument insofar as the statute and the case facts in the other state case could be different in legally relevant ways from those in our example. Choice (D) is not the best answer because even if this were true, the facts that pertain to the two candidates could distinguish them in legally meaningful ways from the resident.

Question 258

78. A resident announced his candidacy for state representative. A law in the state requires new political entrants, regardless of party affiliation, to obtain five times the number of signatures as other candidates who have run for office previously. The resident, however, failed to obtain the necessary number of authenticating signatures to have his name placed on the ballot.On the substantive constitutional issue regarding the validity of the authenticating requirement, the most probable judicial resolution will be to(A) hold the authenticating requirement unconstitutional as violative of the due process clause of the Fourteenth Amendment.(B) hold the authenticating requirement unconstitutional as violative of the equal protection clause of the Fourteenth Amendment.(C) dismiss the cause of action because state election procedures are a sovereign state function.(D) assign the burden of proving the validity of the authenticating requirement to thestate.

Answer 258

78. (D) The u.s. Supreme Court has upheld the requirement that a candidate receive a reasonable number of signatures before being placed on the ballot. However, in casesin which the signature requirement places a severe restriction on being placed onthe ballot, the burden will be on the state to show that the regulations are narrowlydrawn to achieve a state interest of compelling importance [Norman v. Reed, 502u.s. 279 (1992)]. Choice (A) is incorrect because based on the facts, we do not knowhow the Court will decide. All that we know is that the Court will likely subject thelaw to strict scrutiny [Norman v. Reed, 502 u.s. 279 (1992)]. Choice (B) is incorrect.The equal protection clause provides heightened protection for groups whose legalclassifications are suspect (e.g., classifications based on race, ethnicity, nationality,and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The resident may have been the subject of discrimination by thelegislature but not because he is a member of a suspect or quasi-suspect class. Onlyrational review will be applied, which the other state probably will pass with ease.Choice (C) is incorrect. While there is no constitutional right to run for public office, the voters possess fundamental rights under the 1st and 14th Amendments to vote in political elections, including state elections [Norman v. Reed, 502 U.S. 279 (1992)]. Thus, state elections are not immune from scrutiny under the u.s. Constitution.

Question 259

79. An avowed corrimunist was elected vice president of a union. A senator, in his investigation of communist infiltration of national labor unions, found a provision in a statute passed by Congress, which makes it a crime for a member of the communist party to act as an official of a labor union. After a subsequent legislative hearing, the communist is dismissed from his position by the union.Which of the following most accurately summarizes the applicable rule of constitutional law regarding the aforementioned provision of the statute?(A) The statutory provision is a form of unconstitutional prior restraint on a person’s First Amendment right of free association.(B) Making it a crime for a Communist to hold a union office is a suspect classification, which violates the equal protection clause.(C) The statutory prohibition is a reasonable method of discrimination since the benefit to the public outweighs the injury or restrictions that would be inflicted upon the person.(D) The statutory provision in the act is a form of legislative punishment violative of the Constitution as a bill of attainder.

Answer 259

79. (D) In United States v. Brown, 381 u.s. 437 (1965), the u.s. Supreme Court found that a provision in the Landrum-Griffin Act making it a crime for a member of the Communist Party to act as an officer or employee of a labor union to be legislative punishment for Party membership, and hence, a bill of attainder. Choice (A) is incorrect. Prior restraints are generally characterized by requirements for licensing or advanced permission from the government. Here, we have a generic criminal law that limits a person’s rights of speech and association. Choice (B) is incorrect. Since we have a congressional statute, not a state statute, the 14th Amendment’s Equal Protection Clause does not apply. We apply instead the equal protection principle that the Supreme Court has read into the 5th Amendment’s Due Process Clause. The equal protection principle in the 5th Amendment provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The communist may have been the subject of discrimination by the legislature, but he is not a member of a suspect or quasi-suspect class. Only rational review will be applied, which Congress probably will pass with ease. Choice (C) is incorrect. The statutory clause will likely be struck down as violating Article I, Section 9, which prohibits a state from passing a bill of attainder. In United States v. Brown, 381 U.S. 437 (1965), the U.S. Supreme Court found that a provision in the Landrum-Griffin Act making it a crime for a member of the Communist Party to act as an officer or employee of a labor union to be legislative punishment for Party membership and, hence, a bill of attainder.

Question 260

80. An avowed member of an antigovernment organization was elected president of a union. A senator, in his investigation of infiltration by antigovernment organizations of national labor unions, found a provision in a law passed by Congress that makes it a crime for a member of an antigovernment organization to act as an official of a labor union. After a subsequent legislative hearing, the president is dismissed from his position by the executive committee of the union.During a legislative hearing, the senator made derogatory statements about the president’s involvement in an antigovernment organization.In determining whether the president has a valid cause of action against the senator for defamation, which of the following most accurately summarizes the applicable rule of law?(A) Congressional committees do not have the authority to violate a person’s Fifth Amendment privilege against self-incrimination.(B) A congressman shall not be questioned in any other place for any speech or debate made by him during a congressional hearing.(C) The constitutional requirement for actual malice must be proved by the party defamed in order to recover in a defamation suit.(D) It is not a denial of due process or of First Amendment rights for a congressional investigative committee member to make such utterances.

Answer 260

80. (B) Article I, Section 6 of the U.S. Constitution provides that “for any Speech or Debate in either House, they (members of Congress) shall not be questioned in any other place.” Thus, the speech and debate clause would confer immunity upon the senator, exempting him from liability for any remarks made by him during the congressional hearing. Choice (A) is incorrect. In Hutchenson v. United States, 369 U.S. 599 (1962), the Court stated that congressional committees have the authority to issue subpoenas for people to testify. Choice (C) is incorrect. The senator would not be held liable underthe circumstances because Article I, Section 6 of the U.S. Constitution provides that “for any Speech or Debate in either House, they (members of Congress) shall not be questioned in any other place.” Thus, the speech and debate clause would confer immunityupon the senator, exempting him from liability for any remarks made by him during the congressional hearing. Choice (D) is incorrect. There might be due process or 1st Amendment violations by the senator but Article I, Section 6 of the U.S. Constitution, provides that “for any Speech or Debate in either House, they (members of Congress) shall not be questioned in any other place.” Thus, the speech and debate clause would confer immunity upon the senator, exempting him from liability for any remarks made by him during the congressional hearing.

Question 261

81. A state resident could purchase a license solely for hunting elk for $9.00. A nonresident, in order to hunt elk, was required to purchase a combination license at a cost of $225.00; this entitled him to take one elk, one deer, and one black bear. A nonresident, however, could obtain a license restricted to deer for $51.00. A resident was not required to buy any combination of licenses but if he did, the cost to him of all the privileges granted by the nonresident combination license was $30.00.Due to its successful management program for elk, the state has not been compelled to limit the overall number of hunters by means of drawings or lotteries, as have other states. Elk are not hunted commercially in the state. Nonresident hunters seek the animal for its trophy value; the trophy is the distinctive set of antlers. ‘.Vhereas the interest of resident hunters more often may be in the meat, among nonresident hunters, big-game hunting is clearly a sport in the state.Two residents of another state bring suit against the state. They assert in their complaint that the disparities between residents and nonresidents in the state hunting license system is unconstitutional. The state’s hunting license system should be found(A) constitutional, because it is within the police power of a state to regulate a recreational, noncommercial activity.(B) constitutional, because there is a compelling state interest.(C) unconstitutional, because it violates the privileges and immunities clause of Article IV, Section 2.(D) unconstitutional, because it violates the equal protection clause of the Fourteenth Amendment.

Answer 261

81. (A) In Baldwin v. Montana Fish and Game Commission, 436 U.S. 371 (1977), the U.S. Supreme Court held that the Montana elk-hunting licensing scheme, as applied to nonresidents, was not a fundamental right under the Privileges and Immunities Clause of Article IV, Section 2. Furthermore, the Court majority found no discrimination in the distinctions drawn between residents and nonresidents under the Equal Protection Clause of the 14th Amendment. The Supreme Court concluded that protection of the wildlife of a state is peculiarly within the police power of the state. The court also noted that the elk-hunting licensing scheme did not violate petitioners’“privileges and immunities,” because hunting (on the part of non-Montana residents) was primarily a recreational endeavor. Choice (B) is incorrect. The reference to “compelling state interest” suggests that the court will apply strict scrutiny, but this is doubtful under Baldwin. Choice (C) is incorrect for the reasons stated in the discussion of choice (A), above. Finally, choice (D) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The residents may have been the subject of discrimination by the state, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease.

Question 262

82. A city imposes a tax on nonresident’s city derived income above $1,700 at a 3% rate, except that if the nonresident’s state of residence would impose a lesser tax had the income been earned in that state, the city tax would be reduced to that amount. This income tax exempts taxable income earned by city residents outside of the state. Moreover, residents of the city were not taxed on their in-city earned income.A commuter who works in the city but is a resident of a neighboring state, challenges the constitutionality of this statute.Which of the following provisions would furnish the most applicable basis for this constitutional challenge?(A) The equal protection clause of the Fourteenth Amendment.(B) The Fourteenth Amendment’s due process clause.(C) The privileges and immunities clause of ArticleIV.(D) The commerce clause.

Answer 262

82. (C) In Austin v. New Hampshire, 420 U.S. 656 (1975), the U.S. Supreme Court held that a similar New Hampshire commuters’ income tax on nonresident taxpayers to be violative of the Privileges and Immunities Clause of Article IV, Section 2, which provides that “The citizens of each State shall be entitled to all Privileges and Immunities of citizens in the several states.” Choice (A) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose Legal classifications are quasi suspect (e.g., gender, illegitimacy). The commuter may have been the subject of discrimination by the city, but he is not a member of a suspect or quasi- suspect class. Only rational review will be applied, which the city probably will pass with ease. Choice (B) is incorrect. Although property is protected by the 14th Amendment’s due process clause, the taxed income probably would not be entitled to due process protection as a taking [New York ex rel. Cohn v. Graves, 300 U.S. 308 (1937)]. Choice (D) is incorrect. The doctrine of the dormant commerce clause is meant to prohibit “economic protectionism—that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors. . . .“ [Wickard v. Filburn, 317 U.S. 111 (1942)] Notice that no such protectionism exists, since Jones (the out-of-stater) would pay no more than what his own state would require byway of the income tax.

Question 263

83. A corporation under the authority of a state statute sued to have condemned 1,000 acres of forested land owned by a timber company, which it planned to develop for use as a state recreational area. After a hearing, the state court ordered possession of the land surrendered to the corporation, upon deposit in court of a sum deemed adequate to cover damages that might be awarded. The timber company immediately commenced an action to enjoin the court-ordered sale of their property.Which of the following would be the best ground for upholding the state court’s order?(A) The power of eminent domain may only be delegated directly to a private enterprise for a public related use or activity.(B) The power of eminent domain may only be delegated to a public authority through a legislative determination.(C) The injured party has not proved such irreparable injury to use as amounts to a “taking.”(D) The Fifth Amendment’s power of eminent domain incorporated by the Fourteenth Amendment as applicable to the states does not require that payment be made prior to condemnation of the property.

Answer 263

83. (A) The power of eminent domain may be delegated directly or indirectly to a private person or enterprise, subject to the requirements that the taking be (a) for a public use,and (b) just compensation be given. Therefore, choice (A) is correct, and choice (B)is incorrect. Choice (C) is incorrect. In Lucas v. South Carolina Coastal Council, 505U.S. 1003 (1992), the Court stated that a taking occurs where “regulation deniesall economically beneficial or productive use of the land.” Here, 1,000 acres of landowned by the timber company has been condemned, thus depriving the companyof all economic value. Choice (D) is not the best answer. Once the government hasdecided to deprive the owner of all economically beneficial or productive use of theland, the government must render just compensation.

Question 264

84. A corporation under the authority of a state statute, sued to have condemned 1,000 acres of forested land owned by a tree company. The corporation intended to use the land to develop physical endurance and obstacle courses meant to train private security firms and forest rangers. After a hearing, the state court ordered possession of the land surrendered to the corporation upon deposit in court of a sum deemed adequate to cover damages that might be awarded. The tree company immediately commenced an action to enjoin the court-ordered sale of its property.Assume that the tree company was not given any notice of the condemnation proceedings by the appropriate state authorities. The tree company’s best argument for challenging the validity of the condemnation proceedings would be(A) violation of procedural due process.(B) violation of substantive due process.(C) unlawful delegation of legislative power because the state’s legislature had no authority to delegate power to a private enterprise for eminent domain.(D) the tree company is entitled to a judicial or administrative proceeding in order that the amount of compensation may be determined prior to any “taking.”

Answer 264

84. (A) In addition to the requirements thatthe taking of private property be for a public use and just compensation be given, the condemnee must be given adequate notice and a fair hearing as required by the Due Process Clause of the 14th Amendment. Choice (B) is incorrect. Under the 14th Amendment’s Substantive Due Process Clause, the Supreme Court has identified a set of rights that are organized around bodily autonomy, especially as these relate to reproductive rights, and those rights pertaining to the organization of the family. The tree company cannot argue that such rights are being infringed. Choice (C) is incorrect. The power of eminent domain may be delegated directly or indirectly to a private person or enterprise, subject to the requirements that the taking be (a) for a public use, and (b) just compensation be given. Choice (D) is incorrect. A condemnee is not entitled, as a constitutional matter, to a judicial or administrative proceeding in order to determine the amount of compensation.

Question 265

85. A state’s constitution reserves to the people of each municipality in the state the power of referendum with respect to all questions that the municipality is authorized to control by legislation. A real estate developer applied for a zoning change to permit construction of a convalescent home on land he owned in a city within the state. While the application was pending, the city charter was amended by popular vote so as to require that any changes in land use agreed to by the city council be approved by a 55% vote in a referendum. The city planning commission and the city council both approved the proposed zoning change. However, the real estate developer’s subsequent application for approval for a proposed home on the grounds was rejected because the rezoning action had not been submitted to a referendum.In an action brought in state court seeking a judgment declaring the city charter amendment invalid, the court will most likely declare the amendment(A) unconstitutional, as violation of the real estate developer’s due process rights.(B) unconstitutional, as an unlawful delegation of legislative power to a regulatory body.(C) constitutional, as a valid exercise of the city’s police power.(D) constitutional, as a valid exercise of a power reserved by the people to themselves.

Answer 265

85. (D) The amendment to the city charter constituted a valid exercise of power reserved by the people to themselves. Similarly, in Eastlake v. Forest City Enterprises, Inc., 426 U.s. 668 (1976), the U.S. Supreme Court held that a city charter provision requiring proposed land use changes to be ratified by 55% of the votes cast did not violate the due process rights of the 14th Amendment of a landowner who applied for a zoning change. Interestingly enough, the Supreme Court further noted that the amendment to the city charter did not involve a delegation of power by the legislature to a regulatory body. Although the Court did not enumerate the applicable constitutional amendment in reaching its decision, apparently the 10th Amendment acted as the basis for the Court’s ruling. Choices (A), (B), and (C) are incorrect. In Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), the Supreme Court announced: “A referendum, which is a means for direct political participation by the people, allowing them what amounts to a veto power over legislative enactments, cannot be characterized as a delegation of power. In establishing legislative bodies, the people can reserve to themselves power to deal directly with matters that might otherwise be assigned to the legislature, and here the power of referendum was specifically reserved to the people under the state constitution.” Accordingly, the state was not deemed to have “taken” the plaintiff’s property; the “people” were presumed to have done so. We have similar facts in our example.

Question 266

86. A state’s constitution reserves to the people of each municipality in the state the power of referendum with respect to all questions that the municipality is authorized to control by legislation. A real estate developer applied for a zoning change to permit construction of a water park on land he owned in a city within the state. While the application was pending, the city’s charter was amended by popular vote so as to require that any changes in land use agreed to by the city council be approved by a 55% vote in a referendum. The city planning commission and the city council both approved the proposed zoning change. However, the commission rejected the developer’s subsequent application for “recreational area” approval for the proposed water park on the grounds that the council’s rezoning action had not been submitted to a referendum.Assume that while the action was pending in the state court, the proposed zoning change was defeated in a referendum. Which would be the most applicable rule of constitutional law with respect to the referendum procedure when applied to a rezoning ordinance?(A) The referendum procedure as a basic instrument of the democratic process does not violate the due process clause of the Fourteenth Amendment.(B) The referendum procedure is arbitrary and capricious and thus should be held invalid as an unlawful delegation of legislative power.(C) The referendum procedure is violative of the due process clause of the FourteenthAmendment.(D) The referendum procedure in this context is invalid as against publicpolicy.

Answer 266

86. (A) In like manner, the Court in Eastlake held that the referendum process does not,in itself, violate the Due Process Clause of the 14th Amendment when applied to arezoning ordinance. Choices (B) and (C) are incorrect. In Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668 (1976), the Supreme Court announced: “A referendum,which is a means for direct political participation by the people, allowing them whatamounts to a veto power over legislative enactments, cannot be characterized asa delegation of power. In establishing legislative bodies, the people can reserve tothemselves power to deal directly with matters that might otherwise be assigned tothe legislature, and here the power of referendum was specifically reserved to thepeople under the state constitution.” Hence, the Court stated that the people—notthe state—was acting, and there was nothing “arbitrary” or “capricious” about thereferendum process. Our facts are similar. Choice (D) is incorrect because it is notclear how the referendum procedure is against public policy. The Supreme Courthas held as constitutionally permissible such referendums [Eastlake v. Forest CityEnterprises, Inc., 426 U.S. 668 (1976)].

Question 267

87. As a result of the increasing northward movement of the population from a nearby city, a town enacted a zoning ordinance restricting present and future land use in the town to single family dwellings, except in the downtown commercial shopping area, and except for a small area in which multifamily dwellings not over 40 feet in height were permitted. In addition, all new construction or exterior modifications of existing buildings required prior approval of an aesthetic control board. The zoning ordinance defined the term “family” in the context of single family dwellings to mean only one or more persons related by marriage, blood, or adoption, thereby excluding unrelated, unmarried persons from residing in a single residence unit. The enabling legislation contained the following provision:“This enactment is necessary to preserve the physical and social homogeneity of this community, and preserve and protect the quality of life of its citizens.”A town resident owns a single family residence with five bedrooms. Prior to the enactment of the zoning ordinance, the resident leased the premises on a month-to-month basis to a boyfriend and girlfriend and three other male law students. The five individuals are all unmarried and attend the nearby law school. The resident now brings suit to enjoin enforcement of the ordinance against himself.Which of the following is the most accurate statement regarding the constitutionality of the zoning ordinance provision that prohibits unrelated, unmarried persons from residing in a single family residence?(A) The zoning ordinance provision would be declared unconstitutional as violative of the due process clause of the Fourteenth Amendment.(B) The zoning ordinance would be declared unconstitutional as violative of the equal protection clause of the Fourteenth Amendment.(C) The zoning ordinance provision would be declared unconstitutional as violative of the resident’s rights under the contract clause.(D) The zoning ordinance provision would be upheld as constitutional under the state’s police power.

Answer 267

87. (D) In Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), the U.S. Supreme Court upheld a similar ordinance that prohibited unrelated, unmarried persons from residing in the same dwelling unit. The Court held that a municipality can enact such an ordinance under its police powers, since the ordinance bears a substantial relationship to the health, safety, welfare, and morals of the citizenry. Students should note, however, that a zoning or housing ordinance that limits occupancy of dwelling units to members of a single family and recognizing as a “family” only a few categories of related individuals is violative of the Due Process Clause of the 14th Amendment. In Moore v. City of East Cleveland, 97 S.Ct. 1932 (1977), the U.S. Supreme Court declared such an (above-mentioned) ordinance unconstitutional, whereby a grandmother was charged with a crime for permitting her grandson to reside in her single family residence. Choice (A) is incorrect. Under the liberty interest of the 14th Amendment’s Due Process Clause, the Supreme Court has recognized a fundamental right to organize one’s family. [Moore v. City of East Cleveland, 431 U.S. 494 (1977)]. Thus, “unrelated, unmarried persons” are not protected by such rights. Choice (B) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). “Unrelated, unmarried persons” may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the government probably will pass with ease. Finally, choice (C) is incorrect. The contracts clause of Article I, Section 10 states that no state shall impairthe obligation of contracts. Here, the ordinance does not impair the obligation of contract because of the following. One, the contract took place against the knowledge of both parties that their contract could be subject to heavy governmental regulation. [Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400 (1983)]. Two, both parties still have remedies (The resident is entitled to evict the renters; the renters are entitled to return of the rental money).

Question 268

88. A state has a statute requiring all candidates for lieutenant governor to file a petition with the signatures of 5,000 registered voters in order to have their names placed on the ballot. A candidate for lieutenant governor, did not receive the authorized number of signatures and did not have her name placed on the ballot.If the candidate brings an appropriate action challenging the constitutionality of the voter petition requirement, the best argument, if established, in support of the statute is that(A) it is constitutional under the Fifteenth Amendment.(B) it is necessary to further a compelling state interest.(C) the candidates’s petition contained 2,000 false signatures.(D) only one other candidate successfully petitioned to have his name placed on the ballot.

Answer 268

88. (B) Choice (B) is the correct answer. While choice (C) is a correct statement of fact, a correct statement of law is always preferred. Although a state may have a legitimate interest in creating a so-called support requirement on independent candidates, you must ask yourself, “What is the state’s standard interest in enacting such a statute?” According to the rule enunciated in Williams v. Rhodes, 393 U.S. 23 (1968), there are three state interests protected: (1) the statute promotes the two-party system; (2) the statute helps to prevent voter confusion; and (3) the law ensures that the voters will elect a candidate with a majority vote. Choice (A) is incorrect because the 15th Amendment provides that the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Choice (D) is incorrect because even if this were factually true, it would not support the extension of some legal argument.

Question 269

89. A consumer watchdog group presented petitions to the state legislature bearing the signatures of over 10,000 state residents complaining about the recent increases in the cost of cable television. A corporation who provides cable television services successfully persuaded the state legislature to grant it an exclusive right to install cable television lines in all multiple family dwellings in the state, in exchange for the corporation’s promise to freeze cable television rates for the next four years. An owner of several large multifamily apartment buildings in the state brought an action in federal district court challenging the constitutionality of the state legislation. The suit claimed that the space used by the corporation when it subsequently installed cable television lines in one of his apartment buildings amounted to a taking without compensation.In this action, the owner will be awarded(A) no relief, because easements for utility lines are presumed to be beneficial to the servient estate.(B) no relief, because the legislation is merely a regulation of the use of property and not a taking.(C) no relief, because the corporation is not a government entity.(D) damages for the value of property used by the corporation.

Answer 269

89. (D) A permanent physical occupation of private property by the government or a government regulation that allows someone other than the property owner to have permanent physical occupation of a definabLe part of a piece of property should constitute a taking. Nowak, Constitutional Law, pg. 450. In Loretto v. Teleprompter Manhattan CAWC0rp., 458 U.S. 419 (1982), a city ordinance requiring the landlord-building owner to allow the installation of a cable television receiver on the apartment building and denying the landlord the ability to demand payment in excess of $1 constituted a compensable taking because the ordinance allowed for “permanent physical occupation” of a small part of the building. Choices (A) and (B) are incorrect for the reasons stated above. Choice (C) is incorrect. It does not legally matter if the corporation is not a governmental entity. If the government legally permits the corporation to take another’s property for public use, the government has engaged in a taking that will require just compensation.

Question 270

90. In which instance would a state, under the enabling clause of the Fourteenth Amendment, be most able to regulate?(A) A private individual from discriminating against a person based on race.(B) A private individual from discriminating against a person based on nationality.(C) A state official from discriminating against a person based on race.(D) A federal official from discriminating against a person based on nationality.

Answer 270

90. (C) The most clear case where a state can regulate to protect one’s constitutional rights under the 14th Amendment occurs when state action is involved. Thus, choices (A) and (B) are incorrect because private discrimination is involved. Choice (D) is wrong because a federal official is doing the discriminating. ConsequentLy, choice (C) is the best answer because a state is most able to regulate the actions of a state official when these actions violate one’s constitutional rights.

Question 271

91. A president of the senior class at a public high school, on his own initiative instituted among the students the practice of invoking divine blessing at the start of the daily luncheon served in the high school cafeteria. Although no teacher or school official either encouraged or discouraged the practice, all but two teachers, when present, joined in the invocation. A student and his parents protested to the school superintendent, but they refused to intervene on the grounds that the matter was entirely up to the students. Moreover, school board officials pointed out that the students who led the recital always sat at a table in the rear of the cafeteria and that no one was required to participate in the blessing.In an action by the student’s parents to enjoin the daily luncheon invocation at the high school, the court will most likely(A) grant relief, since the invocation violates the establishment clause of the First Amendment.(B) grant relief, since the primary effect of the invocation is to advance religious beliefs.(C) deny relief, since the lunch hour is not part of the educational process.(D) deny relief, since the noncompulsory nature of the invocation would not be violative of the establishment clause.

Answer 271

91. (A) Such voluntary pupil prayer recitals during school hours in the school building have been invalidated as an establishment of religion, despite the fact that no religious sect was preferred or discriminated against, thus in violation of the Establishment Clause of the 1st Amendment and applicable to the states through the Due Process Clause of the 14th Amendment. Choice (B) is incorrect. This may be true but in itself it is not a legal claim. Choice (A) provides such a Legal claim. Choice (C) is incorrect because even if this were true, the religious expression is taking place on governmental property and thus still in danger of violating the Establishment Clause of the 1st Amendment, as applied to locaL governments via the 14th Amendment’s Due Process Clause. Choice (D) is incorrect. Even if noncompulsory, the Supreme Court has struck down practices where a school has, through its religious practices, inadvertently and informally made nonbelievers feel “coerced” into complying with the religious conduct [Lee v. Weisman, 505 U.S. 577 (1992)]. Furthermore, the traditional establishment clause test from Lemon v. Kurtzman, 403 U.S. 602 (1971) only requires “excessive entanglement,” not compulsion.

Question 272

92. A state enacted a statute that authorized the payment of state funds to any private institution of higher learning within the state that meets certain minimum criteria and refrains from awarding only seminarian or theological degrees. The aid is in the form of annual subsidies to qualified institutions. The grants are non-categorical but may not, under an added provision, be utilized by the institutions for sectarian purposes. A state agency determines the eligibility of applicant institutions. Eight state taxpayers, all avowed atheists, bring suit in federal court to enjoin the payments of subsidies under the statute to all church-affiliated institutions in the state.The federal district court will most likely(A) dismiss the action for lack of standing. (B) uphold the validity of the statute as nonviolative of the establishment clause.(C) invalidate the statute as violative of the establishment clause.(D) uphold the validity of the statute as a valid exercise of the state’s power to subsidize education.

Answer 272

92. (B) Applying the three-part requirement of Lemon v. Kurtzman, 403 U.S. 602 (1971), state aid such as this must have (1) a secular purpose; (2) a primary effect other than the advancement of religion; and (3) no tendency to entangle the state excessivelyin church affairs. The New Haven statute should be upheld as nonviolative of the Establishment Clause of the 1st Amendment [Roemer v. Board of Public Works of Maryland, 426 U.S. 736 (1976)]. Moreover, it is important that the church-affiliated institutions referred to in this problem must not be so “pervasively sectarian” under Hunt v. McNair, 413 U.S. 734 (1973), that (1) secular activities cannot be separated from sectarian ones, and (2) if secular activities can be separated out, they alone may be funded. Choice (A) is incorrect. We have the requirements for standing: First, we have the danger of imminent injury insofar as the state may violate the Establishment Clause. Second, there’s causation because the state is directly responsible for the potential injury. And plaintiffs are able to show that the state can remedy their harm by refraining from giving money to the schools. Choice (C) is incorrect applying the Lemon test. Finally, choice (D) is incorrect. This answer is unresponsive to the Establishment Clause issue. States do have 10th Amendment poLice powers to regulate matters of health, safety, welfare, and morals, but they must not do so in a way that violates the Establishment Clause.

Question 273

93. A city has adopted ordinance 172 which provides:“Section 1: It shall be unlawful for any person, group, or organization to hold a meeting of 50 persons or more in any city park without first securing a city permit;Section 2: The application shall specify the day and hours for which the permit is sought. The fee shall be $10 per hour, with a maximum fee of $50;Section 3: Permits shall be issued on a first come basis; provided that the police chief shall deny any application if, after hearing the applicant, it is his considered judgment that (a) the meeting would create serious traffic congestion, or (b) interfere with public enjoyment of the park, or (c) speakers at the meeting would advocate the commission of crime.”A foreign exchange student planned to hold a demonstration at park in the city. Although the student’s previous protest rallies attracted fewer than 25 demonstrators, he decided to apply for a permit pursuant to city ordinance 172. After meeting with the student, the chief of police denied his permit application because he believed that the demonstration would incite the protestors and threaten imminent violence or serious disorder.Subsequently, the student and his fellow demonstrators staged their rally at the park. The rally attracted only about 20 protestors and was conducted peacefully. As the student was making his final remarks to the gathering, the police arrived at the park and arrested the student and his fellow demonstrators charging them with violating ordinance 172.Which of the following would be the most accurate statement with regard to the arrest of the student and the other demonstrators?(A) The police were justified in arresting the student, because he and his fellow demonstrators violated the ordinance by staging the rally.(B) The police were justified in halting the rally and arresting the demonstrators, because of the threat of imminent physical disturbance.(C) The police were not justified in arresting the student and the demonstrators, because they did not violate the ordinance.(D) The police were not justified in arresting the student, because the group was not required to comply with the ordinance.

Answer 273

93. (C) Section 1 of the Doral City Ordinance 172 provided that demonstrations of 50 persons or more may not be conducted without first securing a permit from the chief of police. Since the student’s demonstration attracted fewer than 50 demonstrators, there was no violation of the statute. For this reason choice (C) is correct, and choices (A) and (D) are incorrect. Choice (B) is incorrect. There was no evidence that the speaker presented a “clear and present danger,” in which case he would not have been entitled to any constitutional protection. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court stated that a clear and present danger exists if:(1) the speaker advocates imminent unlawful conduct, and (2) it is likely that such imminent unlawful conduct will therefore occur.

Question 274

94. A city has adopted the following ordinance which provides:“Section 1: It shall be unlawful for any person, group, or organization to hold a meeting of 50 persons or more in any city park without first securing a city permit;Section 2: The application shall specify the day and hours for which the permit is sought. The fee shall be $10 per hour, with a maximum fee of $50;Section 3: Permits shall be issued on a first come basis; provided that the chief of police shall deny any application if, after hearing the applicant, it is his considered judgment that the meeting would create serious traffic congestion.”An anarchist planned to hold an antigovernment protest demonstration at a city square. Although his previous antigovernment protest rallies attracted fewer than 15 demonstrators, he decided to apply for a permit pursuant to the city ordinance. After meeting with the anarchist, the chief of police denied his permit application because he believed that the demonstration would incite the protestors and threaten imminent violence or serious disorder.On October 4, the anarchist and his fellow demonstrators staged their antigovemment protest at a city park. The rally attracted only about 17 protestors and was conducted peacefully. As the anarchist was making his final remarks to the gathering, the city police arrived at the park and arrested him and his fellow demonstrators, charging them with violating the city ordinance.In a subsequent action by the anarchist in state court challenging the constitutionality of Sections 1 and 2 of the city ordinance, the court will most likely rule these sections(A) constitutional, because a state may regulate the communicative impact of speech related conduct.(B) constitutional, because the aforementioned sections are within the ambit of the state’s police power.(C) unconstitutional, because the statute is vague and overbroad.(D) unconstitutional, because the statute is a content based regulation ofspeech.

Answer 274

94. (B) Sections 1 and 2 of the ordinance should be upheld as constitutional as within the ambit of a state’s police powers to regulate the health, safety, and welfare of its citizens. Note that a state may control parades, processions, and other gatherings in public places by narrowly drawn requirements pertaining to the time, place, size of the group, and duration in the interest of public safety and convenience [Cox v. Louisiana, 379 U.S. 537 (1965)]. However, in this regard, no public official can constitutionally be given unbridled discretion to grant or withhold a permit or license for a parade or assembly as he sees fit. It is important to point out that Section 1, by itself, is a valid exercise of a state’s police powers. Choice (A) is incorrect. It is true that a state may regulate conduct, as well as those aspects of symbolic speech that are imbued with conduct. However, Choice (B) is better insofar as it explicitly articulates the constitutional basis for such state regulation in the state’s 10th Amendment police powers. Choice (C) is incorrect. A court may declare a law to be void-for-vagueness if a reasonable person is unable to determine whether she will be prosecuted under the statute; such laws are deemed to have a “chilling effect” on speech. A law is deemed invalid for overbreadth if the law prohibits speech that is otherwise protected. Neither seems to be the case here. Finally, choice (D) is incorrect. A law that is content-based will be subject to strict scrutiny. Content- based laws discriminate against speech based on its subject matter. That does not appear to be the case here because the law prohibits speech on the basis of secondary considerations about traffic congestion and the like, not subject matter.

Question 275

95. A city has adopted the following ordinance which provides:“Section 1: It shall be unlawful for any person, group, or organization to hold a meeting of 50 persons or more in any city park without first securing a city permit;Section 2: The application shall specify the day and hours for which the permit is sought. The fee shall be $10 per hour, with a maximum fee of $50;Section 3: Permits shall be issued on a first come basis; provided that the chief of police shall deny any application if, after hearing the applicant, it is his considered judgment that (a) the meeting would create serious traffic congestion, or (b) interfere with public enjoyment of the park, or (c) speakers at the meeting would advocate the commission of crime.”A religious fundamentalist who believes that other religions should be violently resisted, planned to hold a protest demonstration against other religions at a city park on July 25. Although his previous anti-religion protest rallies attracted fewer than 25 demonstrators, he decided to apply for a permit pursuant to the city’s ordinance. After meeting with the fundamentalist, the chief of police denied his permit application because he believed that the demonstration would incite the protestors and threaten imminent violence or serious disorder.On July 25, the fundamentalist and his fellow demonstrators staged their protest at a city park. The rally attracted only about 20 protestors and was conducted peacefully. As he was making his final remarks to the gathering, the city police arrived at the park and arrested him and his fellow demonstrators charging them with violating the city ordinance.If the fundamentalist now brings suit to challenge the constitutionality of Section 3 of the city ordinance, his best argument would be that(A) the section is void for vagueness and overbreadth.(B) the section is content based.(C) the section permits the police chief to exercise unbridled discretion in approving or disapproving permits.(D) the section does not fall within the area of compelling state interest.

Answer 275

95. (C) Section 3 would be declared unconstitutional since no public official may exercise unbridled discretion in the issuance of parade or demonstration permits. Choice (A) is incorrect. A court may declare a law to be void-for-vagueness if a reasonable person is unable to determine whether she wilt be prosecuted under the statute; such laws are deemed to have a “chilling effect” on speech. A law is deemed invalid for overbreadth if the law prohibits speech that is otherwise protected. Neither seems to be the case here. Choice (B) is incorrect. A law that is content-based will be subject to strict scrutiny. Content based laws discriminate against speech based on their subject matter. That does not appear to be the case here because the law prohibits speech on the basis of secondary considerations about traffic congestion and the like, not subject matter. Choice (D) is incorrect. The reference to “compelling state interest” implies that the city’s ordinance will be subject to strict scrutiny. But as choice (C) states, the ordinance will be declared unconstitutional on its face for giving too much discretion to the government to deny permits.

Question 276

96. A state is the only state that imposes a tax on the extraction of pitchblende. This black-colored mineral consists of massive uraninite and contains radium, which is the chief ore-mineral source of uranium. Minute quantities of plutonium are also found in pitchblende. This is particularly significant because plutonium undergoes slow disintegration with the emission of a helium nucleus to form uranium 235, and that is fissionable with slow neutrons to yield atomic energy. As such, pitchblende is vital to the economy of the entire country.Congress has recently enacted a statute forbidding any state from imposing a tax on the extraction of pitchblende. Because pitchblende is not mined in any other state, this federal legislation affects only the state. Thus, in practice, this federal law only limits the taxing power of the state.In light of the Constitution and this federal law, the state extraction tax on pitchblende is most likely(A) invalid, because when Congress exercises its plenary power over interstate commerce, the supremacy clause voids inconsistent state action.(B) invalid, because Congress may use its general welfare power to prohibit state legislation that it deems harmful to the nation as a whole.(C) valid, because Congress does not have the authority to interfere with the taxing policies of a state.(D) valid, because Congress may not enact a law that places one state on an unequal footing with other states.

Answer 276

96. (A) Congress has complete power to permit or forbid state taxation affecting interstate commerce. Where Congress is silent, the Court reviews nondiscriminatory state taxation by balancing the state revenue needs against the burden on interstate commerce. If, however, a state regulation of interstate commerce conflicts with a federal regulation, the state law is invalid under the preemption doctrine. To be sure, Congress, in the exercise of its plenary commerce power, may prohibit a specific form of state regulation. Choices (B), (C), and CD) are incorrect. Article I, Section 8, reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” Congress is not levying any taxes in our example. It is, rather, forbidding the states from levying taxes. Congress can best accomplish this prohibition through the Commerce Clause.

Question 277

97. The Native American Party was founded and chartered in a state to promote the political power of Native Americans. Members pledged themselves to vote only for candidates nominated by the party. At first, membership was open to any voter who pledged himself to those tenets, but after a defeat in an election, the Party expelled all non- Native-American members upon the grounds that experience showed that only Native Americans could be trusted to honor the obligation to vote only for the Party’s nominees. Membership is currently confined to Native Americans.In every election since, the Party’s nominees have easily won election in the Sixth Congressional District, an area encompassing a large number of outlying reservations. Subsequently, the Executive Committee proposes that the Party choose its own “Native American Power” candidate for governor of South Dakota in the upcoming election. It will put its slate for U.S. representatives, governor, and U.S. senator before Party members for mail ballot, along with any rival candidates who qualify for the poll. A former non-Native American member of the Party is now challenging his exclusion from the Party.Which of the following constitutional provisions would furnish the former member’s best ground for challenging his exclusion from the Party?(A) The due process clause of the Fourteenth Amendment.(B) The right of assembly as guaranteed by the First Amendment.(C) The equal protection clause of the Fourteenth Amendment.(D) The voting provisions of the Twenty Fourth Amendment.

Answer 277

97. (C) n Terry v. Adams, 345 U.S. 461 (1953), the State of Texas was held responsible for racial discrimination in the conduct of primary elections that it closely supervised, and which were important in determining who was ultimately elected. Similarly, in the present hypo, the State of South Dakota would be held responsible for the Native American Party’s expulsion of all non-Native-Americans (from membership within the party). Clearly, in this regard, restricting membership to only Native Americans would be racial discrimination (e,g., by “suspect classification”) and, therefore, violative of the Equal Protection Clause of the 14th Amendment, as well as the 15th Amendment. Choice (A) is incorrect. The right to run for public office is not a fundamental right recognized under the 14th Amendment’s Due Process Clause. Choice (B) is incorrect. The 1st Amendment’s Right to Assemble generally refers to the right to organize in public places for the peaceful, lawful expression of political views. This is not necessarily a bad choice, but choice (C) is more precise. Choice (D) is incorrect. The 24th Amendment contains in Section 1 the following language: “The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state of failure to pay any poll tax or other tax.” There is no poll tax or other tax in our example.

Question 278

98. The Latino American Party was founded and chartered in a state to promote the political power of Latino Americans. Members pledged themselves to vote only for candidates nominated by the party. At first, membership was open to any voter who pledged himself to those tenets, but after the defeats in a recent election, the Party expelled all nonLatino members upon the grounds that experience showed that only Latinos could be trusted to honor the obligation to vote only for the Party’s nominees. Membership is currently confined to Latinos.In every election since, the Party’s nominees have easily won election in their Congressional District. Subsequently, the Executive Committee proposes that the Party choose its own Latino candidate for governor of New Mexico in the upcoming election. It will put its slate for U.S. representatives, governor, and U.S. senator before Party members for mail ballot, along with any rival candidates who qualify for the poil.In an action by non-Latino citizens in the relevantCongressional District to enjoin the Latino AmericanParty from conducting the mail ballot primary, thefederal court will most likely(A) grant relief, because the primary would be proscribed by the Thirteenth Amendment.(B) grant relief, because the primary would be proscribed by the Fifteenth Amendment.(C) deny relief, because the Party’s primary would be private action and not subject to restriction under the Constitution.(D) deny relief, because a pre-primary election is not within the scope of federal election control.

Answer 278

98. (B) Following the holding in Terry v. Adams, 345 U.S. 461 (1953), the court would enjoin the Latino American Party from conducting its mail ballot primary as a flagrant abuse of the 15th Amendment. Under the 15th Amendment, the right to vote cannot be denied by the evasive device of a party primary conducted as an activity of a “private club,” if such primary is a “feeder” election into the election system. Therefore, choice (B) is correct, and choice (C) is not the best answer. Choice (A) is incorrect. The 13th Amendment states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” There are no issues of involuntary servitude in our example. Choice (D) is incorrect. In Terryv. Adams, 345 U.S. 461 (1953), the Court held that a party primary conducted as an activity of a “private club” would still be considered state action if such a primary is a “feeder” election into the election system. Accordingly, such primaries must adhere to the federal Constitution.

Question 279

99. A state election code provides that any political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election is a political party; other political organizations are construed as political bodies. Political parties conduct primaries, and the winning candidates in each office may have their names placed on the ballot. However, nominees of political bodies or any independent candidate may only have their names placed on the ballot if they file a nominating petition signed by not less than 7% of those eligible to vote at the last election for the offices that they are seeking. The time for circulating the petition is 180 days, which is also the deadline governing party candidates in party primaries.An independent candidate, who desires to be listed on the ballot for the office of governor, challenges the constitutionality of this election law.The court will most likely declare this statute(A) unconstitutional, because it is a violation of the First and Fourteenth Amendments’ rights of free speech.(B) unconstitutional, because it is a violation of the Fourteenth Amendment’s due process clause.(C) unconstitutional, because it violates the Fifteenth Amendment’s voting provisions.(D) constitutional, because the election code is nonviolative of the equal protection clause.

Answer 279

99. (D) Choice (A) is incorrect. Injenness v. Fortson, 403 U.S. 431 (1971), the U.S. Supreme Court upheld a similar Georgia statute requiring an independent candidate to file a nominating petition signed by 5% of the electorate as nonviolative of the Equal Protection Clause of the 14th Amendment. The Court sustained the voting statute on the grounds that a candidate had alternative routes to getting his name on the ballot, namely, either by entering the primary of a political party or circulating a nominating petition; therefore, no abridgement of constitutional rights of free speech and association under the 1st and 14th Amendments, nor violation of the equal protection cLause of the 14th Amendment. Choice (B) is incorrect because the right to run for public office is not a fundamental right under the 14th Amendment’s due process clause. Choice (C) is incorrect. The 15th Amendment states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” In our example, there is no such discrimination.

Question 280

100. A state labor code provided that no employer in the state shall knowingly employ an alien who is not lawfully residing in the United States if such employment would have an adverse effect on lawful residents’ right to work. A group of immigrant farm workers were continually refused employment contracts by the labor contractors in the state. Instead, the labor contractors had employed many alien workers since they would toil longer hours for less wages. The immigrant farm workers now bring suit in state court pursuant to the above-mentioned statutory provision.Which of the following determinations would most likely result as a consequence of the immigrant farm workers’ lawsuit?(A) The court would declare the statute unconstitutional as violative of the equal protection clause of the Fourteenth Amendment.(B) The court would declare the statute constitutional as within the realm of rights reserved to the states by the Eleventh Amendment.(C) The court would declare the statute unconstitutional since the regulation of immigration is preempted.(D) The court would declare the statute constitutional since the states are not preempted in the area of economic regulation of illegal aliens.

Answer 280

100. (D) In DeCanas v. Bica, 424 U.S. 351 (1976), the U.S. Supreme Court held a California Labor Code statute that “prohibits an employer from knowingly employing an alien who is not entitled to lawful residence in the U.S. if such employment would have an adverse effect on lawful resident workers” not to be unconstitutional as a regulation of immigration or as being preempted. The Court further noted that it is clearly within a state’s police powers under the 10th Amendment to regulate the employment relationship of illegal aliens. Choice (A) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The illegal immigrants may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (B) is incorrect. The 11th Amendment states: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.” In our example, no one is suing the federal government.

Question 281

101. In a secluded county, where prejudice festers and discrimination flourishes, there is a lovely lake, which the county has developed and maintained for recreational purposes. Although it is not the only lake in the county, it is the largest and most scenic, and it attracts visitors from miles around. One of its biggest assets is the excellent fishing and boating, which is available to the public at large.Three years ago, in order to enhance the recreational aspects of the lake, the county leased a sizable portion of the lake and surrounding parkland to a company owned by the most prominent family in the county. The lease required the company to construct and operate a first-rate yacht house and club, complete with bar, restaurant, and private marina, and to pay the county 10% of its net profits as rent. The company set up bylaws, which were reviewed and approved by the county at the time the lease was negotiated. According to the bylaws, the yacht club, complete with its restaurant and bar, would be open to members only, and the membership committee was empowered to set up strict membership “standards,” as well as the cost of membership fees and dues.Upon completion of the facilities, the state granted the company a license to sell alcoholic beverages in its restaurant and bar. The membership committee announced that the membership fee was $5,000 and the monthly dues $75. Furthermore, the membership committee had a policy of approving only membership applications from men, while disapproving and denying all applications from women. There were other similar facilities within the county available to women.A woman resident of the county brings suit against the company, claiming that her membership application was denied only because she is a woman, and that its policy of excluding women as a group denies her equal protection rights. Which of the following is the most accurate statement?(A) The plaintiff will lose, because classifications based on sex have not yet been held to violate the equal protection clause.(B) The plaintiff will prevail unless denial of membership to women can be justified by some “compelling interest,” since such discrimination is “suspect” and requires the strictest equal protection test.(C) The plaintiff will lose, because other similar facilities are available to women.(D) The plaintiff will prevail unless the company can prove some important basis for the exclusion of women.

Answer 281

101. (D) Choice (A) is incorrect because classifications based on sex have been held to violate equal protection. Choice (B) is wrong because such discrimination has not yet been held “suspect” and, therefore, need not be justified by a compelling interest. Choice (C) is incorrect because the existence of similar facilities would not preclude a finding of “state action.” Choice (D) is the correct answer, since discrimination based on sex is subject to a “quasi-suspect” standard of review.

Question 282

102. A county owns a large expanse of land next to the ocean. Four years ago, in order to enhance the recreational aspects of the land, the county leased most of it to a private company. The lease required the company to construct and operate a first-rate golf course and country club—complete with bar, restaurant, and private marina—and to pay the county 15% of its net profits as rent. The company set up bylaws, which were reviewed and approved by the county at the time the lease was negotiated. According to the bylaws, the golf course and country club, complete with its restaurant and bar, would be open to members only, and the membership committee is empowered to set up strict membership “standards,” as well as the cost of membership fees and dues.Upon completion of the facilities, the state granted the company a license to sell alcoholic beverages in its restaurant and bar. The membership committee announced that the membership fee is $5,000 and the monthly dues $75 per month. Furthermore, the membership committee had a policy of approving only membership applications for Latino Men, while disapproving and denying all applications of women, African Americans, white Americans, and other minorities.A white resident of the county, upon denial of membership, brings an action against the company seeking injunctive relief to compel his admission claiming that denial of membership to white residents violates his right to equal protection. Which of the following statements is most accurate?(A) The company will prevail because its denial of membership lacks the requisite state action.(B) The plaintiff will win because even though the company is a privately owned corporation, the state has affirmatively encouraged or facilitated its discriminating acts.(C) The company will win, because the plaintiff lacks standing to assert the rights of discrimination against white Americans as a group.(D) The plaintiff will win, because denial of membership to white residents cannot be justified by a rational basis.

Answer 282

102. (B) Although the company is a privateLy owned corporation, the state has affirmatively encouraged and facilitated its discriminating acts, thus choice (A) is incorrect because “state action” exists. Choice (C) is an incorrect statement and not applicable to the fact situation. Choice (D) is wrong, since racial discrimination is “suspect” and, therefore, cannot be justified by some “rational basis.” This is true, even if white Americans, a majority race, are the subjects of discrimination. Choice (B) is the strongest answer available.

Question 283

103. A county owns a large expanse of land next to the ocean. Four years ago, in order to enhance the recreational aspects of this land, the county leased most of it to a company. The lease required the company to construct and operate a first-rate luxury hotel—complete with bar, restaurant, and private marina—and to pay the county 15% of its net profits as rent. The company set up management and operations bylaws for its new hotel, which were reviewed and approved by the county at the time the lease was negotiated.Upon completion of the facilities, the state granted the company a license to sell alcoholic beverages in its restaurant and bar. The hotel announced that the least expensive room was $1,000 per night.Much of the population in the county cannot afford to stay at the new hotel. One resident who cannot afford to pay the hotel fees brings an action against the company, claiming that the high fees operate to discriminate against the poor, in violation of the constitutional right to equal protection. What is the most likely result of this action?(A) The company will lose because social class constitutes a suspect classification under the equal protection clause.(B) The company will win, because hotel privileges are not an important or basic enough deprivation, for those unable to pay for them, to be held to violate equal protection.(C) The resident will win because all public rights cannot be limited to those who can afford them.(D) The resident will win because discrimination against poor people violates the equal protection clause of the Fourteenth Amendment.

Answer 283

103. (B) The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The poor may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the county probably will pass with ease. Sometimes, the court may reject a law for violating the equal protection clause if the law denies a very important (albeit not fundamental) right like education. See Plyler v. Doe, 457 U.S. 202 (1982). The right to stay in a luxury hotel is not equivalent to such a right. Choice (A) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). The poor may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi- suspect class. Only rational review will be applied, which the county probably will pass with ease. Choice (C) is too general a statement, because not all public rights are protected. Choice (D) is too broad, because not all discrimination against the poor violates equal protection.

Question 284

104. An indigent man was suffering from a chronic asthmatic and bronchial illness. The man redomiciled to a new state and shortly thereafter suffered a severe respiratory attack and was sent by his attending physician to a nonprofit private community hospital. Pursuant to a state statute governing medical care for indigents, the hospital notified county officials that it had in its hospital an indigent who might qualif’ for county care and requested that the man be transferred to the county’s public hospital facility. In accordance with the approved procedures, the private hospital claimed reimbursement from the county in the amount of $1,069 for the care and services it had provided.Under the relevant state statute:“Individual county governments are charged with the mandatory duty of providing necessary hospital and medical care for their indigent sick. In order to qualif’ for such hospital and medical care, an indigent shall be resident of the county for the preceding 12 months in order to be eligible for free non-emergency medical care.”As a consequence, the county refused to admit the man to its public hospital or to reimburse the private hospital because the man had not been a resident of the county for the preceding year. In an action in federal court against the county challenging the constitutionality of the residency requirement for providing free medical care for indigents, the court will most likely declare the statute(A) constitutional, because the statute promotes a compelling state interest.(B) constitutional, because the statute is a proper exercise of state action.(C) constitutional, because the statute is within the state’s police power to regulate the health, safety, and welfare of its citizens.(D) unconstitutional, because it violates the equal protection clause of the Fourteenth Amendment.

Answer 284

104. (D) In Memorial Hospital v. Maricopa County, 415 U.S. 250(1974), the U.S. Supreme Court held that an Arizona statute requiring one year’s residence in a county as a precondition to receiving nonemergency hospitalization or medical care at public expense was unconstitutional as “an invidious discrimination against the poor,” thus violative of the equal protection clause of the 14th Amendment. The Court found that this classification infringed upon interstate travel and in so doing, found that it was irrelevant that the classification also burdened travel by persons within their own state. Under the circumstances, the State of Arizona burdened the right to travel by denying benefits that were essential to the daily life of the new indigent in the state. The Court, in reviewing the state’s justification for this residency requirement, utilized the strict scrutiny test. Therefore, choice (D) is correct, and choice (A) is incorrect. Choice (B) is incorrect. Idiomatically, there is no proper exercise of “state action.” The state action doctrine refers to the idea that the government has acted and is thus theoretically subject to the U.S. Constitution. Choice (C) is incorrect. The state certainly has police powers under the 10th Amendment to regulate issues related to the health, safety, and welfare of its citizens. However, there are limits to what the state may do. The 14th Amendment’s Equal Protection Clause would prohibit the state from denying to the poor essential medical services as described in our example. See Memorial Hospitalv. Maricopa County, 415 U.S. 250 (1974).

Question 285

105. A state fair is held annually in a county on a large tract of state-owned property. In recent years, many outside organizations have entered the fairgrounds and distributed literature and paraphernalia to the many thousands of patrons visiting the fair. State fair officials did not endorse any of these organizations but permitted them to disseminate their materials throughout the fairgrounds without charge. Lately, however, many families attending the fair have complained about being harassed by canvassers from these various organizations.In an effort to protect the safety and welfare of the persons visiting the fair, the state legislature enacted a law prohibiting anyone from selling or distributing materials at the state fair. This new statute provided, however, that groups could pay a $50 license fee and distribute their literature from enclosed booths. These booths would be set up along the entrance to the fairgrounds and rented to anyone wishing to sell or distribute materials or soliciting money during the fair.The first year that the statute went into effect, approximately 40 groups rented booth space. There were various organizations paying the $50 license fee. A group of scientists opposed to the use of aerosol spray cans, requested permission to distribute literature at the fairgrounds. The scientists claimed that they simply wanted to warn people of the perils created by the disintegration of the ozone layer from the dispersion of fluorocarbons into the atmosphere. State fair officials offered to lease the scientists a booth at the $50 fee, but refused to permit solicitation activities outside the booth enclosures. The scientists were unwilling to pay the $50 license fee and instituted suit in state court seeking a court order permitting them to distribute literature anywhere in the fairgrounds area.Which of the following is the strongest argument insupport of the constitutionality of the statute?(A) The statute applies to the limited area of the state-owned fairgrounds, and does not discriminate among the various organizations by way of their political, religious, or commercial viewpoints.(B) The statute applies to representatives of popular organizations, as well as to representatives of unpopular organizations, and is a democratic expression of the will of the people because it was adopted by the state legislature.(C) The statute is necessary to protect the safety and welfare of persons using a state facility, and does not discriminate among diverse viewpoints since there is an alternative means by which these organizations can reach their audience.(D) The statute protects the patrons of a public facility against unwanted invasions of their privacy by restricting the solicitation activities of those organizations that the patrons do not support.

Answer 285

105. (C) This Constitutional Law question presents some very close answer choices in the area of regulation of 1st Amendment freedom of speech. Regarding noncommunicative aspects of free speech, such as time, place, and manner regulations in public forums, courts will generally uphold reasonable restrictions. Choice (A) is persuasive on this issue. Where speech content is restricted, however, the courts apply a more rigid test whereby a compelling state interest must be justified before government regulation is permitted. Choice (B) addresses this issue, since the restrictions of the Fairgrounds Bill are content-neutral. Choice (D) seeks to balance the rights of free speech against the patrons’ right of privacy. Choice (C), however, presents the strongest argument to support the Fairgrounds Bill. In the area of solicitation, the court uses a balancing test to determine, upon weighing the individual’s rights of free speech against the state’s police powers interest in protecting the safety, welfare, and privacy interests of its citizens, that the challenged measure is reasonable and nondiscriminatory, and that there is no less-drastic alternative means available [Beard v. Alexandria, 341 U.S. 622 (1951)—requirement of homeowner’s consent held a valid restriction on commercial solicitation, whereas a ban on all door-to-door solicitation was found to be too restrictive].

Question 286

106. A permanent resident alien applied for a position as a state trooper. A state trooper is a member of the state police force, a law enforcement body that exercises broad police authority throughout the state. The position of state trooper is filled on the basis of competitive examinations taken by all of the applicants. After the resident alien applied for the position, the state authorities refused him permission to take the qualifying examination. The state authorities based their refusal on state statute, which provided:“No person shall become a member of the state police unless he/she shall be a citizen of the United States.”Thus, under this provision, as a prerequisite to becoming a member of the state police, an alien must relinquish his foreign citizenship and become a citizen. In an opinion upholding the validity of the statute, the State Attorney General noted that since police officers fall within the category of important non-elective officials who participate directly in the execution of broad public policy, only citizens of the United States should be qualified to apply for such positions.”At the time the resident alien applied for a position as a state trooper, he was a citizen of a foreign country and not currently eligible for citizenship. As a result of a federal statute, Congress has imposed a five-year residency requirement for the attainment of citizenship. Under this federal law, an alien must reside in this country for a period of five years as a prerequisite before applying for citizenship. At this time, the resident alien had only lawfully been residing in the United States for two years, and thus would not be eligible to apply for naturalization until three years later.If the resident alien brings suit in federal court challenging the constitutionality of the state statute limiting the membership of its state police force to citizens of the United States, the court will most likely declare the statute(A) constitutional, because the statute is within the state’s plenary power to regulate the health, safety, and welfare of its citizens.(B) constitutional, because citizenship bears a rational relationship to the special demands of the police function.(C) unconstitutional, because it constitutes a violation of the equal protection clause of the Fourteenth Amendment.(D) unconstitutional, because it constitutes a violation of the due process clause of the Fourteenth Amendment.

Answer 286

106. (B) In accordance with Foleyv. Connellie, 98 S.Ct. 1067 (1978), the U.S. Supreme Court upheld the validity of a New York statute that limited the membership of the New York State Police Force to U.S. citizens. The Court stated that “in the enforcement and execution of the laws, the police function is one where citizenship bears a rational relationship to the special demands of the particular position.” Thus, in applying the rational basis test, the Supreme Court held that the performance of the police function is an important public responsibility, which can be limited to a particular class (here, U.S. citizens onLy). Students should note that although aliens are extended the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern and carry on a governmental function is reserved to citizens only. Therefore, the state police force statutory provision would not be violative of the Equal Protection Clause of the 14th Amendment. Though choice (A) is also correct, choice (B) is the preferred alternative, as it specifies the underlying rationale for upholding the constitutionality of the statute. Choice (C) is incorrect. Generally, classifications by the state that discriminate against lawful aliens are subject to strict scrutiny. Not so here, however. In Foleyv. Connellie, 98 S.Ct. 1067 (1978), the U.S. Supreme Court upheld the validity of a New York statute that limited the membership of the New York State Police Force to U.S. citizens. The Court stated that “in the enforcement and execution of the laws, the police function is one where citizenship bears a rational relationship to the special demands of the particular position.” Thus, in applying the rational basis test, the Supreme Court held that the performance of the police function is an important public responsibility, which can be Limited to a particular class (here, U.S. citizens only). Finally, choice (D) is incorrect because there is no fundamental right to be a police officer.

Question 287

107. Congress has recently enacted a statute legalizing marijuana. The law, signed by the President, imposes a tax of $1 on each pack of marijuana cigarettes sold in the United States. In an inseverable portion of that same law, the entire proceeds of the tax are appropriated on a continuing basis for direct payments to an art museum. The public museum is dedicated to the collection of pictures, artifacts, weapons, and other historical memorabilia of past wars.Which of the following most clearly has standing to attack the constitutionality of this appropriation of the tax monies to the art museum?(A) A state, other than the one in which the museum is located, in which several other public museums are located that are not subsidized by this law.(B) A nonprofit organization of war veterans that claims it can demonstrate a greater need for the funds than can the museum.(C) A purchaser of marijuana cigarettes who is required to pay the tax.(D) An association of medical doctors that alleges that the legalization of marijuana will result in a public health hazard.

Answer 287

107. (C) This Multistate question deals with the issue of standing. To satisfy the minimum constitutional requirements imposed by the “case and controversy” limitation of Article Ill, a plaintiff must demonstrate a definite and concrete personal stake in the outcome. First, the plaintiff must show actual injury in fact. Second, she must show causation (namely, that resolution of the grievance in her favor will eliminate the harm alleged). Under these facts, choice (C) is correct because the purchaser of marijuana cigarettes can demonstrate actual injury. Choices (A) and (B) are too remote. Also, the association of doctors would lack standing, since the general rule is against assertion of third-party rights except in limited situations. Choice CD) is incorrect because the doctors lack standing. To satisfy the minimum constitutional requirements imposed by the “case and controversy” limitation of Article Ill, a plaintiff must demonstrate a definite and concrete personal stake in the outcome. First, the plaintiff must show actual injury in fact. The medical doctors cannot show such injury.

Question 288

108. Congress enacted a statute taxing the sale of automobiles. In an inseverable portion of that same law, the entire proceeds of the tax are appropriated on a continuing basis for direct payments to an education fund. The education fund is dedicated to educating people about the importance of mass transportation as an alternative to automobiles, which the fund considers a major source of pollution.As a matter of constitutional law, which of the following statements concerning the continuing federal appropriation to the education fund is most accurate?(A) It is constitutional because Congress could reasonably believe that such a subsidy to this particular museum will benefit the cultural life of the nation as a whole.(B) It is constitutional because Congress can demonstrate that such a subsidy is rationally related to a legitimate public interest.(C) It is unconstitutional because it is not apportioned among the several states on an equitable basis.(D) It is unconstitutional because it advances the welfare only of thosepersons who are interested in cleanair.

Answer 288

108. (A) Choice (A) is correct because Congress can tax an activity, even if such a tax has a regulatory effect, provided that the dominant intent of the tax is fiscal (i.e., revenue-mising). Certainly, Congress has constitutionally taxed bookmakers, guns, and narcotics despite its substantial regulatory effect. In addition, under its spending powers, Congress can spend money (it collects from taxes) to “provide for the common Defense and general welfare of the United States.” In this regard, a reasonable belief by Congress that payment of the tax fund proceeds to the education fund would benefit the cultural life of the nation as a whole would certainly fall within the proper scope of its federal taxing and spending powers. Choice (B) is incorrect. In a sense, the proposition contained in this answer is true. However, choice (A) is better because it references the specific constitutional power that authorizes Congress’s action. Choices (C) and (D) are incorrect because, even if they were factually true, under the Tax and Spend Clause of Article I, Section 8, Congress is not required to apportion its subsidy among the states on an equitable basis. Rather, Congress is given broad discretion in taxing and spending underArticle I, Section 8 for the “general welfare” [United States v. Butler, 297 U.S. 1 (1936)].

Question 289

109. A state has recently enacted a statute wherein aliens are forbidden from owning more than 10 acres of land within the state. Subsequent to the statute a resident alien enters into a contract to buy 50 acres of land located in the state.Assume that the statute empowers the state to bring an ejectment action against any alien who owns more than 10 acres of land. If the resident alien brings an action in federal court to enjoin the state from enforcing the statute against him, his best argument is(A) the statute violates the privileges or immunities clause of the Fourteenth Amendment.(B) the statute violates the contract clause.(C) the statute violates the commerce clause in that it interferes with land ownership.(D) the statute violates the equal protection clause of the Fourteenth Amendment.

Answer 289

109. (D) The resident alien’s best argument is the fact that the statute violated his rights under the Equal Protection Clause of the 14th Amendment. Congress has plenary power over the admission of aliens, but once admitted, most state discrimination against them is “suspect” and can only be upheld if necessary to protect a “state’s special interest.” Although there are earlier decisions uphoLding state statutes limiting or barring aliens from owning land (within the state), it is highly unlikely that such a statute would be upheld in light of recent decisions. Since the resident alien is not a citizen, choice (A) is wrong because the Privileges and Immunities Clause is only applicable to citizens of the United States. Choice (B) is wrong because the contract did not take place prior to the enactment of the statute. Choice (C) is a weak argument because the limitation of land ownership is within the state and does not affect interstate commerce.

Question 290

110. A state has recently enacted a statute wherein aliens are prohibited from owning any commercial real estate within the state. Subsequent to the statute, a lawful resident alien enters into a contract with another lawful resident alien to purchase the latter’s office building.Assume that both resident aliens join in a declaratory judgment action to test the validity of the state statute in federal court. The court should rule that(A) the state has the burden of proof to show that there is a compelling state interest to support the statute.(B) the burden of proof is on the resident aliens to show that there is no compelling state interest to support the statute.(C) the resident aliens do not have standing.(D) either resident alien has standing, but not both.

Answer 290

110. (A) The federal government has power over aliens, but classifications by a state that are based on alienage are inherently suspect and subject to heightened judicial scrutiny. Since the statute makes a suspect classification, the burden of proving a compelling state interest rests with the state. Choice (B) is wrong because it incorrectly places the burden on the resident aliens. Choices (C) and (D) are incorrect because both resident aliens can establish standing based on the rationale [as expressed by the Supreme Court in Shelleyv. Kraemer, 334 U.S. 1 (1948)] that “the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property.” Both have standing because the statute abrogates both the right to acquire and alienate property.

Question 291

111. A state has had a tremendous influx of retired people in recent years. There has been considerable concern among state health officials who foresee that many of the senior citizens will become victims of price gouging on certain medical supplies and services. In an attempt to curb such fraudulent sales practices, the state legislature has enacted a law prohibiting the sale of hearing aids by non-physicians. The measure provides, however, that all non-physician sellers who are presently engaged in the business of selling hearing aids will not be affected.Assume that after the statute goes into effect, a non-physician moves to the state and wants to open a business selling hearing aids. After being advised that the state law prohibits him from doing so, he brings suit challenging the constitutionality of the statute. The most likely result is that the state law will be declared(A) constitutional, because there is a rational basis for distinguishing between non-physicians are not so engaged.(B) constitutional, because a state has the power to regulate any phase of local business, even though such regulations may have some effect on interstate commerce, provided that Congress has not enacted legislation regarding the subject matter.(C) unconstitutional, because it denies non- physicians who are not presently engaged in the business of selling hearing aids the equal protection of the law, in violation of the Fourteenth Amendment.(D) unconstitutional, because it violates the commerce clause, since Congress has plenary power to regulate any activity that has any appreciable effect on interstate commerce.

Answer 291

111. (A) The U.S. Supreme Court has long recognized that almost all statutes and other forms of government regulation classify (or discriminate) people. As a result, the Court has established several different tests for determining their permissibility under the equal protection clause. The two major tests are the “traditional,” or rational basis test, and the “strict scrutiny,” or compelling interest test. For virtually all economic and social regulations, the Court employs the traditional equal protection test, usually defined as follows: “The classification (or discrimination) is valid if it is rationally related to a proper (or constitutionally permissible) state interest.” Under this rational basis test, a classification is presumed valid and will be upheld unless the person challenging it proves that it is “invidious” or “wholly arbitrary.” Thus, the challenger has the burden to prove that the regulation is not rationally related to a legitimate state interest. [McGowan v. Maryland, 366 U.S. 420 (1961)]. Conversely, government action that intentionally discriminates against racial or ethnic minorities is “suspect” and, thus, subject to “strict scrutiny.” Since this question deals with a matter of “economic and social welfare,” it will be reviewed under the basic rationality test. Therefore, choice (A) is the best answer. Choice (B) is incorrect because the commerce clause alone can limit state regulation. Choice (C) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect (e.g., classifications based on race, ethnicity, nationality, and religion) and for groups whose legal classifications are quasi suspect (e.g., gender, illegitimacy). Non-physicians may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Finally, choice (D) is incorrect because the mere recitation that Congress has plenary powers to regulate interstate commerce is insufficient to invalidate the statute.

Question 292

112. Over the last several years, the economy of a state has substantially changed. The state’s economy used to be based solely on heavy industry. However, the state legislature approved legalized gambling within the state. As a consequence, many casinos and new hotels were built and the state’s economy boomed. These moves were often induced by the granting by the state of special tax benefits for the construction of new casinos and hotels under state statutes.Recently, however, neighboring states have legalized gambling and offered greater tax incentives to the gaming industry. As a result, many of the casino and hotel owners have begun to leave the state. The unemployment and social welfare benefits the state has had to pay have substantially increased, burdening the remaining casinos, and also making it difficult for the state to lower its taxes to remain competitive with other states.On account of this predicament, the state legislature passed, and the governor duly signed, an emergency bill into law. According to the statute, the state imposed a one cent tax on the playing of any slot machine in any gambling casino. Since virtually all the slot machines required a payment of either a dime, quarter, or dollar, the imposition of this tax required a major costly adaptation on each slot machine to allow for the deposit of the additional one cent tax. Although many casino owners have complained about the tax, their only alternative is to absorb the tax themselves and lose one cent per game. As a consequence of the tax, fewer slot machines are purchased in the state by the casino owners. No manufacturer of slot machines is located in the state.Which of the following constitutional provisions provide the strongest ground to attack the validity of the state tax bill?(A) The commerce clause.(B) The equal protection clause of the Fourteenth Amendment.(C) The due process clause of the Fourteenth Amendment.(D) The privileges and immunities clause of Article IV, Section 2.

Answer 292

112. (A) Pursuant to the Commerce Clause, Congress has complete power to authorize or forbid state taxation that affects interstate commerce. Undoubtedly, the state tax adversely affects interstate commerce because the facts indicate that all manufacturers of slot machines are out-of-state. As such, the Commerce Clause affords the strongest constitutional grounds to attack the state tax. Choice (B) is incorrect. The manufacturers may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (C) is incorrect. There is no fundamental right under the due process clause to purchase affordable slot machines. Also, property has not been taken without due process of law because the owners still legally possess all of their slot machines. Choice (D) is incorrect. The privileges and immunities clause of Article IV, Section 2 only protects a U.S. citizen from discrimination by a state if that state’s discrimination against out-of-staters is likely to discourage them from traveling to the state [Saenz v. Roe, 526 U.S. 489 (1999)]. Saenz involved a California law that would have made moving to California financially prohibitive for many people receiving welfare from other states and who would continue to need welfare in California. No such facts are present in our example.

Question 293

113. A state recently imposed a one cent tax on the playing of any coin-operated video game in any restaurant. Since virtually all of the video games required a payment of either a dime, quarter, or dollar, the imposition of this tax required a major costly adaptation on each video game to allow for the deposit of the additional one cent tax. Although many video game owners have complained about the video game tax, their only alternative is to absorb the tax themselves and lose one cent per game. As a consequence of the tax, fewer video games are purchased by the restaurant owners. No manufacturer of video games is located in the state.Which of the following is most likely to have standing to bring suit challenging the constitutionality of the video game tax bill in an appropriate federal court?(A) A manufacturer of video games who is attempting to sell them to a restaurant owner in the state.(B) A state resident who frequently plays video games at restaurants.(C) A national video game association whose members travel to the state to play video games at restaurants.(D) The director of the state’s youth organization who wants to provide video games that only play for free at recreation centers within the state.

Answer 293

113. (A) With respect to standing, a person asserting the violation of a constitutional or statutory right must show a direct and immediate personal injurydue to the challenged action. The facts clearly indicate that fewer slot machines are being purchased by casino owners on account of the tax. As a result, choice (A) is correct because a manufacturer of sLot machines can show a “direct injury” from application of the tax. Note that associations of individuals may have standing to assert the rights of its members, at least so long as the challenged infractions adversely affect its members’ associational ties. However, choice (C) is wrong because the associational members have not suffered a “direct” and “immediate” harm, since their tax liabiLity is optional (namely, they are not required to play the video games). Choice (B) is not the strongest answer because a state resident is not required to play the slot machine. Hence, it is hard for him to show a direct and immediate injury. Choice (D) is incorrect. The youth organization is not required to play the video games. Hence, it is hard for it to show a direct and immediate injury.

Question 294

114. The board of a state university has adopted the following rule concerning residency requirements:“A student will be considered a legal resident of the state for the purpose of registering at the university if such person is over the age of 21 and has established a legal residence in the state for at least one year next preceding the last day of registration for credit.”A student moved to the state and immediately enrolled at the state university. Since he did not fulfill the university residency requirement, the student was required to pay $1,800 tuition each semester, which was $400 more than the tuition of state resident-students.In an action by the student challenging the constitutionality of the provision governing the determination of residency for the purpose of fixing a fee differential for out-of-state students in public college, the court will most likely declare the provision(A) unconstitutional, because it constitutes a violation of the equal protection clause of the Fourteenth Amendment.(B) unconstitutional, because it constitutes a violation of the privileges and immunities clause of Article IV, Section 2.(C) constitutional, because the fee differential promotes a compelling state interest.(D) constitutional, because the provision does not trigger strict scrutiny.

Answer 294

114. (D) In Arizona Board of Regents v. Harper, 495 R2d 453 (1972), the Arizona Supreme Court held that a board of regents has the authority to adopt a rule requiring residence of one year before a student may be classified as a resident of the state to qualify for lesser charges. Thus, the one-year residency requirement, in order for a student to qualify for lesser tuition charges, did not violate the Due Process, Equal Protection, or Privileges and Immunities Clauses of the U.S. Constitution. In this regard, lower tuition rates at state universities are valid and do not trigger strict scrutiny [Starns v. Malkerson, 326 F. Supp. 234 (1971)]. Choice (A) is incorrect. The student may have been the subject of discrimination by the legislature, but he is not a member of a suspect or quasi-suspect class. Only rational review will be applied, which state university probably will pass with ease. Choice (B) is incorrect. The Supreme Court has never recognized a right under the privileges and immunities clause for in-state college tuition. Choice (C) is not the best answer. The reference to “compelling state interest” implies that strict scrutiny will be used, but that in turn implies that the student has a fundamental right under the Privileges and Immunities Clause to the same tuition as the in-staters. But, as elaborated in choice (B), he doesn’t. Accordingly, rational review will be used, which state university will easily pass.

Question 295

115. During a violent electrical storm one night, a bolt of lightning struck a public high school building and set it ablaze. The high school was severely damaged and needed to be rebuilt. As a consequence, the city council held an emergency meeting to determine what measures should be taken to locate an appropriate alternative facility in which to conduct classes. Thereupon, the city council passed the following resolution: “During restoration of the high school building, classes shall be conducted at the most suitable facility which submits the lowest bid. In determining a ‘suitable’ facility, the city council shall consider such factors as location and available classroom space.”Several bids were submitted. The lowest bid was submitted by a church. The church was located on the same block as the high school and contained sufficient seating capacity for all students. In addition, there were a sufficient number of separate rooms to allow different classes to meet at the same time. The city council voted unanimously to accept the church’s offer. Furthermore, the church agreed to remove all religious symbols and paraphernalia from the classrooms utilized by the students. Only the main chapel was exempt, so that it could remain open for prayer. No high school classes or activities were to be held in the main chapel.A parent of one of the high school students is upset at this arrangement. On his son’s behalf, the parent has filed suit in federal district court to challenge the constitutionality of permitting public school classes to be held in a church. Judgment for whom?(A) The city, because the classroom arrangement does not inhibit or advance religion.(B) The city, because the church was the lowest bidder in accordance with the emergency ordinance.(C) The plaintiff, because the present arrangement for conducting classes in a church-owned facility constitutes excessive entanglement with religion.(D) The plaintiff, because the emergency measure was not necessary to further a compelling state interest.

Answer 295

115.(A) Underthe Lemon test, as a general rule, a government program will be valid under the establishment clause if it (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not produce excessive government entanglement with religion. Many of the cases involving the establish ment clause involve religious activities in public schools (e.g., prayer and Bible reading). This question has an interesting twist: namely, whether public school classes can be held in a church building. Under the circumstances, there does not appear to be an establishment clause violation because the city’s action neither advances nor inhibits religion. Therefore, choice (A) is correct. Choice (B) is incorrect, as it ignores the religious establishment clause issue discussion, above. Choice (C) is incorrect. Excessive government entanglement with religion does not appear to be the case given that: (1) the church agreed to remove all religious symbols and paraphernalia from the “classrooms” utilized by the students; (2) only the main chapel was exempt so that it could remain open for prayer; and (3) no high school classes or activities were to be held in the main chapel. Finally, choice (D) is incorrect. The plaintiff will not win, and the city does not have to prove that there was a “compelling state interest.” Under the circumstances, there does not appear to be an establishment clause violation, because the city’s action neither advances nor inhibits religion.

Question 296

116. An owner had a record store in the downtown business area of a city. A famous rock group was scheduled to perform at the local civic center and the owner featured the band’s records in a special sale for the two weeks prior to the concert. In order to promote his sale, the owner installed loudspeakers on the outside of his store window so that he could play the band’s records for people walking by to hear. It was the owner’s hope that when they heard the records, the passersby would turn into customers and buy the band’s records.Subsequently, the owner was cited for violating a city ordinance which provides that:“An owner of property located within the city limits shall not permit to be used on his property any device which causes sounds, other than clock chimes, to be heard upon the street or sidewalk. Violation of this ordinance shall subject the property owner to a fine of $50.00 for each occurrence.”If the owner is successful in challenging this ordinance in court, the court would most likely reason that(A) the ordinance violates equal protection because some sounds are permitted, while others are not.(B) the ordinance violates the owner’s rights of freedom of speech, because there is not valid interest to support the ordinance.(C) the ordinance violates the owner’s rights of freedom of speech, because a municipality may not regulate the use of sound amplification equipment.(D) the ordinance violates the owner’s rights under the First and Fourteenth Amendments, because it is vague in defining unpermitted sounds.

Answer 296

116. (D) Choice (D) provides the best legal reasoning if the owner is successful in challenging the city’s sound amplification ordinance. In accordance with the 1st Amendment’s guarantee of freedom of speech, a state or municipality may regulate the use of sound amplification equipment, depending on the interests involved [Kovacs v. Cooper, 336 U.S. 77 (1949)]. The test applied by the courts in this 1st Amendment area (regarding the constitutionality of such an ordinance) is that “the government action must further an important governmental interest unrelated to the message being communicated.” According to the facts presented here, the municipality would not have an overriding interest in prohibiting the use of any sound device, except clock chimes, by a property owner in the city of Wilton. Choice (A) is incorrect, as the equal protection clause protects people, not sounds. Choice (B) is an incorrect statement of law. Choice (C) is incorrect because a state may regulate the use of sound amplification devices (e.g., sound trucks) in the interests of privacy and public tranquility.

Question 297

117. A man outraged by the recent church decision to clear a famous philosopher of charges of heresy, decided to present a lecture, open to the public, disproving the philosopher’s theories. A state statute provides that: “state universities can permit the use of their lecture halls to the public for worthwhile programs of public benefit, upon approval of the school board.”The appropriate school board refused to make a university lecture hall available to the man on the grounds that the proposed lecture was not of worthwhile benefit to the public.As a result, the man brought suit in a state court against the school board and requested injunctive relief requiring the board to allow him the use of the lecture hall. The trial court denied relief and dismissed the suit. The judgment was affirmed by the state appellate court, and is now before the U.S. Supreme Court.In analyzing the state statute, which of the following statements is least accurate?(A) The statute is unconstitutionally overbroad, because it may result in the exclusion of protected speech as well as unprotected speech.(B) The statute, as applied to the man, does not violate his First Amendment rights because his proposed speech is not political and, therefore, not among the classes of speech that are protected.(C) Indirect speech, regulations are only permissible if necessary to serve compelling state interests.(D) The statute is a prior restraint on speech, which unconstitutionally vests unfettered discretion in the school board to decide who may use university lecture halls.

Answer 297

117. (B) Choice (B) incorrectly suggests that only certain classes of speech are protected. Speech is GENERALLY protected; however, there are certain classes of speech that are unprotected (e.g., obscenity, fighting words, and slander). Choice (A) isan accurate statement because the statute is likely to be over-inclusive; it is vulnerable to a facial attack as unconstitutionally overbroad. Choices (C) and (D) are also accurate statements and, therefore, incorrect. Indirect speech regulations are permissible only if necessary to serve compelling state interests. Prior restraints on speech are not, per Se, unconstitutional, but where the power to decide which speech will be affected is vested in an individual or entitywho may decide, at their own discretion, and where there are no specific guidelines or oversight for such a decision, the discretion is considered unfettered, and the restraint on speech will not withstand constitutional muster.

Question 298

118. For the past 20 years a city by the beach has been a popular location for surfboarding. City residents have recently complained that the surfers are creating a public nuisance by littering the beaches, harassing sunbathers, and injuring swimmers with their surfboards. As a consequence, the city adopted an ordinance prohibiting all surfing on its beaches. The newly enacted ordinance further prohibited the sale of surfboards within the city’s limits. An out of state surfboard manufacturer had planned to sell a new line of fiberglass surfboards in the city in the upcoming year. This is now precluded by the recently adopted measure.If the manufacturer seeks to enjoin application of the city ordinance, which of the following is the WEAKEST defense for the city?(A) There is no case or controversy.(B) The manufacturer’s case is moot.(C) The manufacturer lacks standing.(D) The case is not ripe.

Answer 298

118. (B) As a general rule, a case is “moot” when there is no case or controversy once the matter has been resolved. In our example, the city’s WEAKEST defense is that the manufacturer’s case is moot because the matter (whether the manufacturer is precluded from selling his surfboards in the city) has not been resolved. Choice (A) is incorrect. Article III, Section 2 requires the existence of a “case or controversy” before a federal court may hear the case. In other words, there must be an actual dispute. This is not the weakest defense by the city, because the manufacturer has not tried to violate the law and, therefore, does not yet know whether he would be prosecuted under it. Furthermore, since the manufacturer had not meant to sell the boards until a year later, we do not know if the city would have changed its mind and repealed the ordinance. Choice (C) is incorrect, as the manufacturer would not appear to lack standing. One of the requirements for standing is the causation requirement. The manufacturer cannot be certain that he would actually be prosecuted under the law. Furthermore, since the manufacturer had not meant to sell the boards until a year later, we do not know if the city would have changed its mind and repealed the ordinance. Choice (D) is incorrect. The ripeness doctrine holds that “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated or, indeed, may not occur at all” [Texas v. United States, 523 U.S. 296 (1998)]. Here, since the manufacturer had not meant to sell the boards until a year later, we do not know if the city would have changed its mind and repealed the ordinance.

Question 299

119. A group advocating the resumption of U.S. diplomatic relations with certain foreign countries planned to hold a rally at a park in the downtown section of a city. The group secured a rally permit in accordance with a local ordinance. Several members of the group, including a political science professor at a state university and one of the group’s leaders, were scheduled to give speeches. Other members of the group were assigned to walk among the crowd to solicit signatures for a petition, which the group planned to present to the President.A large crowd gathered in the park at the appointed date and time, anxiously waiting for the speeches to begin. As the professor, the first speaker, began addressing the gathering, a television news team started filming her presentation, which was to be shown on the local news that evening.After the professor finished her speech, a few members of the crowd began hissing and booing and shouting. The police soon arrived and attempted to break up the rally. Several members of the group, including the professor, were arrested for inciting a riot.Which of the following would be the most accurate statement with regard to the police halting the rally?(A) The police were justified, since the rally threatened imminent violence and serious disorder.(B) The police were justified in order to protect the group’s leaders.(C) The police violated the group’s First Amendment rights of assembly.(D) Since the group obtained the rally permit, the police were not permitted to interfere with the staging of the rally.

Answer 299

119. (C) Under the circumstances, the police clearly violated the group’s 1st Amendment right of peaceful assembly. It is well established that assemblies or speeches that threaten imminent violence or serious disorder can be halted by the police to prevent physical injury, but unless the risk of disruption is clearly demonstrated, the gathering is protected. In the case at bar, the police would not be justified to break up the rally merely because of the jeering of a few members of the crowd. Moreover, if the risk of disruption is caused by a hostile crowd, the first duty of the police is to protect the speaker from the crowd, not to stop the speech and arrest the speaker. Therefore choice (C) is correct, and choice (A) is incorrect. Choice (B) is not the strongest answer because there is insufficient evidence to suggest that the leaders were in imminent danger. Choice (D) is incorrect. The mere possession of a permit does not confer absolute rights of free speech and assembly. If there is an imminent danger of violence or disorder, the police have a duty to protect the speakers and, if that is not possible, to halt the speech to avoid the imminent harm.

Question 300

120. A professor employed by a state university is a well- known critic of foreign policy and has sometimes publicly stated that he wished for the United States to suffer some collective political tragedy in retribution for all the harms it does to the world. The professor was recently involved in a highly visible political protest against the government. The police eventually shut down the protest because they felt that it was becoming unruly. A television crew covered the entire rally.On the six o’clock news that evening, the film of the protest rally was shown during the broadcast. A news anchorman then made the following commentary: “It’s a shame that public funds are spent to pay the salaries of such university professors, who are not grateful for what this country has done for them. In my opinion, these people like the professor should be deported.”If the professor asserts a claim based on invasion of privacy against the television station and the anchorman for his television commentary, the most likely result is that the professor will(A) not prevail, because the criticism was not directed at the professor personally.(B) not prevail, because the broadcast was privileged as being in the public interest.(C) prevail, because the professor, as a private individual, was placed in a false light.(D) prevail, because the comments were made with actual malice.

Answer 300

120. (B) In Time Inc. v. Hill, 385 U.S. 374 (1967), a case involving this particular invasion of privacy branch, the Supreme Court held that the 1st Amendment prohibited recovery for invasion of privacy in cases where the published matter was in the public interest, unless the plaintiff established that the defendant acted with malice. Malice here, as in New York Times v. Sullivan, goes to knowledge of falsity or reckless disregard for the truth. Moreover, choice (B) is the best answer because the 1st Amendment constitutional privileges likely encompass aLl pure opinions, whether false or not. As such, onlystatements of fact can be actionable as defamatory. In this example, the facts clearly state that the TV commentator, said, “In my opinion. . . these people like the professor should be deported.” Since the anchorman was merely voicing his opinion, choice (B) is a better answer than choice (D). Choice (A) is incorrect because it is irrelevant, whether or not the criticism was directed at the professor “personally.” What matters is whether the statement is a factual representation—a statement capable of being proved either true or false— because that is the only way to prove liability. Choice (C) is incorrect. A false light tort involves a defendant publishing factual information about the plaintiff; which tends to place the plaintiff in a false light; and which would be very offensive to a reasonable person were the latter in the plaintiff’s situation. In our example, there are no factual representations being made by the TV commentator, only opinions.

Question 301

121. As a legislative aide to a U.S. Senator you are called upon to provide an analysis of the constitutionality of a bill pending congressional approval. The bill imposes a 15% tax upon the gross annual receipts from the sales of all birth control devices. The bill has the strong support of conservative and pro-life organizations. The stated purpose of the proposed measure is to raise revenue and spur population growth across the country.In your learned opinion, the proposed tax is probably(A) constitutional, because the fact that the tax applies to all sales of every type of birth control device invalidates any possible objection to the tax on the grounds that it violates the equal protection clause of the Fourteenth Amendment.(B) constitutional, because the fact that controversial policy motives may have induced the enactment of an otherwise reasonable measure calculated to raise revenue does not ipso facto invalidate the tax.(C) unconstitutional, because in inseverable aggregates, the domestic purchases and sales of birth control devices affect interstate and foreign commerce.(D) unconstitutional, because the tax burdens the fundamental right to privacy of users of birth control devices without establishing a compelling national interest for doing so.

Answer 301

121. (B) Congress is granted broad powers of taxation by express constitutional provisions, namely, Article I, Section 8 (taxing and spending power) and the 16th Amendment (federal income tax without apportionment). The taxing power is virtually plenary. The standard used to analyze the validity of a federal tax is whether or not the dominant intent is fiscal. In other words, even if a federal tax does have some incidental regulatory effect, it will nevertheless be upheld if it does, in fact, raise revenue. The stated purpose of the proposed Senate bill for a 15% gross receipts tax is to raise revenue and spur population growth. Applying the aforementioned standard, the proposed federal tax will be constitutional. Choice (B) is correct, since it states the proper rationale. Choices (A), (C), and (D) are incorrect because validity of a federal tax is not analyzed under the principles of equal protection, the commerce clause, or the right to privacy.

Question 302

122. A state university was the scene of campus protests against nuclear weapons. A group of students painted purple a statue of the university’s founder in protest to the university’s federally subsidized nuclear weapon experimental studies. The leader of this group of students was a first-year student from a neighboring state who established residency in the state after beginning classes.The group leader had been the recipient of a $5,000 annual grant from the state to finance his education. However, the aid was withdrawn because of a state statute, which provided: “Any student attending a state university who engages in disruptive campus activities will not be eligible for state aid.”The group leader was married to a fellow student. However, in light of his involvement in defacing the statue and the loss of his state aid, his wife left him. At that time, the group leader received a tax bill for $150. This tax was imposed uniformly by the city on all individuals over 19 years of age, with the exception that full-time female college students were exempted. The tax notice stated that his wife, 22 years of age, qualified for the exemption, and there was no bill enclosed for her.Subsequently, the group leader moved in with his new girlfriend and began making arrangements to secure a divorce. However, the group leader was not able to obtain a divorce, since he had not fulfilled the 12-month residency requirement as imposed by state law.In an action by the group leader against the state challenging the constitutionality of the state statute regarding disruptive campus activities in order to regain his $5,000 annual grant, the court will most likely declare the statute(A) constitutional, because it promotes a compelling state interest.(B) constitutional, because it is a proper exercise of state action designed to regulate the activities of state university students.(C) unconstitutional, because it is vague and overbroad.(D) unconstitutional, because it is discriminatory on its face.

Answer 302

122. (C) The state statute providing that “any student.. .who engages in disruptive campus activities will not be eligible for state aid” would be declared unconstitutional for vagueness and overbreadth. Clearly, the court will invalidate such a statute because “disruptive campus activities” is too general and overbroad and can be read as prohibiting constitutionally protected activity. Therefore, for these reasons, choice (C) is correct, and choice (A) is incorrect. Choice (B) is incorrect. Idiomatically, there is no proper exercise of “state action.” The state action doctrine refers to the idea that the government has acted and is thus, theoretically, subject to the U.S. Constitution. Choice (D) is incorrect. The problem with the statute is not that it discriminates on the basis of viewpoint or content. The problem lies in that the statute suffers from substantial vagueness and overbreadth in its reference to “disruptive campus activities.”

Question 303

123. In order to encourage college enrollment, a state provides a tax exemption of $200 for state taxes for those who are full-time students at colleges within the state. Female students who attend half-time are still permitted a $100 tax exemption, whereas male students who attend half-time are no longer permitted any tax exemption.Which of the following most accurately summarizes the correct rule of constitutional law regarding the state tax exemption for students who enroll half-time?(A) The tax exemption would be invalidated as a denial of due process.(B) The tax exemption would be invalidated as violative of the equal protection clause.(C) The tax measure would be upheld as within the area of substantive due process.(D) The tax measure would be upheld as within the power of a municipality to tax different classes of persons unequally.

Answer 303

123. (B) Such laws explicitly distinguishing between males and females have been invalidated as violative of the Equal Protection Clause of the 14th Amendment unless they serve the objective of offsetting unequal opportunities for women (or men, as the case may be). In the present case, there is no important governmental interest available to support a tax exemption for only full-time female college students and not male students. Choice (A) is incorrect. Generally, a property interest is not protected under the 14th Amendment’s Due Process Clause unless there is a reasonable expectation of continued receipt of the benefit. [Board of Regents v. Roth, 408 U.S. 564 (1972)]. In our example, no such reasonable expectation of continued receipt of the benefit exists for the college men because the law had already informed them that failure to enroll fulltime will erase the tax exemption. Choice (C) is incorrect. There is no substantive fundamental right protected by the due process clause that has been denied by the tax exemption. Most substantive rights protected by the due process clause concern the rights of bodily and familial autonomy. Choice (D) is incorrect. States may have the power to tax different people in different ways, but it may not do so in a way that violates the Constitution. Here, the tax exemption—having a gender classification—will be subject to intermediate review and will likely fail such review.

Question 304

124. A couple were married, and four months later, they wished to obtain a divorce. However, the state in which they were married prohibits a couple from obtaining a divorce until they have resided in the state for at least 12 months.In an action by the couple challenging the constitutionality of the residency requirement of the state divorce law, the court will most likely declare the provision(A) constitutional, because the requirement promotes a compelling state interest.(B) constitutional, because it is within the area of state action.(C) unconstitutional, because it constitutes a violation of the equal protection clause.(D) unconstitutional, because it constitutes a violation of the privileges and immunities clause of Article IV, Section 2.

Answer 304

124. (A) Limited residency requirements (of one year or less) for obtaining divorces have been upheld as promoting a compelling state interest in the exercise of the state’s police powers to legislate to protect the health, safety, welfare, and morals of its citizens. Choice (B) is incorrect, since the concept of state action pertains to nullifying state legislation that impairs the privileges and immunities of citizens of the United States, orwhich injures them in life, liberty, or property without due process of law, orwhich denies to any of them the equal protection of the laws. Choice (C) is incorrect. While they may have been the subject of discrimination by the legislature, they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (D) is incorrect. In order to show a violation of the privileges and immunities clause, there must be an initial showing of discrimination by the state against out-of-staters. In our example, there is no such discrimination.

Question 305

125. A privately owned shopping center leases retail store space to private retailers. A group of students from a local high school were distributing pamphlets commemorating a national holiday in the enclosed mall area of a privately owned shopping complex. The management of the shopping complex requested that the students cease distributing the pamphlets or leave the premises. When they refused, the police were summoned to disperse the students. Upon the arrival of the police, the students were removed from the premises.Subsequently, the students brought suit in federal court seeking an injunction that would order the shopping complex management to allow them to distribute the pamphlets within the mall. The students will(A) prevail, because pamphleteering is a speech- related activity, which is protected by the First and Fourteenth Amendments.(B) prevail, because there is not an anti-pamphleteering statute.(C) not prevail, because pamphleteering on private property is not a constitutionally protected activity.(D) not prevail, because pamphleteering may be prohibited as a public nuisance that invades the privacy interest of persons not wishing such communicative contact.

Answer 305

125. (C) In accordance with Hudgens v. NLRB, 424 U.S. 507 (1971), the owner of a private shopping center may exclude persons who want to distribute pamphlets, since no “state action” is present. The Supreme Court held that, so long as the state does not aid, command, or encourage the suppression of free speech, the 1st Amendment would not be violated by the shopping center owners. The operation of the shopping complex was not part of a privately owned town and, therefore, did not involve the assumption of a public function by private persons. Since pamphleteering on private property is not a constitutionally protected activity, injunctive relief would not be granted to the students. Choices (A) and (B) are incorrect because there is no state action in this example; thus, the Constitution does not apply. Choice (D) is incorrect. The nuisance action is unnecessary, and it is superfluous to discuss the privacy interests of persons not wishing to be accosted by pamphleteers.

Question 306

126. A state legislature has recently enacted a statute making it a misdemeanor to curse or revile or use obscene or opprobrious language toward or in reference to a police officer perfonning his duties. A student at a state university organized a demonstration on campus to protest the war. The rally was attended by a group of 50 students who shouted anti-war messages at cars passing by.To show his contempt for the United States, the student sewed the American flag to the rear of his jeans. When a police officer saw the flag sown on the student’s jeans, he approached and told him to remove the flag or he would be placed under arrest. The student became angered and shouted at the police officer, “Listen, you bastard, I’ll wear this rag anywhere I please.” The student was subsequently placed under arrest and charged with violating the state statute.The student subsequently brings suit in state court challenging the constitutionality of the statute. The strongest constitutional argument for the student is that(A) the statute is void for vagueness under the Fourteenth Amendment’s due process clause.(B) the statute is invalid because it violates the petitioner’s freedom of speech under the First Amendment.(C) the statute is an abridgment of freedom of speech under the First Amendment because less restrictive means are available for achieving the same purpose.(D) the statute is overbroad and consequently invalid under the First and FourteenthAmendments.

Answer 306

126. (D) The state statute wouLd be construed as overbroad and, thus, invalid under the 1st and 14th Amendments. The Supreme Court, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), applied the overbreadth doctrine to a similar New Orleans ordinance, which was invalidated under the 1st and 14th Amendments. In that case, as well as in the factual situation here, the ordinance effectively punished all obscene and offensive speech, even though some of the speech may have been protected by the 1st Amendment. Since Section 1220 may have included constitutionally protected speech, the statute should have been more narrowly drawn to protect such 1st Amendment activities. Choice (A) is not the best answer. If a statute is unduly vague, it will be voided on its face. The rationale is that the audience will suffer a chilling effect by being afraid to speak at all. Here, the statute is vague in at least two respects: in the reference to “opprobrious language” and in the reference to “treat contemptuously.” Both references, however, are more objectionable because they suffer from overbreadth by prohibiting speech that is protected by the 1st Amendment. Choice (B) is not the strongest choice. This answer presumes that the statute is invalid only because it violates the 1st Amendment. The statute is actually invalid on its face, without having to determine whether it violates the speaker’s rights in this instance. Choice (C) is incorrect. This answer presumes that the statute, on its face, is valid and that the constitutional problem resides in its application to the instant facts. But the statute is void on its face.

Question 307

127. A state legislature has recently enacted the following statute:“Statute 1221. It shall be unlawful for an individual to publicly mutilate, trample upon, deface, or treat contemptuously the flag of the United States. Whoever shall violate this statute shall be guilty of a misdemeanor.”To show his contempt for the United States, an antigovernment protestor sewed the American flag on the rear of his jeans. He was subsequently placed under arrest and charged with violating Statute 1221.If the protestor is subsequently prosecuted under Statute 1221 for his flag misuse, he(A) should be convicted.(B) should not be convicted, because the lack of ascertainable standards for defining “treat contemptuously” violates the equal protection clause of the Fourteenth Amendment.(C) should not be convicted, since the statutory language is void for vagueness under the First and Fourteenth Amendments.(D) should not be convicted, because the statute has a chilling effect on nonverbal forms of speech and, therefore, is invalid under the First and Fourteenth Amendments.

Answer 307

127.(C)or(D) In accordance with Smith v. Gognen, 415 U.S. 566 (1974), where the petitioner had been convicted of violating a similar flag-misuse statute for sewing a U.S. flag to the seat of his pants, the Supreme Court held that the statutory language was void for vagueness under the 1st and 14th Amendments. The flag-misuse statute was declared vague because no clear distinction had been made between what type of treatment of the flag was or was not criminal. Furthermore, the statutory terminology, “treat the flag contemptuously,” is lacking of any ascertainable standards and is, therefore, violative of the Due Process Clause of the 14th Amendment. Students should note that the police and courts should not be given such broad discretion in determining what constitutes flag contempt as to be violative of the 1st and 14th Amendments’ constitutional safeguards. Choice (B) is incorrect because this question presents a due process violation, not an equal protection issue. Choice (A) is incorrect because the statute here suffers from undue vagueness and, thus, will be voided on its face.

Question 308

128. A state legislature recently enacted a statute legalizing harness racing. The statute authorized pari-mutuel betting at certain track locations within the state. A seven-member commission was established and empowered to supervise and regulate the sport’s activities. Under an inseparable provision of the statute, the commission was authorized to suspend the racing license of any trainer whose horse tested positive for illegal drugs. The statute permitted the commission to make the suspension without any prior hearing. However, suspended trainers were entitled to a prompt post- suspension hearing and decision on any issues in dispute.The racing season was inaugurated at the largest racetrack in the state. The featured race was a $1,000,000 harness race for 2-year-old trotters. After the awards presentation, the winning horse underwent a standard drug test and traces of cocaine were found in his urine sample. Immediately thereafter, the horse was disqualified and the commission suspended the horse’s trainer, without a prior hearing.Without seeking a post-suspension hearing as provided by statute, the trainer brings suit in federal district court challenging the constitutionality of the state harness racing law. The statute is probably(A) constitutional, because being granted a racing license is a privilege, not a right.(B) constitutional, because the state’s interest in suspending the license of horse trainers suspected of illegal drugging is sufficiently important to permit the suspension of any prior hearing.(C) unconstitutional, because the suspension provision unreasonably interferes with a trainer’s right to contract with horse owners and seek gainful employment.(D) unconstitutional, because the suspension provision violates due process by not affording a prior hearing.

Answer 308

128. (B) The 14th Amendment’s procedural due process clause operates as a Limitation on state action by providing an individual the guarantees of both notice of the charges brought against him, as well as an opportunity to be heard, whenever the deprivation of any life, liberty, or property interest has occurred. The individual whose interests are affected must be granted a fair procedure to determine the factual basis and legality for such action. If the government terminates an individual’s ability to engage in a profession, a procedure must be afforded to determine the individual’s fitness to engage in that profession. Specifically, in Barry v. Barchi, 443 U.S. 555 (1979), the court held that the New York licensing system for horse training created a “property” interest in licensed trainers protected by the Due Process Clause and a post-suspension hearing was required. In this question, the state statute affording a post-suspension hearing will be upheld. Therefore, choice (B) is correct. Choice (A) is incorrect. The rights-privilege distinction has been abandoned by the Supreme Court. Instead, the Court looks to whether there is a reasonable expectation of the continuance of the government benefit. Here, the trainer will be able to show such expectation. Choice (C) is incorrect because there is no fundamental right to contract; nor is there a fundamental right to “seek gainful employment.” Finally, choice (D) is incorrect. Under a licensing scheme, a right to a hearing prior to revocation of the License is not required, although a right to a hearing is required after the revocation of the license.

Question 309

129. Proposed legislation was offered to a state legislature that would reorganize the state police. The bill created a great deal of controversy, both in and outside the state government. Several leaders of the minority party in the legislature decided to oppose the legislation. One member of the minority party disagreed with his party’s opposition to the bill and publicly announced his support for the legislation.The minority party leaders called a caucus to discuss and determine their legislative strategy for floor debate on the bill. When the disagreeing member appeared at the door of the caucus room, he was denied admission because of his anti-party stance. He was also informed that he would be removed from all of his committee assignments.During the caucus, the party members discussed other means of disciplining the member for his party insubordination. It was suggested that they issue a press release in which the party would publicly castigate him for his actions. The leader of the party said that “the member is a cutthroat politician who is only looking out for where his next buck will come from.”Which of the following constitutional provisions would give the ousted member his best grounds for challenging his exclusion from the party caucus?(A) The equal protection clause of the Fourteenth Amendment.(B) The right of assembly as guaranteed by the First Amendment.(C) The speech and debate clause.(D) The due process clause of the Fourteenth Amendment.

Answer 309

129. (D) The due process clause of the 14th Amendment would furnish the plaintiffs best grounds for challenging his exclusion from his party’s caucus. Whenever a governmental instrumentality acts so as to deprive someone of any interest, the first question to ask is whether the interest qualifies as “life,”“liberty,” or “property.” If so, the due process safeguards of notice and some form of hearing are required. In the present hypo, the plaintiffs exclusion from the caucus would be a deprivation of his property interest (i.e., stripping a duly elected public official of his right to participate in his party’s meeting). Choice (A) is incorrect, while the plaintiff may have been the subject of discrimination by the legislature, he is not a member of a suspect or quasi-suspect class, and only rational basis review will be applied. Choice (B) is not the strongest answer. The right to assemble would not be the best argument, since the party members do not wish to associate with the plaintiff. To force them to do otherwise probably would violate their right to assemble. Choice (C) is incorrect. There is no violation of the right of speech if there is a valid time, place, and manner regulation for the speech. Such a law regulates the secondary effects of the speech (not the speech) and provides reasonabLe alternatives for the speech. Here, one can argue that the minority party is not punishing Turner, per se.

Question 310

130. During a Senate debate, members discussed how to punish a particular senator for having publicly rebuked the head of his party. One of the members suggested that the party inform television reporters that the senator in question is “an opportunist who has very little loyalty to his own party and will switch sides at the earliest convenience.”In determining whether the senator has a valid cause of action against the member for his remarks, which of the following most accurately reflects the applicable rule of law?(A) The senator must prove actual malice in order to recover for defamation.(B) Any remarks made during the debate were privileged.(C) The remarks violated the senator’s First Amendment right of privacy by placing him in a “false light.”(D) The remarks constitute a “fair and substantial” relation to “important governmental objectives.”

Answer 310

130. (B) “The Senators and Representatives.., for any Speech or Debate in either House… shall not be questioned in any other Place” [U.S. Const. art. I, sec. 6, cI. 1]. It is important to note that virtually every state has adopted similar speech and debate clauses in their respective state constitutions. Choice (A) is incorrect. The senator did not offer any factual representations. The actual malice test requires that the speaker offer some factual representation (later proved inaccurate) either deliberately knowing of its inaccuracy or in reckless disregard. Choice (C) is incorrect. A false light tort involves a defendant publishing factual information about the plaintiff, which tends to place plaintiff in a false light, and which would be offensive to a reasonable person were the latter in plaintiff’s situation. In this question, there are no factual representations being made, only opinions. Choice (D) is incorrect because, even if this were factually true, it does not matter for legal purposes. Therefore, choice (B) is correct, because the statement would be privileged, since the Speech and Debate Clause protects Legislators and their aides against criminal or civil proceedings for “legislative acts.”

Question 311

131. Congress, under intense lobbying pressure has enacted a statute prohibiting the sale of contraceptive devices to married persons. The act further prohibits the use of contraceptive devices by married persons. Congress claimed that the statute was passed because it might help deter illicit sexual relationships.The law is most likely(A) constitutional, because it is a regulation of interstate commerce.(B) constitutional, because it is a measure promoting the general welfare.(C) unconstitutional, because the law deprives the manufacturers of contraceptives of their property interest without just compensation.(D) unconstitutional, because it violates the right of privacy of contraceptive users.

Answer 311

131. (D) In Griswold v. Connecticut, 381 U.S. 479 (1965), the U.S. Supreme Court invalidated a similar statute restricting the use of contraceptive devices by married couples as violating the right of privacy of married persons. The Court held that the statute violated the due process clause because it deprived these married persons the liberty protected by the 5th Amendment. Choice (A) is incorrect. Even if Congress is empowered under the Commerce Clause to enact this law, Congress would still run afoul of the fundamental right to contraceptives in the 5th Amendment’s due process clause. Choice (B) is incorrect. Article I, Section 8, reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general welfare of the United States.” The Supreme Court has taken the reference to “general welfare” to mean that Congress enjoys great discretion in how it chooses to allocate money for the public [United States v. Butler, 297 U.S. 1 (1936)]. There is no such allocation of money in our example; just a regulation. Choice (C) is incorrect. In Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), the Court stated that a taking occurs where “regulation denies all economically beneficial or productive use of the land.” Here, the congressional law does not deprive the manufacturers all property interest in contraceptives, because the manufacturers may still seLl the contraceptives to people who are not married.

Question 312

132. A state legislature enacts a statute prohibiting the sale of contraceptive devices to married persons. This state statute prohibits the use of contraceptive devices by married persons. A physician who practices in the state brings suit in federal court challenging the constitutionality of the state contraceptive statute. The physician attacks the validity of the statute on the grounds that it prevents him from giving professional advice concerning the use of contraceptives to three patients, all of whom are married, whose condition of health might be endangered by child bearing.The plaintiff is likely(A) to have standing.(B) to have standing jus tertii.(C) not to have standing.(D) not to have standing jus tertii.

Answer 312

132. (D) In Tileston v. UlIman, 318 U.S. 44 (1943), the U.S. Supreme Court ruled that a medical doctor does not have third-party standing to attack a state anti-contraceptive statute on the grounds that it prevents him from giving his professional advice concerning the use of contraceptives to three patients whose condition of health might be endangered by child bearing. On the contrary, if the person is convicted of prescribing, selling, or giving away contraceptives, in the defense of that action, he may then raise the third-party rights of the recipients. [Eisenstadtv. Baird, 405 U.S. 438 (1972)]. Under this reasoning, choice (D) is correct and, therefore, choices (A) and (B) are incorrect. Choice (C) is incorrect. The physician would seem to have standing. First, if he tried to violate the state law, he would be convicted and, thus, would suffer iarm. Second, there’s causation, because the state is directly responsible for the potential prosecution and the physician is able to show that the state can remedy its harm by repealing its law.

Question 313

133. The owner of a test prep company sent an advertisement regarding the company’s review courses to a local newspaper. In an accompanying letter, the owner instructed the newspaper to publish the ad in an upcoming edition. The ad was received by the newspaper’s advertising editor.The next day the editor phoned the owner and told her that he would not permit the newspaper to run the ad. When the owner asked for an explanation, the editor replied, “My daughter took your review course and scored low on her entrance exams to college and didn’t get into the college of her choice. Because of your instructors, she’s now working at the mall. That’s why I’m prohibiting the newspaper from publishing your ad.” The editor then forwarded a letter to the owner reiterating his newspaper’s refusal to have the ad published.In an appropriate action, the owner brings suit against the editor and the newspaper seeking an order that would require the newspaper to publish the advertisement. In such action, who will prevail?(A) The owner, because such advertising is protected by the First Amendment under the commercial speech doctrine.(B) The owner, because there is a constitutional right of advertising under the First and Fourteenth Amendments.(C) The editor and newspaper, because Congress is empowered to prohibit untruthful advertising, even where it urges the purchase of a legal, validly offered item.(D) The editor and newspaper, because there is no constitutional right of advertising under the First and Fourteenth Amendments.

Answer 313

133. (D) There is no constitutional right of advertising under the 1st and 14th Amendments. Certainly, a private newspaper is not required under the Constitution to accept and publish all forms of advertising. Choice (A) is incorrect. There is a lack of state action because the newspaper is a private entity. Accordingly, the newspaper cannot violate a person’s constitutional rights, although other Legal remedies might be available. Choice (B) is not the best answer. There is a constitutional right to commercial speech, meaning that the government may not infringe on such a right. However, there is no constitutional right to “advertise” in a private newspaper. Choice (C) is incorrect. Congress’s powers are not legally relevant for this example. There is no constitutional right of advertising under the 1st and 14th Amendments. Certainly, a private newspaper is not required under the Constitution to accept and publish all forms of advertising.

Question 314

134. A prisoner was serving a life sentence in a state prison as a result of his conviction for the murder of a child who had trespassed onto his farmland. The prisoner came from a family of farmers, dating back to at least 1750. His family believed that all nourishment comes from the ground and that one’s soul will be saved only if his diet consists totally of natural, farm-grown food. The prisoner followed that belief and ate only fresh fruits and vegetables. He further believes that a higher power has commanded him to eat only vegetarian foods.When the prisoner entered the prison state prison officials agreed to grant his wishes and served him only fresh fruits and vegetables for his meals. After six months, deciding that catering to his special diet was overly burdensome and administratively unworkable, the officials decided to stop giving the prisoner special treatment and began to serve him the same food as served to the rest of the prison population. Although nothing physically prohibited the prisoner from eating and surviving on the general prison population’s diet, he refused to eat the food that was not in conformity with his special diet.The prisoner’s best constitutional argument to support his claim of the right to a fresh fruit and vegetable diet is based on(A) the First Amendment.(B) the Eighth Amendment’s prohibition against cruel and unusual punishment, as applied to the states.(C) the Fourteenth Amendment’s substantive due process clause.(D) the Fourteenth Amendment.

Answer 314

134. (D) The prisoner’s best constitutional argument will be based on the 1st Amendment’s free exercise clause, which is applicable to the states through the 14th Amendment. Even though it is not known whether his belief is properly classified as a religion for 1st Amendment purposes, choice (D) still provides the prisoner’s best argument. Although choice (A) seems correct, choice (D) is the better answer, since state action is involved. When there are apparently two correct answers to a question, you should select the alternative more on-point to the facts in the question. As illustrated in this question, in the area of Constitutional Law, when a particular question relates to one’s rights under any of the first eight Amendments to the U.S. Constitution, such rights are only afforded through the due process clause of the 14th Amendment. Therefore, in our hypo, choice (D) is the preferred answer, as it refers to both the 1st and 14th Amendments. Choice (B) is incorrect. The 8th Amendment guarantees that inmates shall be served adequate food, not food to their tastes. Choice (C) is incorrect. There is no fundamental right to religious expression or to vegetarianism under the 14th Amendment’s Substantive Due Process Clause.

Question 315

135. Several states have enacted laws shielding reporters from being compelled to release the names of confidential sources. Now, Congress, under intense lobbying pressure from the press, proposes to enact legislation forbidding any state from requiring journalists to reveal the sources of their news articles in civil suits.Which of the following is the strongest constitutional argument in support of this proposed law?(A) Congress has the authority under the commerce clause to regulate the flow of news.(B) Acts of Congress are the supreme law of the land and take precedence over any conflicting state laws.(C) Congress is essentially reaffirming the free speech guarantees of the First and Fourteenth Amendments.(D) Under Article I, Section 8, Congress has the authority to secure to authors and inventors the exclusive right to their respective writings and discoveries.

Answer 315

135. (A) Under the “affectation doctrine,” the U.S. Supreme Court has recognized that Congress has the power to regulate any activity, whether carried on in one state or many, which has anyappreciable effect—dire ctlyorindirectl y—upon interstate commerce. Choice (B) is incorrect. The Supremacy Clause cannot serve as a basis for a congressional statute, although once passed, the congressional statute, under the logic of the supremacy clause, can take precedence over a state statute. Choice (C) is incorrect because Congress has no legislative power under the 1st Amendment. Congress has legislative powers under Section 5 of the 14th Amendment but, in our example, it is not clear how the congressional statute would further some 14th Amendment right. Choice (D) is not the best answer. Article I, Section 8 states that Congress has the authority “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause refers to Congress’s authority to bestow patents and copyright, not freedom of the press.

Question 316

136. A motel advertises the showing of pornographic, or adult movies in the privacy of each room. The motel has a strict policy permitting adults only to occupy the rooms. The state has recently enacted a statute that prohibits the showing of any obscene film in an area open to the public.The owner of the motel is prosecuted for violating the statute by showing pornographic movies in the motel rooms. On appeal, the owner’s conviction will probably be(A) sustained, because a state can use its police power to prohibit the showing of pornography in public areas.(B) sustained, because a state may use local standards in determining whether a movie has redeeming literary, artistic, political, or scientific merit.(C) overturned, because his prosecution violates the right of consenting adultsto view such films in private.(D) overturned, because the First and Fourteenth Amendments prohibit the suppression of sexually oriented materials on the basis of their allegedly obscene contents.

Answer 316

136. (C) The Multistate examination tests not only your knowledge of the substantive rules of law; it also tests your reading comprehension ability. The state statute prohibits the showing of any obscene film “in an area open to the public.” Since the films were being shown in the privacy of the motel rooms (and occupancy was limited to consenting adults), the owner’s conviction would be overturned because the statute would be inapplicable. ALso, for Multistate purposes, students should be familiar with Stanley v. Georgia, 394 U.S. 557 (1969), in which the U.S. Supreme Court held that mere private possession of obscene matter is not a crime. Although the states retain broad power to regulate obscenity, that power simply does not extend to mere possession by the individual in the privacy of his home. Choice (A) is incorrect for the reasons stated above. Choice (B) is incorrect. The reference to literary, artistic, and the like refers to the Miller obscenity test. Obscenity as a legal category receives no constitutional protection. However, in this example, it’s not certain that we’re dealing with obscenity, but with pornography. Obscenity is defined as material that is (1) patently offensive; (2) appeals to prurient interests; and (3) the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value [Miller v. California, 413 U.S. 15 (1973)]. Even if the material in the hotel is deemed obscene, students should be familiar with Stanley v. Georgia, 394 U.S. 557 (1969), in which the U.S. Supreme Court held that mere private possession of obscene matter is not a crime. Although the states retain broad power to regulate obscenity, that power simply does not extend to mere possession by the individual in the privacy of his home. Choice (D) is incorrect. As a general matter, materials deemed obscene do not enjoy hardly any constitutional protection. However, students should be familiar with Stanleyv. Georgia, 394 U.S. 557 (1969), in which the U.S. Supreme Court held that mere private possession of obscene matter is not a crime. Although the states retain broad power to regulate obscenity, that power simply does not extend to mere possession by the individual in the privacy of his home. Moreover, in this example, it’s not certain that we’re dealing with obscenity, but with pornography. Obscenity is defined as materiaL that is (1) patently offensive; (2) appeaLs to prurient interests; and (3) the work, taken as a whole, lacks any serious literary, artistic, political, or scientific value [Millerv. California, 413 U.S. 15(1973)].

Question 317

137. Each year the state provides a number of non- interest-bearing loans andlor scholarships to candidates for the degree of L.L.B or J.D. at the state’s law school. The applicable state statute limits eligibility to citizens of the United States and aliens seeking U.S. citizenship. A candidate for a J.D. degree at the state law school applied for one of the non-interest-bearing loans. Since he did not intend to seek U.S. citizenship, he was refused the loan for ineligibility under the state statute.In a suit by the candidate challenging the constitutionality of the state statute, he will(A) win, because the statute is violative of the privileges or immunities clause of the Fourteenth Amendment.(B) win, because classifications by a state that are based on alienage are inherently suspect and subject to close judicial scrutiny.(C) lose, because the statute promotes a compelling state interest.(D) lose, because alienage classifications are not, per Se, unconstitutional under the Fourteenth Amendment’s equal protection clause.

Answer 317

137. (B) In accordance with Nyquist v. Mauclet, 432 U.S. 1 (1977), the U.S. Supreme Court invalidated, under the equal protection clause of the 14th Amendment, a state law that granted aid for higher education to citizens and resident aliens who were or would be applying for citizenship. The Court found no “compelling state interest” in encouraging citizenship or limiting general programs to those who determine its policy. Therefore, choice (B) is correct, and choice (C) would be incorrect under our facts. Choice (A) is incorrect because the privileges or immunities clause of the 14th Amendment does not protect those who are non-U.S. Citizens. Choice (D) is incorrect. Technically, it is true that alienage classifications are not, per se, unconstitutional under the 14th Amendment’s equal protection cLause. However, such cLassifications will still be subject to strict scrutiny, and the state must show that its law contains compelling governmental interests [Graham v. Richardson, 403 U.S. 365 (1971)].

Question 318

138. A state has a statute generally prohibiting the installation and use of radar detection devices in any motor vehicle operating on the roadways within the state. This prohibition was enacted to prevent motorists from evading radar or speed checkpoints on county and state highways. A neighboring state has no such regulation in effect. By the same token, Congress has taken no action on the matter.A resident of the neighboring state has installed a radar detection device in his automobile. While driving to visit his mother he is arrested and charged with violating the aforementioned state statute. The resident files a complaint challenging the constitutionality of the state statute.As applied to the resident, the state prohibition against the use of radar detection devices is likely to be held(A) constitutional, because it protects a legitimate state interest.(B) constitutional, because the commerce clause does not invalidate a state regulation relating to interstate commerce unless Congress takes express action to do so.(C) unconstitutional, because the state statute fails to give credit to the law of a neighboring state.(D) unconstitutional, because it unduly burdens interstate commerce.

Answer 318

138. (A) As a generaL rule, state laws regulating roadways and highways are usually upheld as constitutional unless they unduly burden interstate commerce. Since the facts do not indicate that the state statute unduly burdens interstate commerce, choice (A) is preferred over choice (D). Anothervariation of how this ruLe can be tested involves the enactment of a state law prohibitingthe use of metalstuds or cleats on vehiculartires. Even though the facts may indicate that the cleats and studs give better traction in ice and snow, the statute may stilt be upheld as constitutional if it serves a legitimate state interest by reducing damage to state highways. Choice (B) is incorrect. The commerce clause of Article I, Section 8 can invalidate state regulation if such regulation presents an undue burden on interstate commerce. But that does not appear to be the case in this example, given that both in-staters and out-of-staters must comply with the same prohibition. Choice (C) is incorrect. Article IV, Section 1 contains the Full Faith and Credit Clause: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” But the law in our example would not be covered under the Full Faith and Credit Clause.

Question 319

139. Which of the following constitutional provisions is applicable to corporations?(A) The privileges and immunities clause of the Fourteenth Amendment.(B) The comity clause of Article IV.(C) The Fifth Amendment’s prohibition against compulsory self-incrimination.(D) The equal protection clause of the Fourteenth Amendment.

Answer 319

139. (D) The equal protection clause of the 14th Amendment is applicable to corporations. Choices (A) and (B) are incorrect because neither the privileges and immunities clause nor the comity clause applies to corporations, because the term “citizen” does not include corporations. Choice (C) is incorrect because, under the 5th Amendment (the prohibition of compulsory self-incrimination), the word “person” fails to include corporations or other business entities [Bellis v. United States, 409 U.S. 322 (1973)].

Question 320

140. A state has recently enacted a statute that provides no person or company may be awarded any state construction contract unless the person or company agrees to hire only citizens of the state. The primary purpose of the statute is to help alleviate the state’s high rate of unemployment.Which of the following, if established, is the strongest argument in support of the statute if it is attacked as violating the commerce clause?(A) The statute will help racial minorities living in the state obtain gainful employment.(B) The state has the highest unemployment rate in the country.(C) If the state uses its own taxpayer funds to purchase construction materials, it is responsible for creating demand for the required labor.(D) The statute was overwhelmingly adopted by the voters of the state.

Answer 320

140. (C) As a general rule, the Commerce Clause prohibits a state from enacting regulations that discriminate or burden interstate commerce. In accordance with Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951), a state may not create economic barriers to out-of-state products or impose on them costs that are more burdensome than those imposed on comparable local commerce in order to protect local interests. However, the Commerce Clause does not prevent the state, when acting itself as a purchaser or seller of goods, from buying only from or selling only to local business orfrom giving subsidies only to its residents. See Reeves v. Stake, 447 U.S. 429 (1980), where discrimination merely affects a market created by a state’s own purchases, and the state is, thus, a market participant, rather than a market regulator. Choices (A) and (B) are incorrect. A state has police powers under its 10th Amendment to create “gainful employment” for racial minorities. But there are constitutional limits to this aim, including the dormant Commerce Clause. As a general rule, the Commerce Clause prohibits a state from enacting regulations that discriminate or burden interstate commerce. In accordance with Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951), a state may not create economic barriers to out-of-state products or impose on them costs that are more burdensome than those imposed on comparable local commerce in orderto protect local interests. Choice (D) is incorrect. Even if this were factually true, it wouLd not be legaLly relevant in overcoming the legal obstacles presented by the Commerce Clause.

Question 321

141. In light of the current oil glut, many oil producing states have experienced extreme economic hardship. Due to the precipitous drop in oil prices, many oil companies have been forced to cut back on oil production and lay off many workers. As a result, unemployment has reached all-time high levels in several states. In order to alleviate this potentially catastrophic situation, the one of those state’s legislatures recently enacted a statute requiring that 10% of all oil produced within the state be purchased by the state and reserved for use by state residents. The purpose of the statute was twofold: (1) it was intended to stimulate the oil industry within the state by encouraging more production and exploration, and (2) it was designed to create an oil reserve so that state residents and industries would not suffer unduly from future oil shortages. Subsequently, Congress enacted a statute forbidding states to reserve local resources for local use in this manner.Is this state statute constitutional?(A) Yes, because Congress has not expressly forbidden states to reserve local resources for local use.(B) Yes, because the state statute requires that the oil be used for the general welfare of the people in emergency situations.(C) No, because a state may not protect its residents from out-of-state competition for its natural resources without the express permission of Congress.(D) No, because application of the statute denies non-oil producing companies to equal protection of the law, in violation of the Fourteenth Amendment.

Answer 321

141. (C) In Constitutional Law, students must be familiar with the area of state regulation of interstate commerce. As a general rule, where Congress has not acted, and where no uniform national scheme of regulation exists, states are free to act in the regulation of interstate commerce, provided that the purpose or the effect of such regulation does not discriminate against interstate commerce. In this regard, states may not favor local interests by protecting them against out-of-state competition [Dean Milk Co. v. City of Madison, 340 U.S. 349 (1951)]. In addition, the Court has struck down state laws regulating the conservation of local natural resources. Since state laws enacted to protect local, publicly owned natural resources (e.g., minerals, wild animals) will generally be invalidated if they discriminate against interstate commerce, choice (C) is correct. Choice (A) is incorrect. Even in the absence of congressional prohibition, the commerce clause has a silently negative effect in its “dormant” condition. No state is permitted to pass Laws that unduly burden interstate commerce and, hence, violate the commerce clause of Article I, Section 8. In our example, the state appears to burden interstate commerce by hoarding local resources for itself, instead of permitting out-of-staters to buy them. Choice (B) is incorrect. A state enjoys the right under its 10th Amendment police powers to regulate welfare (as well as health, safety, and morals). However, the state may not invoke its police powers to violate the dormant commerce clause. In our example, the state appears to burden interstate commerce by hoarding local resources for itself, instead of permitting out-of-staters to buy them. Choice (D) is not the best answer. Non-oil-producing companies may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease.Basic TestAs a general rule, state regulation of interstate commerce is permissible if:(1) the state reguLation does not discriminate against interstate commerce;(2) the subject matter is not one that the Court concludes inherently requires uniform, national regulation; and(3) the state interest underlying the regulation is not outweighed by the burden on interstate commerce (i.e., the “balance of interests” favors state, as opposed to national, interests).

Question 322

142. A state built a racetrack that was specially designed and constructed for thoroughbred horseracing. State bonds were issued to finance the construction of the racetrack. The bond agreement provided that for the first five years the racetrack was in operation, at least $2 from each admission charge would be used to repay the bond debt. The bond agreement further stipulated that if the proceeds from the admission charges during the first five years were not sufficient to repay the bondholders, then at least $1 from each admission charge for the next five years would be applied to make the necessary bond payments.After the racetrack was built and in operation for two years, the state legislature passed a bill requiring the racetrack to admit all senior citizens over the age of 65 for the discounted admission fee of 50 cents. This law is probably(A) constitutional, because it is a justifiable exercise of the state’s police power.(B) unconstitutional, because it denies citizens under the age of 65 the equal protection of the law.(C) unconstitutional, because it impairs the obligation of the bondholders’ contract.(D) unconstitutional, because it is an ex post facto law.

Answer 322

142. (C) Article I, Section 10 (Contract Clause) provides: “No State shall pass any Law impairingthe Obligation of Contracts.” In this example, the state was obligated under the terms of the bond agreement to apply at least $2 from each admission charge (to the racetrack) for the repayment of the bond debt. Consequently, it is an impairment of the Contract Clause for the state to pass a subsequent statute reducing the admission charge for senior citizens to 50 cents. By analogy, in United States Trust Co. v. New Jersey, 431 U.S. 1 (1977), the U.S. Supreme Court declared a New Jersey statute unconstitutional because the law impaired the state’s contractual obligation to the bondholders of the Port Authority of New York and New Jersey. Choice (D) is incorrect because the ex post facto clause applies to retroactive laws that are criminal in nature. Choice (A) is incorrect because it is an impairment of the Contract Clause forthe state to pass a subsequent statute reducing the admission charge for senior citizens to 50 cents. Choice (B) is incorrect; while those under 65 years may have been the subject of discrimination by the legislature, they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease.

Question 323

143. A state built a baseball stadium and issued bonds to finance its construction. The bond agreement provided that for the first five years the stadium was in operation, at least $2 from each admission charge would be used to repay the bond debt. The bond agreement further stipulated that if the proceeds from the admission charges during the first five years were not sufficient to repay the bondholders, then at least $1 from each admission charge for the next five years would be applied to make the necessary bond payments.Assume that three years after the stadium had been in operation, a subsequent session of the state legislature passed a bill entirely prohibiting baseball because four players were killed in playing mishaps. This statute is probably(A) constitutional, because it is a justifiable exercise of the state’s police power.(B) constitutional, because of the clear and present danger of baseball playing in the state.(C) unconstitutional, because it impairs the obligation of the bondholders’contract.(D) unconstitutional, because it violates the due process rights of the baseball team owners.

Answer 323

143. (A) It is within the state’s police powers to enact legislation for the protection of the health, safety, and welfare of its citizens. Clearly, most state regulations place some burden on interstate commerce. In such situations, the Court balances the nature and extent of the burden (which the state regulation would impose on interstate commerce) against the merits and purposes of the regulation. Choice (B) is incorrect because the clear and present danger test applies to the abridgement or restraint of freedom of speech where there is a substantial threat of violence. This doctrine is not applicable in our case because the question does not relate to freedom of speech. Choice (C) is incorrect. Technically, the bondholders may still enforce the contract against the stadium because the prohibition against baseball does not necessarily impair the contractual obligations accrued by the state. Bondholders can still sue the state for payment, and the state is still liable to honorthose obligations. Choice (D) is incorrect. Generally, a property interest is not protected under the 14th Amendment’s Due Process Clause unless there is a reasonable expectation to continued receipt of the benefit [Board of Regents v. Roth, 408 U.S. 564 (1972)1. In our example, no such reasonable expectation to continued receipt of the benefit exists for the owners because there was nothing to guarantee that the stadium would be a success or that people would attend games.

Question 324

144. A state built a casino and issued bonds to finance its construction. On five occasions, there were episodes of violence in various casinos in the state. The state police attributed the violence to greed and fear at the casinos.To prevent such violence, the state legislature passes a statute prohibiting all gambling at privately owned casinos in the state. Is this law likely to be held constitutional if most casinos in the state were owned by those from out-of-state?(A) Yes, because the act was expressly authorized by the state legislature.(B) Yes, but only if the local interest in safety outweighs the burden of interstate commerce.(C) No, because out-of-state casinos are part of interstate commerce.(D) No, because the statute violates the due process rights of the owners of the casinos.

Answer 324

144. (B) As noted in the previous question, the Court generally attempts to balance the nature and extent of the burden (which the state regulation imposes on interstate commerce) against the merits and purposes of the regulation. Accordingly, choice (B) is the preferred answer. Choice (A) is incorrect because, even if this were factually true, it would not overcome the legal obstacles presented by the dormant commerce clause of Article I, Section 8. Under the dormant commerce clause, a state is not permitted to place undue burdens on interstate commerce. Choice (C) is incorrect. This fact, in itself, would not necessarily prohibit the state from regulating out-of-state casinos as long as it was done in a way that did not undu’y burden interstate commerce. Choice (D) is incorrect. Generally, a property interest is not protected under the 14th Amendment’s Due Process Clause unless there is a reasonable expectation to continued receipt of the benefit [Board of Regents v. Roth,408 U.S. 564 (1972)]. In our example, no such reasonable expectation to continued operation appears to exist.

Question 325

145. A high school student was suspended for five days by school officials after he came to school wearing a beard. The school had a rule prohibiting any student from growing a beard or mustache while attending classes. The rule required an automatic five-day suspension in such cases. The student, who was aware of the rule prohibiting beards and mustaches, requested a trial-type hearing before the suspension was imposed.If the school board denies the student’s request for a trial-type hearing, which of the following statements is most accurate?(A) The suspension violated the student’s due process rights because it deprived him of his entitlement to an education.(B) The denial of a trial-type hearing violated the student’s due process rights because the suspension was arbitrarily imposed.(C) The denial of a trial-type hearing did not violate the student’s due process rights because under the circumstances, he had no right to a hearing.(D) There was no violation of the student’s due process rights because his conduct could be deemed so injurious to school discipline that it warranted suspension prior to a hearing.

Answer 325

145. (C) Another key Multistate testing area deals with educational rights of students. In Goss v. Lopez, 419 u.s. 565 (1975), the U.S. Supreme Court held that fair procedures had to be established for determining the basis of the suspension of students from pubLic school systems. As a general rule, a student is not entitled to a trial-type hearing when his dismissal or suspension is with just cause. Certainly, a rule prohibiting students from growing beards or mustaches would seem to be compatible with the orderly operation of the school. On the other hand, the Court in Goss v. Lopez did note that when the suspension or termination of a student’s educational benefits may affect his employment or associational opportunities in the future, there may be a due process violation involved. Choice (D) is incorrect because the student was not entitled to a hearing under the circumstances. Choice (A) is incorrect. There is no fundamental right to an education under the 14th Amendment’s due process clause [Plylerv. Doe, 457 U.S. 202 (1982)] if harm to the student inheres not in his rightto an education but in harm to his reputation, which is protected by the 14th Amendment’s due process clause. See Goss v. Lopez, 419 U.S. 565 (1975). Choice (B) is incorrect. It’s not clear that the student’s right was denied arbitrarily. Even if the right were arbitrarily denied, the Supreme Court has not recognized that a student would be entitled to a trial, although at least a hearing by the school wouLd be required [Goss v. Lopez, 419 U.S. 565 (1975)].

Question 326

146. A high school junior was charged by the school administration with violating certain sections of the disciplinary code, specifically, he was charged with being disrespectful to a teacher by using profanity and with using abusive language to a fellow student.The principal, sent the student’s parents a letter notifying them of the three-day suspension for the above-mentioned charges. The suspension was to take effect on February 1. The principal also included a copy of the disciplinary code in the letter. On January 19, the student and his mother met with the principal in his office to discuss the matter, and the student admitted that he used abusive language to a fellow student.On January 22, the student’s parents received a letter informing them that his teacher had upheld the school administration’s decision to suspend their son. They were then notified of a hearing on the recommended suspension to be held at the school. The parents did not attend this hearing, but were advised that the school board upheld the suspension, effective February 1.Which of the following most accurately summarizes the applicable rule of constitutional law with respect to the student’s suspension?(A) The student’s suspension deprived him of liberty and property without due process, as guaranteed by the Fourteenth Amendment.(B) The student’s conduct was protected under the First Amendment’s guarantee of freedom of speech.(C) The student’s suspension did not constitute a denial of due process.(D) The disciplinary code violated the student’s right to a compulsory school education.

Answer 326

146. (C) In Hiliman v. Elliott (1977), the U.S. Supreme Court held that due process with respect to a three-day suspension of a student from public high school required that the student be given notice of charges, an explanation of evidence against him if he denied the charges, and an opportunity to present his version of the incident. In the instant case, the student was afforded such due process safeguards. Choice (A) is incorrect for the reasons stated above. Choice (B) is incorrect. A high school is not a public forum where speakers enjoy broad rights of free speech. Further, the school code that prohibited the student’s speech would not be subject to strict scrutiny, but only an easy rational review if it were deemed to be a proper time, place, and manner regulation. A proper time, place, and manner regulation does not prohibit the speech, but only its secondary effects, and such a regulation leaves reasonable alternatives for the speech. Here, the school code can be interpreted as prohibiting not the student’s criticism of both the teacher and his fellow student, but prohibiting the potential for distraction and disorder that his speech may cause. Plus, the student can probably air the same sort of message outside the school. Choice (D) is incorrect because there is no fundamental right to an education under the 14th Amendment’s due process clause (or anywhere else). [Plyler v. Doe, 457 U.S. 202 (1982)].

Question 327

147. A state legislature passed a law requiring state universities to have male and female students live in separate dormitory facilities. The law was passed in order to curtail the increasing number of co-ed pregnancies on college campuses.Two students at a state university are engaged to be married and wish to share a dormitory room together. Citing the law, university housing officials refuse to allow them to live together in a campus dormitory facility.The students bring an appropriate action to challenge the constitutionality of the law. Which of the following correctly states the applicable burden of persuasion?(A) Since the law deals with the fundamental right of privacy, the state must show that it furthers a compelling state interest.(B) Since the law deals with the freedom of association, the state must show that it furthers a compelling state interest.(C) Since the law involves gender discrimination, the state must prove that the law is substantially related to an important state interest.(D) Since the law does not affect a fundamental right or involve gender discrimination, the burden is on the plaintiffs to show that it is not rationally related to a legitimate governmental interest.

Answer 327

147. (D) Gender classifications will merit intermediate review. The court will ask whether there are important governmental interests and whether the means are substantially related. Paramount in gender cases is whether the statute is advancing some debilitating stereotype regarding females. Here, there is an important government interest (preventing pregnancies), but it’s not clear that such debilitating stereotypes are being advanced. Therefore, choice (D) is correct and choice (C) is incorrect. Choice (A) is incorrect because, since the students are not married, the privacy issue of related individuals living together is unripe. Choice (B) is incorrect. There is no fundamental right to associate in this example. It is similar to Village of Belle Terre v. Boraas, 416 U.S. 1 (1974). There, the Court subjected to an easy rational review a city code that prohibited the cohabitation by groups of three or more persons unrelated by blood or marriage. The Court stressed that the unrelated person— unlike married persons—do not enjoy a fundamental right to associate with each other. Similarly, in our example, the students are not yet married and, thus, have no fundamental rights to exercise.

Question 328

148. The prime minister of a foreign country was assassinated by a group of right wing extremists. The prime minister’s death triggered a civil war between rival factions within the country. To prevent U.S. involvement in this country’s political crisis, Congress passed an appropriations bill prohibiting any funding for U.S. military operations in this foreign country.The appropriations bill was passed over a presidential veto. Thereafter, the President issued an executive order directing U.S. Navy and Army troops to the foreign country to restore order.Is this executive order constitutional?(A) Yes, because the President, as commander- in-chief of the armed forces, has the power to authorize such military expeditions.(B) Yes, because the President has inherent power to regulate foreign affairs as long as there is no formal declaration of war.(C) No, because the President cannot usurp Congress’s spending power by taking action that supersedes a congressional appropriations bill.(D) No, because the executive order was neither authorized by federal statute nor ratified by the Senate.

Answer 328

148. (C) Another frequently tested Constitutional Law area is, to what extent does an executive agreement (or order) override an earlier enacted federal statute? According to Nowak, an executive agreement does not supersede inconsistent provisions of earlier acts of Congress. To be sure, the appropriations bill passed by Congress prohibiting funding for military operations in the foreign country will be controlling. The President does not have the power to override this congressional act by issuing a subsequent executive order. Choice (A) is incorrect. The President does enjoy Article II powers to act as a commander-in-chief. But he or she must first be summoned into action by Congress and, second, the President does not have the constitutional power to override a congressionaL statute in his or her capacity as commander-in-chief. Similarly, choice (B) is incorrect because, while the President does enjoy Article II powers to engage in various aspects of foreign policy, the President does not have the constitutional power to override a congressional statute in his or her role as a participant in foreign affairs. Choice (D) is incorrect. The chief problem is not that the executive order was not authorized by the Senate or Congress. The chief problem is that the President is not authorized by the Constitution to override an otherwise valid law; which would be a violation of the principle of the separation of powers.

Question 329

149. A recent law school graduate took and passed the bar examination. Before the swearing-in ceremony, however, the graduate received a letter from the bar examiners indicating that his admission would be delayed until a character fitness investigation had been completed. The examiners also requested information as to whether the graduate had ever been arrested, convicted, or placed on probation for a criminal offense. The graduate had been arrested as a juvenile for possession of marijuana. He was placed in a special drug education program for first- time juvenile offenders and was told that the arrest would be expunged. Since the graduate believed that he had been totally exonerated of criminal liability, he didn’t report the arrest on his bar application form.The bar examiners had, in fact, received an anonymous letter making reference to the graduate’s juvenile arrest and suggesting that he was not morally fit to be admitted as an attorney. In addition, the letter provided detailed information about the facts related to the offense. As a result, the examiners hired a special investigator, to look into the matter. As part of the investigator’s inquiry, he went to the clerk of the juvenile court where the offense occurred and demanded access to the records concerning the graduate. The clerk refused, citing a state statute that required all court and police records relating to juveniles be sealed. After all other attempts to gain access to the records proved futile, the bar examiners filed suit in federal district court demanding access to the relevant documents.The court should rule that, as applied to this case, the state statute regarding the sealing of juvenile records is(A) constitutional, because juveniles are entitled to the equal protection of the laws.(B) constitutional, because the state has a strong and legitimate interest in rehabilitating juvenile offenders, and this is furthered by protecting them from embarrassment in later life through revelation ofjuvenile offenses.(C) unconstitutional, because the bar examiners, as a quasi-judicial agency, is entitled to haveaccess to all relevant public documents.(D) unconstitutional, because it hinders the interests of justice by preventing the bar examiners from determining the fitness of candidates to practice law.

Answer 329

149. (B) Juveniles are neither a suspect nor a quasi-suspect class of persons. Therefore, state laws dealing with juveniles will be scrutinized by the court under neither the compelling state interest nor the middle tier standard of review. The mere rationality test applies. Specifically, if the statute in question is rationally related to the furtherance of a legitimate state interest, the court will uphold it as constitutional. Choice (B) is correct because the sealing of court and police records of juveniles clearly serves the legitimate state interest in rehabilitation of juvenile offenders so as to be free from embarrassment in later life. Choice (C) is incorrect because by satisfying the requisite scrutiny of the rational basis test, the state law supersedes the right of the Committee of Bar Examiners to have access to otherwise public documents. Choice (A) is incorrect, juveniles may have been the subject of discrimination by the legislature, but they are not members of a suspect or quasi-suspect class. Only rational review will be applied, which the government probably will pass with ease. Choice (D) is incorrect because “hindering the interests of justice,” as used in this answer, is not a LegaLly relevant claim for purposes of constitutional analysis.

Question 330

150. A city enacted an ordinance prohibiting the singing and chanting of songs from 1:00P.M. to 1:00A.M. by two or more persons if such noise is audible off the premises where the singing takes place. The ordinance expressly exempted from its purview the singing or chanting of religious songs.After the ordinance was enacted and went into effect, several college students were walking down the street on their way to a victory celebration following a big college football game. They began loudly chanting, “We’re number 1.. .we’re number 1.” One of the residents who lived on the street was greatly disturbed by the noise and reported the incident to the police, who were immediately summoned to the scene. The students who engaged in the chanting were arrested and charged with violating the ordinance.The students who were prosecuted now bring suit challenging the constitutionality of the city ordinance. Which of the following would constitute their WEAKEST argument against enforcement of the city ordinance?(A) The ordinance deprives persons of their freedom of expression, in violation of the First andFourteenth Amendments.(B) The ordinance deprives persons of their liberty without due process of law because the ordinance is not related to any legitimate community interest.(C) The statutory language of the ordinance is vague and overbroad since it attempts to encompass all forms of singing.(D) The ordinance deprives the persons of the equal protection of the laws by impermissibly distinguishing between religiously inspired singing and all forms of singing.

Answer 330

150. (B) The city ordinance may be attacked as a violation of protected 1st Amendment freedom of expression, since it prohibits all singing and chanting for 12 hours every day in areas that are traditionally viewed as public forums. Time, place, manner limitations on speech-related conduct are permitted when achieved by reasonable content-neutral regulations that further a significant governmental purpose. Such an ordinance must be narrowly drawn so as not to establish a total ban on protected rights of free speech. Since the city ordinance does not appear to satisfy this standard, a 1st Amendment free speech attack by the students will be a strong challenge. Therefore, choice (A) is incorrect. Choice (C) is also incorrect because it presents a strong challenge in the form of the vagueness and overbreadth doctrines. By proscribing protected as well as prohibited speech for half of each day everywhere in the city, the ordinance is clearly overbroad on its face. Similarly, due to the uncertainty-producing effect as to what conduct is restricted by the words “singing and chanting of songs” and “audible off the premises,” a vagueness challenge should be successful. Choice (D), another strong argument, is incorrect since nonreligious songs—which are certainly areas of protected speech—are being treated differently from religious songs, thereby raising an equal protection challenge to be reviewed using the strict scrutiny standard. By process of elimination, choice (B) is correct because the due process argument it presents is the weakest basis to attack the ordinance.

Question 331

151. A citizen of a state was arrested and charged under a state statute making it a felony for “a male to sell or give alcoholic beverages to a female under the age of 14.” At his trial, the citizen attacked the validity of the state statute on federal constitutional grounds.The court will likely hold the statute to be(A) constitutional, because under the Twenty First Amendment, a state has exclusive authority to regulate the use and sale of intoxicating liquors.(B) constitutional, because the state could reasonably believe that young females need more protection than young males under these circumstances.(C) unconstitutional, because it lacks a legitimate purpose and, therefore, is violative of the Fourteenth Amendment.(D) unconstitutional, because the law treats males and females differently without adequate justification and, therefore, is violative of the Fourteenth Amendment.

Answer 331

151. (D) Classifications based on gender are not “suspect,” but neither are they judged by the traditional (or rational basis) test. On the contrary, intentional discrimination against members of one sex are “quasi suspect” and violate equal protection unless they are substantially related to important government objectives. In Craig v. Boren, 429 U.S. 190 (1976), the U.S. Supreme Court invalidated an Oklahoma law permitting the sale of beer to women at age 18 but required males to be 21. The Court held that classification by gender must serve important governmental objectives and must be substantially related to the achievement of those objectives.Choice (A) is incorrect. The 21st Amendment does not maintain that a “state has exclusive authority to regulate the use and sale of intoxicating liquors.” Even if this were legally true, the state law should not violate other parts of the Constitution. Choice (B) is incorrect because this is not the standard under which we determine whether a state should be allowed to discriminate based on gender. Choice (C) is incorrect. When considering gender classifications, the Supreme Court takes particular offense at those governmental means that perpetuate a debilitating gender stereotype for girls and women. Such regulations are not likely to pass intermediate review, the review to which all gender classifications are subject.

Question 332

152. During a hotly contested gubernatorial election, a local newspaper endorsed the candidacy of a corporate official of a chemical company. Inspired by a progressive revolt against the chemical company’s domination of the state government, the corporate official’s opponent, won by an extremely close margin.After the new governor took office, he vowed to get back at the company that owned the local newspaper for its newspaper’s endorsement of the corporate official. Using his influence, the new governor was instrumental in getting the state legislature to pass a bill that imposed a special tax on the sale of ink and paper used in the publication of newspapers and periodicals of general circulation. The tax bill was signed into law by the governor.The strongest constitutional basis upon which to challenge the validity of the tax would be the(A) equal protection clause of the Fourteenth Amendment.(B) bill of attainder provision under Article I, Section 10.(C) privileges or immunities clause of the Fourteenth Amendment.(D) First Amendment, as incorporated in the Fourteenth Amendment.

Answer 332

152. (D) In Minneapolis Star& Tribune Co. v. Minnesota Commission of Revenue, 460 U.S.575 (1983), the Court found that a state tax statute imposing a “use tax” on paper and ink products consumed in the production of certain publications violated the 1st Amendment. Justice O’Connor found that the tax was not the result of an impermissible or censorial motive but that the tax violated the 1st Amendment because it singled out the press for special taxation and had the effect of targeting a small group of newspapers for a special tax. The majority did not employ equal protection analysis. In light of the Minneapolis Star & Tribune decision, the special Print Tax imposed on the publication of newspapers would best be challenged as a violation of the 1st Amendment. Choice (D) is, therefore, preferred over choice (A). Choice (B) is incorrect. ArticLe I, Section 10 prohibits a bilL of attainder, a Law passed by Congress to sentence someone for a crime in the absence of a trial. No such laws were passed in the example. Choice (C) is incorrect. The privileges or immunities clause of the 14th Amendment protects only U.S. citizens. A newspaper company is not a U.S. citizen.

Question 333

153. After months of negotiations, the United States and Canada entered into a tax treaty that provided that neither country would impose income taxes on citizens of the other nation. The treaty, which was ratified by the Senate, was supported by professional baseball and hockey players. Many Canadian hockey players, who were employed by American teams and lived in the United States during the hockey season, lobbied for passage of the treaty, since they were subject to the payment of both U.S. and Canadian income taxes. In like manner, many American baseball players, who lived in Canada during the baseball season, objected to the same dual taxation.In violation of the treaty, a Canadian court convicted a U.S. citizen who resided in Canada, of illegally evading the payment of Canadian income taxes. The U.S. citizen, who was a member of a Canadian baseball team, resided in Canada during the baseball season. Following his conviction, the President announced that the previously effective tax treaty would no longer be abided by the United States. The President proclaimed that Canada’s refusal to honor the treaty rendered it invalid. As a result, the President ordered the Internal Revenue Service to begin collecting income taxes from Canadian citizens residing in the United States in the same manner that it collects taxes from other residents of this country.A Canadian citizen and resident of the United States, sues in an appropriate federal court, seeking a declaratory judgment that the treaty with Canada remains valid and effective. Therefore, he contends that the Internal Revenue Service may not collect U.S. income taxes from him.Which of the following is the strongest constitutional basis that may be urged in support of this claim?(A) The President’s unilateral termination of a treaty benefiting residents of the United States cannot be effective until a hearing is afforded to persons who would be affected by such action.(B) The courts have exclusive authority to determine whether a particular treaty has, in fact, been breached by another nation.(C) A ratified treaty is the supreme law of the land and, therefore, remains effective until superseded by another treaty or statute.(D) The treaty created a property right in Canadian citizens residing in the United States that cannot be taken away without just compensation.

Answer 333

153. (C) Since a treaty is viewed on an equal footing with the Constitution and Acts of Congress, it is considered to be “the supreme Law of the land” (Article VI, Section 2). When a treaty is approved by two-thirds of the Senate, the President then ratifies it and the treaty becomes an agreement binding as an international obligation. Nowak, Constitutional Law, pg. 183. A treaty can be superseded by another treaty, properly ratified, or by subsequent Act of Congress. This result stems from the rule that where there is a conflict between a treaty and an Act of Congress, they are of equal weight, and the last one in time will control [Chae Chan Ping v. United States, 130 U.S. 581 (1889)]. Therefore, the strongest argument that the treaty between the United States and Canada is valid and effective is choice (C). The due process arguments presented in choices (A) and (D) are weaker choices, since nonpayment of income tax has never been regarded as an entitlement (i.e., welfare or disability benefit) for which a hearing or payment of just compensation must be afforded. Choice (B) is incorrect, since exclusive authority is not vested in the courts to determine whether another nation has breached a treaty. A nation might remain accountable to other parties to the treaty under the “law of nations” or even under the President’s broad authority to represent the United States in foreign relations [Clark v.Allen, 331 U.S. 503 (1947)].

Question 334

154. The United States and Mexico entered into a tax treaty that provided that neither country would impose income taxes on citizens of the other nation. The treaty was ratified by the Senate. Recently, the President, angry over Mexico’s perceived failure to abide by the terms of the treaty, has decided that the United States would not honor any of the terms of the treaty. The President then ordered the Internal Revenue Service to begin collecting income taxes from Mexican citizens residing in the United States in the same manner that it collects taxes from other residents of this country.A Mexican citizen and resident of the United States sues in an appropriate federal court, seeking a declaratory judgment that the treaty with Mexico remains valid and effective. Therefore, he contends that the Internal Revenue Service may not collect U.S. income taxes from him.Which of the following is the strongest constitutional grounds for the federal court to refuse to decide the suit on its merits?(A) The citizen has no standing to bring his suit.(B) The case presents a nonjusticiable political question.(C) The case is moot because the President has already taken definitive action with respect to the effectiveness of this treaty.(D) The citizen is not entitled to a federal adjudication of this case because as a resident alien, he is not protected by the privileges or immunities clause of the Fourteenth Amendment.

Answer 334

154. (B) Under Article III, Section 2, the Court possesses substantial power in the areas of international affairs and foreign policy. However, historically the Court often defers to the judgment of Congress and the President when a conflict involving foreign affairs arises. Nowak, Constitutional Law, pg. 179. The political question doctrine has been used as a means of evading judicial review when issues in the area of foreign relations are presented. In Bakery. Carr, 369 U.S. 186 (1962), Justice Brennan cited the following passage that “The conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative—the ‘political’—Departments of the Government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision” [Oetjen v. Central Leather Co., 246 U.S. 297 (1918)]. Because the validity and enforcement of the treaty is an issue of international affairs, the political doctrine appears to be the strongest basis for the Court to refuse to decide the claim. The Baker case noted, however, that in the absence of any conclusive congressional or executive action, the Supreme Court will allow review of issues of foreign affairs, while still retaining its character of judicial independence and integrity. Choice (A) is incorrect. The requirements for standing would seem to be present: The citizen can show injury, since he will have to pay income tax to the United States; he can show causation because the President caused him to be taxed in the United States; and he can show redressability by showing that the President can prevent his injury by honoring the treaty. Choice (C) is incorrect. The case is not moot because the issues have not been resolved. The citizen will continue to be taxed in the United States. Choice (D) is incorrect because while it is true that only U.S. citizens are protected under the privileges or immunities clause of the 14th Amendment, aliens, even illegal aliens, are entitled other forms of constitutional protection.

Question 335

155. A state has enacted a criminal statute prohibiting the mailing of obscene materials to any person. The owner of a publication company was prosecuted and convicted of violating the state obscenity law by mailing adults sexual literature that appealed to their prurient interests.During the owner’s trial, the judge instructed the jury that determining if the mailed materials were obscene depended in part on whether they were offensive to the average or normal person under contemporary community standards, and that the community standards test must be considered in light of the fact that many children reside in the community. Furthermore, the judge instructed the jury that in determining whether the materials were obscene, it could also consider evidence of pandering, or whether the materials were marketed purposely to appeal to the recipients’ prurient interest in sex.The owner appealed her conviction, alleging a denial of her First Amendment rights. Which of the following is the strongest argument why the appellate court should reverse the owner’s conviction?(A) The method by which materials are marketed or advertised is not probative of whether they are obscene.(B) It is an unconstitutional invasion of privacy for the government to interfere with the content of closed mailings intended for the private use by consenting adults.(C) Under the First Amendment, the community’s standards for children may not be applied in determining what constitutes obscenity for adults.(D) Obscenity is to be determined by applying national standards, not contemporary community standards.

Answer 335

155. (C) Choice (A) is incorrect because evidence of “pandering” on the part of the defendant (commercial exploitation for the sake of prurient appeal) may be probative on whether the material is obscene [Ginzburg v. United States, 383 U.S. 643 (1966)]. Choice (B) is incorrect because although private possession of obscenity at home is not a crime [Stanleyv. Georgia, 394 U.S. 557 (1969)], transportation and importation of obscene materials for either public or private use may be prohibited [United Statesv. Onto, 413 U.S. 139 (1973); United States v. Twelve 200-Ft. Reels, 413 U.S. 123 (1973)]. Choice (D) is, likewise, not our best answer because under the first two prongs of the Roth—Miller test, obscenity should be determined in accordance with “community standards,” not necessarily a “national standard.” In Jenkins v. Georgia, 418 U.S. 153 (1974), it was held that a juror may draw on knowledge of the vicinity from which he comes, and the court may either direct the jury to apply “community standards” without specifying what “community” or defining the standard in more precise geographic terms.

Question 336

156. A 2-week-old baby had developed a severe case ofjaundice. A pediatrician informed the infant’s father that unless his daughter received immediate medical treatment, she would die. The father, who was very religious, refused to permit the pediatrician to administer the necessary treatment. He explained that his faith in his religion would restore his daughter to good health. As a consequence, the pediatrician sought an order from the state court, where the father was present, permitting the pediatrician to provide the necessary medical treatment to the infant.Which of the following is the father’s strongest constitutional argument against the court order?(A) The order violates the due process clause of the Fourteenth Amendment.(B) The order violates the equal protection clause of the Fourteenth Amendment.(C) The order violates the free exercise clause of the First Amendment, as incorporated by the Fourteenth Amendment.(D) The order violates the privileges or immunities clause of the Fourteenth Amendment.

Answer 336

156. (C) American courts have upheld the right of the state to protect the health and safety of minor children over the religiously based objections of the children or their parents. Thus, the courts have uniformly appointed guardians to consent to necessary medical treatment (such as blood transfusions) for children even though the treatment violates the child’s or parent’s religion. It should be noted that when objection to medical treatment is based on religious principles, a serious free exercise clause problem is presented. However, if the individual’s preference is not religious in nature (and there is only a conflict between personal choice relating to health and state medical regulations), the decision would be resolved under the due process clause. Choice (A) is incorrect because the father was afforded due process because a judge reviewed the facts and issued an order. Choice (B) is incorrect. The equal protection clause provides heightened protection for groups whose legal classifications are suspect. One of those categories is religion. However, the court order would not seem to be directed at religionists while leaving non-religionists alone. That is, the court would probably have issued the same order for an atheist parent who objected to the doctor’s treatment on secular philosophical grounds. Choice (D) is incorrect. The privileges or immunities clause protects people against discrimination by states against out-of-staters. That does not appear to be the case in our example.

Question 337

157. A 3-week-old baby, came down with a very high fever. The baby’s pediatrician informed the mother that unless her son received immediate medical treatment, he would die. The mother objected on religious grounds. She claimed that it would be better for her son to die if that was his fate. The pediatrician sought an order from the state court. The mother was present with her lawyer at the court.In deciding whether it may issue such an order in face of all relevant constitutional defenses by the mother, which of the following must the state court consider?(A) Whether medical treatment is necessary to save the baby’s life.(B) Whether the mother’s refusal to authorize medical treatment is justified on the basis of current knowledge.(C) Whether the hospital is owned and operated by the state.(D) Whether the mother is a taxpayer of the state in which the court is located.

Answer 337

157. (B) This is an example of a very tricky Multistate question because the test maker knows that many students will incorrectly choose choice (A). Clearly, choice (A) is arguably correct. Choice (B), however, is the best answer because, in deciding whether to order medical treatment for a minor, the courts will balance the objections of the parent against the health and safety of the minor. See Jehovah’s Witnesses v. King CountyHospital, 278 F. Supp. 598 (1968) fora more detailed analysis of the modern balancing test. Choice (C) is not the best answer. This would not be a relevant legal consideration for purposes of analysis under the free exercise clause; a publicly owned hospital would not be permitted to violate free exercise clause rights. Choice (0) is incorrect because even if Janet had never paid her taxes, she would still be entitled to her free exercise clause rights.

Question 338

158. A state statute provides that an illegitimate child may not inherit from his father’s property. The state law, however, does permit illegitimate children to inherit from and through their mothers. A man died intestate, leaving neither spouse nor any children other than an illegitimate son. The man’s wife and his daughter died one year later in a motor vehicle accident. The illegitimate son filed suit in an appropriate court alleging that the state statute, which bars an illegitimate child from sharing in his father’s estate is invalid, and that he should be declared the lawful heir of the man’s estate.In challenging the validity of the state statute, will the illegitimate son prevail?(A) Yes, because most state laws that discriminate against illegitimate children have been invalidated to ensure that a state’s concern over illicit relationships is not the basis for punitive measures against the product of such a relationship.(B) Yes, because he has been deprived of property without due process, since his fundamental right to inherit has been compromised without a compelling state need.(C) No, because a state may promote the just and expeditious disposition of property at death by denying intestate succession to all illegitimate children.(D) No, because discrimination against illegitimate children is not suspect and, therefore, the law does not violate the equal protection clause if it is substantially related to a legitimate state interest.

Answer 338

158. (A) Iliegitimacyis a “quasi-suspect” classification (as in gender) and, thus, subject to an intermediate level of scrutiny. Therefore, whenever a state (or other non-federal government entity) passes a law discriminating against illegitimates, the burden of persuasion is on the state. In such cases, the state must demonstrate that the law furthers “an important state interest,” otherwise it is deemed unconstitutional. According to the holding in Trimble v. Gordon, 430 U.S. 762 (1977), a state cannot absolutely exclude illegitimate children from inheriting from their intestate fathers. Therefore, (A) is correct, and choice (C) is incorrect. Choice (D) is partly correct inasmuch as illegitimacy is not a “suspect” classification, though choice (0) is wrong because in Trimble, a similar Illinois statute excluding illegitimate children inheriting from their father was deemed unconstitutional as not being substantially related to a legitimate state interest. Choice (B) is incorrect. There is no fundamental right to inherit under the due process clause.

Question 339

159. A state has recently enacted a statute prohibiting the disposal of any nuclear wastes within the state. This law does not contravene or conflict with any federal statutes. A man operates a company in the state that is engaged in the disposal of nuclear wastes. Subsequent to the passage of the state statute, the man, not yet aware of the new law, entered into contracts with many out-of-state firms to dispose of their nuclear wastes in the state. On account of this new law, however, the man will be unable to perform these contracts.Assume that the man has standing to challenge this state law. Which of the following presents his strongest constitutional grounds to challenge the state law prohibiting the disposal of nuclear wastes within the state?(A) The commerce clause.(B) The equal protection clause of the Fourteenth Amendment.(C) The privileges and immunities clause of Article IV, Section 2.(D) The contract clause.

Answer 339

159. (A) The strongest constitutional basis to challenge the state Law is the Commerce Clause. The disposal of nuclear waste is an item of interstate commerce, as is the disposal of garbage. In City of Philadelphia v. New jersey, 437 U.S. 617 (1978), the Court held a New Jersey statute prohibiting out-of-state waste disposal in New Jersey dump sites to be invalid under the Commerce Clause since the disposal of garbage was an item in interstate commerce. By analogy, the state statute is discriminatory because it creates an undue burden on out-of-state nuclear firms by prohibiting them from entering the state to dispose of their waste. Contract Clause is a much weaker argument for the man since private contracts can be validly modified by state legislation, which is necessary to achieve a legitimate public interest. Choice (A) is the best answer. Choice (B) is incorrect. The man may have been the subject of discrimination by the legisLature, but the man is not a member of a suspect or quasi-suspect class. Only rational review will be applied, which the state probably will pass with ease. Choice (C) is incorrect. The privileges and immunities clause of Article IV, Section 2 prohibits states from discriminating against nonresidents. The statute here, however, does not; it prohibits the disposal of any nuclear wastes within the state, which does not discriminate against non residents. Choice (D) is incorrect. The contract clause of Article I, Section 10 prohibits states from impairing the obligation of contracts. However, the contracts clause applies only to contracts that were made prior to the state statute that ostensibly impairs fulfiLlment of their obligations.

Question 340

160. A shrimp fishery is located in the coastal waters of a state. A large part of the catch is either frozen or canned, and distributed nationwide. The state legislature passed a statute requiring payment of a license fee of $25 for each shrimp boat owned by a resident and $2,500 for each boat owned by a nonresident.A resident of a neighboring state was a commercial shrimp fisherman who was denied a license after refusing to pay the $2,500 fee. The resident brought suit in federal court challenging the constitutionality of the state shrimp boat licensing statute. The federal court should(A) hear the case on its merits.(B) dismiss the suit because the resident lacks standing.(C) dismiss the suit because it involves a question of state law.(D) abstain from jurisdiction because the constitutional issue should be litigated first in a state court.

Answer 340

160. (A) Choice (B) is incorrect because the resident can show that enforcement of the patently unconstitutional statute causes him injury in fact, economic and otherwise. Choice (C) is incorrect because in the leading case of Toomer v. Witsell, 334 U.S. 385 (1948), the U.S. Supreme Court ruled a similar South Carolina law unconstitutional of violating the privileges and immunities clause of Article IV. The test is whether there are valid reasons for a state to make distinctions based on one’s state citizenship and whether the degree of discrimination bears a “close relation” to these reasons. Choice (D) is incorrect because the suit does not in Large part turn on an unsettled question of state law. Moreover, the abstention doctrine is inappropriate where a state court ruling would not be helpful in a determination of the constitutional issue.

Question 341

161. There is a thriving source of crawfish that live in a state. The state owns a fleet of boats that trawl for crawfish. The state is willing to sell the crawfish to in-staters for $1 per pound and to out-of-staters who come to the state for $5 per pound. The state felt that the increased fee for out-of-staters was a reasonable contribution toward the protection they received from the state.Assume that the federal court decided to hear the case. The statute is likely to be found(A) constitutional, because it is a valid exercise of the state’s police power.(B) constitutional, because the fee was a reasonable contribution toward the protection that the state government gave nonresidents.(C) unconstitutional, because it places a discriminatory burden on interstate commerce.(D) unconstitutional, because it constitutes a violation of the privileges and immunities clause under Article IV.

Answer 341

161. (D) Choice (D) is the best answer in light of the Toomer decision. In the leading case of Toomer v. WitseIl, 334 U.S. 385 (1948), the U.S. Supreme Court ruled a similar South Carolina law unconstitutional of violating the privileges and immunities clause of Article IV. The test is whether there are valid reasons fora state to make distinctions based on one’s state citizenship and whether the degree of discrimination bears a “close relation” to these reasons. Choice (A) is incorrect. The state does have police powers under the 10th Amendment to regulate welfare, including environmental and economic welfare. However, in exercising these police powers, the state may not violate the Constitution. Here, State will violate the privileges and immunities clause of Article IV. Choice (B) is incorrect because it is not a legally relevant consideration. Choice (C) is not the best answer. The state is acting like another market participant who is selling crawfish and, thus, immune from analysis under the dormant commerce clause.

Question 342

162. A state has passed a law that provides that only residents of the state who are citizens of the United States can own agricultural land in the state. A out- of-state farmer who is a U.S. citizen has contracted, subsequent to the aforementioned law, to purchase a farm from a landowner, which is located in the state. The landowner, who is a resident of the state, has been informed by his attorney that his sales agreement with the farmer is null and void under state law.Which of the following is the best constitutional argument to contest the validity of the state statute?(A) The contract clause prohibition against a state from enacting any law that will impair the obligation of contracts.(B) The privileges and immunities clause of the Fourteenth Amendment.(C) The privileges and immunities clause under Article IV, Section 2.(D) The national property power provision under Article IV, Section 3.

Answer 342

162. (C) There are two privileges and immunities clauses contained in the U.S. Constitution. First, Article IV, Section 2 provides: “The citizens of each state shall be entitled to all Privileges and Immunities of citizens in the several states.” This clause prohibits state discrimination against nonresidents (of the state) in respect to “essential activities” or “basic rights” unless the discrimination is closely related to a substantial purpose. Since ownership of property involves a “basic right,” this constitutional provision is most applicable. The second Privileges or Immunities provision is contained in the 14th Amendment and provides in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These privileges and immunities have been limited to those rights that arise out of the relationship of the individual and the national government (e.g., the right to travel freely from state to state; the right to petition Congress for redress of grievances; the right to vote for national officers; and the right to assemble peaceably). Therefore, choice (C) is stronger than choice (B). Choice (A) is incorrect because the contracts clause applies only to those contracts made prior to the enactment of the state statute that ostensibly impairs the obligation of contracts. Choice (D) is incorrect. The national property clause in Article IV, Section 3 mentions nothing about the right of local governments to enact the sort of legislation referenced in our example.

Question 343

163. Recently, Congress enacted a statute requiring all boat owners to register their boats with a newly created federal boat registry. Among the purposes of the statute are the prevention of theft of boats in coastal waters and the protection of the rights of individual boat owners throughout the United States.Congress enacted the statute despite the fact that all states require boat owners to register their craft with the state department of motor vehicles. In addition, there is uncontradicted evidence that most stolen boats are kept or resold in the state in which the theft occurred. Nonetheless, an increasing number of boats are transported to other states and other countries for resale.Is the statute likely to be held constitutional?(A) No, because most stolen boats remain within the state in which they were stolen.(B) No, because the registration of boats is a matter reserved to the states by the Tenth Amendment.(C) Yes, because Congress could determine that the transportation of stolen boats affects interstate commerce.(D) Yes, because Congress has the power to regulate property for the general welfare.

Answer 343

163. (C) Under the “affectation doctrine,” Congress has the power to regulate any activity—whether carried on in one state or many—that has an appreciable effect upon interstate commerce. Although federal power over interstate commerce is potentially “all-persuasive,” it is not necessarily exclusive. Thus, Congress has absolute authority to define the distribution of federal and state regulatory power over interstate commerce. Just as Congress may permit state regulation of interstate commerce, it may also prohibit state regulation of any part of interstate commerce. Choice (A) is incorrect because even if this were factually true, Congress’s regulation would still be valid under the Commerce Clause of Article I, Section 8. Choice (B) is incorrect. The 10th Amendment permits the states to exercise police powers for purposes of regulating health, safety, welfare, and morals. However, Congress may also regulate in these areas if it can find authorization in the Constitution. In this example, Congress can find such power in the Commerce Clause. Finally, choice (D) is incorrect. Article I, Section 8, reads: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” The Supreme Court has taken the reference to “general Welfare” to mean that Congress enjoys great discretion in how it chooses to allocate money for the public [United States v. Butler, 297 U.S. 1 (1936)]. There is no such allocation of money in our example; just a regulation.

Question 344

164. A state legislature has recently enacted a statute requiring all prospective voters in state electionswho wish to write-in a candidate to print the candidate’s full name, and designate the office for which the candidate is running. The statute provides that such information must be written on the ballot in ink in an appropriate space.A write-in candidate for the office of Attorney General is a Chinese-American. The candidate is of the opinion that he needs a large turnout of Chinese voters in order to win the election. As a result, his campaign manager decides to mail to every registered Chinese voter a tear-off sticker, which bears the candidates name along with the office of Attorney General. Since many native Chinese people are not proficient in reading and writing English, the campaign manager believes that many of the voters will have difficulty writing the candidate’s name and office on the ballot. As a result, the campaign manager has mounted an extensive media campaign to inform voters on how to apply the stickers to the ballot.Five months prior to the election an election official notifies the candidate’s campaign committee that the tear-off stickers do not comply with the state statute. In her letter, the official explains that state election officials are of the opinion that it is necessary for potential voters to write the candidate’s name in ink. Therefore, she concludes that the stickers do not comply with statutory requirements.Three weeks later, the candidate filed suit in federal district court against the election officials, claiming that their interpretation of the state statute violates the U.S. Constitution. Thereafter, one of the candidate’s opponents filed suit in state court seeking to prevent state election officials from counting any write-in ballots with stickers. The state court has now scheduled a prompt hearing on this matter. In addition, the state court has indicated that it hopes to render a decision on the merits within the next three weeks.Which of the following statements is correct concerning the federal court’s adjudication of the candidate’s suit?(A) The federal court should hear the case on the merits.(B) The federal court should refuse to hear the case because it presents a nonjusticiable political question.(C) The federal court should refuse to hear the case because of the abstention doctrine.(D) The federal court should remand the case to the state court to decide the constitutional issue presented.

Answer 344

164. (C) Here’s a reaLly difficult choice between abstention and justiciability. Generally speaking, a federal court will “abstain” or temporarily “stay its hand” whenever presented with an unsettled question of state law. Thus, federaL courts will permit the state courts to resolve such issues before exercising jurisdiction. Choice (B) is less preferred because questions involving political rights (such as deprivation of the right to vote or legislative apportionment) are not necessarily “political questions.” They may involve claims under the Equal Protection Clause of the 14th Amendment or even the 15th Amendment, which have well-developed judicial standards. Refer to Bakery. Carr, 369 U.S. 186 (1962), for a more detailed analysis of justiciability and factors regarding political questions. Finally, choices (A) and CD) are not the best answers because, as is stated above, the court will abstain from hearing this matter.

Question 345

165. A state has recently enacted a statute requiring all prospective voters in state elections who wish to write-in a candidate to print the candidate’s full name, and designate the office for which the candidate is running. The statute provides that such information must be written on the ballot in ink inan appropriate space.A write-in candidate is a German-American and is of the opinion that he needs a large turnout of German voters in order to win the election. As a result, his campaign manager decides to mail to every registered German voter a tear-off sticker, which bears the candidate’s name and office for which he is running. Since many native German people are not proficient in reading and writing English, the campaign manager believes that many of the voters will have difficulty writing the candidate’s name and office on the ballot. As a result, the campaign manager has mounted an extensive media campaign to inform voters on how to apply the stickers to the ballot.Five months prior to the election an election official notifies the candidate’s campaign committee that the tear-off stickers do not comply with the state statute. In her letter, the official explains that state election officials are of the opinion that it is necessary for potential voters to write the candidate’s name in ink. Therefore, she concludes that the stickers do not comply with statutory requirements.Three weeks later, the candidate filed suit in federal district court against state election officials, claiming that their interpretation of the state statute violates the U.S. Constitution.Which of the following sets forth the strongest constitutional argument the candidate could make against the interpretation of the statute by the state officials?(A) It unreasonably discriminates against German voters who lack a proficiency in the English language.(B) It unreasonably discriminates against write-in candidates for public office.(C) It unreasonably interferes with the exclusive federal election power as embodied in the Fifteenth Amendment.(D) It unreasonably interferes with the 1965 Voting Rights Act outlawing literacy tests.

Answer 345

165. (B) From a standpoint of standing, choice (B) is a better answer than choice (A). This is because a person asserting the violation of a constitutional or statutory right must show a “direct and immediate personal injury” due to the challenged action. Choice (B) is correct because the candidate will argue that he is adversely affected by the election official’s interpretation of the statute. On the other hand, it is more difficult for a claimant to have standing to assert the rights of third persons. That’s why the candidate will be in a better position to bring suit for himself rather than on behalf of the German voters in choice (A). Choices (C) and (D) are wrong because federal election laws do not prevent a state from regulating absentee ballots. In fact, in McDonald v. Board of Elections, a state law granting the right to vote by absentee ballot to only certain classes of people was upheld. The Court ruled that the right to vote was not involved because the state did not preclude the appellants from voting by other means.

Question 346

166. A write-in candidate is a Mexican-American and is of the opinion that he needs a large turnout of Mexican voters in order to win the election. As a result, his campaign manager, decides to mail to every registered Mexican voter a tear-off sticker, which bears the candidate’s name and office for which he is running. Since many native Mexican people are not proficient in reading and writing English, the campaign manager believes that many of the voters will have difficulty writing the candidate’s name and office on the ballot. As a result, the campaign manager has mounted an extensive media campaign to inform voters on how to apply the stickers to the ballot.Five months prior to the election an election official notifies the candidate’s campaign committee that the tear-off stickers do not comply with the state statute. In her letter, the official explains that state election officials are of the opinion that it is necessary for potential voters to write the candidate’s name in ink. Therefore, she concludes that the stickers do not comply with statutory requirements.Three weeks later, the candidate filed suit in federal district court against state election officials claiming that their interpretation of the state statute violates the U.S. Constitution.Which of the following, if established, sets forth the strongest constitutional argument supporting the election official’s interpretation of the statute?(A) Voter turnout among registered Mexican American voters who lack proficiency in English has been less than 1% of the entire state total in recent elections.(B) A state statute requires that each voting booth be equipped with an ink pen to facilitate the writing in of votes.(C) Since large numbers of write-in votes generally increase the time needed to count all votes, it is necessary to cast such votes in a uniform manner.(D) The potential for voting fraud is substantially greater with preprinted stickers.

Answer 346

166. (D) Sometimes on the Multistate it is necessary to simply use common sense. Here, for example, choice (D) states that the decision should be upheld because it minimizes the potential for election fraud. Clearly, under a “strict scrutiny” standard of review, this will serve a compelling state interest and best justify the election official’s action. Choice (A) is incorrect because even were this factuaLly true, the right to vote is a fundamental right, and the state must try to protect it. Choice (B) is incorrect because this would not necessarily resolve the problem about lack of English proficiency. Choice (C) is not the best answer. Even if this were factually true, the right to vote is a fundamental right, and the state must try to protect it. Trying to save time in this manner would hardly seem a compelling state interest.

Question 347

167. A state assemblyman made a visit to a foreign country. To protest U.S. foreign policy, the assemblyman and the foreign country’s leader issued a joint statement criticizing the United States’ involvement in the political affairs of neighboring countries.Following the assemblyman’s return to the United States, he was prosecuted under a federal criminal statute making it unlawful for any citizen not specifically authorized by the President to negotiate with a foreign government for the purpose of influencing the foreign government in relation to a dispute with the United States. The law further provides that “any citizen who knowingly counsels, aids, or abets a foreign government in a dispute with the United States.., shall, upon conviction… be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both fine and imprisonment….”Which of the following is the strongest constitutional basis for upholding the validity of the aforementioned federal statute?(A) Federal criminal laws dealing with international affairs need not be as specific as those dealing with domestic affairs.(B) Under its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of U.S. foreign affairs.(C) The President’s inherent power to negotiate for the U.S. with foreign countries authorizes him to punish citizens who engage in such negotiations without permission, even in the absence of statutory authorization.(D) Article I, Section 8 of the Constitution grants Congress concurrent power with the President to regulate external affairs with foreign countries.

Answer 347

167. (B) The power of the federal government in regard to foreign affairs is excLusive. Powers, such as those to make treaties, to declare war, to conclude peace, and to maintain diplomatic relations with other nations are deemed “necessary concomitants of nationality,” which has been interpreted to mean that they would have vested in the federal government even if they had never been mentioned in the Constitution, and are as broad as similar powers held by other sovereign nations [United States v. Laws, 163 U.S. 258 (1896)]. Choice (A) is incorrect. Federal criminal laws dealing with international affairs, like those dealing with domestic affairs, must meet the same requirements for specificity insofar as both must adhere to constitutional norms of due process. Choice (C) is incorrect. The President does not enjoy constitutional authority to punish citizens in the absence of congressional authorization. If the President possessed such powers, he would violate the principle of the separation of powers by exercising rights that belong to the legislature as well as those that belong to the judiciary. Choice (D) is not the best answer. Congress and the President may enjoy concurrent powers to regulate external affairs with foreign countries, but the powers are not the same, and Congress may invoke its own constitutional powers under Article Ito regulate foreign affairs.

Question 348

168. Which of the following executive orders will most likely be found unconstitutional?(A) The President issued an executive order requiring all executive branch employees to use exclusively one brand of ballpoint pens and pencils as their writing utensils. According to a study, the federal government could save in excess of $250,000 a year in office supply costs if all executive agencies were to use standardized pens and pencils.(B) The President issued an executive order requiring all executive branch employees to wear only white shirts and blouses during regular working hours. According to the President’s directive, executive employees are prohibited from wearing colored (e.g., blue or yellow) or striped shirts and blouses while on duty. The President issued the order in an effort to establish a uniform dress code for all executive employees.(C) In 1887, Congress passed a law establishing a federal Commission of Birdwatchers. The Commission, which is still in effect, consists of seven members who are appointed by the President. The Commission’s main function is to go on periodic retreats to photograph and study North American birds and their migratory habits. Believing that the Commission is archaic, the President decides that any future funding will simply be a waste of money. He thus executes an executive decree abrogating the Commission of Birdwatchers.(D) A devastating hurricane damages an island which is part of a foreign country. The storm destroys many homes, resulting in death and injury to thousands. In response to a request from the foreign government for emergency aid, the President, without seeking the advice and consent of the Senate, issues an executive decree authorizing U.S. Army troops to the island to provide medical and humanitarian assistance.

Answer 348

168. (C) The President may properly issue an executive order to ensure efficient operation of all executive agencies. The President’s executive order to require all executive branch employees to use exclusively one brand of ballpoint pens and pencils could be upheld as a cost-efficient measure falling within the permissible scope of the President’s power as Chief Executive. President Ford issued an executive order requiring all executive agencies to use only letter-size 8-1/2” X 11” paper. This cost-saving measure was held constitutional. Choice (A) is, therefore, incorrect. Choice (B) is also incorrect because it invites a similar type of regulation, namely that all executive branch employees wear only white shirts and blouses during regular working hours. Such an executive order could further efficient operation of executive departments based on the notions of teamwork and single-mindedness, which a uniform dress code inspires. Choice (D) is incorrect because, under the President’s broad emergency powers as Commander-in-Chief, he may summon U.S. Army troops (or the National Guard) by executive decree for medical and humanitarian purposes without advice or consent of the Congress. Choice (C) is correct because an executive order may not be issued to supersede an earlier act of Congress. Nowak, Constitutional Law, 3rd Ed., p. 211. Since the Commission of Bird- watchers was established by federal law, the President’s executive order to abolish the Commission would be unconstitutional.

Question 349

169. The President announced that a newly created military rapid deployment force would be engaging in joint training exercises with the military forces in a foreign country. Following the President’s announcement, Congress enacted a statute that unequivocally prohibited “the U.S. Armed Forces from conducting military exercises with foreign military forces unless Congress has received notice of such intention to take such action at least three months before the joint military exercises become effective.”This statute is most likely(A) constitutional, because the President, in this instance, has not been called by Congress into actual service as Commander-in-Chief.(B) constitutional, because of Congressional power under the War Powers Act.(C) unconstitutional, because of the President’s authority to execute the laws of the United States.(D) unconstitutional, because of the President’s authority as Commander-in-Chief of the Armed Forces.

Answer 349

169. (A) Article II, Section 2 states: “The president shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actualservice of the United States. . - .“ Congress has not called the President into actual service in our example. Therefore, choice (A) is correct, and choice (D) is incorrect. Choice (B) is incorrect because the war powers resolution applies to situations when the armed forces are engaged in hostilities or where there is imminent involvement in hostilities. The facts in our case do not indicate that the armed forces were involved in hostilities. Choice (C) is incorrect. The President has the authority under Article II to execute laws passed by Congress, not to create his or her own.

Question 350

170. Congress recently enacted a statute permitting a governmental agency to make a gift of federal property to private individuals or organizations, provided that it be used “to further good relations and better understanding with foreign governments.”The Secretary of Defense planned to give an old military cargo plane to a national organization who supports future pilots. Before making the gift, the Secretary was approached by the head of a church. The church leader indicated that he would be sponsoring a worldwide crusade and suggested to the Secretary that such an undertaking would serve to strengthen relations with foreign governments. The Secretary donated the plane to the church instead of the organization.Who would have the best standing to challenge the Secretary’s action?(A) A citizen of the United States.(B) A taxpayer of the United States.(C) The national organization.(D) A state within the United States.

Answer 350

170. (C) Here, you must be familiar with the decision in Valley Forge Christian College v. Americans United, 102 S.Ct. 752 (1982), in which a federal taxpayer was denied standing to challenge a gift of federal surplus property to a church college asviolating the establishment clause. The Court held that the challenge was not to a federal expenditure under Congress’s taxing and spending power, but to an exercise of Congress’s power “to dispose of property belonging to the United States” under Article IV, Section 3, Clause 2. Many students will incorrectly choose choice (B) based on the holding in Flast v. Cohen, 392 U.S. 83 (1968). According to Flast, a federal taxpayer has standing to challenge a federal appropriation and spending measure if she can establish the challenged measures as (1) enacted under Congress’ taxing and spending powers, and (2) it exceeds some specific limitation on the taxing and spending powers. Note: Be advised, however, that taxpayers have not been successful where the appropriation measure is challenged on grounds other than the 1st Amendment’s establishment clause. Choice (A) is, likewise, incorrect because persons have no standing as citizens to claim that federal statutes violate the Constitution. Similarly, choice (D) is incorrect because absent congressional authorization of such a suit, a state has no standing to attack a federal statute on the grounds that Congress has exceeded its delegated powers. Under such circumstances, the state has not suffered any injury, and the matter is purely a “political question” [Massachusetts v. Mellon, 262 U.S. 447 (1923)]. Once again, by process of elimination, choice (C) is the strongest answer.

Question 351

171. Congress recently passed a law that would grant, for free, federally owned buses to a religious organization. The congressional statute stipulates that the religious organization must use the buses to travel across America to spread the moral message of sexual abstinence to teenagers at school assemblies.Which of the following is the strongest constitutional grounds for invalidating the gift of the buses to the religious organization?(A) The gift violates the equal protection rights of secular organizations.(B) The gift violates the establishment clause.(C) The gift is a taking of federal property without just compensation.(D) The gift violates the commerce clause.

Answer 351

171. (B) In order not to violate the establishment clause, a statute (or other government action) must (1) have a secular purpose; (2) have a principal or primary effect that neither advances nor inhibits religion; and (3) not foster excessive government entanglement with religion [Lemon v. Kurtzman, 403 U.S. 602 (1971)]. As a practical matter, the Establishment Clause bars government sponsorship of religion, government financial support of religion, and active involvement in religious activities. Choice (A) is incorrect. Legal classifications that discriminate against religious groups would trigger strict scrutiny. But the classification in our example discriminates against secularists. Thus, the classification will be subject to rational review, which the federal government should be able to pass with ease. Choice (C) is incorrect. The 5th Amendment’s takings clause prohibits the government from taking private property without just compensation. In our example, the property belongs to the federal government. Choice (D) is incorrect. Idiomatically, Congress cannot violate the Commerce Clause; rather, Congress either has authority under the Commerce Clause or it does not. In our example, Congress may pass this legislation under the Commerce Clause because its stipulation regarding the terms of the devise are related to interstate commerce.

Question 352

172. A city has granted a license to a private utility company to provide electrical service to the residents in the city. After approving the license to the utility company, the city council then passed a measure by which the utility company was required to insert in its monthly billing statements a letter from a private consumer group criticizing the high cost of electrical service. The cost of printing and mailing the monthly letter was paid entirely by the consumer group. Nonetheless, the utility company vehemently objected to having such a critical letter enclosed in their monthly billing statements. However, the city council warned the utility company that unless it complied with the directive, the city would revoke its license for electrical service. The utility company filed suit in federal court seeking a hearing prior to its license being revoked by the city council.Which of the following constitutional provisions would provide the utility company with the strongest grounds with which to challenge the city council measure?(A) The due process clause.(B) The equal protection clause.(C) The privileges and immunities clause of ArticleIv.(D) The commerce clause.

Answer 352

172. (A) The 14th Amendment’s Due Process Clause provides procedural safeguards against arbitrary deprivation whenever a governmental agency acts to deprive a person of her “life, liberty, or property” interests. Since a corporation or company is considered a “person,” due process protection would extend to General Electric in this problem. Choice (A) is clearly correct because the Parkview City CounciL is threatening to revoke its license for electrical service unless General Electric agrees to enclose the consumer letter in its monthly billing statements. Thus, if General Electric failed to comply with the city directive, it would face losing its electrical contract which, in turn, would effectively constitute a property deprivation. Choice (B) is incorrect. General Electric may have been the subject of discrimination by the legislature, but General Electric is not a member of a suspect or quasi-suspect class. Only rational review will be applied, which city probably will pass with ease. Choice (C) is incorrect because the privileges and immunities clause of Article IV applies only to U.S. citizens. General Electric is not a U.S. citizen. Choice CD) is incorrect. In order to find a violation of the dormant commerce clause, there must be a showing that the local government has placed undue burdens on interstate commerce. In our example, there is no evidence to suggest that the city’s law protects utility companies like GE that reside in the city while burdening those outside the city.

Question 353

173. A student at a private university was receiving financial aid from the university based on a financial aid application he completed at the time of his enrollment. During finals at the end of the fall semester, the student was caught cheating. His chemistry professor saw him looking at a fellow student’s exam paper and copying the answers to three multiple choice questions. The professor notified the honor committee, which immediately found an honor code violation and ordered that the student receive a failing grade in the course. In addition, in accordance with the rules of the university, the student’s financial aid was terminated.The student filed a lawsuit seeking reinstatement of his financial aid. The student’s only argument was that his due process rights were violated in that he did not receive a notice of, or a hearing on, the alleged honor code violation.Which of the following facts, if true, would be most helpful to the student?(A) The university was in financial difficulties and could not meet its payroll expenses.(B) The university did not re-allocate the student’s financial aid to another deserving student.(C) The university received support from the state.(D) The honor committee sent the student a letter to advise him of the hearing date.

Answer 353

173. (C) Choice (C) is most accurate because it is the only alternative that is helpful to the student. The fact that the university received support from the state is evidence of the “joint contract” between the university and the government. Under the concept of state action, where the private actor and government can be said to be in a “symbiotic relationship,” the private actor will be subject to constitutional restraints. As a consequence, since the student did not receive notice or a hearing before his financial aid was terminated, the actions of the university (which would be treated as a government agent) were violative of the due process clause of the 14th Amendment. Choices (A) and (B) are incorrect because these facts would not carry legal relevance for our purposes. Choice (D) is incorrect because this would tend to hurt the student’s argument insofar as it demonstrates that the university is trying to afford the student due process.

Question 354

174. A woman was employed as a state trooper. Although the state provides both sexes with equal pay and benefits, the state has adopted a policy that prohibits the assignment of female officers to its special undercover narcotics division. This is a moderate risk position that sometimes involves violent encounters with drug dealers. Since the special narcotics division was first established, five undercover agents have been killed in the line of duty. It is because of the state’s concern with the safety and well-being of its female officers that it has adopted such a policy.The woman, who desired to be a member of the narcotics division, filed an application for assignment as a special drug agent. After she was rejected for the position, the woman sued the state in federal court to enjoin enforcement of its stated policy on the grounds that it is unconstitutional.As a matter of constitutional law, which of the following results in this suit is most appropriate?(A) Judgment for the woman, because the facts asserted do not demonstrate that the particular classification contained in this policy is substantially related to the advancement of an important state interest.(B) Judgment for the woman, because the terms and conditions of state government employment are privileges or immunities of state citizenship that may not be abridged by the state on the basis of gender.(C) Judgment for the state, because it is within a state’s police power to insulate the terms and conditions of governmental employment.(D) Judgment for the state, because the state has articulated a rational basis for this classification and, therefore, a court may not substitute its judgment for that of responsible state officials.

Answer 354

174. (A) As noted in the following chart, gender classifications are subject to a “middle-tier” standard of review. The burden of persuasion is on the government to demonstrate that the classification (or discrimination) is substantially related to an important governmental interest. Choice (A) correctly states the applicable standard of review for gender classifications. Choice (C) is incorrect to the extent that it relies on the decision in Foley v. Connellie, which allowed a state to exclude “aliens” from its police force. In Foley, the Supreme Court held that New York can prevent aliens from becoming state troopers. According to the Foley doctrine, a state could prevent aliens from holding certain state positions that involve a governmental function (e.g., public school teachers, police officers, and probation officers). Because this decision was specific to “aliens,” it wouLd be inapplicable to this question, which pertains to discrimination on the basis of gender classification, not alienage. Choice (B) is incorrect because the privileges or immunities clause of the 14th Amendment protects U.S. citizens from discrimination against out-of-staters, not discrimination based on gender. Choice (D) is incorrect. The reference to “rational basis” suggests that rational review is in order. But we have a gender classification, which wiLl trigger intermediate review [Craig v. Boren, 429 U.S. 190 (1976)].

Question 355

175. An employee is an orthodox member of his faith. He has recently been hired as a forest ranger by the state. In accordance with the orthodox tradition of his religion, the employee wears a covering on his head throughout the day. The director of the state forestry department has notified the employee that he will not be permitted to wear his head covering while on duty. A state forestry regulation provides that all forest rangers are required to wear only standard headgear in the interests of maintaining a uniform dress code conducive to the furtherance of the department’s morale, efficiency, and professional standard of conduct. Although the employee wants to pursue a career as a forest ranger, he feels that his religious beliefs should not be compromised by a governmental agency.In trying to resolve his dilemma, the employee seeks your legal advice. You should advise him that in light of relevant U.S. Supreme Court decisions, the state regulation is probably(A) constitutional, because although the employee has a constitutional right to the free exercise of his religion, a state may impose reasonable regulations that are rationally related to the furtherance of a state interest.(B) constitutional, because the interest of the state in vindicating a carefully considered professional judgment by the forestry director that wearing such religious apparel would interfere with the department’s morale and efficiency is sufficient to contravene the wishes of its members to wear headgear required by their religious beliefs.(C) unconstitutional, because in accordance with the free exercise clause of the First Amendment, a state has no power to regulate religious beliefs.(D) unconstitutional, because an individual has a fundamental right to seek gainful employment, and a state cannot arbitrarily and unreasonably regulate against such economic activity.

Answer 355

175. (B) In Goldman v. Weinberger, 106 S.Ct. 1310 (1986), the Court ruled against the free exercise claim of an Orthodox Jewish Air Force captain to wear a yarmulke while on duty. Giving broad deference to the professional judgment of the military authorities in determining the need to place restrictions on certain aspects of religiously motivated conduct, the Court stated that the use of standardized uniforms “encourages the subordination of personal preferences and identifies in favor of the overall group mission.” Choice (B) is the best answer, since it closely approximates the specific language used by the Court in the Goldman case. While refusal by the military to accommodate an individual’s free exercise claim is subject only to rational basis standard review, based on the Court’s broad deference, the strict scrutiny standard applies to state regulation of free exercise claims. Therefore, choice (A) is incorrect. Choice (C), a true statement, is incorrect because the wearing of a head covering is a form of religious conduct, not a religious belief. The procedural due process argument in choice (D) is incorrect because the state regulation in question directly affects the employee’s free exercise of religion and is not depriving him of his right to seek gainful employment.

Question 356

1. A defendant was employed by a railroad company as a watchman at its crossing, to give warning to the public of approaching trains. Late one evening, he fell asleep in his kiosk and failed to warn of the approach of an oncoming train. A man, who was driving his car, knew of the usual presence of the watchman. As he approached the crossing, he received no warning. Driving onto the track, the man’s car was struck and crushed by the train. The man died instantly.A few minutes after the accident, a police officer arrived at the crossing and walked into the kiosk. As he entered, the defendant then awoke. The police officer asked him, “What happened here?” The defendant made incriminating statements.The defendant is subsequently charged with involuntary manslaughter. His motion to prevent the introduction of his incriminating statements into evidence will most likely be(A) granted, because the police officer failed to give the defendant his Miranda warnings.(B) granted, because the police officer’s conduct in questioning the defendant immediately after he awoke was unfairly prejudicial to the defendant.(C) denied, because the exchange took place in a non-custodial setting and the question was investigatory in nature.(D) denied, because the defendant’s incriminating statements were voluntary.

Answer 356

1. (C) With Miranda, the Fifth Amendment privilege against compelled self-incrimination became the basis for ruling upon the admissibility of a confession. Miranda warnings (and a valid waiver) are prerequisites to the admissibility of any statement made by the accused during a custodial interrogation. Generally speaking, an interrogation will be considered custodial if the individual is not free to leave. According to Orozco v. Texas, 394 u.s. 324 (1969), the Court held that a person is in “custody” if he is not free to leave, even if the questioning occurs in the individual’s bedroom. In the present example, the facts do not indicate that the defendant was in police “custody” for Miranda purposes. Therefore, choice (C) is the best answer because the defendant’s statements were not made during a custodial interrogation. Choice (C) is a better answer than choice (D) because the issue here is whether the police questioning was “on-the-scene” or “custodial.” Choices (A) and (B) are incorrect for the reasons stated above.

Question 357

2. A defendant was convicted of assault of a federal officer and imprisoned in a federal penitentiary. While in prison, federal authorities began investigating the murder of the defendant’s 11-year- old stepdaughter who was murdered two years earlier. Believing that the defendant was responsible for this killing, federal agents decided to plant an informant at the prison to befriend the defendant and possibly obtain evidence about the crime.In accord with this plan, the federal agents hired a paid informant and placed him in the prison as a fellow inmate, masquerading as an organized crime figure. The informant soon befriended the defendant and learned that he was being threatened by other inmates because of a rumor that he had killed a child. The informant then raised the subject in several conversations, but the defendant repeatedly denied any such involvement. After the defendant started receiving tough treatment from other inmates because of the rumor, the informant offered to protect the defendant but told him, “You have to tell me the truth about what really happened you know, if you want me to help you.” Believing that the informant would protect him from the other inmates, the defendant then admitted to the informant that he had driven his stepdaughter to the desert where he killed her.Based upon this confession, the defendant was then indicted for the first-degree murder of his stepdaughter. Prior to trial, the defendant moves to suppress the statement given to the informant.Should the defendant’s motion be granted?(A) Yes, because the confession was coerced by the threat of physical violence, absent protection from the informant that motivated the defendant to confess.(B) Yes, because the informant was a false friend, and the defendant was tricked into making the confession.(C) No, because the confession was voluntary.(D) No, because under the totality of circumstances, the informant’s conduct was not inherently coercive.

Answer 357

2. (A) Under the voluntariness standard, the issue of whether a defendant’s confession will be admissible is determined by a “totality of circumstances” approach, which examines both (1) the nature of the defendant (i.e., age, sex, race, mental condition, physical condition, history of drug or alcohol abuse), and (2) the nature of the police conduct. These factors help determine the extent to which the defendant’s ability to submit to external pressures has been affected. Confessions obtained under conditions where the defendant’s free choice is significantly impaired are likely to be found coercive. However, where the police employ a “false friend,” such as a jail cell “plant,” and by deception the defendant is unaware that the person with whom he is conversing is a police officer or agent, a confession thereby obtained will not necessarily be involuntary, even if the defendant mistakenly believed the person could be trusted. LaFave, Criminal Procedure. Choice (B) is incorrect. Nevertheless, where actual or threatened physical harm or brutality is involved, the Court has readily found there to be coercion sufficient to negate the defendant’s free will. In Arizona v. Fulminante, 59 LW 4235 (1991) under similar facts regarding the murder of the defendant’s stepdaughter, the Court heLd that a credible threat of physical violence is sufficient to support a finding of coercion. By intimidating the defendant with the threat of physical violence from other inmates unless he sought the informant’s protection, the government employed coercive tactics in obtaining the defendant’s confession. Therefore, choice (A) is correct. Choices (C) and (D) are incorrect for the reasons stated above.

Question 358

3. Late one evening, a police department received a telephone call from an unidentified woman who reported hearing loud shrieks and screams from a neighboring home. The caller furnished the police with the address where the disturbance was taking place. When the police arrived at the home, they discovered the homeowner, bludgeoned to death. The murder weapon was a blood-stained baseball bat found near the victim’s body.A subsequent investigation revealed that the homeowner had recently been separated from her husband who had since moved to another city. After questioning several of the victim’s friends and relatives, the police concluded that the husband was a prime suspect in the murder. Thus, two detectives went to question the husband about the killing. When they arrived at his apartment, the detectives persuaded the landlord to let them into his apartment. Finding no one inside, they searched the apartment. Before leaving, the detectives took a box of cereal, which they planned to use for a fingerprint comparison. The prints from the cereal box matched those found on the baseball bat. The police provided the grand jury investigating the murder with the fingerprint comparison.The husband is subsequently subpoenaed to testify before the grand jury. Before his scheduled appearance, the husband files a motion to suppress evidence of the fingerprint comparison, contending that the evidence was illegally obtained.His motion should be(A) granted, because the warrantless search of the husband’s apartment was unconstitutional.(B) granted, because the grand jury is barred from considering illegally obtained evidence.(C) denied, because the exclusionary rule has not been extended to grand jury hearings.(D) denied, because the landlord had the apparent authority to authorize the search of the husband’s apartment.

Answer 358

3. (C) In United States v. Calandra, 414 U.S. 338 (1974), the Court refused to extend the exclusionary rule to grand jury proceedings. A divided Supreme Court (6-3) noted that “in deciding whether to extend the exclusionary rule to grand jury proceedings, we must weigh the potential injury to the historic role and functions of the grand jury against the potential benefits of the rule as applied in this context. It is evident that this extension of the exclusionary rule would seriously impede the grand jury.” Therefore, choices (A), (B), and (D) are incorrect.

Question 359

4. A defendant was suspected of having burglarized his neighbor’s apartment. The neighbor reported that his apartment had been ransacked and several items of clothing had been stolen. During the course of their investigation, two police detectives went to the defendant’s place of work to interview him. After being advised of his Miranda rights, the defendant requested permission to call his attorney. Although his attorney was unavailable, the attorney’s receptionist admonished him not to say anything. The defendant told the detectives he would have nothing further to say unless his attorney was present. The detectives then asked him if he would accompany them to the police station to answer some questions about an unrelated robbery. The defendant agreed.As they were driving to the police station, the defendant was asked where he had purchased the boots that he was wearing. He refused to answer. When they arrived at the police station, the detectives requested that he sign a waiver of his right to counsel. The defendant replied that he would not sign anything in the absence of his attorney. He was then placed in an interrogation room. Shortly thereafter, the defendant was told he could leave if he would be willing to say where he had purchased his boots. The defendant admitted that he had bought the boots and some shirts from a friend. From this information, the detectives obtained a search warrant and went to the defendant’s home where they found the stolen clothing.The defendant is charged with burglarizing the apartment. At trial, the court should(A) admit the confession because it was voluntary, and the clothing because it was obtained pursuant to a valid search warrant.(B) suppress the confession because it was obtained in violation of his Sixth Amendment right to counsel, but admit the clothing because it was obtained pursuant to a valid search warrant.(C) suppress the confession because the defendant failed to sign the waiver, but admit the clothing because it was obtained pursuant to a valid search warrant.(D) suppress the confession because it was obtained in violation of his Fifth Amendment right to counsel, and the clothing because the search warrant was secured as a result of the confession.

Answer 359

4. (D) In Miranda, the U.S. Supreme Court said “if the individual states that he wants an attorney, the interrogation must cease until an attorney is present.” In addition, the Court stated that “if the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligentLy waived his privilege against self-incrimination and his right to retained or appointed counsel.”

Question 360

5. A student was a junior criminology major at state university and a member of a fraternity. While new members were pledging the fraternity, the student had a reputation for initiating pranks and hazing the pledges. Late one night, after a fraternity party, the student decided to kidnap one of the pledges. Enlisting the help of his friend, they grabbed the pledge, tied him up, and locked him in the trunk of the student’s car. They then drove into the downtown section of a city where they dropped the pledge at a street corner. While the pledge was wandering around and trying to find a telephone booth, a gang of youths saw his predicament and attacked him. The pledge, who was severely beaten, suffered a broken nose, multiple lacerations, and contusions.When the pledge finally returned to the school, he filed a criminal complaint against the student who was charged with violating a state law, which provides:“Every person who hazes a student and thereby is responsible for causing bodily harm to said student is guilty of a felony punishable by three years in prison.”At thai, the prosecuting attorney called the student’s alleged accomplice as a witness. The friend refused to answer any questions and was cited for contempt. After the friend left the witness stand, the prosecutor offered into evidence a transcript of the friend’s testimony given at the student’s preliminary hearing. At the preliminary hearing, the friend testified under oath that he and the student were responsible for hazing the pledge and driving the victim against his will to the city. During the preliminary hearing, the friend was also cross-examined by the student’s defense counsel. Over defense objections, the trial court admitted the transcript of the friend’s testimony at the preliminary hearing. Thereafter, the student was convicted of violating the aforementioned hazing statute.The student appeals the conviction and contends that the admission of the transcript of the friend’s testimony at the preliminary hearing violated his Sixth Amendment right of confrontation.As to this claim, the student’s appeal will most likely be(A) granted, because there was no opportunity to cross-examine the witness at trial.(B) granted, because in order to admit prior testimony, the witness must be shown to be unavailable.(C) denied, because the witness was unavailable, and there was adequate opportunity for crossexamination at the preliminary hearing.(D) denied, because the testimony was a statement by a co-conspirator and, therefore, admissible as a recognized exception to the hearsay rule.

Answer 360

5. (C) Former testimony under FRE 804(b)(1) is defined as “testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The transcript of the friend’s testimony at the preliminary hearing will be admissible as former testimony, and the student’s cLaim will be denied. Similarly, in California v. Green, 399 U.S. 149 (1969), the use of preliminary hearing testimony of a witness who was unavailable at trial was held not to violate the defendant’s constitutionaL right of confrontation. Choice (C) is thus correct. Choice (A) is incorrect because the opportunity to cross- examine the friend at trial is unnecessary, since he was already cross-examined by the student’s attorney at the preliminary hearing concerning the testimony given at that time. Choice (B) is incorrect because under FRE 804(a)(2), refusal to testify constitutes unavailability. Choice (D) is incorrect because it mixes two different rules. First, under FRE 804(b) (3), a declaration against interest must be against the declarant’s (penal) interest at the time when made. The friend’s statement incriminated the student as the perpetrator, not himself. Second, a co-conspirator’s admission under FRE 801 (d)(2)(e) is defined as non-hearsay—not as a hearsay exception—under the FRE.

Question 361

6. In her request for jury instructions on the defense of duress, a defendant argued that she should have the burden of producing some evidence of duress, but the prosecution should be required to disprove duress beyond a reasonable doubt. The trial court denied the defendant’s request and instead instructed the jury that the defendant had the burden of proof to establish the defense of duress by a preponderance of the evidence. After she was convicted by the jury, the defendant claims on appeal that the jury instructions regarding duress violated the due process clause.Were the jury instructions correct?(A) No, because the prosecution bears the burden of proof beyond a reasonable doubt on all elements and defenses produced at trial by a defendant.(B) No, because the jury instruction impermissibly shifts the burden of proof to the defendant.(C) No, because the defense of duress is no longer a recognized defense in federal prosecutions, although it was recognized at common law, and is recognized in most state courts.(D) Yes, because the defense has the burden of proving the defense of duress by a preponderance of the evidence.

Answer 361

6. (D) In Dixon v. United States, 126 S. Ct. 2437 (2006), the Supreme Court ruled that, in the absence of a federal statute, modern common law does not require the prosecution to bear the burden of disproving defendant’s duress beyond a reasonable doubt. Instead, the Court held that Congress intended the defendant to bear the burden of proving the duress defense by a preponderance of the evidence. Note:Congress can change the result in Dixon by statute. Choices (A), (B), and (C) are incorrect for the reasons stated above.

Question 362

7. Under which of the following fact situations would the defendant’s Miranda waiver most likely be ineffective?(A) A defendant recently graduated from law school. At her graduation party, the defendant became highly intoxicated after drinking a pint of whiskey. Following the party, the defendant attempted to drive home in her car. She fell asleep at the wheel and crashed into another vehicle, seriously injuring the driver. Shortly after the accident, a police officer came on the scene and arrested the defendant, charging her with D.U.I. The defendant was then given her Miranda warnings and transported to the police station. Upon questioning, the defendant, who was still highly intoxicated, waived her Miranda rights, and the police elicited an incriminating statement.(B) A defendant stabbed a victim after a violent argument. Following the stabbing death, the police arrested the defendant and charged him with murder. He was transported to the station house where Miranda warnings were given. Afterward, the defendant was interrogated and proceeded to waive his Miranda rights. He then confessed to committing the crime. At trial, a psychiatrist testified that the defendant was mentally ill and his confession was not the result of a knowing and intelligent waiver.(C) A defendant was a 15-year-old boy who was a high school sophomore. He possessed normal intelligence and experience for a youth of his age. One night he and two friends attended a concert in the park. After the concert, the defendant and his friends went on a spree, assaulting and robbing a number of victims in the park. The next day, the defendant was arrested. After being subjected to persistent questioning for two hours, the defendant waived his Miranda rights and made a confession. At trial, the defendant claims that he did not make a knowing and intelligent waiver.(D) A defendant was a 16-year-old juvenile who was in police custody on suspicion of murder. He was given his Miranda warnings and he then requested to have his probation officer present. He had been on probation for a series of juvenile offenses. His request was denied. During a brief interrogation, the defendant proceeded to waive his Miranda rights and made incriminating statements that linked him with the crime. At trial, the defendant’s lawyer claims that his waiver was ineffective because his request to see the probation officer was the equivalent of asking for a lawyer.

Answer 362

7. (C) The Miranda right to silence can be waived either expressly or impLiedly. Miranda waiver is based on voluntariness as determined by the “totality of circumstances.” To determine if a knowing and intelLigent waiver has occurred, the Court views both the (1) competence of the defendant (i.e., age, experience, inteLligence, and ability to fully understand the warnings), and (2) the conduct of the police, namely as to whether there has been overreaching. Choice (A) is wrong because defendants have generally been unsuccessful in claiming that their Miranda waivers should be held invalid because they were either intoxicated or under the influence of drugs or medication at that time. Likewise, choice (B) is wrong inasmuch as the “personal characteristics of the defendant existing at the time of the purported waiver are relevant only as they relate to police overreaching.” See Colorado v. Connelly, 479 U.S. 157 (1986), where the Court rejected a state court ruling that a defendant’s Miranda waiver was not voluntary because he suffered from a psychosis that interfered with his ability to make free and rational choices. The Court concluded that “Miranda protects defendants against government coercion but goes no further than that.” As a result, choice (C) is the best answer because the defendant was subjected to persistent questioning for two hours before waiving his Miranda rights. According to LaFave, courts have held waivers invalid where the defendant had been held in custody for an extended period of time before being given the warnings, orwhere the defendant had first been subjected to persistent questioning. Lastly, choice (D) is incorrect because in Fare v. Michael C., 442 U.S. 707 (1979), the Court held that a juvenile’s request to have his probation officer present was notaperse invocation of Mfranda rights.

Question 363

8. A defendant was arrested and charged with conspiracy to receive stolen property. At his arraignment, the defendant was represented by counsel. He was then released after posting bond. Following his release, the defendant resumed his job as a bartender at a local bar. Three weeks before the defendant’s scheduled trial, an informant entered the bar. After a few drinks, the informant began conversing with the defendant, who was on duty at the time. Unknown to the defendant, the man was a paid police informant. During the course of their conversation, the informant told the defendant that he had read about his arrest in the newspapers and questioned the defendant about the names of his accomplices. Unsuspectingly, the defendant made some admissions, which the informant then passed on to the prosecuting attorney.At trial, the prosecution tried to introduce into evidence the defendant’s admissions. The defendant’s motion to exclude this offer of proof will most likely be(A) denied, because the defendant’s statements were voluntary.(B) denied, because the defendant assumed the risk that his confidence in the informant was not misplaced.(C) granted, because the defendant’s Sixth Amendment right to counsel was violated.(D) granted, because the defendant’s Fifth Amendment privilege against self-incrimination was violated.

Answer 363

8. (C) The clear rule in Massiah v. United States, 377 U.s. 201 (1964), is that once adversary proceedings have been commenced against an individual, he has a right to legal representation when the government interrogates him. As in Brewer v. WI!hams, 430 U.S. 387 (1977), the critical issue in this example is whether, after judicial proceedings have been initiated against the defendant, a police informant elicited information from him in the absence of defense counsel. According to Brewer, proof of formal interrogation is unnecessary to invoke the protection of the Sixth Amendment. A conversation that is tantamount to interrogation is sufficient. Similarly, since the defendant was under arraignment, the informant could not effectively “interrogate” him (i.e., attempt to obtain information reasonably calculated to induce conversations relative to the crime) in the absence of defense counsel. Therefore choices (A) and (B) are incorrect. Choice (D) is incorrect. Due to the fact that we have reached a critical stage, namely the arraignment, it is the Sixth Amendment right to counsel that has attached.

Question 364

9. One evening, a defendant set fire to an occupied house. As a result of the blaze, the homeowner’s daughter was killed. The defendant was charged with felony murder on the first count and arson on the second count of the two-count indictment. The jury found the defendant guilty on the first count, but returned a not guilty verdict on the second count.The defendant’s attorney’s motion to set aside the guilty verdict on the felony murder charge will be(A) granted, because the guilty verdict is plain error that adversely affects the defendant’s constitutional rights.(B) granted, because the verdicts are legally inconsistent and should lead to an acquittal of both charges.(C) denied, because the verdicts do not amount to a reversible error.(D) denied, because the defendant’s proper remedy is to seek an appellate review for a non-constitutional error.

Answer 364

9. (B) In order for one to be found guilty of murder under the felony murder rule, he must also be found guilty of the underlying felony. Thus, as in the present example, if a defendant is found innocent of the underlying felony, be cannot be found guilty of felony murder. Briefly, the felony murder rule provides that one whose conduct brought about an unintended death in the commission or attempted commission of an inherently dangerous felony was guilty of murder. Choices (A), (C), and (D) are incorrect for the reasons stated above.

Question 365

10. Police received reliable information that a homeowner had a stolen x-brand stereo in his possession. The detectives then submitted an affidavit to a neutral magistrate setting forth sufficient underlying circumstances for the issuance of a search warrant. Making a determination of probable cause, the magistrate issued a warrant for the x-brand stereo at the homeowner’s address.The police arrived at the homeowner’s dwelling, showed him the warrant, and came inside. In the living room, they noticed a y-brand stereo, which had the serial number removed. Upon further inspection, the police determined that the stereo had been stolen from a local electronics store during a recent burglary. Thereupon, the police placed the homeowner under arrest and instructed him to remain seated in the living room while they searched the rest of the home. One of the officers proceeded to the basement where she found the stolen x-brand stereo. She then decided to search the upstairs and came upon a stolen z-brand stereo in the homeowner’s second-floor bedroom.The homeowner was subsequently prosecuted for receiving stolen property. At trial, the homeowner moves to prevent introduction of the stereos into evidence. His motion should be granted with respect to(A) the y-brand stereo.(B) the z-brand stereo.(C) the y-brand and the z-brand stereos.(D) none of the stereos.

Answer 365

10. (C) A search made under authority of a search warrant may extend to the entire area covered by the warrant’s description. For example, if the warrant authorizes a search of “premises” at a certain described geographical location, buildings standing on that land may be searched. If the place is identified by a street number, the search may extend to those buildings within the curtilage and the yard within the curtilage. LaFave points out that the permissible intensity of the search within the described premises is determined by the description of the things to be seized.Here, the warrant covered the seizure of a stolen x-brand stereo at the homeowner’s address. When the police arrived at the defendant’s home, they noticed a y-brand stereo in the living room. The first question is whether the police, under the “plain view” doctrine, were permitted to seize the y-brand stereo, which also turned out to be stolen. The “plain view” doctrine is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another. In fact, in Arizona v. Hicks, 480 U.S. 321 (1987), it was held that full probable cause was needed to pick up an item of stereo equipment to ascertain its serial number (which revealed it was stolen). Based on Hicks, the y-brand stereo was unlawfully seized since the police needed to “further inspect” it to determine its stolen status. By the same token, the police did not have authority to continue to search the home after discovering the stolen x-brand stereo (specified in the warrant). When the purpose(s) of the warrant have been carried out, the authority to search is atan end. Choice (C) is correct because the defendant’s motion to exclude the y-brand and the z-brand stereos will be granted. Therefore, (A), (B), and (D) are incorrect.

Question 366

11. A defendant was prosecuted for murder. At trial, the prosecutor called a police detective to testif’. The detective, who questioned the defendant at the station house after his arrest, testified that the defendant initially declared his innocence. The detective further testified that when given the opportunity to take a lie detector test, the defendant refused. The defendant’s attorney did not object to the detective’s testimony. The defendant was convicted and sentenced to prison.The defendant, who is now represented by a new attorney, appeals, claiming that it was error to admit the detective’s testimony. The appellate court should find(A) plain error, because the trial court should have acted on its own motion to order reference to the lie detector test stricken.(B) plain error, because admission of the detective’s testimony violated the defendant’s privilege against self-incrimination.(C) harmless error, because the defendant’s trial attorney failed to preserve the argument by timely objection.(D) harmless error, because the defendant’s statements were admissions.

Answer 366

11. (A) A distinction frequently tested on the MBE is between “harmless error” and “plain error.” If an error has not resulted in damage to the complaining party, it may be deemed harmless, and a new trial need not be had. For an example of “harmless error,” see United States v. Shepard, 538 R2d 107 (1976) (permitting psychiatrist who examined defendant to determine competency to stand trial and to testify about alibi related to him by defendant). On the other hand, even where no timely objection is made, if a grave injustice might result from a serious trial error, the Appellate Court may still order a new trial. For example, in U.S. v. Sisto, 534 F.2d 616 (1976), it was held to be “plain error” where the judge failed to instruct the jury that an undercover agent’s statements (concerning what an alleged accomplice said about the defendant’s activities) should be considered only as impeachment evidence and not for their truth. The facts of this question raise a general rule concerning criminal prosecutions, which is that evidence is not admissible that the defendant has been willing or unwilling to take a lie detector test. It has been noted that the impact upon the minds of the jurors of a refusal to submit to something which they might well assume would effectively determine guilt or innocence might well be more devastating than a disclosure of the results of such test. In other words, the contention that evidence of the defendant’s refusal to take a lie detector test tends to establish consciousness of guilt, and that evidence of the defendant’s willingness to take such a test shows consciousness of innocence, has been rejected. Choice (A) is a better answer than choice (B) because it addresses the issue that “plain error” affects substantial rights to such a serious degree that a new trial can be given (even though the defendant’s attorney did not object to the detective’s testimony). Choices (C) and (D) are incorrect for the reasons stated above.

Question 367

12. A husband is charged with murder in the shooting death of his brother-in-law. In the jurisdiction in which the husband is on trial for murder, the defense of insanity is an affirmative defense. The husband pleads insanity as his defense.At trial, in order to prove his defense of insanity, the husband has(A) the burden of production.(B) the burden of persuasion only.(C) both the burden of production and the burden of persuasion.(D) neither the burden of production nor the burden of persuasion.

Answer 367

12. (A) The husband has the burden of production of proving his insanity at the time of the offense. On the issue of lack of responsibility because of insanity, the initial burden of going foiward (the production burden) is placed upon the defendant in every jurisdiction in the United States. The burden of persuasion, on the other hand, after the issue of insanity has been raised, is upon the prosecution. LaFave in Criminal Law notes that the defendant’s production burden is often stated in terms of a presumption of sanity; most men are sane, and thus the defendant in the particular case is presumed to be sane until some amount of evidence to the contrary is produced. Note that the Model Penal Code takes the view as to the affirmative defenses that the accused has the first burden of producing evidence. Choices (B), (C), and (D) are incorrect for the reasons stated above.

Question 368

13. Defendant was on trial for robbery. Defendant’s direct examination continued until late in the day when it finally concluded. At this time, the trial court judge adjourned the proceedings for the evening. The judge then instructed Defendant not to speak with anyone during the night and scheduled cross- examination to begin in the morning.The judge’s instruction to Defendant was(A) proper, because a judge has broad discretion to instruct witnesses in such a manner.(B) proper, because it would have the same effect as permitting cross-examination to continue after direct was concluded.(C) improper, because it violates the defendant’s Sixth Amendment right to counsel.(D) improper, because it violates the attorney-client privilege.

Answer 368

13. (C) In Geders v. United States, 425 U.S. 80 (1976), the trial court ordered the defendant not to consult his attorney during an overnight recess that separated the direct examination and the cross-examination of the defendant. The court of appeals affirmed the conviction because the defendant made no claim of prejudice from the order. The Supreme Court reversed, holding that the 17-hour denial of counsel, regardless of demonstrated evidence, constituted a deprivation of the effective assistance of counsel. LaFave and Israel, Criminal Procedure. This “evidence” question is obviously very difficult, since it involves knowledge of a specific “criminal procedure” case. In light of Geders, choice (C) is correct, since the judge’s instruction to the defendant denied him his Sixth Amendment right to counsel. Choices (A), (B), and (D) are, therefore, incorrect.

Question 369

14. A defendant was arrested one morning by a police officer for the attempted murder of the victim. The defendant had allegedly fired three shots at the victim, a physical education teacher, in the schoolyard of an elementary school.Immediately after the arrest, the arresting officer advised the defendant of his Miranda rights. The defendant responded that he would not make any statement until he consulted his attorney.Within minutes, a patrol car arrived and the defendant was taken into the car to be transported to the police station. The arresting officer sat in the front, next to the driver, and the defendant sat alone in the back seat, with his hands cuffed.On the way to the station, the driver stated to the arresting officer, “I hope that the gun involved in this crime doesn’t get into the hands of those small children, because one of them could be seriously injured, to say the least.” The defendant interrupted the officers and told them where to look in the schoolyard for the abandoned gun. As a result of this information, the police found the gun where the defendant said it was.What is the state’s best rebuttal to the defendant’s argument that the gun was illegally seized?(A) The defendant was not entitled to be re-warned of his Miranda rights in the patrol car.(B) The defendant was not interrogated in the patrol car.(C) The defendant waived his right to consult counsel.(D) The seizure of the gun was not the fruit of the defendant’s statement.

Answer 369

14. (B) The state’s best rebuttal to the defendant’s argument of illegal seizure of the gun would be that the defendant was not being interrogated in the police car when he revealed the location of the gun to the police officers. The U.S. Supreme Court in Rhode Island v. Innis, 446 U.S. 21 (1980), held that where a suspect in crimes committed with a shotgun told police of the gun’s location after hearing police talk of a handicapped child’s possibility of finding a gun (when the suspect was being transported to a police station), it was not an interrogation in violation of the suspect’s Miranda rights. In the Innis case, as in our factual presentation, the suspect, upon arrest, was advised of his Miranda rights and refused to make any statements without an attorney present. Furthermore, the suspect was questioned or interrogated by the police officers during the ride to the police station; the suspect acted voluntarily when he heard the police officers mention the possibility of children being injured by the gun. The Supreme Court has held that “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police that the police should know or should have known are reasonably likely to elicit an incriminating response from the suspect. Nothing suggests that the police were aware that the defendant was particularly susceptible to an appeal to his conscience concerning the safety of small children. Choice (A) is incorrect because there was no need for the defendant to be re-warned of his Miranda rights because there was no interrogation. Choice (C) is incorrect because the defendant invoked his right to counsel. Choice (D) is incorrect because the gun was the fruit of the statement, but no interrogation took place, so Miranda was not violated.

Question 370

15. A town had been experiencing a rash of bank robberies. All the witnesses at each bank had described a man with a gun who said, “Get down on the floor and no one has to die today!” Following a series of leads, the detectives in the case finally made an arrest.At the police station, the suspect was placed in a lineup. One of the victims observed the lineup, and after each of the six participants stated, “Get down on the floor and no one has to die today,” the victim identified the suspect as the perpetrator. The defendant’s attorney subsequently moved to suppress the out-of-court identification, arguing that because the defendant was forced to speak, this violated his Fifth Amendment right to remain silent, which had been invoked previously by the defendant.The police requirement that the defendant state at the lineup, “Get down on the floor and no one has to die today”(A) invalidated the lineup.(B) violated the defendant’s right against self-incrimination.(C) tainted the victim’s identification of the defendant.(D) would not prohibit the defendant’s lineup identification from being introduced at trial.

Answer 370

15. (D) The defendant’s statement during the lineup would not be testimonial in nature. Therefore, the victim’s lineup identification may be introduced by the prosecution at trial. Students should note that appearing in a lineup and being required to make statements during the lineup procedure are not testimonial activities, but demonstrative in nature. Thus, a suspect does not have a right under the Fifth Amendment privilege against self-incrimination to refuse to appear or make a statement during a lineup. See United States v. Wade, 388 U.S. 218 (1967), where the Court held that an accused’s privilege against self-incrimination was not violated by the lineup itself or by requiring the accused to speak the words allegedly uttered by the robber. Choice (A) is incorrect for reasons stated above. Choice (B) is incorrect because, as stated above, there is no Fifth Amendment privilege here. Choice (C) is incorrect because the defendant’s statement did not taint any identification by the victim. Typically, lineups are tainted by improper suggestion by police hints, or unduly suggestive lineups, which tend to point the finger at one particular suspect. For example, if a white man is described as the suspect and the lineup contains one white man and five Hispanic or African American men, then that would be considered unduly suggestive.

Question 371

16. An older and younger brother had always done everything together. They had grown up together, gone to school together, and partied together. One night, while drinking at a bar, both brothers decided that they wanted a little more action than the bar was offering up, so they left and went to a strip club.At the strip club, they paid for private dances and attempted to have conversations with the women. As hard as they tried, the women who worked in the club did not seem as interested in the brothers as they were in the women.As the night wore on, the brothers decided that they would wait behind the club until closing for the women to come out. The victim, who had given a dance to one of the brothers, came out and proceeded to walk to her car. One of the brothers grabbed the victim from behind and pulled her to the ground while the other brother sexually assaulted her.Both brothers were arrested and charged with the rape of the victim. Their long-time family attorney represented them both at their trial. The younger brother intended to testify that his older brother had forced him to hold the victim down by threatening him with a gun.If appropriate objections are made by either brother, the court should rule that the attorney’s representation of the brothers at trial(A) violated the younger brother’s Sixth Amendment right to counsel.(B) constituted an impermissible conflict of interest.(C) violated the younger brother’s constitutional rights, but did not infringe on the older brother’s constitutional rights.(D) did not violate the older brother’s constitutional rights if he separately paid for his representation.

Answer 371

16. (A) The Sixth Amendment, which is applicable to the states through the Fourteenth Amendment, guarantees an accused the right to be represented by counsel. The attorney’s dual representation of both brothers created a conflict of interest, which violated the younger brother’s Sixth Amendment rights. The U.S. Supreme Court in Cuylerv. Sullivan, 446 U.S. 335 (1980), held that multiple representation in the sense that the same counsel actively represented two defendants charged with the same crime does not violate the Sixth Amendment unless it gives rise to a conflict of interest. The Court further stated that since a conflict of interest inheres in almost every instance of multiple representation, a defendant who objects to it must have the opportunity to show a potential conflict that imperils his right to a fair trial. The younger brother’s incriminating testimony about the older brother at trial should have been sufficient for the court to inquire as to whether or not a conflict of interest existed over the attorney’s dual representation of the defendants. In other words, the trial court more or less had a duty to inquire as to whether there was a conflict of interest as a result of the younger brother’s defense. Although choice (B) provides a correct statement of fact, choice (A) is the better alternative, since it provides a correct statement of law. Choice (C) is incorrect because it is does not specifically address the issues presented by these facts. Choice (A) is better because it directly addresses the specific constitutional amendment. Choice (D) is incorrect because the manner of payment for the representation does not cure the conflict.

Question 372

17. A riot broke out in a city, and many shops had been looted and some had been burned during the riots. Goods of all kinds were in piles or strewn about the sidewalk. During the riot, a defendant was walking along the street when he paused in front of an appliance store. He picked up a portable television set that was lying on the sidewalk and started to walk off quickly. A police officer who was standing in front of the shop rushed after the defendant and arrested him.The defendant, an indigent, was charged with grand larceny, a felony carrying the maximum penalty of seven months imprisonment and a S 1,000 fine. At his arraignment, the judge advised the defendant of his right to have counsel appointed for him. The defendant, however, told the judge that he wanted to represent himself and waive his right to a jury trial. The judge then questioned the defendant at length about his demands. The defendant indicated that he had no previous legal experience. He told the judge that the reason he didn’t want a court-appointed attorney to represent him was because he didn’t trust lawyers. The judge did not find the defendant’s reasons for representing himself to be persuasive and appointed an attorney to represent him.Thereafter, an attorney was appointed by the court to represent the defendant. The attorney told the court that the defendant wanted a non-jury trial. However, at the prosecution’s request, the court impaneled a jury. The defendant was subsequently convicted by the jury and sentenced to six months imprisonment. In addition, the defendant was ordered to reimburse the state $450 to cover the cost of his attorney. This reimbursement order was made pursuant to a relevant statute in effect at the time of the defendant’s arrest.The defendant appeals both the conviction and the reimbursement order. The appellate court should(A) affirm both the conviction and the reimbursement order.(B) affirm the conviction, but not the reimbursement order.(C) reverse the conviction because he was denied the right to a non-jury trial, but not the reimbursement order.(D) reverse both the conviction and the reimbursement order because the defendant was denied the right to represent himself.

Answer 372

17. (D) Here’s another classic Multistate example dealing with waiver of right to counsel. A defendant may waive his constitutional right to assistance of counsel provided he does so “knowingly and intelligently,” which means it must have been the product of a reasoned and deliberate choice based upon adequate knowledge of what the assistance of counsel encompasses. A defendant who acts knowingly and intelligently in waiving his right to counsel has a right to proceed pro Se, since he must be free to decide if counsel will be to his advantage in the case. The defendant had the right to waive representation by counsel. See Faretta v. California, 422 u.s. 806 (1975). Although this right of waiver may be denied if a defendant is not competent to represent himself, there is no evidence that the defendant was incompetent. Therefore, his conviction should be overturned, since he was not given the right to represent himself. In addition, the defendant should not be required to reimburse the state for his attorney’s fees due to the fact that counsel was imposed upon him in violation of his constitutional rights. Note, however, that a state can recover legal costs from an indigent who is convicted and is subsequently able to pay. See Fullerv. Oregon, 417 u.s. 40(1974). Choices (A), (B), and (C) are incorrect for the reasons stated above.

Question 373

18. A state has a hit-and-run statute in effect that makes it a crime to leave the scene of an accident. One afternoon, a 9-year-old victim was riding her bicycle along the street. As the victim swerved into the southbound lane, her bicycle was struck by a car driven by the defendant. The victim was knocked off her bike and thrown onto the sidewalk adjacent to the street. Although the victim received some minor scrapes and bruises, she was not seriously injured. Following the accident, the car driven by the defendant sped away.Moments later, however, a tractor-trailer crashed into the rear of a car about 30 feet from where the victim was lying. The car almost instantly caught fire as its gas tank exploded. The victim, who was engulfed in the flaming wreckage, was killed.If the defendant is charged with involuntary manslaughter for the death of the victim, the defendant should be found(A) guilty, because she unlawfully fled the scene of an accident in violation of her statutory duty.(B) guilty, because her failure to render aid to the victim would make the defendant criminally responsible for the victim’s death.(C) not guilty, because under the circumstances her failure to aid the victim cannot be a basis for imposing criminal responsibility for the victim’s death.(D) not guilty, because there was not a sufficient causal connection between her actions and the victim’s death to impose criminal responsibility.

Answer 373

18. (D) As a general rule, most crimes require the following elements: (1) an act, (2) mental fault (or “guilty mind”), (3) concurrence (or act + mental state), (4) harm, and (5) causation. With crimes so defined as to require not merely conduct but also a specified result of conduct, the defendant’s conduct must be the “legal” or “proximate” cause of the result. The fact that the defendant fled the scene of the accident (in violation of the hit-and-run statute) was not the “legal” cause of the victim’s death. The victim’s death resulted from the car’s gas tank exploding, which was caused by the collision with the tractor-trailer. Although choice (C) is also conceivably correct, choice (D) is preferred because it refers to the requirement of a causal connection, which is a material element in criminal law. Choices (A) and (B) both contain the incorrect result because the defendant was not the legal cause of the victim’s death.

Question 374

19. A state has the following hit-and-run statute in effect:“Any driver of a motor vehicle (including but not limited to automobiles, trucks, buses, or motorcycles) involved in an accident or collision resulting in injury or death to a human being shall immediately stop his or her vehicle at the scene of such accident or collision, render necessary aid to the injured victim, and furnish the police or other person(s) at the scene with his or her name, address and driver’s license. Any violation or noncompliance with said statute shall be punished by imprisonment for not less than three years nor more than seven years.”The defendant was involved in an accident that involved injuries to the other driver. The defendant, however, knowing his license to be revoked and afraid of being arrested, fled the scene. However, the victim was able to write down the license number of the defendant’s vehicle, and the defendant was rapidly apprehended and put in jail.The defendant is charged with violating the aforementioned statute. He files a motion to dismiss on the grounds that the disclosure requirement of the statute violates his privilege against self-incrimination.His motion should be(A) granted, because the statute makes no provision for Miranda warnings concerning his right to remain silent.(B) granted, because the statute requires him to provide incriminating information that can be used againsthim in a criminal prosecution.(C) denied, because the legislative intent in enacting the statute was designed to require disclosure of information to be used primarily in civil litigation.(D) denied, because in accordance with public policy considerations, the required disclosures are insufficiently testimonial.

Answer 374

19. (D) The u.s. Supreme Court has held that a statute requiring a motorist involved in an accident to stop and give his name and address did not involve self-incrimination in a constitutional sense. Choice (C) is wrong because violation of the statute results in a (criminal) sentence of imprisonment. Therefore, clearly, the legislative intent was not directed for the disclosure requirement to be used primarily in civil litigation. Choices (A) and (B) are incorrect because the statute need not make any provision for Miranda, as the defendant’s Miranda rights are not implicated by arequirement to give information at the scene of an accident.

Question 375

20. One evening, an undercover narcotics agent, with the help of a confidential informant, met with a man. The man took the agent to the home of a drug dealer, who sold the agent four pounds of marijuana. At trial, the drug dealer claimed the defense of entrapment and demanded that the informant’s identity be disclosed and that he be produced. At no time prior to trial did the drug dealer seek to subpoena the man. However, the man was a fugitive from justice the whole time, and no subpoena could have been served. The government claims a right to protect the informant’s identity.Should the government’s claim be honored?(A) Yes, because an informant has a Fifth Amendment privilege against self-incrimination.(B) Yes, because informants would not assist in crime prevention unless they were reasonably certain that their identities would be kept secret.(C) No, because under the Fifth Amendment, a defendant has the right to be confronted by witnesses against him.(D) No, because under the Sixth Amendment, a defendant has the right to a fair trial.

Answer 375

20. (B) In the present fact situation, the government’s claim should be honored. See McCray v. Illinois, 386 U.S. 300 (1967). Choice (A) is incorrect because an unidentified informant has not been extended a Fifth Amendment privilege against self-incrimination. In the McCray case, the court held that it may, in the exercise of its power to formulate evidentiary rules for federal criminal cases, decline to disclose an informer’s identity. Choices (C) and (D) are incorrect for the reasons stated above.

Question 376

21. A defendant was on the first day of her new secretarial job when her boss called her into his office. The boss directly suggested that if the defendant did not go out on a date with him, she would be fired in one week. Every day during the remainder of the week, the boss approached the defendant with his demand, and the defendant refused to cooperate.At the end of the week, when the boss called the defendant into his office and again tried to pressure her to go out on a date with him, the defendant knocked him unconscious with a giant stapler and choked him to death.The defendant is tried for murder. In accordance with the following statute, the state relies at trial on the presumption of malice:“When the act of killing another is proved, malice aforethought shall be presumed, and the burden shall rest upon the party who committed the killing to show that malice did not exist.”If the defendant is convicted of first-degree murder and challenges her conviction on the grounds of the above statute, on appeal she will(A) win, because the statute is unconstitutional.(B) win, because the statute violates due process.(C) lose, because she failed to overcome the presumption.(D) lose, because the presumption may be rebutted.

Answer 376

21. (B) The defendant will win on the appeaL of her murder conviction under the state murder statute, since the statute placed the burden on the defendant to prove or disprove the element of malice. The U.S. Supreme Court in In re Winship, 397 U.S. 358 (1910), held that the Due Process Clause protects an accused in a criminal case against conviction except upon proof “beyond a reasonable doubt” of every fact necessary to constitute the crime for which the defendant is charged. In other words, the Court in the Winship case held that proof of a criminal charge beyond a reasonable doubt is constitutionaLLy required. Consequently, the murder statute in our question is unconstitutional, since the burden of proving the various elements of the offense (murder) is on the defendant, and not on the prosecution, as required in all jurisdictions. Choice (A) is incorrect as it does not go far enough. It is not enough to say unconstitutional. The precise constitutional violation is a better answer choice. Choices (C) and (D) are incorrect for the reasons stated above.

Question 377

22. A defendant suspected her long-term boyfriend was cheating on her. On a hunch, she went to her boyfriend’s apartment one afternoon and, using her key, she entered the apartment. Once inside, she found her boyfriend and his new girlfriend in bed together. In a rage, the defendant retrieved the gun from the nightstand and killed her boyfriend and his new girlfriend.After the shooting, the defendant left on a two-day trip to the mountains to get the week’s events off her mind. She called her teenage neighbor to take care of her apartment while she was gone and to look after her 4-year-old daughter. That night, after the defendant left, the police came to the apartment. They asked the neighbor if they could search the apartment, and the neighbor gave them permission. The police found in the defendant’s bedroom the gun used to kill her boyfriend.At a motion to suppress the gun prior to trial, which of the following facts would the defendant’s attorney be LEAST likely to attempt to prove?(A) The defendant gave her neighbor the keys to her apartment.(B) The police did not have a search warrant.(C) The defendant told her neighbor not to answer the door to anyone.(D) The police told the neighbor she would be taken to the police station if she refused permission to search.

Answer 377

22. (A) Choice (B) is incorrect, since the defendant’s attorney would attempt to prove that the search of her apartment was illegal and, thus, violative of the Fourth Am endment’s protection against unreasonable searches and seizures. Choice (C) is incorrect because if the defendant told the neighbor not to answer the door to anyone, the neighbor could not exercise apparent authority and, thus, consent to a search of the defendant’s apartment. Choice (D) is also incorrect, since the defendant’s attorneywould attempt to prove thatthe neighborwas coerced into granting consent for the search, thus deeming it an illegal search and seizure. ConsequentLy, choice (A) is the LEAST likely fact that the defendant’s attorney would attempt to prove at the suppression hearing. It is important to note that consent searches are one of the exceptions of the Fourth Amendment requirement of a search warrant. However, for a consent search to be vaLid, three factors must be considered: (1) the person consenting must have the authority to consent to a search of the premises; (2) the person’s consent to the search must be voluntary; and (3) the police may not exceed their search into areas for which consent to a search has not been given.

Question 378

23. A detective received information from an informant, who had given reliable information many times in the past, that a man was a narcotics dealer. Specifically, the informant said that, two months before, he had visited the man’s apartment with a friend and that on that occasion he saw the man sell his friend some heroin. The detective knew that the informant, the man, and the friend were acquaintances. Thereafter, the detective put all this information into affidavit form, appeared before a magistrate, and secured a search warrant for the man’s apartment. The search turned up a supply of heroin.The man’s motion to suppress introduction of the heroin into evidence will most probably be(A) granted, because a search warrant cannot validly be issued solely on the basis of an informant’s information.(B) granted, because the information supplied to the detective concerned an occurrence too remote in time to justify a finding of probable cause at the time of the search.(C) granted, because a search for mere evidence alone is improper and illegal.(D) denied, because the informant had proven himself reliable in the past, and the information he gave turned out to be correct.

Answer 378

23. (B) The Fourth Amendment states, in part, “… and no warrants shall issue but on probable cause supported by oath or affirmation …“ Searches conducted pursuant to a warrant must be based on an adequate and reasonable showing of probable cause when a police officer provides information to a neutral and detached magistrate by affidavit or by testimony under oath. However, when an informant uses an affidavit to provide information, the rigid Aguilar—Spinelli test has been used to establish (1) probable cause for issuing the warrant, as well as (2) reliability of the informant. More recently, a “totality of the circumstances” approach has been adopted [Illinois v. Gates, 462 U.S. 213 (1983)] to determine whether there is a “fair probability” or “substantial basis” to conclude that contraband wiLl be found at the particular time and place. The fact that the informant saw the man selL heroin two months before is critical because it is too remote in time to justify a present finding of probable cause. Choice (B) is correct. Choices (A) and (C) are incorrect for the reasons stated above. Choice (D) is incorrect because reliability of the informant without probable cause to search is an insufficient basis to issue a warrant.

Question 379

24. During the murder trial of a defendant, the prosecution presented four witnesses to the brutal slaying of the victim. The evidence pointed to the fact that the defendant beat her about the head and neck with a baseball bat, causing severe injuries to her brain and her ultimate death.The prosecution rested, and the defendant presented two witnesses, his brother and his girlfriend, who testified that the defendant was dining at an elegant restaurant on the other side of town at the time of the alleged murder. The defendant presented no other witnesses.During his closing argument to the jury, the assistant district attorney called attention to the fact that the prosecution witnesses had no apparent reason to have any bias toward the prosecution or against the defendant. He then noted that the defendant’s witnesses had clear motives to falsify their testimony and favor the defendant. The assistant district attorney added, “If the defendant was on the other side of town, why didn’t he tell us himself? Why didn’t he get on the stand? What was he hiding? Those are questions for you, the jury, to answer.”The defendant was convicted of first-degree murder and sentenced to life imprisonment.On appeal, his conviction should be(A) reversed, because the prosecutor improperly referred to the possible motives or interests of the defense witnesses.(B) reversed, because the defendant’s constitutional rights were violated in the assistant district attorney’s closing argument.(C) reversed, because the assistant district attorney referred to the defendant’s failure to testify.(D) reversed, because the assistant district attorney’s argument violated the defendant’s rights under the Fifth and Fourteenth Amendments.

Answer 379

24. (0) In Griffin v. California, 380 U.S. 609 (1965), the U.S. Supreme Court held that the self-incrimination guarantee of the Fifth Amendment, as applicable to the states under the Fourteenth Amendment, forbids either comment by the prosecution of an accused’s silence or instructions by the court that such silence is evidence of guilt. The closing comments by the prosecutorthat the defendant failed to take the stand would be violative of the defendant’s right against self-incrimination. Choice (A) is incorrect because it is not improper to argue the bias of a defense witness. Choice (B) is incorrect because it is not as specific and on point to the facts as choice (D). Choice (D) is a better answer than choice (C) because a correct statement of law is generally preferred over a correct statement of fact.

Question 380

25. A defendant and his co-conspirator were arrested and charged with robbery and conspiracy to commit robbery. Following their arrest, they were both taken to the police station and given Miranda warnings. They both expressed a desire to remain silent until they could consult an attorney. At the station house, they were booked and placed in separate jail cells.Later that day, and before any attorney consultations could take place, a police detective went to the coconspirator’s cell and began interrogating him. The detective told the co-conspirator that if he cooperated in their investigation, the prosecuting attorney would drop charges against him. The co-conspirator then reluctantly confessed and implicated the defendant in the commission of the crimes. The co-conspirator also told the police where the defendant had hidden the stolen property. Based on this information, the police retrieved the stolen property, which included a diamond necklace.Later the same day, the police went to the defendant’s jail cell and showed him the diamond necklace that they had recovered. They also told the defendant that the co-conspirator had confessed and implicated him in the perpetration of the crime. Confronted by this evidence, the defendant confessed.The defendant was then prosecuted for conspiracy and robbery. At the defendant’s trial, the prosecution sought to introduce into evidence the necklace and the defendant’s confession.The defendant’s motion to exclude these offers of proof will be(A) denied to both the necklace and the confession.(B) denied to the necklace, but granted to the confession.(C) granted to the necklace, but denied to the confession.(D) granted to both the necklace and the confession.

Answer 380

25. (B) The defendant’s confession will be inadmissible, whereas the necklace will be admitted over the defendant’s motion to exclude. As to the necklace, the rule is that a conspirator does not have automatic standing to challenge the seizure of illegally obtained evidence from a co-conspirator. To have authority or standing to challenge the lawfulness of a search or seizure by a government agent, an individual’s personal privacy rights must be invaded (rather than those of a third party). Therefore, regardless of any violation of the co-conspirator’s rights, the defendant here has no standing to challenge the admission of the necklace. As to the defendant’s own confession, it will be inadmissible due to the violation of the defendant’s Miranda rights. The defendant clearly expressed a desire to remain silent until he could consult an attorney. Once defendant asserted this right, the re-initiation of interrogation by the police without an attorney present violated the defendant’s Fifth Amendment right to counsel. Here, the police showed defendant the diamond necklace that they had recovered and told the defendant that he had been implicated by the co-conspirator, which is conduct wherein the police knew or should have known they could get a damaging statement. Therefore, the correct answer is (B) because the defendant’s motion to exclude the necklace will be denied and defendant’s motion to exclude his own confession will be granted.

Question 381

26. The police received a report that women dressed as superheroes had robbed a man in his house and stolen many of his valuables. The only way onto or off the island where he lived was a ferry. The last ferry was getting ready to leave for the night when the report came in to the police.Without attempting to get a warrant, the police stopped all the cars waiting for the ferry. In one vehicle, the police noticed three women fidgeting rather nervously. Upon searching their auto, the police found the victim’s stolen property hidden under the front seat. The defendants were immediately placed under arrest.At their trial for armed robbery, the defendants move to suppress the use of the property confiscated by the police as evidence. Their motion should be(A) granted, because the police did not have a warrant to search their car.(B) granted, because the police did not have probable cause to suspect that their car contained evidence of the crime.(C) denied, because the police had probable cause to search their car and, under the circumstances, no warrant was required.(D) denied, because even though the detention was unlawful, the police had reasonable suspicion to believe that their car contained evidence of the crime since they observed the women fidgeting nervously.

Answer 381

26. (B) Keep in mind that the warrant requirement is central to the Fourth Amendment protection against unreasonable searches and seizures. As a basic rule, all warrantLess searches are unconstitutional unless they fall into one of the following seven exceptions to the warrant requirement: (1) search incident to a Lawful arrest; (2) the “automobile” exception; (3) plain view; (4) “stop and frisk”; (5) consent; (6) hot pursuit; and (7) other emergencies. A valid warrantless search must meet the requirements of at least one of the above exceptions. With respect to the “automobile” exception, the police must have probable cause to suspect or reasonably believe that the vehicle contains evidence of the crime. In the present example, the police did not have a reasonable or articulable suspicion to believe that the defendants’ car contained evidence of the crime. As a result, choice (B) is correct because the police did not have probable cause to conduct a warrantless search of the auto. Choice (A) is wrong because, if the police had probable cause to suspect that the vehicle contained evidence of the crime, then no warrant would have been necessary. Choice (D) is incorrect because the mere fact that the police observed the women “fidgeting nervously” would not by itself give the officers probable cause to suspect that the defendants’ car contained evidence of the crime. Choice (C) is incorrect because the police did not have probable cause to search the vehicle, for reasons stated above.

Question 382

27. A defendant was smoking marijuana as he was driving home from work one afternoon. A police officer approached him on the freeway and stopped the car to issue a citation for speeding. As the defendant handed the officer his driver’s license, the officer smelled burnt marijuana, saw the joint, and saw an open envelope on the seat next to the defendant containing a substance that looked like marijuana. The officer ordered the defendant out of the car, arrested him for unlawful possession of marijuana. The officer then searched the defendant and found a sealed envelope in the defendant’s back pocket. Without asking the defendant’s permission, the officer opened the envelope and discovered that it contained cocaine. The officer then unzipped one of the jacket pockets on the jacket the defendant was wearing and found more cocaine and arrested the defendant for possession of cocaine.The defendant was taken to the police station and immediately escorted to an interrogation room. He was given his Miranda warnings, waived his rights, and gave a statement admitting to possession of cocaine and marijuana.Which of the following is a correct statement of the applicable legal principles regarding the search of the defendant?(A) When a police officer has made a lawful custodial arrest of an individual, he may, as a contemporaneous incident of that arrest, search the person of the individual.(B) The exclusionary rule requires that if an officer conducts an unconstitutional search, the evidence acquired in the course of the officer’s subsequent activities is inadmissible.(C) If an individual effectively consents to a search of their person, the evidence gathered during the search is admissible.(D) One who drives an automobile on a public highway does not have a legitimate expectation of privacy.

Answer 382

27. (A) When a police officer has made a lawful custodial arrest of an individual, the police officer may, as a contemporaneous incident of that arrest, search the person of that individual. Thus, the search of the defendant’s person, after the police officer placed him under arrest, would not be violative of the Fourth or Fourteenth Amendments. The search was lawful as a result of the police officer’s probable cause to search the defendant as incident to the arrest on the charge of unlawful possession of marijuana. Choice (B) is incorrect because, as stated above, the evidence is admissible. Choice (C) is incorrect because consent is not necessary in a search incident to a lawful arrest. Choice (D) is incorrect because it is a misstatement of the law. People do still have an expectation of privacy in their persons on public roads.

Question 383

28. A defendant was arrested for the armed robbery of a liquor store. The defendant was taken directly from the scene of the crime in a patrol car to the police station where he was placed, still handcuffed, in an interview room. He waited for about an hour, and a detective finally came in. The detective gave the defendant his Miranda warnings, and the defendant agreed to sign the waiver and speak to the detective. The defendant then confessed to the robbery.Which of the following allegations would be LEAST helpful in suppressing his statement?(A) Before the defendant gave the statement he was refused permission to use the bathroom.(B) The defendant had a private lawyer on retainer at the time he gave his statement.(C) The defendant’s arrest was not based on probable cause.(D) The defendant could not speak English, and the warnings were given in English.

Answer 383

28. (B) Choice (B) would be LEAST helpful to the defendant in suppressing his statements to the police in which he admitted robbing the liquor store. The facts tell us that the defendant waived his rights to remain silent; in accordance with Miranda, a suspect may waive his rights, as long as the waiver was knowingly, voluntarily, and intelligently made by the suspect. Consequently, the mere fact that one has retained an attorney does not preclude him from waiving his Miranda rights. Choice (A) is incorrect because it is helpful to the defendant if he is refused a chance to use the restroom. It could be seen as coercive conduct by the police. Choice (C) is incorrect because it is very helpful for the defendant if his arrest was illegal. Any confessions that proceed from it would, therefore, be inadmissible. Choice (D) is incorrect because the defendant cannot give a voluntary waiver of Miranda if he does not understand the warnings.

Question 384

29. A defendant was arrested and prosecuted for the crime of false pretenses. At trial, the defendant testified that she prophesied the victim’s imminent death. The defendant admitted that she told the victim she could save him if he brought a large sum of money wrapped in a handkerchief to a ritual. After the ritual, the defendant returned the handkerchief to the victim filled with waste paper rather than the money. After the defendant was convicted of false pretenses, she moved for a new trial and offered the affidavits of several jurors who sat on the case.An affidavit containing which of the following facts will most likely furnish the defendant’s best basis for securing a new trial?(A) A juror misunderstood the judge’s instructions regarding the burden of proof.(B) A juror, in violation of the court’s instructions, read a newspaper article implicating the defendant in several other similar schemes.(C) Ajuror fell asleep during defense counsel’s closing argument.(D) A juror admittedly stated during deliberations that he had a personal animosity toward the defendant.

Answer 384

29. (B) The right to a fair and impartial trial is required by the concept of due process and the Sixth Amendment’s guarantee of an impartial jury. Based upon the decision in Sheppard v. Maxwell, 384 U.S. 333 (1966), choice (B) would provide the best grounds to justify a showing that a juror was biased and not impartial. In Sheppard, the U.S. Supreme Court held that the judge should act “where there is a reasonable likelihood the prejudicial news” would prevent a fair trial. Choices (A), (C), and (D) are incorrect because they have all been held not to warrant a new trial.

Question 385

30. While on routine patrol, police officers observed a driver make an illegal U-turn. After stopping the driver’s car, they observed him reach under the driver’s seat. They ordered him out of the car and saw a cellophane package protruding from under the seat. The package contained a white powdery substance, which the officers suspected to be cocaine.The officers placed the driver under arrest and put him in the rear of their patrol car. They then proceeded to search the rest of the driver’s car. In the trunk they found an assault rifle that was later determined to be the weapon used in a liquor store robbery. Charged with that robbery, the driver moved to suppress the assault rifle as evidence on the grounds that the police did not have a warrant to search the trunk.The best theory that the prosecution can use in support of the admissibility of the assault rifle as evidence is that(A) the police conducted an automobile search.(B) the police conducted an inventory search.(C) the search was incident to a lawful arrest.(D) the search was made under exigent circumstances.

Answer 385

30. (A) This Criminal Procedure question deals with the highly tested area of warrantless searches. By process of elimination, choice (A) furnishes the best grounds to justify the search of the driver’s vehicle. A warrantless search and seizure of items from an automobile may be permitted where there is probable cause to believe the vehicle contains contraband (or where the vehicle could be moved before there is time to obtain a warrant). In accordance with the holding in United States v. Ross, 456 U.S. 798 (1982), once probable cause to search exists, the police can search the entire vehicle, including closed containers. Choice (B) is not a strong answer, since an inventory search is one that is made either at the police station or at a police impounding. In either case, such a warrantless search is made well after the initial stopping of the vehicle. By the same token, choice (C) presents a weak argum ent because a search incident too lawful arrest extends only to the area within the immediate control of the defendant. Also, choice (D) is not the best answer because “exigent circumstances” apply only in emergency situations where the evidence maybe lost or destroyed before a warrant can be obtained.

Question 386

31. Sally sold heroin to John. John was later stopped by police for speeding. The police searched John’s car and found the heroin concealed under the rear seat. Sally is charged with illegally selling heroin.Sally’s motion to prevent introduction of the heroin into evidence will most probably be(A) granted, because the heroin was not in plain view.(B) granted, because the scope of the search was excessive.(C) denied, because Sally has no standing to object to the search.(D) denied, because the search was proper as incident to a valid full custodial arrest.

Answer 386

31. (C) A commonly tested area on the Multistate Exam is that of standing, both in Constitutional Law, as well as in Criminal Procedure. In Rakas v. Illinois, 439 U.S. 128 (1978), a passenger who had no property interest in an automobile was held not to have standing to challenge a search of the vehicle as to items seized from it. This decision is founded on the principle of no reasonable expectation of privacy. To have Fourth Amendment standing, a person must show that his own rights were violated. Standing is proper if a person owns or has a right to possession of the place or thing searched, or if the place searched is the person’s home. Since John, not Sally, owned the car, Sally has no standing to object to the search. Choice (C) is, therefore, correct. Note further that Rakas held that being “legitimately on the premises” is insufficient grounds to assert standing by itself, without proof of some possessory interest. Also, testimony given by the defendant to assert standing may not be admitted substantively against him at trial, See Simmons v. United States, 390 U.S. 377 (1968). Choices (A), (B), and (D) are incorrect for the reasons stated above.

Question 387

32. A reliable police informant telephoned the police to report seeing two men in a blue car selling narcotics outside a local movie theater. The informant gave a detailed description of the two men and the license number of the vehicle. A patrol car was immediately dispatched to the movie theater. A few minutes later, the police saw a car matching the description given parked about two blocks from the movie theater. When the police approached, they saw one man fitting the description provided.The police proceeded to the car and opened the doors of the vehicle. The police then pried open a locked tool case that was situated in the rear of the vehicle. Inside, the police found an envelope that contained about one gram of cocaine. They then placed the driver of the vehicle under arrest. Immediately thereafter, the police opened the glove compartment and found a small amount of marijuana.The driver of the van was subsequently prosecuted and charged with two counts of possession of controlled dangerous substances. He filed a motion to exclude the cocaine and marijuana from evidence.His motion will most likely be(A) granted, as to the cocaine only.(B) granted, as to the marijuana only.(C) granted, as to both the cocaine and the marijuana.(D) denied, as to the cocaine and the marijuana.

Answer 387

32. (D) In California v. Acevedo, 59 LW 4559 (1991), the Supreme Court held that police may search an automobile and the containers within where they have probable cause to believe contraband or evidence is contained. Accordingly, in United States v. Ross, 456 U.S. 798 (1982), the Court held that if “probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Since the police had probable cause to search the entire vehicle for drugs, the police may lawfully search both the tool case and the glove compartment. Choices (A), (B), and (C) are incorrect because, for the reasons stated above, the defendant would not be successful in his motion to suppress.

Question 388

33. Police officers received an anonymous tip that two men were selling cocaine from the back of a restaurant. The tipster stated to the police that the two men were both tall white men who were wearing jeans and black shirts, the uniform of the restaurant. The tipster also said that one of the men had red hair and was wearing a tan ball cap and the other man had black hair and was wearing a red ball cap.The police set up surveillance on the back of the restaurant and saw the two men make several hand- to-hand transactions. Upon receiving authority to make the arrest from their commanding officer, they waited for the two men to come out again. About two hours later, the two men came out again, this time with a woman. The officers arrested the two men and detained the woman to determine her involvement.The officers took the woman’s purse without her consent and searched it for illegal narcotics. In her purse they found three grams of crack cocaine, digital scales, a small glass pipe used for inhaling crack cocaine, and a balloon of black tar heroin. The woman was then arrested on the various drug charges.The woman was thereafter prosecuted and charged with illegal possession of a controlled dangerous substance and possession of drug paraphernalia. She filed a motion to exclude the drugs and the paraphernalia from evidence.Her motion will most likely be(A) granted, because the police did not have probable cause to conduct the search of her purse.(B) granted, because the police did not secure a warrant before conducting the search.(C) denied, because the search was justified, since she was about to leave the scene of the crime.(D) denied, because she was sufficiently close or proximate to the crime scene to justifi the warrantless search.

Answer 388

33. (A) This is a tricky Multistate question that requires a careful reading of the facts. The police informant reported seeing two men engaging in the sale of narcotics. Consequently, they did not have probable cause to suspect that the woman was engaged in the commission of a crime. In this regard, it is important to point out that “a person’s expectations of privacy in personal luggage are substantially greater than in an automobile.” The rule for automobiles does not extend to personal belongings. When the circumstances are sufficiently “exigent” to allow the police to make a warrantless seizure of personal items, this does not permit the “far greater intrusion” of examining the contents thereof but only the continued possession of the personal effects while a warrant is sought. LaFave, Criminal Procedure, pg. 152. Choice (B) is incorrect because there is no probable cause to get a warrant and, therefore, Choice (A) is the better of the two choices. Choice (C) is incorrect because there are no facts to suggest that the defendant was fleeing the scene. Choice (D) is incorrect because proximity to a crime does not automatically mean probable cause exists to believe that one is an actor in the crime absent some other evidence.

Question 389

34. A police department filed a complaint charging Bill with the sale of narcotic drugs in violation of a state statute and obtained a valid warrant for his arrest. Two police officers went to Bill’s house, a two-story colonial. After knocking at the door, they were admitted by Bill’s brother, Mark. One of the policemen showed Mark the arrest warrant and asked if he was Bill. He replied that he was Bill’s brother and that he was staying at his brother’s house while Bill was away on a business trip. The police officer then asked Mark for some identification. Mark was only able to produce an out-of-state driver’s license. The other policeman then became suspicious and proceeded to frisk Mark. During the pat-down, the police officer found the following letter, which read:“Dear Mark,If you could get rid of your brother permanently, we could be together forever.With love,your favorite girl.”Nervously, Mark then agreed to allow the policemen to search the house. The officers conducted an extensive two-hour search of the house and found nothing of interest to them.As they were leaving, one of the police officers walked over to a parked car in the driveway of the house and noticed that the car’s trunk was slightly open. When he looked in the trunk, the police officer discovered Bill’s body.If Mark’s attorney files a motion to suppress the introduction of the letter into evidence, the court should rule that the evidence is(A) admissible, because it was on the person, or in the presence of the person, who was later arrested.(B) admissible, because it was obtained pursuant to a valid search.(C) inadmissible, because the letter was obtained as a result of a non-consensual search and seizure.(D) inadmissible, because the letter was the fruit of an illegal search and seizure.

Answer 389

34. (D) Choice (D) is correct, since the letter was the “fruit” of an illegal search. The Fourth Amendment prohibition against unreasonable search and seizure, as applicable to the states by the Fourteenth Amendment, would be invoked, since the officers had neither “probable cause” to search Mark nor a valid search warrant. Although “probable cause” is not required to justify an investigatory field stop (e.g., “stop and frisk”), the police still must have some objective basis for believing that the person was about to engage, or already had engaged, in criminal activity. Choices (A) and (B) are incorrect as misstatements of law. Choice (C), though correct, is the less preferred choice, since the basis for excluding the letter from evidence is that it is the “fruit” or product of an illegal search, rather than the result of a nonconsensual search.

Question 390

35. A defendant was arrested and charged with burglarizing a pharmacy. The break-in allegedly occurred late one evening after the store had closed for business. The defendant was identified as the perpetrator of the crime by a film that was recorded during the burglary from a hidden camera. When the defendant was apprehended, he denied involvement in the crime and told the arresting officers that he had been out of town when the burglary occurred.Prior to trial, the defendant’s court appointed attorney filed a motion requesting discovery of the videotape film that was recorded during the perpetration of the crime. The trial judge granted the request and ordered the prosecution to send a duplicate copy of the videotape to the defendant’s attorney. Following the judge’s ruling, the prosecuting attorney, pursuant to state law, then filed a discovery motion specifically asking the defendant whether he planned to raise an alibi defense. The prosecuting attorney also sought discovery of the identity of such an alibi witness.Assume that the judge requires the defendant to respond as to whether the defendant intends to raise an alibi defense.May the judge also require the defendant to disclose the identity of the alibi witness?(A) Yes, because the prosecution should have an opportunity to investigate the merits of the alibi.(B) Yes, because the defendant waived any claim of privilege when he sought discovery of the film from the prosecution.(C) No, because by requiring the defendant to reveal information before he is tactically ready to do so substantially impairs his ability to successfully defend himself.(D) No, because such disclosure constitutes an implied representation that is testimonial in character and, thus, violates the defendant’s privilege against self-incrimination.

Answer 390

35. (A) Although state courts are not required to permit liberal pretrial discovery, they must grant the defense the same discovery rights given to the prosecution. This evenhandedness is also apparent with regard to the disclosure of the identity of alibi witnesses where the defendant intends to raise such a defense. Many states require, by statute or rule of court, that a defendant who intends to rely on alibi as a defense should give the prosecution advance notice of his intention, and often includes the disclosure of the identity of the alibi. The purpose of these statutes is to afford the prosecution an opportunity to investigate the merits of the alibi, a defense which is easily fabricated and manufactured. Holding that these statutes are valid, courts have rejected claims that the enactments are unconstitutional in that requiring the defendant to make an advance disclosure of his alibi defense denies him due process of law, equal protection of the laws, or violates his privilege against self-incrimination. Here, because the facts indicate that there is a state law basis for the request by the prosecution, answer choice (A) is correct, as it comes to the correct conclusion and relies on the essential reason for these enactments. Choices (B), (C), and (D) are incorrect for the reasons stated above.

Question 391

36. A woman was driving her van along a public road one night. A police officer, who was driving behind the woman, decided to make a random stop of the woman’s vehicle to check her license and registration. The officer pulled the woman’s van over to the side of the road and then walked up to the driver’s side of the vehicle. When he came alongside the driver’s window, the officer asked the woman for her identification. As the woman was thumbing through her wallet, the officer shone his flashlight into the van and spotted a plastic bag containing marijuana lying on the floor under the back seat. The officer then arrested the woman and charged her with possession of marijuana.At the woman’s trial for illegal possession of a controlled substance, her attorney moved to suppress the use of the marijuana as evidence. Her motion should be(A) granted, because the marijuana was the fruit of an illegal search.(B) granted, because the police officer did not have probable cause or a reasonable suspicion to believe that the woman’s van contained a controlled substance.(C) denied, because the marijuana was in plain view when the police officer shone his flashlight inside the van.(D) denied, because the seizure of the marijuana was made pursuant to a lawful investigatory stop.

Answer 391

36. (A) A random stopping of a vehicle on the highway where the officer has no suspicion of wrongdoing is unconstitutional because it leaves too much discretion to the police officer. See Delaware v. Prouse, 440 U.S. 648 (1979). And, applying the “fruits of the poisonous tree” doctrine, no evidence seized as a result of a Fourth Amendment violation may be admitted at trial. See Wong Sun v. United States, 371 U.S. 471 (1963). Note: The rule suppressing fruits of an illegal search applies not only to objects found, but also to verbal statements obtained because of the original tainted search or as a result of an illegal arrest. See Brown v. Illinois, 422 U.S. 590 (1975). Choices (B), (C), and (D) are incorrect for the reasons stated above.

Question 392

37. A state has recently enacted a statute making it a misdemeanor for any person to smoke a cigarette, cigar, or pipe in any restaurant, bar, cafe, or other establishment within the state.A defendant was tried in state court for violating the anti-smoking statute. The prosecution’s evidence consisted of testimony regarding the defendant’s cigarette smoking at a restaurant. During the prosecution’s case-in-chief, they called a witness who testified to a prior conviction of the defendant that had been excluded by the judge in a pretrial hearing. The judge immediately granted a mistrial and excused the jury.The state prosecutor appealed the ruling under a statute that permitted prosecutorial appeals in such circumstances. The state won the appeal, but the prosecutor decided not to re-prosecute the defendant. However, the city attorney from the city in which the restaurant was located then sought to prosecute the defendant for the same incident under the city’s anti-smoking ordinance, which was identical to the state statute. The city attorney planned to call as her only witness a man who testified at the defendant’s first trial. The defendant moved to dismiss on the grounds that the prosecution of the city charge would violate his rights against double jeopardy.The court should(A) grant the motion, because jeopardy attached in the first prosecution.(B) grant the motion, because the law and the evidence will be identical at the second trial.(C) deny the motion, because the city and the state are separate sovereigns.(D) deny the motion, because the judge granted a mistrial.

Answer 392

37. (D) The Fifth Amendment right to be free from double jeopardy for the same offense prohibits retrial after a determination on the merits. In United States v. Scott, 437 U.S. 82 (1978), the Court held that “the defendant, by deliberateLy choosing to seek termination of the proceedings against him on a basis unrelated to factual guilt or innocence of the offense of which he is accused, suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appear from such a ruling ofthe trial court in favor of the defendant.” LaFave and Israel, Criminal Procedure, pg. 910. Thus, the general rule is that reprosecution following dismissal bythe judge upon the defendant’s motion that does not constitute an acquittal on the merits is not prohibited bythe double jeopardyclause. In these facts, the defendant’s motion for dismissal at the first trial was granted by the judge based on a witness testifying to previously excluded evidence, not on any factual element of the statutory offense charged. Hence, no jeopardy has attached to barthe defendant’s municipal prosecution. Choice (A) is incorrect, and the defendant’s motion to dismiss atthe second trial will be denied. Choice (D) properly states the correct rationale. Choice (B) is incorrect because collateral estoppel bars retrial of issues that have been actually litigated. The defendant’s first trial ended in a dismissal without litigating any factual issues not being raised at the second trial. Choice (C) is incorrect because the separate sovereignties doctrine does not apply to trials by a state and by its municipalities.

Question 393

38. While parked on a downtown street, a police officer noticed a man sauntering down the street, whistling. As the man came under a street light, the officer recognized him as a parolee from a neighboring state. The officer got out, stood in front of the man, and asked him to give an account of himself. The man replied, “I’m the president, you dope … get out of my way or the Secret Service will gun you down,” and reached into his coat pocket to bring something out, which he held in his clenched fist. The officer forced the man’s hand open and found a number of diamond rings therein. Just then, the police radio in the officer’s car announced that the burglar alarm of a jewelry store had rung in police headquarters. Believing that the man was responsible for burglarizing the jewelry store, the officer arrested him and took him to the police station where he was booked and fingerprinted. After he was given his Miranda warnings, the man requested to speak to his attorney. The officer led the man to a telephone and asked him if he knew his attorney’s phone number. The man responded and gave the officer a phone number. The officer dialed the number and waited until a voice answered, “law offices.” The officer then handed the telephone receiver to the man. As the officer was walking out of the room, he heard the man say, “Hello, it’s me. I just got arrested after robbing a jewelry store.”At trial, the officer is called to testify to what the man told his attorney during their telephone conversation. Upon proper objection by the man’s attorney, the officer’s proposed testimony should be(A) admitted, because the man’s confession was not coerced.(B) admitted, because the statement was not the product of interrogation.(C) excluded, because the officer’s conduct violated the man’s Sixth Amendment right to counsel.(D) excluded, because the officer’s conduct violated the man’s attorney-client privilege.

Answer 393

38. (B) There are four specific bases with which to attack the admissibility ofa statement or confession: (1) the Miranda standard; (2) the right to counsel approach; (3) the voluntariness approach; and (4) fruits of illegal conduct. The Miranda standard applies only once custodial interrogation has begun. Statements elicited once the right to remain silent has been requested or once counsel has been requested will be inadmissible. In this question, the man was arrested and given his Miranda warnings. He requested counsel. However, his statements to his attorney were not made as a product of interrogation. The man’s statement was not violative of the Miranda standard once one assumes the risk that a telephone conversation will be overheard. Therefore, the officer’s testimony will be admitted under choice (B). Choice (A) is incorrect because the man’s remarks were inadvertent; he was not knowingly and voluntarily conferring, so lack of coercion is not the proper basis upon which to admit his statement. Choice (C) is incorrect. The Sixth Amendment right to counsel approach, which attaches to all “critical stages” of a criminal proceeding, operates to exclude any statements deliberately elicited once criminal charges have been filed. The man’s statements were volunteered, not elicited. Finally, choice (D) is incorrect because the man, as holder of the attorney-client privilege, waived confidentiality by speaking out over the telephone. Note: General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not considered custodial interrogation for Miranda purposes. See LaFave, Criminal Procedure, pg. 292.

Question 394

39. A defendant was booked on a commercial airline flight. When the defendant arrived at the airport, two undercover police narcotics agents observed him. His appearance and actions led the police to believe that he fit the description of a predetermined profile of a drug courier. The officers approached the defendant and told him they wanted to detain him for questioning. The defendant asked what for, and the police explained that they were narcotics agents assigned to the airport and that he fit the profile of a drug courier. They then asked the defendant to hand over his overnight bag. The defendant refused. The officers then explained that he wouldn’t be permitted to board the plane unless they inspected the contents of his bag. The defendant told the officers that he changed his mind and decided not to fly today after all. The officers still requested that the defendant turn his overnight bag over to them. The defendant did so, and then he was given permission to leave the airport.The next day, the police had a dog sniff the defendant’s bag for narcotics. The results of this search gave police suspicion to believe that the bag contained narcotics. They opened the defendant’s bag and found heroin inside. The defendant was subsequently arrested and charged with unlawful possession of narcotics.At trial, the defendant’s attorney moves to prevent introduction of the heroin into evidence. This motion will most likely be(A) granted, because the police did not have probable cause to hold the bag overnight for the search.(B) granted, because the heroin was discovered as a result of an unlawful airport detention.(C) denied, because the defendant fit the predetermined profile of a narcotics courier.(D) denied, because the search resulted from a lawful airport detention.

Answer 394

39. (A) Here’s a tricky Criminal Procedure example dealing with airport searches. Generally, under federal law, warrantless administrative searches are permitted at airports in order to protect passengers from weapons and explosives. Although narcotics- sniffing dogs may sniff a passenger’s luggage, any resulting detention must be brief and a seizure of the luggage is subject to Fourth Amendment limitations. See United States v. Place, 77 L.Ed. 2d 110 (1983). Although the police may have been justified to temporarily detain the defendant, they would not be permitted to confiscate his baggage and hold it overnight. Choice (A) is correct because such a seizure is violative of the Fourth Amendment based on the decision in the Place case. Choice (B) is incorrect because the initial detention of the defendant was lawful. Choices (C) and (D) are incorrect for the reasons stated above.

Question 395

40. A man was standing on a street corner when a police officer approached him. The officer gently grabbed the man’s arm and said, “Hey, I want to talk to you.” The man responded, “About what … I’m in a hurry to go home and watch the baseball game.” The officer then remarked, “Listen, what were you doing at the liquor store last week?” The man stated, “All right, man, I was there during the robbery.” Whereupon, the officer placed the man under arrest and charged him with robbery.The man was taken to police headquarters where he was booked. For the first time, he was given his Miranda warnings. He then waived his rights and confessed to being an accessory during the liquor store robbery. Afterward, the court appointed an attorney to represent the man. The attorney moved to suppress both statements the man gave to the police. The trial court granted the motion with respect to the first statement as a violation of Miranda. The man’s attorney now moves to suppress the secondstatement given at the police headquarters.This motion should be(A) granted, because the second statement was the fruit of the first statement.(B) granted, because the first statement was excluded, and the second statement is tainted.(C) not granted, because the man had already confessed to the crime.(D) not granted, because the second statement was volunteered after a knowing Miranda waiver.

Answer 395

40. (A) In Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court ruled (5-4) that a police officer’s intentional, bad-faith decision to interrogate a suspect in custody without first giving the required Miranda warnings, which produced a confession followed by Miranda warnings, renders a second post-Miranda confession also inadmissible. Justice Kennedy, who provided the fifth vote based his decision on the issue of whether the police deliberately withheld Miranda warnings initially in order to obtain a second confession (which followed valid warnings close in time to the first unwarned confession). The man’s first unwarned confession is inadmissible as a direct violation of Miranda. The man’s subsequent post-Miranda confession must also be suppressed because the officer deliberately withheld Miranda warnings prior to his first confession. Therefore, the man’s subsequent confession must also be suppressed. Choices (B), (C), and CD) are incorrect for the reasons stated above.

Question 396

41. Two men held-up a liquor store in a city. During the robbery, one of the participants shot and killed the owner of the store. Over a year later, police detectives arrested a defendant after obtaining reliable information that the defendant was the robber who was responsible for killing the store’s owner. Afterward, the defendant was taken to the station house where he was booked for the crime and then incarcerated. The next day, the prosecuting attorney made a decision to delay indictment until he could discover the identity of the defendant’s accomplice. The defendant was then released from police custody. In this jurisdiction the statute of limitations for murder is five years.Five months later, the prosecuting attorney, after unsuccessfully attempting to secure information on the defendant’s cohort, indicted the defendant, charging him with felony murder. Shortly before trial, the only eyewitness to the crime died. He would have testified that the defendant did not participate in the robbery.The defendant’s motion to dismiss the indictment because of the delay between the date of the crime and the date of the indictment will most probably be(A) granted, because the prosecutor is constitutionally required to press charges, if at all, within a reasonable time after probable cause is established.(B) granted, because the delay in prosecuting the defendant actually prejudiced him.(C) denied, because pre-indictment delay does not violate the Constitution, as long as it does not exceed an applicable statute of limitations.(D) denied, because the delay was not excessive and was for a permissible purpose.

Answer 396

41. (D) Another area in Criminal Procedure commonly tested on the bar exam deals with indictment delays after arrest. When a defendant, after being arrested and released, is not indicted until a long time interval has passed, the Sixth Amendment right to a speedy trial does apply. See Dillingham v. United States, 423 U.S. 64 (1975). However, the Court determines whether the delay is reasonable or unreasonable by balancing the following factors: (1) the length of the delay; (2) the good faith and justification of the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. The prosecution’s delay in indicting the defendant was for a proper purpose (i.e., to obtain information about his accomplice). Moreover, a five-month delay (where the statute of limitations is five years for murder) does not appear to be unreasonably long. Therefore, choice (D) is correct. Choices (A), (B), and (C) are incorrect for the reasons stated above.

Question 397

42. A state has adopted a system of bifurcated trials in cases in which a defendant’s insanity is in issue. According to the bifurcated trial system, whenever a defendant pleads not guilty to an offense by reason of insanity, two trials will be held. The first one will simply determine whether the defendant has committed the offense for which she is charged. This trial will not address the issue of insanity. In the event that it is found that the defendant has, in fact, committed the offense, then a second trial will be conducted to determine whether she should be exculpated for the criminal action by reason of insanity.A woman was arrested and charged with murder. She pleaded not guilty by reason of insanity. At her first trial, the state introduced evidence showing that the woman was having an affair with the victim. When the victim tried to break off their relationship, the woman shot and killed him during a lover’s quarrel. The woman was then called to testify in her own behalf. She testified that she had been living with the victim for two years prior to the time of his death. During that period she had undergone psychiatric treatment and was diagnosed as being schizophrenic. She further testified that at the time the victim was killed, she was under the influence of narcotics. While she was hallucinating, she remembered perceiving the victim as a demon and shot at this satanic figure in order to free herself from his evil spell. She then testified that she didn’t believe shooting the demon was morally wrong. The prosecuting attorney objected to the woman’s testimony. Over such objections, the trial judge admitted the woman’s testimony.Was the trial judge correct in admitting the woman’s testimony?(A) No, because proof of mental disease requires the use of expert testimony.(B) No, because testimony relating to her belief that she didn’t know what she was doing was wrong, is not relevant until the second trial.(C) Yes, because her testimony is relevant to the mental state necessary for the commission of the crime.(D) Yes, because her testimony is relevant to the issue of self-defense.

Answer 397

42. (C) Students must be familiar with the area of “bifurcated trials.” In a very few jurisdictions, most notably California, the defense of insanity is tried separately from the other issues in the case. Under California law, for example, a defendant may plead (1) not guilty, (2) not guilty and also not guilty by reason of insanity, or (3) merely not guilty by reason of insanity. If the second form of plea is entered, the guilty stage of the trial is first concluded without any reference to the insanity defense, after which (if defendant was found guilty) a separate proceeding takes place before the same or a different jury for purposes of trying the insanity defense. According to LaFave, pp. 315-316, the purpose of the bifurcated trial procedure is to eliminate from the basic trial on the issue of whether the defendant engaged in the conduct a great mass of evidence having no bearing on that question and which may confuse the jury or be made the basis of appeals to the sympathy or prejudice of the jury. However, this objective has not been realized. Evidence of mental disease or defect is admissible on the issue of whether the defendant had the requisite mental state and is permitted at both the guilty stage and insanity stage of the trial. Choices (A), (B), and (D) are incorrect for the reasons stated above.

Question 398

43. A defendant is arrested and charged with shoplifting. He claims that he intended to pay for the item he took and requests an attorney and a jury trial. Both requests are denied by the judge, and the defendant is found guilty. The maximum penalty for shoplifting is a $500 fine and six months in jail. The defendant is sentenced to three months in jail, which he is allowed to serve on weekends in the county detention center.The defendant claims that his constitutional rights have been violated. Is he correct?(A) No, because his actual sentence was only three months.(B) Yes, because the defendant was denied the right to counsel.(C) Yes, because the defendant was denied the right to a jury trial.(D) Yes, because the defendant was denied both the right to counsel and the right to a jury trial.

Answer 398

43. (B) The Sixth Amendment provides that the accused shall have “the assistance of counsel for his defense.” This right not only encompasses the right to hire private counsel, but also the right to be provided with counsel without charge if the accused is unable to afford counsel. Choice (A) is incorrect because in Argersinger v. Hamlin, 407 U.S. 25 (1972), the U.S. Supreme Court held that “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.” Note that choices (C) and (D) are not correct because the right to jury exists whenever the accused faces a sentence of possibly more than six months. See Baldwin v. New York, 399 U.S. 66 (1970). In this example, since the defendant’s maximum sentence was not more than six months in jail, he would not have the right to a jury trial.

Question 399

44. A defendant was a senior pre-med student at a state university. Before a big football game with their arch rival, the defendant attended a pep rally at the university football field. During the pep rally, the students drank beer, sang songs, and gave members of the football team fervent cheers. After the rally ended, the defendant was walking toward his car when he felt the need to relieve himself. He then strutted across the street to a municipal park and urinated against a tree. In this jurisdiction, urinating in public is a misdemeanor.Unknown to the defendant, a parking enforcement officer who was ticketing cars in the area witnessed the incident and wrote down the license number of the defendant’s vehicle as he drove off. She immediately gave the information to the police who did a check and learned the defendant’s identity and home address. Within an hour, the police went to the defendant’s house and forcibly entered the dwelling without a search warrant. While searching his home, they found the defendant studying in an upstairs bedroom. After giving him his Miranda warnings, the defendant confessed to the crime.The defendant was thereafter prosecuted for the misdemeanor of urinating in public. If the defendant moves to suppress evidence of the statement that he made to the police when he was apprehended, the motion should be(A) denied, because the defendant received Miranda warnings and was not compelled to incriminate himself.(B) denied, because the defendant volunteered the confession.(C) sustained, because the police lacked probable cause to search the defendant’s home.(D) sustained, because the defendant’s statement was the product of a warrantless entry of his home.

Answer 399

44. (D) The exclusionary rule is a remedy for Fourth, Fifth, and Sixth Amendment violations by which all evidence obtained through illegal searches and seizures is inadmissible. The scope of the rule applies furthermore to exclude all evidence obtained orderived therefrom. Such additional evidence is deemed to be tainted “fruit of the poisonous tree.” See Wong Sun v. U.S., 371 U.S. 471 (1963). The forcible entry and search by the police of the defendant’s home was illegal, since they did not obtain a warrant when the law required them to do so. As a result of their illegal, warrantless search of the home, the defendant’s confession will be properly excluded underthe fruit of the poisonous tree doctrine. Choice (D) is correct. Choice (C) is incorrect because it gives the wrong justification for excluding the defendant’s confession. Regarding choices (A) and (B), which reach the wrong conclusion, even where the Miranda warnings are given afterthe illegal police conduct but before the confession, the confession is still regarded as inadmissible fruit. See Taylor v.Alabama, 457 U.S. 687 (1982).

Question 400

45. A defendant, who was an indigent, was arrested and charged with possession of less than one ounce of marijuana. Under the relevant state statute, possession of less than one ounce of marijuana is a misdemeanor, punishable by a maximum of one year in jail and/or a fine of $500. At trial, the defendant pleaded not guilty and requested that an attorney be appointed to represent him. The trial judge refused to honor the defendant’s request for an attorney.If the defendant is subsequently found guilty, which of the following is the most severe sentence that can constitutionally be imposed?a. A $500 fine.b. Six months in jail.c. One year in jail.d. No sentence, because the defendant was deniedthe right to counsel.

Answer 400

45. (A) In Argersinger v. Hamlin, 407 U.S. 25 (1972), the U.S. Supreme Court held that “no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel.” Also be aware that in Scott v. Illinois, 440 U.S. 367 (1979), the U.S. Supreme Court declined to extend Argersinger to a case where one is charged with an offense for which imprisonment upon conviction is authorized but not actually imposed. In Scott, the petitioner, an indigent, was charged with shoplifting merchandise valued at less than $150, punishable by as much as a $500 fine, or one year in jail, or both. He was not provided counsel. After a bench trial, he was convicted of the offense and fined $50. Choices (B), (C), and (D) are incorrect for the reasons stated above.

Question 401

46. One afternoon after school, a 14-year-old girl went into a drug store. While browsing, she picked up a candy bar and placed it in her coat pocket. She left the store without paying for it. Unknown to the girl, the store security guard saw what she had done. He immediately ran outside, grabbed her arm, and accused her of stealing the candy bar. The girl broke down and started crying. She then told the security guard that she was hungry because she hadn’t eaten any lunch.At a juvenile delinquency court hearing, the security guard proposes to testify to what the girl said. Upon objection by the girl’s attorney, the strongest reason for admitting her statement will be because(A) Miranda warnings need not be given to juveniles.(B) the security guard’s remark was an accusation, not an interrogation.(C) the security guard was not employed by an agency of the government.(D) the girl was not in custody.

Answer 401

46. (C) The Fourth Amendment generally protects only against governmental conduct and not against searches by private persons. Be advised that government agents include only the publicly paid police and those citizens acting at their direction or behest, and not private security guards unless deputized as officers of the public police. Also, the same requirement of governmental conduct in Fourth Amendment cases applies to confession cases as well. Since Miranda applies only to interrogation by the publicly paid police (or private citizens acting at their behest), choice (C) is the best answer. Choice (A) is incorrect because it is a misstatement of law. Choice (C) is a stronger answer than choices (B) and (D) because if Miranda is not applicable, then it is irrelevant whether or not there was a custodial interrogation.

Question 402

47. A defendant was arrested and indicted separately for the crimes of robbery, rape, and felony murder with the underlying felony being the rape.With respect to double jeopardy, which of the following statements is most accurate?(A) The defendant may be tried for each offense separately and may be convicted of each, with sentences running consecutively.(B) The defendant may be tried for the two separate offenses of robbery and felony murder and may be convicted of both, with sentences running consecutively.(C) The defendant may be tried for the two separate offenses of robbery and felony murder and may be convicted of both, with the robbery sentence running consecutively with concurrent sentences for the felony murder and rape.(D) The defendant may be tried for the single offense of felony murder and sentenced for that crime only.

Answer 402

47. (C) Although many students will undoubtedly choose choice (B) as correct, choice (C) is preferred. First, the double jeopardy rule prohibits multiple punishments for the same criminal offense. However, where a defendant is convicted of two separate criminal offenses (e.g., where each crime requires proof of a fact that the other does not), then consecutive sentences (or multiple punishments) may be imposed. That’s why the defendant may be convicted of the separate crimes of armed robbery and felony murder with sentences running consecutively. On the other hand, the defendant could not receive consecutive sentences for rape and felony murder because rape is a lesser included offense inasmuch as rape was the underlying felony. However, the court could still impose concurrent sentences for rape and felony murder because concurrent sentences are not multiple sentences. Therefore, there is no violation of the double jeopardy rule. Choices (A), (B), and (D) are incorrect for the reasons stated above.

Question 403

48. A boyfriend and his girlfriend broke into a house late at night with the intent to steal a stereo system. Although they believed that the homeowner was away on a business trip, he was, in fact, asleep in an upstairs bedroom. While they were inside the house, the girlfriend announced that she had changed her mind and urged her boyfriend to leave.The homeowner, who was awakened by the noise downstairs, descended the staircase to investigate. Upon seeing the homeowner, the girlfriend again urged her boyfriend to flee. Instead, the boyfriend attacked the homeowner and tied him up with rope. Thereupon, the boyfriend and girlfriend departed with the stereo equipment. After they left, the homeowner choked to death from the ropes while trying to free himself.The boyfriend and girlfriend were charged with burglary but were acquitted. Thereafter, the boyfriend and girlfriend were apprehended and prosecuted for felony murder with the underlying felony being burglary.With respect to the boyfriend and girlfriend’s criminal liability for felony murder, which of the following is most correct?(A) The burglary acquittal precludes any subsequent prosecution under the doctrine of res judicata.(B) The burglary acquittal precludes any subsequent prosecution under the doctrine of collateral estoppel.(C) The burglary acquittal precludes prosecution for felony murder under the doctrine of double jeopardy.(D) The burglary acquittal does not preclude subsequent prosecution for felony murder.

Answer 403

48. (C) This is a tricky double jeopardy question concerning whether a defendant may be prosecuted and punished for both felony murder and the underlying felony. One double jeopardy issue concerns when multiple prosecutions may be undertaken, as to which the Supreme Court in Brown v. Ohio, 432 U.S. 161 (1977), adopted the longstanding Blockburger test, which originated as a device for determining congressional intent as to cumulative sentencing: “The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or one, is whether each provision requires proof of an additional fact which the other does not.” This means, as the Supreme Court held in Harris v. Oklahoma, 433 U.S. 682 (1977), that except in extraordinary circumstances, a defendant may not constitutionally be separately tried for felonymurder and the underlying felony. Choice (A) is incorrect because res judicata applies only to civil cases. Choice (B) is incorrect because although collateraL estoppel has been an established rule of federal criminal law for more than 50 years, we are not dealing with issue preclusion (e.g., identity or motive) from a prior trial. Conversely, we are dealing with whether the burglary acquittal precludes subsequent prosecution for felony murder. Finally, choice (D) is incorrect forthe reasons stated above.

Question 404

49. A suspected drug dealer was arrested after selling three grams of cocaine to undercover police agents. He was subsequently convicted in state court of possession with intent to distribute narcotics. Following his conviction, the drug dealer was sentenced to a prison term of 10 years. After being sentenced, the drug dealer’s attorney appealed the conviction, citing jury misconduct. While his appeal was pending, the drug dealer was then indicted by both a federal and a state grand jury for conspiracy to distribute the same cocaine.The drug dealer’s attorney filed motions to dismiss each of the new indictments on the grounds that they violate double jeopardy. In all likelihood, double jeopardy requires the dismissal of(A) both indictments.(B) the state indictment, but not the federal indictment.(C) the federal indictment, but not the state indictment.(D) neither of the indictments.

Answer 404

49. (D) In sum, the double jeopardy provision of the Fifth Amendment provides that no person shall be “twice put in jeopardy” for the “same offense.” According to the prevailing view, it has been held that two crimes are not the “same offense” merely because they arose out of the same transaction. Choice (D) is correct because successive state and federal prosecutions for the same acts are constitutionally permissible, as each sovereign must be free to vindicate its own interests. Choices (A), (B), and (C) are incorrect for the reasons stated above.

Question 405

50. The police received an anonymous tip informing them that a pharmacist was engaged in the illegal manufacture of synthetic cocaine. As part of its investigation, the police placed an electronic tracking device on the pharmacist’s car. The tracking device was attached to the underbody of the pharmacist’s car while it was parked outside his home. The police did not secure a warrant before installing the device.By means of the tracking device, the police were able to trail the pharmacist’s movements. The police followed the pharmacist every day for almost a month. Finally, one day the police tracked the pharmacist’s car to a vacant warehouse on the outskirts of town. While the pharmacist was inside the building, the police peered in the window and saw drug paraphernalia and equipment used in the manufacture of synthetic cocaine.Based on these observations, the police secured a search warrant and gained entry into the building. Once inside, the police arrested the pharmacist and confiscated a large quantity of synthetic cocaine that had just been produced.At his trial for illegal possession and manufacture of a controlled dangerous substance, the pharmacist moves to suppress the cocaine confiscated by the police. The pharmacist’s motion will most likely be(A) granted, because the information upon which the search warrant was based was illegally obtained by means of the tracking device.(B) granted, because the seizure must be suppressed as the fruit of an illegal search.(C) denied, because the police could have discovered the location of the warehouse simply by following the pharmacist’s car.(D) denied, because the electronic surveillance of the pharmacist’s car did not exceed 30 days.

Answer 405

50. (C) Another search and seizure technique that has been tested on the MBE involves the use of an electronic tracking device, such as a beacon or “beeper.” Such beepers are attached to a car, airplane, or container, and the movements of that object are then tracked by the police. In United States v. Karo, 468 U.S. 705 (1984), the Supreme Court concluded that “the mere installation of a beeper is no search because that act alone infringed no privacy interest.” The Court reasoned that the surveillance objected to “amounted principally to the following of an automobile on public streets and highways, which if accomplished merely by visual surveillance would be no search because one traveling in an automobile on public thoroughfares has no reasonable expectations of privacy in his movements from one place to another.” Therefore, choices (A) and (B) are incorrect. Choice (D) is incorrect because the length of the surveillance is not a relevant factor.

Question 406

51. A man and a woman were arrested and charged with bank robbery. After receiving Miranda warnings, both requested an attorney. Following their arrests, the man and the woman were placed in separate jail cells.The next day before arraignment, the man asked a police officer if he could see his friend, the woman. The man was taken to the woman’s jail cell and allowed to talk to her. Neither defendant knew that the police had placed a listening device in the woman’s jail cell. As a result, their conversation was being overheard and recorded by the police. The police planted the listening device without first securing a warrant.While they were together, the man told the woman not to admit to anything because they could beat the charges with the help of a good lawyer. At trial, the prosecution sought to introduce the man’s incriminating statement into evidence. The man’s attorney has filed a motion to exclude.The motion should be(A) denied, because the defendants did not have a reasonable expectation of privacy.(B) denied, because the statement did not violate the man’s Fifth Amendment privilege against self-incrimination.(C) granted, because both defendants requested an attorney before engaging in their conversation.(D) granted, because the police did not secure a warrant before installing the listening device.

Answer 406

51. (A) In determining the admissibility of a confession, the Supreme Court follows the “voluntariness” test, namely, whether the confession was “voluntary” or the product of police coercion. The Fourteenth Amendment’s due process voluntariness test requires examination of the “totality of circumstances” surrounding the confession. Generally speaking, this means that it is necessary to assess the characteristics and status of the person who gave the confession and also the conduct of the police in obtaining it. In this question, the man gave his confession freely without being subjected to any coercive police practices. As a result, choice (A) is correct inasmuch as there is no privacy expectation interest in the confines of a jail cell. Choice (D) is wrong because wiretapping and other forms of electronic surveillance are unlawfu I if they violate a person’s reasonable expectation of privacy. Always remember that in order to have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. There is no legitimate expectation of privacy in a jail cell, especially given the fact that the defendant made the request to speak to his co-conspirator. Choices (B) and (C) are incorrect for the reasons stated above.

Question 407

52. Government drug officials from a neighboring country contacted a federal agency notifying the agency that drugs were being shipped by express mail next-day service to a defendant. The federal agency contacted the local police with the information regarding the defendant. The local police had long suspected the defendant of dealing drugs.The next day, two undercover police officers drove to the defendant’s home and waited outside. A couple of hours later, the officers saw an express mail delivery truck pull up outside the defendant’s home. The delivery person carried an express mail box to the front door and rang the doorbell. The officers then witnessed the defendant answer the door and take the package inside.Approximately 20 minutes later, the defendant left the house carrying the express mail box. She walked to her car, placed the package in the trunk, and drove off. The police followed in the squad car and pulled her over at the next traffic signal. The officers placed the defendant under arrest and instructed her to open the trunk. They confiscated the express mail box and opened it. Inside was a package of white powder, which lab tests later confirmed to be cocaine.The defendant was charged with illegal possession of cocaine. While awaiting trial, her attorney filed a motion to suppress the introduction of the cocaine into evidence. The motion will be(A) granted, because the police failed to obtain a search warrant before opening the trunk of the vehicle.(B) granted, because the police failed to obtain a search warrant before opening the package.(C) denied, because the police had probable cause to conduct the search.(D) denied, because the search was incident to a lawful arrest.

Answer 407

52. (C) Choices (A) and (B) are incorrect. Under the automobile exception to the warrant requirement, in United States v. Ross, 456 U.S. 798 (1982), the Court ruled thatwhen the police have probable cause to justify the search of an automobile, they may search the entire car and open any packages or containers found that may contain the items for which they have probable cause to search. In California v. Acevedo, 500 U.S. 565 (1991), the Court held that the police can also search without a warrant any container that they have probable cause to search once it is placed in a car. In this question, the police had probable cause to search the express mail box placed in the vehicle by the defendant. Based upon the holding in Acevedo, the search of the box and seizure of the cocaine was, thus, lawful. Choice (C) is correct. Choice (D) is incorrect because the police had probable cause to search the vehicle regardless of any arrest that may have preceded the search.

Question 408

53. Police were conducting a house-to-house search for an escaped convict. During the search, a police officer went to a home and rang the doorbell. When a teenage male opened the door, the police officer told him that a convict had escaped and asked if he had seen anyone suspicious in the neighborhood. The teenager said he hadn’t but then asked the police officer to come inside to ensure the house was safe.The police officer entered the home and proceeded to look around. When he went into the kitchen, the police officer noticed a bag containing white powder on the counter. Suspecting that the bag contained narcotics, the police officer questioned the teenager as to its contents. The teenager said he didn’t live in the house and had never seen it before. The police officer confiscated the bag and took the teenager to the station house for questioning, at which time it was determined that the teenager had escaped from a psychiatric hospital and had broken into the home earlier in the day. Furthermore, the results of a police lab test found that the bag contained heroin. As a result, the police issued an arrest warrant for the owner of the home. He was apprehended and charged with possession of heroin.The homeowner’s attorney has filed a motion to suppress, claiming that the heroin confiscated by the police was unlawfully obtained. The motion should be(A) granted, because the teenager did not have the authority to consent to a search of the house.(B) granted, because the teenager did not have an ownership or shared occupancy interest in the premises.(C) denied, because the police officer reasonably believed that he had permission to enter the dwelling.(D) denied, because the police officer reasonably believed that he had permission to enter the dwelling and reasonably believed that the teenager was competent to give consent.

Answer 408

53. (A) Consent searches now constitute one of the hottest areas in Criminal Procedure on the Multistate. With respect to third-party consent cases, any person with an equal right of control (or who possessed “common authority”) over the premises generally may consent to a search. The Supreme Court has adopted two bases for its “common authority” rule: (1) that the consenting party could permit the search “in his own right”; and (2) the defendant had “assumed the risk” that a co-occupant might permit a search. Here, the teenager did not have authority to consent to the police search. He did not have the owner’s permission to be on the premises and had unlawfully broken into the home earlier in the day. Because the owner did not “assume the risk,” the consent was invalid. Choice (A) is correct. Choice (B) is incorrect because there are situations where a third party may consentto a search even though he does not have a shared occupancy interest in the premises (e.g., school official consents to search of student’s locker). Choices (C) and (D) are incorrect because there is not enough on these facts to show that the police officer has a reasonable belief that the teenager had the apparent authority to consent to the search.

Question 409

54. A mother has an 11-year-old daughter. The mother is legally separated from her husband and has filed for divorce. The mother and her husband own their home in joint tenancy. One night, the mother went out to dinner and left her daughter at home. Upon leaving the house, the mother locked the door to her bedroom.While the mother was gone, the daughter found a spare key to her mother’s bedroom and opened the door. While rummaging through her mother’s dresser, she found a bag containing white powder. Concerned that the bag might contain drugs, the daughter called her father to ask his advice. The husband instructed her to call the police. The daughter then telephoned the police station and reported what she had found. A patrol car was immediately dispatched to her home.The daughter allowed the police to come inside and led them to her mother’s bedroom. She gave the officers the bag, which they took to the station house for a lab test. After the results confirmed that the bag contained cocaine, the mother was arrested and charged with illegal possession of a controlled dangerous substance.The mother’s attorney has filed a motion to prevent the cocaine from being admitted into evidence. The motion should be(A) denied, because the daughter, and husband, as co-owner, had the authority to allow the police inside the home and make the seizure.(B) denied, because the daughter lived with her mother and had equal control over the premises.(C) granted, because the daughter, as a minor, did not have apparent authority to permit the police to enter the home.(D) granted, because the daughter did not have apparent authority to permit the police to enter her mother’s bedroom.

Answer 409

54. (D) Once again, it is necessary to use the third-party analysis previously stated. First and foremost, did the daughter have authority “in her own right” to allow the police to search her mother’s bedroom? The answer is no. Although the child may have had the apparent authority to permit the police to search common areas of the home (e.g., living room or kitchen) the daughter clearly did not have authority to allow the police to search her mother’s bedroom. Moreover, because the mother locked the bedroom door, she did notassume the risk that her daughter would gain entry. Therefore, choices (A) and (B) are incorrect. Choice (C) is incorrect because it is a misstatement of law.

Question 410

55. A teenager is the star player on his high school basketball team. The high school is a public school, and the school has a policy that all student athletes are required to sign an authorization form by which they consent to undergo random drug testing. All the basketball players on the school team, except the teenager, signed the authorization.In the third game of the season, the team beat their archrival, and the teenager scored a record high 69 points. In the locker room following the game, the basketball coach approached the teenager and requested that he provide a urine sample for a random drug test. The teenager refused. He had smoked some marijuana the previous day and was afraid that a positive test result might jeopardize his being awarded a basketball scholarship to college.Thereafter, the teenager was suspended from the team for failing to comply with the coach’s request. The coach later admitted that he did not have any individualized suspicion that the teenager was under the influence of drugs.The teenager has filed a motion challenging the suspension and seeking reinstatement on the basketball team.The court will most likely rule in favor of(A) the school, because a urine sample does not constitute a search under the Fourth Amendment.(B) the school, because drug testing is not an intrusion on his Fourth Amendment right of privacy.(C) the student, because he didn’t consent to the drug test.(D) the student, because the coach admitted that he did not have any individualized suspicion that the student was under the influence of drugs.

Answer 410

55. (B) In VernoniaSchoolDistrict47Jv.Acton, 515 U.S. 646 (1995), the Court upheld the validity of drug testing of student athletes, stating that “the intrusion upon privacy was limited since the tests were taken under conditions typically encountered in public restrooms and the test results were disclosed to a limited class of school personnel who have a need to know.” The intrusion, the Court concluded, was outweighed by the legitimate government interests advanced (namely, deterring drug use by school children and preventing physical harm to drug users and other players). Choice (A) is wrong because drug testing does constitute a search (of student athletes) but, under the circumstances, it is lawful. Choice (C) is incorrect because student consent is not an issue. Choice (D) is incorrect because, based on the Vernonia decision, it is not necessary for a coach to demonstrate an individualizedsuspicion to authorize a random drug test.

Question 411

56. During spring break, a private boarding school was deserted while students and teachers were away on vacation. A guidance counselor remained on campus because he was working on a research project. After working late one night, the counselor decided to enter the room of a student from a very wealthy family. The counselor was rummaging through the student’s room looking for something valuable to steal. Under the bed, he noticed an expensive suitcase. The counselor opened the suitcase and found an express mail envelope. The counselor knew that the student’s father often sent money to his son in express mail envelopes. The counselor opened the envelope and saw that it contained a large quantity of white powder, which he suspected to be heroin. The counselor telephoned the police, and an officer was dispatched to the school. The counselor handed the officer the envelope, which he transported to the police station. At the station house, the officer opened the envelope and sent a sampling of the substance to the police lab. Tests confirmed the substance to be heroin. The police did not secure a search warrant before confiscating and opening the envelope. The student was thereafter arrested and charged with unlawful possession of a controlled dangerous substance.The student’s attorney has filed a motion to suppress the heroin from evidence. The motion will most likely be(A) granted, because the police should have secured a warrant before seizing the envelope.(B) granted, because the police should have secured a warrant before opening the envelope.(C) denied, because the search was conducted by a private party.(D) denied, because the counselor, as a school employee, was in loco parentis.

Answer 411

56. (C) By now, you’ll note that the key to the Multistate is recognizing and focusing on the subtle nuances and hornbook distinctions that are being tested. Here, the search of the student’s suitcase was done by a guidance counselor who acted as a private person. The Fourth Amendment (prohibition against unreasonable searches and seizures) generally protects only against governmental conduct and not against searches by private persons. Choice (C) is, thus, the best answer. Choices (A), (B), and (D) are incorrect for the reasons stated above.

Question 412

57. A man was under suspicion for participating in the commission of a bank robbery. A grand jury was convened to consider whether there was sufficient evidence against the man to indict him for the crime. During the grand jury hearing, the state called a police detective to testify. The detective testified that following the bank robbery, he interviewed a bystander who stated that his friend witnessed the robbery and told the bystander that the man was the person who committed the crime.Neither the man nor his attorney was allowed to be present during the grand jury proceeding. As a result, the man did not have the opportunity to cross- examine the detective or to object to the admissibility of his testimony. A grand jury indictment against the man was issued, and the prosecution has formally charged the man with bank robbery. While the man awaits trial, his attorney has filed an appropriate motion to dismiss, challenging the admissibility of evidence during the grand jury proceeding.The motion should be(A) denied, because the issue before the grand jury is probable cause, not guilt.(B) denied, because although the detective’s testimony is hearsay, rules of evidence other than privilege are not applicable to grand jury proceedings.(C) granted, because the grand jury hearing violated the man’s Sixth Amendment privilege of confrontation, since there was no opportunity to cross-examine the detective.(D) granted, because the grand jury indictment was based upon inadmissible evidence that resulted in an unwarranted prosecution.

Answer 412

57. (A) & (B) Credit is sometimes given on the MBE for two correct answers. Here, double credit should be given for both (A) and (B). The primary function of a grand jury is to determine probable cause to prosecute, not guilt. Clearly (A) is correct. Choice (B) is equally correct because FRE 1101(d) states that in grand jury proceedings, “rules of evidence other than privilege” are inapplicable. Choices (C) and (D) are wrong because the validity of a grand jury indictment is not affected by the character of evidence considered.

Question 413

58. One day, an 11-year-old boy came home from school with red lipstick stains on his collar. When the boy’s mother inquired about the lipstick stains, the boy said that his teacher had kissed him.The mother then contacted the police, who subsequently conducted an investigation and arrested the teacher, charging her with two felony counts of child molestation. In accord with state law, a preliminary hearing was scheduled. After the boy was subpoenaed to testify at the preliminary hearing, the prosecution filed a motion to exclude the teacher from the courtroom during the boy’s appearance. The motion, with supporting affidavits from a child psychologist, claimed that having the boy and the teacher in the same room would cause irreparable emotional and psychological harm to the alleged victim.The judge should(A) deny the motion, because a pretrial proceeding is an early stage of trial, and a defendant has a constitutional right of confrontation at every stage of the trial.(B) deny the motion, because the teacher’s exclusion from the courtroom would have prejudicial impact on receiving effective assistance of counsel.(C) grant the motion, because the teacher’s attorney still has an opportunity to cross-examine the witness despite the teacher’s absence from the courtroom.(D) grant the motion, because cross-examination at a preliminary hearing is not required by the confrontation clause of the Sixth Amendment.

Answer 413

58. (D) All jurisdictions grant the defense a right to cross-examine those witnesses presented by the prosecution at the preliminary hearing. The right is based on local law (usually by statute or court rule). The Supreme Court has long held that cross- examination at a preliminary hearing is not required by the confrontation clause of the Sixth Amendment. LaFave, Criminal Procedure, pg. 677. The purpose of a pretrial hearing is to determine probable cause, not to obtain discovery. Thus, the magistrate has broad discretion to limit or cut off cross-examination of witnesses. Choice (C) is wrong because it indicates that the teacher’s attorney can still effectively cross-examine the witness at the preliminary hearing despite her absence. Though this may be true, there is nonetheless no constitutional right of confrontation at the preliminary hearing stage. Thus, choice (D) provides the correct rule of law. Choices (A) and (B) are incorrect for the reasons stated above.

Question 414

59. Police received information from a reliable informant that a defendant would be extorting money from a victim. The informant gave the police explicit details about the extortion scheme: the defendant would be calling the victim from a public phone booth on a particular street corner on a certain date and time to make the extortionist demand.Without notif’ing the telephone company or seeking a warrant, the police installed an eavesdropping device on the public phone. At the time on the date specified by the informant, the defendant phoned the victim from the telephone booth and said, “You better pay me $5,000 by next week or I’ll kill you and your family.” The defendant provided additional details about how and where to make the payoff.Based on the taped conversation, the police arrested the defendant and charged him with extortion. Prior to trial, the defendant’s attorney moves to exclude the taped conversation from evidence.The defense motion should be(A) granted, because the police did not secure a warrant before installing the eavesdropping device.(B) granted, because the police did not obtain prior approval of the telephone company before installing the eavesdropping device.(C) denied, because the defendant did not have reasonable expectation of privacy.(D) denied, because the police had probable cause based on the information supplied by the informant.

Answer 414

59. (A) Any form of electronic suiveillance, including wiretapping, that violates a reasonable expectation of privacy constitutes a search. A valid warrant authorizing any form of electronic surveillance, including wiretapping, must satisfy the following requirements, set forth in Berger v. New Yorlç 388 U.S. 41 (1967): (1) the warrant must describe with particularity the conversations to be overheard; (2) a showing of probable cause; (3) the wiretapping must be for a limited period of time; (4) the suspects must be named; and (5) a return must be made to the court showing what conversations were intercepted. Title Ill (under the Omnibus Crime Control and Safe Streets Act of 1968) also sets forth requirements for the issuance of interception or wiretap orders. Choice (A) is correct because a neutral magistrate must approve a warrant authorizing electronic surveillance. Choice (B) is wrong because a neutral magistrate, not the telephone company, has legal authority to issue a warrant authorizing wiretapping. Therefore, choices (C) and (D) are incorrect.

Question 415

60. During a two-month span, there were 15 bank robberies in the city area. The robberies were carried out by a single individual who entered the banks wearing a ski mask and carrying a machine gun. The police received information from a reliable informant that the defendant was the person responsible for the robberies. Acting on this tip, the police secured a valid arrest warrant and went to the defendant’s home to apprehend him. When the officers rang the doorbell, the defendant opened the door and was placed under arrest.The defendant, who was wearing only underwear, asked the officers if he could put on a shirt and pants. One of the police officers asked the defendant if anyone else was present in the house. The defendant indicated that he was alone. The officer then accompanied the defendant to his bedroom to change his clothes. When the defendant asked permission to enter the closet for his pants, the officer told him that he needed to inspect the closet first. While the officer was inside the closet, he saw a ski mask that he recognized as part of the apparel worn by the bank robber. The officer confiscated the ski mask and then allowed the defendant inside the closet to change his clothes.While the officer and the defendant were in the bedroom, the officer’s partner decided to conduct a protective sweep of the other rooms of the dwelling to see if any accomplices were present. Upon entering a back storage room, the other officer saw a box containing a large amount of $100 bills. The officer confiscated the money, which was later determined to be part of the money stolen during one of the bank robberies.The defendant is subsequently prosecuted for bank robbery. The prosecution seeks to introduce the ski mask and the money found in his home into evidence. A motion by the defendant’s attorney to exclude the items will be(A) granted with respect to the ski mask, but denied with respect to the money.(B) granted with respect to the money, but denied with respect to the ski mask.(C) granted with respect to both the ski mask and the money.(D) denied with respect to both the ski mask and the money.

Answer 415

60. (B) In Washington v. Chrisman, 455 U.S. 1 (1982), the Supreme Court held that the police may accompany the defendant into the home following his arrest so that the defendant may obtain identification, get his effects, or change clothes. It is not unreasonable underthe Fourth Amendment fora police offlcerto monitorthe movements of an arrested person, as his judgment dictates, following arrest. Therefore, the officer was justified to Inspect the cLoset before aLlowing the defendant inside to change his clothes. The seizure of the ski maskwas in “plain view” and, thus, admissible in evidence. On the contrary, the officer did not have reasonable grounds to conducta protective sweep of the premises. A protective sweep is permissible if the police have a “reasonable and articulable suspicion” that accomplices are present in the dwelling and pose a danger to those on the arrest scene. There was no justification for a protective sweep because the facts stated that “a single individual” was responsible for the bank robberies. In sum, the ski mask will be admitted into evidence and the cash excluded. Therefore, choices (A), (C), and (D) are incorrect.

Question 416

61. A defendant was arrested and charged with possession of heroin. At the defendant’s preliminary hearing, the prosecution presented evidence that the defendant was arrested while riding in a car. The heroin was found in a briefcase containing no identification, but several papers found inside contained references to the defendant. The defendant’s attorney argued that the briefcase did not belong to the defendant, and the defendant had no idea how the heroin got inside the briefcase. The court ruled that there was insufficient probable cause to support a prosecution of the defendant on the heroin possession charge. The defendant was released from custody and charges were dropped.Several weeks later, a grand jury was convened to determine if the defendant should be re-indicted for heroin possession based on the same alleged incident reviewed at the preliminary hearing. The defendant was called to testif’ as a witness at the grand jury hearing. He appeared and was sworn in as a witness. The defendant proceeded to challenge the proceeding on the basis that any grand jury indictment for heroin possession would constitute a violation of the double jeopardy clause.The defendant’s double jeopardy challenge should be(A) granted, because by voluntarily appearing at the grand jury hearing, the defendant has standing to challenge the indictment.(B) granted, because the heroin possession charge was formally dismissed at the preliminary hearing.(C) denied, because there is no basis for a double jeopardy challenge.(D) denied, because double jeopardy rights do not attach unless there has been an acquittal or conviction.

Answer 416

61. (C) According to LaFave, a dismissal at the preliminary hearing may be appealed or subject to “reversal” by a grand jury. The dismissal occurs “before jeopardy has attached and the 5th Amendment does not barinitiation of a new prosecution for the same offense.”Although choices (C) and (D) are both arguably correct, choice(D) is less preferred because it states that double jeopardy does not attach unless there has been an acquittal or conviction. This statement is not entirely correct because double jeopardy attaches after there has been a “final judgment.” In United States v.Jorn, 400 U.S. 470 (1971), the Supreme Court held that “final judgments” are not limited to acquittals and convictions and even extend to situations involving prosecutorial or judicial overreaching. In jorn, double jeopardy barred re-prosecution where a mistrial was declared due to prosecutorial misconduct. As such, choice (C) is a better answer. Choices (A) and (B) are incorrect for the reasons stated above.

Question 417

62. A defendant, an indigent, was arrested and charged with attempted murder. The defendant, who had a history of psychiatric problems, had been diagnosed as being paranoid schizophrenic. The defendant was represented by a court-appointed attorney. In trying to prepare for trial, the attorney met with the defendant on numerous occasions. The attorney, however, found it difficult to communicate with the defendant, who, due to his paranoia, distrusted the attorney and believed he was working with the prosecution to convict him. The defendant was subsequently convicted.After the defendant was sentenced, the attorney filed an appeal seeking to overturn the conviction and have a new trial ordered. The appeal, in part, challenged the constitutionality of a state statute that placed the burden of proof on the defendant by requiring him to prove mental incompetency by clear and convincing evidence. In addition, the appeal claimed that the attorney was unable to provide adequate representation because there was a failure of communication between the defendant and his attorney.The appeal will most likely be(A) granted, because the prosecution has the burden to prove the defendant’s competency by a preponderance of evidence.(B) granted, because the defendant has the burden to prove mental incompetency by a preponderance of the evidence, not by clear and convincing evidence.(C) denied, because it is constitutionally permissible to place the burden on the defendant to prove mental incompetency by clear and convincing evidence.(D) denied, because the defendant cannot base an appeal on ineffective assistance of counsel due to his own failure to communicate with his lawyer.

Answer 417

62. (A) This question typifies the fine-line distinctions and nuances commonly tested on the Multistate. It is important to distinguish between defendant’s competency to stand trial and the insanity defense. Insanity is a defense to a criminal charge; a defendant acquitted by reason of insanity may not be retried and convicted, although she may be hospitalized under certain circumstances. On the other hand, competency to stand trial depends on a defendant’s mental condition at the time of trial, unlike insanity, which turns on a defendant’s mental state at the time of the crime. Competency is not a defense, but rather a bar, to trial. According to LaFave, “the weight of authority suggests that the prosecution bears the burden of proof of competency once the issue has been raised.” As a consequence, choices (B) and (C) are wrong because the burden is being placed on the defendant rather than the prosecution. Although the preponderance of the evidence standard is usually utilized, some states even require the prosecution to prove competency beyond a reasonable doubt. Conversely, the majority of states place the burden of proof on the defendant to present evidence of affirmative defenses (such as insanity and self-defense) by a preponderance of the evidence. Finally, choice (D) is incorrect because it is a misstatement of law.

Question 418

63. Defendant was convicted of armed robbery. On appeal, Defendant moves for a new trial, claiming that his Sixth Amendment rights were violated because he received ineffective assistance of counsel at trial.Which of the following facts, if proven, would provide the best grounds to substantiate Defendant’s ineffectiveness of counsel claim?(A) The trial attorney lied to Defendant about her criminal trial experience.(B) The trial attorney failed to interview an alibi witness.(C) The trial attorney did not consult Defendant about her trial strategy.(D) The trial attorney did not believe in Defendant’s innocence.

Answer 418

63. (B) The benchmark for judging any claim of ineffective assistance of counsel must be whether the attorney’s conduct so undermines the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Strickland v. Washington, 466 U.S. 668 (1984). The objective standard for measuring attorney performance is that of “reasonably effective assistance.” The defendant has the burden to show prejudice affecting the outcome. Choice (C) is wrong because it is the attorney, not the client, who makes decisions regarding tactics and trial strategy. Choice (D) is incorrect, since an attorney need not believe in her client’s innocence in order to provide effective and zealous representation. Likewise, choice (A) is incorrect because it is not the lack of experience, but rather lack of diligence (e.g., failing to file a timely appeal or falling asleep during the trial) that may constitute ineffective assistance of counsel. Thus, choice (B) is the best answer because the Strickland test for measuring prejudice is whether there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would be different.” Failure to interview an alibi witness certainly would impact the outcome of the case, since it relates to the legitimacy of Defendant’s defense. Obviously, if the alibi witness was credible, it would substantiate Defendant’s claim of innocence.

Question 419

64. A father and a son were indicted and charged with bank robbery. They allegedly participated together in robbing a bank in their hometown. After the son was arrested and given Miranda warnings, he confessed and admitted that he and his father took part in the bank robbery.The prosecution decided to charge the father and son in the same indictment and prosecute them together in a single trial. At trial, the son took the stand and recanted his earlier confession by denying participation in the robbery.The prosecution now seeks to introduce into evidence the son’s earlier confession that was videotaped by the police. The son and the father both object to its admissibility. The confession should be(A) admitted against the son only.(B) admitted against both the son and the father, because they were engaged in a conspiracy.(C) not admitted against the son or the father, because the confession is hearsay not within any recognized exception.(D) not admitted against the son or the father, because the son recanted the confession.

Answer 419

64. (B) Students must take a very systematic one-step-at-a-time approach to this question. Let’s first examine the confession made by the son. There are four ways to attack the admissibility of a statement or confession: (1) Miranda approach; (2) right to counsel approach; (3) voluntariness approach; or (4) the fruits of the poisonous tree doctrine. The son validly waived his Miranda rights when he confessed after being given his Miranda warnings. The confession was voluntarily made and not a fruit of a prior Fourth Amendment illegality. Therefore, the confession will be admissible. The videotaped confession is a written assertion (i.e., a statement of a party being offered against him by the prosecution). The videotape will be admissible substantively as an admission. Now for the second step: Is the confession admissible against the son only or against his father as well? In Bruton v. United States, 391 U.S. 123 (1968), the Court concluded that merely giving a precautionary instruction to the jury to consider the confession as evidence only against the defendant who made it impermissibly infringes the right of confrontation of other co-defendants. However, the Bruton situation, based on the confrontation clause issue, arises only where the confessing defendant refuses to take the stand and testify at trial. In this question, the son does take the stand and recants his confession, so Bruton is not controlling. In Nelson v. O’Neil, 402 U.S. 622 (1971), the Court concluded that the opportunity to cross-examine the declarant (son) at trial, at least where he repudiates the confession, sufficiently protects the non-confessing defendant’s right of confrontation. Therefore, the confession will be admitted against both the son and his father. Choice (B) is the correct answer. Choices (A), (C), and (D) are incorrect for the reasons stated above.

Question 420

65. Police received a tip from a reliable informant that a man was dealing cocaine from his home. Officers then submitted to a magistrate an affidavit setting forth circumstances showing probable cause for the issuance of a search warrant. The magistrate issued a search warrant for narcotics at the man’s address.Police officers went to the man’s home and rang the door bell. When no one answered, the police broke in and entered the dwelling. They searched the rooms on the first floor and found no incriminating evidence, then walked outside and noticed a separate entrance leading up to the second floor of the dwelling. They ascended the stairway and entered an upstairs bedroom. Inside the room the officers found a stash of cocaine lying on a dresser. As the officers were continuing their search of the bedroom, the defendant entered the room. The police asked the defendant if he was the man. The defendant identified himself and told the police that they were in his bedroom and he occupied the second floor of the dwelling. The defendant explained that the man resided on the first floor and his living quarters were separate from the defendant’s. Nonetheless, the defendant was placed under arrest and charged with possession of cocaine.The defendant has filed a motion to exclude the cocaine from being admitted into evidence. The defendant’s motion should be(A) granted, because the warrant did not name the defendant.(B) granted, because the warrant did not state with specificity the area to be searched.(C) denied, because the police reasonably believed they were searching the man’s residence when they entered the defendant’s living quarters.(D) denied, because the warrant was valid and issued with probable cause.

Answer 420

65. (C) The Fourth Amendment provides that no warrants shall issue except those “particularly describing the place to be searched.” Absolute perfection in description is not required; it “is enough if the description is such that the officer with a search warrant can, with reasonable effort, ascertain and identify the place intended.” See Steele v. United States, 267 U.S. 498 (1925). A special problem deaLs with a search warrant for an apartment house or other multiple-occupancy building. The general rule is that a search warrant will usually be held invalid if it fails to describe the particular sub-unit to be searched with sufficient definiteness to preclude a search of one or more sub-units indiscriminately. This means that, in the absence of a probab’e cause showing as to all the living units so as to justify a search of them all, a search warrant directed at a multiple-occupancy structure will ordinarily be held invalid if it describes the premises only by street number or other identification common to all the sub-units located within the structure. However, LaFave points out that an exception to that rule is if the building in question, from its outward appearance, would be taken to be a single-occupancy structure and neither the affiant other investigating officers nor the executing officers knew, or had reason to know, of the structure’s actual multiple-occupancy character until execution of the warrant was under way, then the warrant is not defective for failure to specify a sub-unit within the named building. Based on this exception, choice (C) is correct because the multiple-occupancy character of the structure was not known, and the police acted reasonably in the execution of the warrant. Therefore, choices (A) and (B) are incorrect. Choice (D) is incorrect because it is not as specific as to the issue presented in the question as is choice (C).

Question 421

66. A defendant parked his car illegally in a handicapped parking space while he went into a store to get a cup of coffee. The defendant was inside the store waiting for his coffee when a member of the city’s parking enforcement department drove by the vehicle. Seeing that there was no handicapped sticker on the car, the parking official stopped and started ticketing the vehicle. When the defendant came outside, he got into an argument with the parking official. After the defendant became verbally abusive, the parking official told him to desist or he was going to impound the vehicle. After the defendant continued his badgering, the parking official told him that he was impounding the vehicle and called the station house for officer assistance.A few minutes later, a police officer arrived on the scene. He asked the defendant for identification and then proceeded to frisk him for weapons. The officer found a clear vial containing heroin in the defendant’s back pocket. He then placed the defendant under arrest.Thereupon, the parking official went into the defendant’s car and began an inventory search. In this jurisdiction, parking enforcement personnel have statutory authority to conduct inventory searches of impounded vehicles. The parking official did not find anything of interest. After the police officer placed the defendant in the patrol car, the officer asked the parking official if he could search the vehicle, to which the parking official responded yes. The officer looked under the floor mat and found a bag containing marijuana. The defendant was taken to the station house and charged with unlawful possession of heroin and marijuana.Prior to trial, the defense filed a motion to exclude the heroin and marijuana from being admitted into evidence. The motion will be granted with respect to(A) the heroin only.(B) the marijuana only.(C) both the heroin and the marijuana.(D) neither the heroin nor the marijuana.

Answer 421

66. (C) Here’s a question dealing with search and seizure of impounded vehicles. First, the police may conduct an inventory of the contents of vehicles they have taken into their custody in order to protect the vehicle and the property in it and to safeguard the police from claims of lost possessions. In South Dakota v. Opperman, 428 u.s. 364 (1976), a defendant’s illegally parked car was towed to the city impound lot where an officer, observing articles of personal property in the car, proceeded to inventory it, and found a bag of marijuana in the unlocked glove compartment. The Court upheld the validity of the search and ruled that the conduct of the police was not unreasonable. However, most courts hold that an inventory search of a lawfully impounded vehicle must be necessary in light of standardized criteria, such as protecting the owner’s property. Impoundment may not be used as a pretext for a search for evidence of a crime or a subterfuge for an exploratory search. See Opperman, Colorado v. Bert/ne, 479 U.S. 367 (1987). In this question, the initial impoundment by the parking official was not necessary just because the defendant was verbally abusive. The vehicle could have been moved out of the handicapped space and was not creating a traffic hazard. The frisk that followed was clearly unlawful under a Terryv. Ohio standard, since the police officer had no reasonable suspicion to believe the defendant was armed or dangerous. Therefore, the heroin found during the frisk was unlawfully seized and should be excluded from evidence. Regarding the second inventory search by the police officer, it was not a routine, standardized search to protect the owner’s property. The police officer was seeking to gather criminal evidence. The marijuana found was not discovered incident to a lawful arrest, but rather was the fruit of an unlawful Terry frisk followed by an illegal arrest followed by an improper inventory search. Choice (C) is correct. Choices (A), (B), and (D) are incorrect for the reasons stated above.

Question 422

67. A defendant owned a large parcel of farmland located in a rural section of a state. He conducted a small farming operation on the property and grew corn, broccoli, and other vegetables, which he sold to local produce companies. One day, the county police received an anonymous tip that the defendant was growing marijuana on his farm. Acting on this information, in an unmarked vehicle, two undercover police officers then drove to the defendant’s farm. They climbed over a chain-link fence and walked around the farm. While surveying the terrain, they came upon a small marijuana patch. The officers then noticed fresh footprints that led from the marijuana patch to a nearby cabin.Believing that marijuana was being stored in the cabin, the police officers decided to immediately secure a search warrant. After obtaining the warrant, they returned to the defendant’s farm and entered the cabin. Inside the cabin, the police found a large amount of marijuana that had been recently harvested. The defendant was then arrested and charged with unlawful possession of marijuana.The defendant files a pretrial motion to suppress the marijuana as evidence on grounds of an illegal search and seizure. The motion should be(A) denied, because the officers secured a warrant before entering the cabin despite the fact that their earlier actions may have been unlawful.(B) denied, because the warrant was validly issued and based upon information lawfully obtained.(C) granted, because the marijuana was the fruit of an illegal search and seizure, since the police did not have probable cause to conduct their investigation.(D) granted, because the police were unlawfully on the defendant’s property when the marijuana was initially discovered.

Answer 422

67. (B) According to the “open fields” doctrine, any unoccupied or undeveloped area outside of the curtilage (such as wooded areas, desert, vacant lots in urban areas, open beaches, reservoirs, and open waters, even if fenced or posted with no trespassing signs) is not afforded Fourth Amendment protection. Choice (A) is wrong because the conduct of the police was not unlawful. Choice (C) is incorrect because the marijuana was not the “fruit” of an illegal search and seizure. Choice (D) is incorrect because the police could enter the defendant’s farm without a warrant, since it was an “open field.” The “open fields” doctrine was reaffirmed by the U.S. Supreme Court, under a very similar set of facts as we have present in our question, in 01/very. United States, 466 U.S. 170 (1984).

Question 423

68. During a defendant’s trial for driving while intoxicated, the prosecutor called a toxicologist to testif’ as an expert witness. The toxicologist testified that the defendant’s blood alcohol level, registered after his arrest, was 0.14%. At the close of the toxicologist’s testimony, the trial judge, over defense objections, instructed the jury that, in accordance with state law, a person with a blood alcohol level greater than 0.10% is presumed to be intoxicated. No other instruction relating to that presumption was given. A relevant statute in this jurisdiction makes driving while intoxicated a felony and defines intoxication “as a state of severely impaired mental and physical capacity caused by the ingestion of drugs or alcohol.”The defendant was subsequently convicted of driving while intoxicated. On appeal, his conviction should be(A) affirmed, because the defendant had an opportunity to rebut the presumption.(B) affirmed, because the judge’s instruction merely permitted the jury to reach a conclusion that they could have decided upon without the presumption.(C) reversed, because the jury might determine that the instruction in effect relieves the prosecutor of the burden of proof beyond a reasonable doubt.(D) reversed, because such an instruction may be considered an indication of guilt and, therefore, violative of the defendant’s privilege against self-incrimination.

Answer 423

68. (C) Revised Uniform Rule of Evidence 303 covers presumptions in criminal cases. Under section 303(b), “If a presumed fact establishes guilt … the court may submit the question of guilt … to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic facts could find guilt or the presumed fact beyond a reasonable doubt.” Moreover, under Uniform Rule 303(c), “… if the presumed fact established guilt … the court shall instruct the jury that its existence, or all the evidence, must be proved beyond a reasonable doubt.” In this question, the facts state, “No other instruction related to the presumption was given.” Since the presumption, namely, intoxication, based upon the blood alcohol level greater than 0.10% indicated guilt of the defendant, the judge should have given a further jury instruction to require proof beyond a reasonable doubt. The judge did not do so. Therefore, on appeal, the defendant’s conviction should be reversed because the jury might determine that the instruction, in effect, relieves the prosecutor of the burden of proof beyond a reasonable doubt. Choice (C) is correct. Therefore, choices (A), (B), and (D) are incorrect.

Question 424

69. A wife was divorced from her husband. The wife and the husband had a daughter who was 12 years of age. The daughter lived with the wife, but the husband frequently visited his daughter at her house. One morning, the husband came to his ex-wife’s home to see his daughter. He and his daughter were outside on the patio chatting when the wife noticed her ex-husband’s briefcase lying on the kitchen floor. The husband had entered the house carrying his briefcase, which he placed down before going out to see his daughter on the patio.Seeing the briefcase, the wife decided to open it. Inside she found a large envelope. She decided to keep it, thinking it contained money. Later that night after her ex-husband left, she opened the envelope and found a large amount of cocaine.The wife called the police who came and confiscated the drugs. The husband was subsequently charged with possession of cocaine.The husband has filed a motion to exclude the cocaine from being introduced into evidence. His motion should be(A) granted, because the seizure violated the husband’s right of privacy.(B) granted, because the police failed to secure a search warrant before the seizure of the cocaine.(C) denied, because the initial seizure was made by a private individual.(D) denied, because the husband left the briefcase in the kitchen in plain view.

Answer 424

69. (C) The Fourth Amendment generally protects only against “governmental conduct” and not against searches by private persons. Searches by private individuals who are not acting as agents of government officials do not implicate the Fourth Amendment. An individual can claim Fourth Amendment protection only when “governmental conduct” infringes upon society’s “reasonable expectations of privacy,” and further infringes upon the individual’s “legitimate expectations of privacy.” Here, the cocaine was initially “seized” by the wife, who was not a government agent. She, in turn, gave the cocaine to the police. In all likelihood, since the police received the cocaine from the wife, they would not be required to secure a warrant. Therefore, choices (A), (B), (D) are incorrect.

Question 425

70. Under which of the following situations would imposition of the death penalty most likely be justified in light of constitutional considerations?(A) A defendant, a convict in prison, stabbed a prison guard to death and by statute is mandated to receive the death penalty.(B) A defendant kidnapped and sexually assaulted a 12-year-old girl for a week before the defendant was arrested.(C) A defendant raped his victim and then savagely beat her with a baseball bat, causing her to suffer permanent brain damage.(D) A defendant shot and killed a police officer during an attempted bank robbery.

Answer 425

70. (D) Choices (B) and (C) are incorrect because in Cokerv. Georgia, 433 U.S. 584 (1977), the Supreme Court concluded that “death is indeed a disproportionate penalty for the crime of raping an adult woman.” Coker is, to be sure, a most significant decision because it “announced a principle of morality in law, namely, society may not take the life of a defendant who has not taken the life of his victim.” Interestingly, choice (A) is wrong because in Sumner v. Shuman, 483 U.S.66 (1987), a statute that mandates the death penalty for a particular category of defendants (prison inmates) is unconstitutional because there is no meaningful opportunity for considering mitigating factors. Thus, by process of elimination, choice (D) is the best of the available answers.

Question 426

A defendant had an argument with his neighbor. As they were quarreling, the defendant pulled out his penknife intending only to frighten the neighbor. The defendant accidentally slightly nicked the neighbor’s arm with the knife. Unknown to the defendant, his neighbor was a hemophiliac who then died from the cut.What is the most serious crime that the defendant can be convicted of?(A) Murder.(B) Voluntary manslaughter.(C) Involuntary manslaughter.(D) Battery.

Answer 426

1. (C) Choice (C) is the correct answer. Remember the distinction between voluntary and involuntary manslaughter. Voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonable person would to lose self-control. Except for the mitigation of this objectively reasonable emotional condition, the intentional killing would be murder. On the other hand, involuntary manslaughter is an unintended homicide where there is an unlawful killing in the commission of an unlawful act not amounting to a felony. Here we have a battery (a misdemeanor at common law) that results in an unintended death. The most serious crime that the defendant can be convicted of is involuntary manslaughter. Choice (A) is incorrect because the defendant only intended to frighten his neighbor (an assault) and did not intend to kill him or to inflict great bodily harm; because there is no malice, the defendant cannot be convicted of murder. Choice (B) is incorrect because this was not an intentional killing. Choice (D) is incorrect. While there was, in fact, a battery, the victim died, and the question prompt asks the student to identify the most serious crime for which the defendant can be convicted.

Question 427

2. A defendant wished to see his high school basketball team win the state championship. During an important game, the defendant pulled out a gun and shot at the leg of a key player on the opposing team. The defendant intended only to inflict a slight wound so that the opposing player would be unable to complete the game. When the defendant fired the shot, he unintentionally hit a player on his own high school team in the chest, killing him instantly.What is the most serious crime that the defendant can be convicted of?(A) Murder.(B) Voluntary manslaughter.(C) Involuntary manslaughter.(D) Battery.

Answer 427

2. (A) At common law, murder is the unlawful killing of another human being with malice aforethought. Malice is found where there was intent to kill, intent to inflict serious bodily harm, reckless indifference to human life, or a death caused during the commission of a dangerous felony. Although the defendant may have intended only to cause serious bodily harm, his actions did, in fact, cause the death of another human being. Such a killing is murder unless justified, excused, or mitigated. The fact that the defendant shot the “wrong” basketball player would not change the outcome, because he was aware (or should have been aware) that the shooting created a serious risk of death or grave bodily harm. Therefore, the malice is present, and the defendant can be convicted of murder, since there is no mitigation, justification, or excuse. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonable person would to lose self-control. There is no adequate provocation here. Choice (C) is incorrect because a homicide will be classified as murder where there is intent to cause serious bodily harm, which was the case here. Choice (D) is incorrect because the victim died.

Question 428

3. A defendant hated his boss, who had recently demoted him to a less prestigious position. Late one afternoon, the defendant saw his boss walking down the hallway. The defendant pulled out a gun and fired four shots at his boss. Although none of the bullets directly hit his boss, one of the shots ricocheted against a wall and struck the boss in the head, killing him instantly.What is the most serious crime that the defendant can be convicted of?(a) Murder.(b) Voluntary manslaughter.(c) Involuntary manslaughter.(d) Battery.

Answer 428

3. (A) This is an example of a “depraved-heart” killing. Be aware of the following types of conduct that have been held to involve a very high degree of unjustifiable risk to human life, upon which to ground a “depraved-heart” murder conviction: (1) firing a bullet into a room which that the defendant knows is occupied by several people; (2) shooting into a caboose car of a passing train or into a moving automobile, necessarily occupied by human beings; (3) throwing a beer glass at one who is carrying a lighted oil lamp; (4) playing a game of “Russian roulette” with an other person; (5) shooting at a point near, but not aiming directly at, another person; (6) driving a car at very high speeds along a main Street; (7) shaking an infant so long and so vigorously that it cannot breathe. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate if it would cause a reasonabLe person would to lose self-control. The defendant’s hatred for his boss does not constitute adequate provocation on these facts. Choice (C) is incorrect because the defendant’s reckless indifference to human life constitutes malice for the purposes of common law murder. Choice (D) is incorrect. While there was, in fact, a battery, the victim died, and the question prompt asks the student to identify the most serious crime for which the defendant can be convicted.

Question 429

4. An owner of a 3-story building, with apartments on the top two floors and a convenience store and gas station on the ground floor, resides with his family in one of the second-floor apartments. One day, a truck driver pulled into the gas station for some gas. After filling up the gas tank, the truck driver entered the convenience store for a bite to eat. He was eating a bowl of chili when he noticed a cockroach in the food. The truck driver demanded a new serving of chili. When the owner refused, the truck driver stormed out of the store in anger.The truck driver jumped into his truck and decided to get even by causing some damage. He purposely drove into one of the gas tanks, which ruptured the gas line. The collision caused a terrible explosion and the building became engulfed in flames. The owner could not escape the blaze and burned to death.At common law, the truck driver should be found guilty of(A) arson only.(B) murder only.(C) arson and murder.(D) arson, burglary, and murder.

Answer 429

4. (C) Extremely negligent conduct which that creates an unjustifiable but also a very high-degree risk of death or serious bodily injury to another or to others (though unaccompanied by any intent to kill or do serious bodily injury), and which that actually causes the death of another constitutes “depraved-heart” murder. By deliberately driving his truck into a gas tank, the truck driver’s conduct created an unreasonable risk of causing death or serious bodily injury. Consequently, he will be guilty of “depraved-heart” murder for the death that resulted, even though he did not intend to kill, only to cause some damage to the owner’s property. In addition, he will be guilty of arson, defined as the malicious burning of the dwelling house of another. The truck driver’s reckless conduct satisfies the malice requirement. Since the owner and his family resided in the second-floor apartment of the convenience store, it will qualify as a dwelling house. Note: on a bar exam essay question, students should also discuss the truck driver’s criminal liability under the felony-murder rule. Answer choices (A) and (B) are incorrect because, as discussed above, he will be found guilty of both arson and murder. Choice (D) is easily eliminated because the truck driver did not break and enter the convenience store with the intent to commit a felony therein.

Question 430

5. A city has enacted an anti-noise statute that “prohibits amplification devices operated in public places which emit loud and raucous noises.” The municipality passed the law to protect the quiet and tranquility of its residents and to avoid distractions to traffic.A high school student was driving in his car and listening to punk music on his car stereo system, which included a set of 12-inch subwoofers mounted in the rear. As the student drove past the high school, he turned up the volume to its highest level. A police car drove alongside the student and, hearing the loud and raucous music; the police officers arrested the student and charged him with violating the anti- noise statute.Before the student was brought to trial, the highest court in the state ruled the statute unconstitutional as vague and overbroad. As a result, the charges against the student were dropped, and his case was dismissed. Thereafter, the district attorney’s office decided to prosecute the student for violating a state attempt statute.The attempt statute provided that legal impossibility was no defense. Thereupon, the student was charged with attempting to violate the anti-noise statute. At trial, the student took the stand to testifi on his own behalf. He testified that when he was arrested, he had purposely turned up the stereo to its highest level because his favorite song was playing.Will the student be found guilty of violating the attempt statute?(A) Yes, because he possessed the requisite intent.(B) Yes, because dismissal of the initial charge was not a final judgment and, therefore, double jeopardy does not attach.(C) No, because double jeopardy precludes prosecution for attempt after the initial prosecution was dismissed.(D) No, because a defendant cannot be retried for attempted commission of a crime that has been ruled unconstitutional by a state’s highest court.

Answer 430

5. (A) The crime of attempt consists of: (1) an intent to commit the “target” offense, and (2) a “substantial step” in the furtherance of the crime. At common law, legal impossibility (but not factual impossibility) was a defense to attempt. The key to this question, however, is recognizing that legal impossibility is not a valid defense under this jurisdiction’s attempt statute. Therefore, the student can be found guilty of attempt despite the fact that the “target” offense (i.e., the anti-noise statute) has been ruled unconstitutional. Choice (B) is a true statement, but that is not a sufficient explanation of why there should be guilt for this attempt. Choice (A) is a better answer than choice (B) because it addresses part of the reason why the defendant should be found guilty. All choice (B) does is explain to you that he could be found guilty without giving any explanation why. Choice (C) is wrong because double jeopardy does not attach. Double jeopardy prohibits re-prosecution for a crime after there has been a final judgment (such as a conviction or acquittal). A dismissal of the initial charge does not constitute a final judgment. Choice (D) is an attractive answer because at common law, this attempt crime would be legally impossible because the law the student attempted to violate is unconstitutional. However, it is wrong, because, as discussed above, the statute legal impossibility is no defense. The common law rule does not support this result. It only works only in the closed universe where the hypothetical statute applies.

Question 431

6. Two college students were members of the same fraternity. During a fraternity party, the defendant pulled out a gun, pointed it at the other student and said, “Beg for your life, sucker.” The student, who knew that the defendant had a reputation as a practical joker, said, “Get lost, you jerk.” The defendant then pulled the trigger and shot the student to death.A statute in this jurisdiction provides: “Any intentional and premeditated killing with malice aforethought is murder in the first degree. Murder in the second degree is any killing that occurs during the commission or attempted commission of a serious or inherently dangerous felony. Manslaughter includes all other types of unlawftil homicide and unjustifiable killings.”The defendant was subsequently prosecuted for killing the student. At trial, the defendant testified that a fellow fraternity member gave him the gun before the shooting and told him that it was unloaded.If the jury believes the defendant, it should find him(A) guilty of assault, but not murder or manslaughter.(B) guilty of manslaughter.(C) guilty of second-degree murder.(D) guilty of first-degree murder.

Answer 431

6. (B) This question requires that the reader properly interpret and apply the statute provided in the fact pattern. On the MBE, the Common Law rule will generally apply, unless the fact pattern or question stem triggers application of a different rule. Here, the statute provided makes choice (B) the best answer. Choice (A) is incorrect because, although the defendant only intended an assault (putting the student in fear of being shot), the victim died. Choice (B) is a better answer than choice (A) because the defendant is guilty of manslaughter which, in this jurisdiction, includes “all other types of unlawful homicide.” This definition thus encompasses misdemeanor-manslaughter, which covers assault or battery causing death situations. At common law, assault and battery were misdemeanors, and any-time the crime of assauLt (or battery) causes an unintentional killing, the defendant is guilty of misdemeanor-manslaughter. Choices (C) and (D) are wrong because the killing was not premeditated or committed during the commission of a serious felony.

Question 432

7. One afternoon, a man was driving his car in the downtown section of a city. Already late for a ‘onsiness appointment, he was becoming very upset because of the heavy traffic. Suddenly, he decided to drive his car along the sidewalk to avoid the traffic jam. While he was speeding down the sidewalk, people were hastily scurrying to avoid his car. His car struck a pedestrian, who had tripped trying to get out of his way, killing her.Which of the following is the best theory regarding the man’s criminal liability?(A) Felony murder, because he was committing an assault with a deadly weapon.(B) Transferred intent, because one is presumed to intend the natural and probable consequences of his acts.(C) Intentional killing, because the man’s conduct was a substantial factor in causing the pedesthan’s death.(D) Commission of an act highly dangerous to life, without an intent to kill but with disregard for the consequences.

Answer 432

7. (D) Extremely reckless conduct, which creates what a reasonable person should recognize as an unjustiflably high degree of risk of death or serious bodily injury to another, constitutes “depraved-heart” murder when that conduct causes the death of another, even though there was no intent to kill or do serious bodily injury. Choice (A) is incorrect. It’s attractive because assault with a deadly weapon would constitute aggravated assault; a felony at common law and potential grounds for a felony murder charge. However, no facts say that the man was committing an assault. He was not trying to put the pedestrian in imminent fear of harm; he drove on the sidewalk to avoid a traffic jam. Choice (B) is incorrect because the doctrine of transferred intent cannot apply here because the man never intended to strike anyone with his car. Choice (C) is wrong. Intent to kill cannot be inferred from the fact that the man’s conduct caused the pedestrian’s death.

Question 433

8. A woman was employed as a sales clerk at a department store. She worked in the women’s lingerie section. One evening around closing time, the woman took a diamond necklace from a cabinetin the jewelry section of the department store and wrapped it in tissue paper. The woman then surreptitiously stuffed the necklace in a shopping bag, intending to remove it when she left the store. Moments later, the store owner approached the woman and told her she needed to stay late in order to do inventory. While the woman was completing inventory, the owner discovered the necklace and called the police.The woman is most likely guilty ofa. attempted larceny. b. larceny.c. false pretenses. d. embezzlement.

Answer 433

8. (B) There are many key distinctions that are repetitively tested on the MBE. Surely, in the area of Criminal Law, students can anticipate being tested on the following distinctions: depraved-heart murder / involuntary manslaughter; larceny / embezzlement; Larceny by trick I false pretenses; attempt I conspiracy; Legal impossibility / factual impossibility; robbery I extortion; mistake of law / mistake of fact. This question tests another popular distinction: larceny I embezzlement. The key to the distinction is that larceny is a crime against possession, and embezzlement is a crime against ownership. For bar exam purposes, remember that lower echelon employees (janitors, secretaries, drivers) will usuaLly have mere custody over their employer’s property, so they are usually guilty of larceny when they steal. On the other hand, higher echelon employees (office managers and corporate officials) are often deemed to be in lawful possession of their employer’s property. Thus, when they steal, their crime is usually embezzlement. Here, the woman, as a low-leveL employee, has no right to possess the necklace (not even temporarily), so she was guilty of larceny when she took it from the cabinet with the intent to keep it. Answer choice (A) is wrong because the crime was complete when she took the necklace from the jewelry cabinet with the intent to steal. Choice (C) is incorrect because there was no misrepresentation of a material fact. Choice (D) is incorrect because, as stated above, the defendant did not have lawful possession.

Question 434

9. A defendant met her friend at the electronics store where the friend worked. Unbeknownst to the defendant, her friend had taken a music player from the display case and stuffed it in her bag earlier in the day. Knowing that employees are subject to search when they leave the store, the friend surreptitiously put the music player into the defendant’s bag.The defendant and her friend proceeded to a local tavern and drank shots of tequila. The friend became intoxicated and forgot to retrieve the stolen music player from the defendant’s bag. After leaving the tavern, the defendant proceeded home. Upon opening her bag, she was surprised to see the music player. Believing that the music player had accidentally fallen into her bag at the bar, the defendant planned to return it the next day. The following day, however, the defendant changed her mind and decided to keep it.The defendant is guilty of(A) receiving stolen property.(B) larceny.(C) receiving stolen property and larceny.(D) neither receiving stolen property nor larceny.

Answer 434

9. (D) One of the most important rules in Criminal Law is the requirement ofa concurrence of mens rea and actus reus. The defendant found the music player in her bag when she returned home from the bar. Believing that the music player had accidentally fallen into her bag, she initially intended to return it. Choice (A) is wrong because, in order to be guilty of receiving of stolen property, the defendant must know that the property is stolen at the time when the property comes into her possession. The defendant was unaware the property was stolen. Choice (B) is incorrect because larceny requires a “trespass in the taking.” It was the friend, not the defendant, who took the music player out of the possession of the storeowner. Choice (C) is incorrect for the reasons stated above. Note: lost or mislaid property can be the subject of larceny, if the person who finds it intends to steal it, and knows who the owner is, or has reason to believe that either the markings on the property or the circumstances of its discovery would reveal the identity of the owner.

Question 435

10. Howard did not know it, but his wife was having an affair with another man. One day Howard came home early from work and caught his wife and the other man in bed together. In a violent rage, Howard picked up a large metal lamp and severely beat his wife and the other man. Both victims were seriously injured and hospitalized.Howard was charged with the attempted murder of the other man. He was acquitted of the crime. After Howard’s acquittal, his wife and the other man died from injuries that were related to the beating. The state now wishes to prosecute Howard for manslaughter for the deaths of his wife and the other man.Howard should be found(A) guilty of manslaughter of his wife, but not guilty of manslaughter of the other man.(B) guilty of manslaughter of the other man, but not guilty of manslaughter of his wife.(C) guilty of manslaughter of both his wife and the other man.(D) not guilty of manslaughter of either his wife or the other man.

Answer 435

10. (C) The prosecution may charge and prosecute Howard for manslaughter of the his wife. The facts indicate that he was responsible for her death. He would likely be guilty of voluntary manslaughter, since he attacked her in the “heat of passion” with adequate provocation after catching her in bed with her lover. Choice (A) is an attractive one because prosecuting Howard for the manslaughter of the other man is more problematic, because as it raises double jeopardy concerns. The facts indicate that Howard was acquitted of the attempted murder of the other man. Thus, there was a “final judgment” on the attempted homicide. The issue is whether this acquittal precludes the state from prosecuting Howard for the manslaughter of the other man. As a general rule, attachment of jeopardy for a lesser included offense bars retrial forthe greater offense (Brown v. Ohio, 1977). Choice (A) is wrong because an exception exists where the state is unable to proceed on the more serious charge at the outset because additional facts necessary to sustain that charge have not yet occurred. Here, for example, the victim did not die until after the prosecution for attempted murder. As a result, the state could not prosecute the defendant on the greater charge at the outset. Therefore, the prosecution is not precluded under double jeopardy from prosecuting Howard for the manslaughter of the other man. Choice (B) is a distracter here. It tempts the reader to confuse the facts. For the reasons stated above, Howard may be found guilty of manslaughter for killing the wife, so choice (D) is incorrect.

Question 436

11. A regular customer at a lounge is aware that the owner customarily keeps a gun hidden behind the bar. One night the customer was sitting at the bar and ordered a club soda. After serving him, the owner walked to the other end of the bar to wait on another customer. As he did so, the customer leaned over the bar and grabbed the gun. The customer pointed the gun at the owner and said, “This is a robbery.. . hand over all your money.”Knowing the gun was unloaded, the owner refused to comply. The customer dropped the gun and ran out of the bar.Besides larceny of the gun, the customer will be convicted of(A) attempted larceny.(B) attempted robbery.(C) assault.(D) assault and attempted larceny.

Answer 436

11. (B) The crime of attempt consists of two elements: (1) a specific intent to commit the “target” offense, and (2) an act that constitutes a “substantial step” in the commission or attempted commission of the crime. Choice (A) is incorrect because the customer is guilty of attempted robbery, not attempted Larceny. Robbery differs from larceny in that the taking must be accomplished by force, violence, or intimidation. By threatening the owner at gunpoint, the customer clearly intended to commit a robbery. Some students may incorrectly think that, since the ownerwas not intimidated, the customer is not guilty of attempted robbery. However, even though thecustomer cannot be guilty of robbery, he nonetheless may be convicted of attempted robbery. Answer choices (C) and (D) are incorrect because larceny, assault, and battery are all a lesser-included offense to robbery.

Question 437

12. A student was a practical joker who liked to perform zany antics. Late at night after studying, he would often walk around the campus dressed only in a raincoat and boxers. As he approached young women, he would flash them by opening his raincoat and exposing himself in his shorts. The student believed that he was committing a crime by flashing himself in front of the co-eds. In this jurisdiction, it is a felony to flash or expose oneself in the nude, so, unknown to the student, what he was doing was not a crime.One night, the student broke into a sorority house intending to flash the sorority sisters. Clad only in his raincoat and shorts, he entered the bedroom of one of the sisters who was lying in her bed studying for an exam. The sister, who knew the student, said, “What are you doing here? Shouldn’t you be studying for finals?” The student then took off his raincoat and responded, “Study this, baby!” He then began to run through the sorority house in his shorts. Shortly thereafter, the police arrived and placed the student under arrest.If the student is prosecuted, he should be found guilty of which, if any, of the following crimes?(A) Burglary only.(B) Attempted violation of the statute.(C) Both burglary and attempted violation of the statute.(D) Neither burglary nor attempted violation of the statute.

Answer 437

12. (D) In order to answer this question, it is necessary to interrelate the following four rules of law: (1) burglary, (2) attempt, (3) legal impossibility, and (4) mistake of Law. Choice (A) is wrong because burglary is defined at common law as breaking and entering another’s dwelling house at night with intent to commit a felony (a misdemeanor will not do) therein. Consequently, the student would not be guilty of burglary because he did not have the required mental state (i.e., intent to commit a felony). Therefore, his mistake of law will be a valid defense, since it negates a mental state required for the crime. Choice (B) is incorrect because legal impossibility would constitute a valid defense to the inchoate crime of attempted violation of the “flashing” statute. Legal impossibility is commonly defined as the case in which the defendant did everything he intended to do but yet had not committed the completed crime. In effect, the student is not guilty of attempt because what beset out to do was nota crime. For the foregoing reasons, choice (C) is also incorrect.

Question 438

13. In which one of the following situations would the defendant most likely be found guilty of felony murder?(A) A baseball fan traveled all night to the stadium, planning to purchase tickets from a scalper at the stadium. However, the fan arrived at the stadium after the game had started, and no tickets were available. He proceeded to sneak around the guard at the entrance gate and illegally entered the stadium. He watched the remainder of the game in the standing room only section. The fan became so enraged when the opposition took the lead in the ninth inning that he pulled out a gun from under his jacket and aimed it at the section of spectators in front of him. Before he could be subdued he had fired three shots, killing one person and severely injuring another.(B) A customer was in a bank filling out a deposit slip when a robber entered. The robber went to the teller’s window and quietly slipped a note to the teller, demanding everything in the cash drawer. The customer, who was unaware of the robbery taking place, went to the adjoining teller’s window and made his deposit. Upon obtaining his receipt, the customer suddenly collapsed and died of a heart attack. When the robber saw this, he panicked and left the bank before the teller could comply with his demand.(C) Two men planned to rob a luncheonette during the noontime rush. At 12:30 p.m., as planned, one of the men entered the luncheonette and pointed a gun at the cashier, who handed over the money. The man left to meet the other man outside as he was standing guard as a lookout. As soon as the man ran out of the door, a police officer tried to grab him. The man evaded the officer for a brief moment. Thinking that the other man had double-crossed him and informed the police of their plans, he fatally shot the other man.(D) A man and a woman had been feuding for years. In order to show him a thing or two, the woman decided to set fire to the man’s house. Before dawn one morning, the woman went to the man’s house and lit a match to gasoline she had poured at the man’s front door. The house caught fire and quickly spread to the man’s bedroom, where the man was able to leap out of the window without injury. A police officer who was driving by saw the woman running away one block from the man’s house. The police officer pulled his car up to the woman to determine if she was involved in setting the fire. Upon seeing the officer, the woman starts to flee the scene. As she is running away, the woman pulled out a revolver and started shooting indiscriminately behind her. The police officer was struck by one of the shots and was killed.

Answer 438

13. (D) The woman in choice (0) would most likely be found guilty of felony murder. At common Law, one whose conduct brought about an unintentional death in the commission of a dangerous felony was guilty of felony murder. Today, the majority of jurisdictions have limited the felony murder rule in regard to the causal connection between the felony and the resulting homicide. More than a mere “but —for” causal relationship is required in most jurisdictions. The death must be the foreseeable and natural result of the felony. In short, whether there is a sufficient causal connection depends on whether the defendant’s felony dictated his conduct which that led to the homicide. Under the circumstances presented in choice (D), the woman was fleeing from the scene of the arson, (an inherently dangerous felony). Escape from the scene of the felony, and evading capture is a natural and foreseeable event, as is the use of force to effectuate the escape, and the police officer’s death was the direct result of being shot by the woman. Thus, the necessary causal connection exists placing the homicide “in the commission or’ the arson. Choice (A) is an example of “depraved-heart” type murder. Choice (B) is incorrect, since a causal connection did not exist between the bank robbery (the felony) and the customer’s fatal heart attack. The customer was not even aware of the bank robbery taking place. Choice (C) is aLso wrong, since the man intentionally shot the co-felon, and would be found guilty of murder. No causal relationship existed between the robbery and the death of the co-felon.

Question 439

14. Late one night, a defendant and a man broke into a jewelry store. As they were looting the store, the owner, who lived across the street, looked out his window and saw additional lights on in the store. The owner ran across the street to his store. Before he arrived, however, the defendant became scared and left the store through a back entrance. When the owner entered the store, the other man hid behind a display counter. As the owner walked toward the cash register, he discovered the man in a crouched position. Startled, the man pulled out a knife and stabbed the owner to death. In this jurisdiction, the applicable burglary statute includes all buildings.If he is subsequently arrested and charged with murder, can the defendant be found guilty?(A) No, because the killing was unintentional.(B) No, because he had renounced his participation in the burglary before the killing.(C) No, because the owner’s death was not a foreseeable consequence of the burglary.(D) Yes, provided that he is also found guilty of burglary.

Answer 439

14. (D) The issue tested here is accomplice Liability to felony murder. There’s also a bit of testing strategy involved. Choice (D) is the best choice because of the way it’s phrased. The words “provided that…” is a contingency. It’s another way of saying “given that…” or “if we presume that” he is also found guilty of burglary…” Indeed, the defendant would have been found to have met all of the elements of burglary in that jurisdiction. He and the other man broke into the store with the intent to rob it. With regard to the defendant’s vicarious responsibility of for the owner’s death, it is often said that all parties are guilty for deviations from the common plan which that are the foreseeable consequences of carrying out the plan (e.g., an accidental shooting during an armed robbery being a typical example of a foreseeable deviation from the plan to rob). Under the established rule, accomplice liability extends to acts of the principal in the first degree which that were a “natural and probable consequence” of the criminal scheme the accomplice encouraged or aided. Therefore, choice (D) is correct, and choice (C) is incorrect because it is a foreseeabLe that one of the felons might use violence to avoid being caught. Choice (A) is easily eliminated because felony murder is one of the scenarios in which an unintended killing constitutes murder. Choice (B) is wrong because a mere change of heart or flight from the crime scene will not effectuate withdrawal from the crime. The accomplice must (1) to repudiate his prior aid, or (2) do all that is possible to countermand his prior aid or counsel, and (3) do so before the chain of events has become unstoppable.

Question 440

15. After waiting in line for two hours to gain entry into a popular nightclub, a man was denied admission because his attire failed to conform to the club’s dress code. When he was refused admittance, the man angrily shouted to the club’s doorman, “You’ll be sorry for this. After I’m through, this club will be reduced to rubble.” Later that same evening, the man returned to the club with two explosives in his possession. He noticed the defendant leaving the club and followed him into a nearby parking lot. As the defendant was about to enter his car, the man grabbed him, pointed a gun and said, “Follow me, you punk, or I’ll blow your brains out.” The man led the defendant to the rear of the club, handed him the explosives, and directed him to throw them through an open window of the club. In fear of his life, the defendant tossed the explosives into the club, causing an inferno that killed 25 people. In this jurisdiction, the applicable arson statute includes all buildings.If the defendant is charged with felony murder for the death of the people in the club, he will most likely be found(A) guilty, because they were killings that occurred during the commission of an inherently dangerous felony.(B) guilty, because duress is not a defense to murder.(C) not guilty, because duress is a defense to arson.(D) not guilty, because the defendant was justified under the circumstances.

Answer 440

15. (C) The defendant is charged under the felony murder rule with arson as the underlying felony. Duress is a defense to arson. A defense to the underlying felony is a defense to a murder charge under the felony murder rule. That is why choice (C) is correct. Choice (A) is easily eliminated because it contains only a conclusory statement with no supporting reasoning. Choice (B) is an attractive choice because it is a true statement. Indeed, throwing explosives into a populated nightclub would, in real life, most likely give rise to a murder charge, for which duress is never a defense. Even though duress is not a defense to murder, it may be a defense to felony-murder if it negates the underlying felony. It is always important to pay close attention to what is being asked. Here, the question is: will the defendant be convicted under a felony murder theory? Since choice (B) does not address felony murder, it is not the best answer. Choice (D) is attractive because it addresses the key issue of criminal liability for the underlying felony. However, choice (D) is incorrect because duress is a defense based on excuse, rather than justification.

Question 441

16. Many years ago, a nuclear power plant had been accused of poisoning local oyster beds with waste. The plant had been shut down for 10 years. Much to Darlene’s chagrin, officials at the plant had announced plans to reopen the plant.Darlene, who was a waitress at a local restaurant, devised a scheme whereby she would contaminate oysters at her restaurant with small amounts of a poisonous substance. Although she didn’t want to seriously injure anyone, Darlene believed that if some people got sick from eating the oysters, they would attribute their illness to nuclear waste from the power plant. To facilitate her plan, she stole some poison from a local pharmacy. She sprinkled it on some oysters at the restaurant where she worked. Mistakenly, she put too much of the poison on some of the oysters. A few of the customers who ate the oysters became sick and nauseated. One person suffered convulsions and died from the poisoning.A statute in the jurisdiction provides: “Any intentional and premeditated killing, or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.”Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning.The most serious crime for which Darlene can properly be convicted is(A) first-degree murder, because her acts were intentional and premeditated.(B) first-degree murder, because the death occurred during the commission of a felony.(C) second-degree murder, because of the intent to cause physical harm.(D) manslaughter, because her conduct was reckless.

Answer 441

16. (D) On the MBE, follow the statutes given in the facts. In this case, first-degree murder requires an intentional and premeditated killing or a killing caused during the commission of a felony. Second-degree murder requires an intentto cause serious bodily harm, whereas manslaughter requires an unlawful killing due to recklessness. The main issue to be determined is the defendant’s mens rea. Darlene did not intend to kill anyone with the poison, although her plan was premeditated. First- degree murder requires both premeditation and intent. Likewise, the killing did not occur during the commission of a felony, since Darlene’s action did not constitute an assault. Assault is defined in the facts as a felony when it is committed with intentto kill or with intent to cause serious physical injury. Darlene did not possess either of these mental states, since the facts say that she “didn’t want to seriously injure anyone.” Therefore, no first-degree murder conviction is proper, and choices (A) and (B) are incorrect. Answer choice (C), second-degree murder, is incorrect for the same reason, namely that Darlene did not intend to cause serious bodily harm. By process of elimination, choice CD), manslaughter, is correct because her mental state was one of recklessness. Recklessness is generally defined as a high degree of negligence, (i.e., more than ordinary negligence) measured by an objective reasonable person standard, which creates a high and unreasonable degree of risk.

Question 442

17. A woman was married to a very wealthy man who had a generous life insurance policy. Deciding that she had had enough of married life, and desiring to spend more time with her boyfriend, she began to plan an early and unexpected demise for her husband. The woman devised a scheme whereby she would contaminate her husband’s guacamole with a poisonous substance called strychnine. To facilitate her plan, she enlisted the help of her boyfriend. At first, the boyfriend adamantly refused to go along with her scheme, but when the woman threatened to break off their relationship, he reluctantly agreed. The boyfriend, a pre-med student, got the strychnine from the pharmacy by telling them that he was using it for an experiment with rats. The boyfriend then gave the strychnine to the woman, who sprinkled it in her husband’s guacamole. The husband died from the poisoning. A statute in the jurisdiction provides: “Any intentional and premeditated killing or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.” Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning.The most serious crime for which the boyfriend can properly be convicted is(A) first-degree murder.(B) second-degree murder.(C) manslaughter.(D) no crime.

Answer 442

17. (A) The boyfriend will be liable to the same extent as the woman, as a party to the crime. One is liable as an accomplice to the crime of another if he (1) gives assistance or encouragement or fails to perform a legal duty to prevent it (2) with the intent thereby to promote or facilitate commission of the crime. The boyfriend “agreed to assist” the woman “to facilitate her plan.” As an accomplice, he may be convicted to the same extent as the principal, the woman, for first-degree murder. Choice (A) is correct. Choices (B) and (C) are incorrect because the woman committed first-degree murder. Choice (D) is incorrect for the reasons stated above regarding accomplice liability.

Question 443

18. A registered pharmacist was falsely told by his best friend one day that the friend needed a dangerous drug for an experiment he was conducting with rats in his lab. Unbeknownst to the pharmacist, his friend used the drug to poison his girlfriend. The poison killed her. The pharmacist was aware that his best friend had a volatile relationship with his girlfriend.A statute in the jurisdiction provides: “Any intentional and premeditated killing or one occurring during the perpetration of a felony, is murder in the first degree. Murder in the second degree is murder with intent to cause serious bodily harm. Manslaughter is an unlawful killing due to recklessness.” Assault with intent to kill or to cause serious physical injury is a felony in the jurisdiction. There are no separate felonies relating to adulterating food or poisoning. Finally, it is a misdemeanor in the jurisdiction to distribute drugs without a prescription.The most serious crime for which the pharmacist can properly be convicted is(A) first-degree murder.(B) second-degree murder.(C) manslaughter.(D) selling drugs without a prescription.

Answer 443

18. (D) The pharmacist gave the drug to the friend in violation of the state statute making it a misdemeanor to sell the drug without a prescription. The pharmacist may be convicted of selling drugs without a prescription. An individual is criminally liable as an accomplice if he gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another, and fully intends to effectuate commission of the crime. No accomplice liability will arise under the facts because the pharmacist had no knowledge of the friend’s criminal intent when he sold the drug and, therefore, could not have formed the requisite mental state, so choice (C) is therefore incorrect. Choice (A) is incorrect because there was no intent on the defendant’s part to kill the woman. Choice (B) is incorrect because the pharmacist did not intend to commit any serious bodily harm.

Question 444

19. One evening, a defendant set fire to a homeowner’s occupied house. As a result of the blaze, the homeowner’s daughter was killed. The defendant was charged with felony murder on the first count and arson on the second count of the two-count indictment. The jury found the defendant guilty on the first count, but returned a not guilty verdict on the second.The defendant’s attorney’s motion to set aside the guilty verdict on the felony murder charge will most likely be(A) granted, because the guilty verdict is plain error that adversely affects the defendant’s constitutional rights.(B) granted, because the verdicts are legally inconsistent and should lead to an acquittal of both charges.(C) denied, because the verdicts do not amount to a reversible error.(D) denied, because the defendant’s proper remedy is to seek an appellate review for a non-constitutional error.

Answer 444

19. (B) In order for one to be found guilty of murder under the felony-murder rule, he must also be found guilty of the underlying felony. Thus, as in the present example, if a defendant is found innocent of the underlying felony, he cannot be found guilty of felony-murder. Answer choices (A) and (C) are incorrect because constitutional protections are not triggered as an issue here. The issues of harmless error and reversible error arise where there has been some conduct in the criminal process that is violative of one’s constitutionally protected rights. Choice (D) is incorrect because the defendant cannot be legally convicted for felony murder if he is not guilty of the underlying felony. If the jury’s verdict cannot be supported by the law, then the judge must grant the motion to set aside the verdict.

Question 445

20. The night before his bar examination, the examinee’s next-door neighbor was having a party. The music from the neighbor’s home was so loud that the examinee couldn’t fall asleep. The examinee called the neighbor and asked her to please keep the noise down. The neighbor then abruptly hung up. Angered, the examinee went into his closet and got a gun. He went outside and fired a bullet through the neighbor’s living room window. Not intending to shoot anyone, the examinee fired his gun at such an angle that the bullet would hit the ceiling. He merely wanted to cause some damage to the neighbor’s home to relieve his angry rage. The bullet, however, ricocheted off the ceiling and struck a partygoer in the back, killing hr. The jurisdiction makes it a misdemeanor to discharge a firearm in public.The examinee will most likely be found guilty for which of the following crimes in connection to the death of the partygoer?(A) Murder.(B) Involuntary manslaughter.(C) Voluntary manslaughter.(D) Discharge of a firearm in public.

Answer 445

20. (A) The examinee is guilty of depraved-heart murder. Firing a bullet into a room which that the defendant knows is occupied by severaL people constitutes the kind of reckless indifference to human rights that will make a criminal defendant liable for murder, even though the killing was unintentional. Choice (B) is incorrect because the defendant’s reckless indifference to human life goes far beyond the gross negligence that would give rise to a charge of involuntary manslaughter; rather it constitutes malice for the purposes of common law murder. Choice (B) is incorrect because voluntary manslaughter involves the intentional killing of another in the “heat of passion” brought about by adequate provocation. Provocation is adequate ifitwould cause a reasonable person would lose self-control. The defendant’s anger over the noisy party on the eve of his bar exam is not adequate provocation. Choice (D) is wrong. Though there is a law against the discharge of a firearm in public, and the examinee might be charged with violating it, it is not the charge he will face in relation to the partygoer’s death.

Question 446

21. A homeowner had a beautiful beach house overlooking the bay. Although the homeowner and his family lived in the beach house during the summer months, the house was left unoccupied for the remainder of the year. In order to protect the beach house from vandalism while it was vacant, the homeowner installed an automatic spring-gun device. The spring-gun was connected to the front door and calculated to automatically fire at chest level when the door was opened. No warnings were placed on the premises.A local man, knowing that the homeowner’s beach house was unoccupied, decided to burglarize the home one evening. When the local man forced open the front door and was about to enter the premises, the spring-gun automatically discharged, killing him instantly.If the homeowner is subsequently prosecuted and charged with the local man’s death, the most serious crime for which the homeowner will be found guilty is(A) voluntary manslaughter.(B) involuntary manslaughter.(C) murder.(D) assault with a deadly weapon.

Answer 446

21. (C) An actor may never use direct or indirect force capable of causing death or serious bodily injury (including spring-guns and traps) to defend property unless a threat to the actor’s own safety justifies him to use such force as a means of self-defense. The fact that the homeowner set the spring-gun to fire at chest level upon opening the door suggests that he intended to kill (or at least cause great bodily harm to) any intruder. Either mental state is proper grounds for a murder conviction; therefore, choice (C) is the best answer. Choice (A) is wrong because there was no heat of passion brought about by adequate provocation. Choice (B) is incorrect because a homicide will be classified as murder where there is intent to cause serious bodily harm, which was the case here. Choice (D) is wrong because the assault resulted in the local man’s death, so the most serious charge is murder.

Question 447

22. A husband was sitting in his living room when his wife entered and asked what he’d like for dinner. The husband replied, “I’m not hungry. I’m too angry at our next-door neighbor.” The husband had had an argument with his neighbor earlier that day. The husband then said, “I’ve got this burning desire to go next door and beat him up.” As the husband was about to walk out the door, he turned to his wife and said, “You want to come along and watch?” The wife nodded, as if to say okay, and followed him next door.Moments later, the husband rang the doorbell, and the neighbor came to the door. After entering the home, the husband grabbed the nei’ghbor and began punching him in the face. Terribly frightened, the neighbor pleaded with the husband to stop. As the husband continued to hit him, the neighbor turned to the wife and said, “Please tell him to get off me.” The wife, who despised the neighbor, simply stood by and told her husband, “Do it, honey. . . do it.” The husband punched the neighbor repeatedly and afterward threatened to kill him.On a charge of battery, the wife should be found(A) not guilty, because the wife’s hands never made contact with the neighbor.(B) not guilty, because the wife’s mere presence and oral encouragement will not make her guilty as an accomplice.(C) guilty, because, with the intent to have the neighbor beaten, she shouted encouragement to her husband.(D) guilty, because she aided and abetted her husband through her mere presence, plus her intent to see the neighbor beaten.

Answer 447

22. (C) The wife is guilty of battery as an accomplice. An individual is criminally liable as an accomplice if he gives assistance or encouragement or fails to act where he has a legal duty to oppose the crime of another, and fully intends to effectuate commission of the crime. Choice (A) is wrong because even though the wife’s hands never touched the neighbor, she can still be liable as an accomplice because she did encourage the battery. Choice (B) is incorrect because it contravenes the rule above. The wife’s encouragement, combined with her intent to effectuate the crime, will, indeed, make her guilty as an accomplice. Choice (C) is preferred over choice (D) because the wife “aided” and “abetted” her husband by shouting encouragement, not by her mere presence.

Question 448

23. In which of the following situations would the defendant not be guilty of homicide?(A) A defendant came into a bar looking for a fight. He walked up to a victim, tapped him on the shoulder and said, “You bother me. Get out of here.” The victim ignored him, and the defendant proceeded to punch the victim in the face and stab him in the arm with a knife. The victim thereupon took out a knife that had been concealed in his pocket and stabbed the defendant in the right arm. The defendant, fearful that the victim would stab him in the heart, took out a gun and shot the victim to death.(B) A defendant was home in bed with a fever one night, and all the lights in his house were off. A victim, who was scouting the neighborhood that night for a house to burglarize, broke into the defendant’s house through the basement window and went upstairs to the bedrooms to look for jewelry. The defendant, who was not aware that someone else was in the house, was startled when he saw the victim walk past his room toward the stairs leading to the outside doorway. The defendant pulled out a pistol from under his pillow when he saw the victim and shot him to death.(C) A defendant started a joke about the victim’s brother. When word got to the victim about the defendant’s joke, the victim became incensed. He rushed to the defendant’s home, broke open the door and found the defendant preparing dinner in the kitchen. He immediately said, “I’m going to kill you.” The defendant knew that the victim had been convicted of attempted murder several years ago, and he cringed when the victim took out a gun and pointed it at him. The defendant could have easily darted for the open front door and evaded the victim but, instead, he suddenly pulled a knife from the kitchen wall, lunged at the victim, and stabbed him to death. Unknown to the defendant, the victim’s gun was not loaded.(D) A defendant was a reporter for a newspaper and was sent on assignment to another state to cover the story of a mining disaster. He was sitting in his hotel room one evening, trying to get a message to his editor, when a victim knocked at the door. The defendant opened the door, and the victim announced a robbery. The defendant took a lamp from the night table and threw it at the victim. The victim was momentarily stunned, and the defendant then pulled a gun out of his own suitcase and shot the victim to death.

Answer 448

23. (C) Choice (C) is the best answer. The defendant would have the strongest case successfully alleging the defense of self-defense. The facts in choice (C) are sufficient to indicate that the defendant has a reasonable belief that he was in immediate danger of deadly force or serious bodily harm. It is immaterial that the defendant did not know that the victim’s gun was not loaded. As a general rule, one who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. The defendant not only had such reasonable belief to justify the use of deadly force, but he also had no duty to retreat from his own home. Be aware of the problems involving the “duty to retreat” when deadly force is used in self-defense. The majority of jurisdictions hold that the defender (who was not the original aggressor) need not retreat, even though he may do so safely, before using deadly force upon an assailant whom he reasonably believes will kill him or do him serious bodily harm. However, even in the minority of jurisdictions that require retreat, the defender (1) need not retreat unless he knows he can do so in complete safety, and (2) he need not retreat from his home or place of business. Choice (A) is wrong because, even though he acted in defense of his life, he cannot assert self-defense as a justification for killing the victim because the defendant was the aggressor. If a person has a reasonable belief that he is in imminent danger of unlawful bodily harm, he may use that an amount of force which that is reasonably necessary to prevent such harm, unless he is the aggressor. Choice (B) is not the best answer. Even though discovering an intruder in his home would reasonably instill fear, perhaps even fear that he might be harmed, the facts do not say that the victim was about to use deadly force against the defendant. Rather, the defendant saw the victim walking away from his room toward the door. Similarly, choice (D) is wrong. Since the victim announced a robbery when he entered, but there is not evidence that suggests that the use of deadly force was imminent.

Question 449

24. A defendant was walking through a park when he decided to rob someone. He hid behind a tree, lying in wait for a victim to approach. Shortly thereafter, a girl was strolling in the park when the defendant suddenly jumped from his hiding place and accosted her. Although the defendant intended only to rob his victim, he punched her in the mouth and she fell to the ground. The defendant then grabbed her purse and fled. Unknown to the defendant, the girl suffered a fractured skull when her head struck the pavement. She subsequently died from her head injuries.Which of the following is the most serious crime for which the defendant can be found guilty?(A) Murder.(B) Felony murder.(C) Involuntary manslaughter.(D) Voluntary manslaughter.

Answer 449

24. (B) As a general rule, one whose conduct brings about an unintended death in the commission or attempted commission of a felony is guilty of felony-murder. In many states, the felony-murder rule is limited in its application to serious felonies that must be dangerous to life. Exam Tip: These felonies can be remembered by the mnemonic BARRK: Burglary; Arson; Rape; Robbery; and Kidnapping. Since the girl’s death occurred during the commission of a robbery, the defendant would be guilty of felony-murder. Choice (A) is not the best answer because felony-murder is a specific type of murder. Choice (B) is the better choice because it is more specific. Choice (C) is an attractive, but incorrect, choice because it tempts the reader to classify the death as misdemeanor-manslaughter because the defendant punched the girl in the mouth, thus committing battery, a misdemeanor. However, the death occurred during a robbery (the defendant took the purse from the girl’s person by force), so he will be liable for the girl’s death under a felony-murder theory. Choice (D) is incorrect because the girl’s killing was unintentional.

Question 450

25. A state statute provides: “Whenever a person knows or should know that he (or she) is being arrested by a police officer, it is the duty of such person to refrain from using force or any weapon in resisting arrest.” Violation of the statute is made punishable by fine and/or imprisonment.One morning, there was a bank robbery in the state. That afternoon, a police officer arrested a suspect who he believed was involved in the crime. However, the police officer and the suspect have given different accounts concerning what happened next.According to the police officer, after the suspect was apprehended, he resisted arrest and hit the police officer in the mouth with his fist. The police officer, who was momentarily stunned, pulled out his nightstick and struck the suspect over the head with it.On the other hand, the suspect claimed that after he was arrested, he cursed at the policeman, whereupon the police officer began hitting the suspect with his nightstick. To avoid being hit again, the suspect hit the police officer with his fist, knocking him down. The suspect was charged with assault.The suspect should be found(A) not guilty, if the arrest was unlawful without probable cause and the jury believes the suspect’s account.(B) not guilty, if the arrest was lawful, provided that the jury believes the suspect’s account.(C) guilty, if the arrest was lawful, regardless which account the jury believes.(D) guilty, if the arrest was unlawful, regardless which account the jury believes.

Answer 450

25. (B) One who is not the aggressor in an encounter is justified in using a reasonable amount of force against his adversary when he reasonably believes (a) that he is in immediate danger of unlawful bodily harm from his adversary and (b) that the use of such force is necessary to avoid this danger. The suspect is being charged with the crime of assault, not with violating the resisting arrest statute. As a result, self- defense may be a valid defense to assault. Therefore, choice (B) is correct. Choice (A) is incorrect. If the jury believes the suspect’s account, he will be found not guilty, irrespective of whether the arrest was lawful or not. Choices (C) and (D) are incorrect for the same reason: If the jury believes that the suspect acted to prevent being hit with the nightstick, the suspect will be found not guilty on the assault charge.

Question 451

26. A boyfriend and his girlfriend were attending a house party. While the party was in progress, a few teenagers from the neighborhood vandalized some of the cars parked outside the house. They broke the headlights and stole the battery from the boyfriend’s car.When the party ended, the boyfriend and his girlfriend left the house and got into his car. The boyfriend, who was about to drive his girlfriend home, was unaware of what had happened. He tried to start the car, but it wouldn’t turn on. Two police officers, who were parked outside the house, watched the boyfriend as he tried to start the car. They then approached the boyfriend and charged him with attempting to violate a local ordinance making it a misdemeanor to drive at night without headlights.The boyfriend’s best defense to the charge is(A) factual impossibility.(B) mistake of fact.(C) entrapment.(D) no requisite intent.

Answer 451

26. (D) The boyfriend is being charged with the crime of attempt. Attempt is a specific intent crime. The boyfriend, having noticed neither the broken headlights nor the missing battery, did not possess the requisite state of mind required for commission of the crime, and so cannot be found guilty of attempt. Choice (A) is wrong because factual impossibility is no defense to attempt where the defendant intends a criminal act but cannot accomplish it because of facts unknown to him at the time of the act. Choice (B) is attractive because the boyfriend was mistaken about his presumption that his car was in the same working condition in which he left it. However, mistake of fact is a defense where it negates the existence of a mental state required to establish a material element of the crime. In otherwords, there would be no crime if the facts were such as the defendant thought them to be. Mistake of fact, is simply not in issue here. Choice (C) is easily eliminated because there was no action on the part of the police officers that would have influenced the boyfriend in any way.

Question 452

27. Two brothers who were in need of money approached their wealthy uncle’s housekeeper and asked her to poison him. The brothers would inherit the uncle’s estate when he died. The housekeeper agreed, but on the condition that they would pay her $10,000 from their inheritance. After the brothers agreed to her demand, the housekeeper decided to place some cyanide in the uncle’s tea one morning. As the housekeeper was preparing the tea, the uncle was visited by his personal physician. When the housekeeper was ready to serve the tea, the uncle asked her to fix some tea for his physician also. The housekeeper did so and then carefully set the tea on the table so that the uncle’s cup was facing him. However, when the physician reached over to get some sugar, he inadvertently took the uncle’s cup with the cyanide and drank it. Seconds later, the physician died from the poison.Which of the following crimes are the brothers guilty of?(A) Conspiracy to commit murder of their uncle only.(B) Conspiracy to commit murder of their uncle and the physician.(C) Conspiracy to commit murder of their uncle, and murder of the physician.(D) Solicitation, conspiracy to commit murder of their uncle, and murder of the physician.

Answer 452

27. (C) The brothers are guilty of conspiracy to murder their uncle. They entered into an agreement to murder their uncle and had the specific intent to carry out their criminal objective. The defendants are also guilty of murder under an accomplice theory of liability, since they asked the housekeeper to kill their uncle. Choice (A) is incorrect because, as discussed, the brothers are also guilty of murder. Choice (B) is wrong because there was neither an agreement nor intent to murder the physician. Choice (D) is incorrect because solicitation merges into the conspiracy crime.

Question 453

28. Under which of the following situations would the defendant most likely be found guilty of murder?(A) A defendant conspired with two other men to rob a store. On the day of the robbery, the three participants drove to the store in a stolen van. In accordance with their plan, the defendant was to wait in the getaway van while the two men conducted their heist. While the two men were inside the store, the defendant decided to renounce his involvement and participation in the scheme and hurriedly drove away in the van. In his haste, the defendant failed to see a pedesthan jaywalking across the street, and struck and killed the pedestrian.(B) A defendant, accompanied by his girlfriend, was attending his law school graduation party. Both the defendant and his girlfriend became highly intoxicated during the party celebration. As the defendant and his girlfriend were leaving the party, the defendant handed his girlfriend the keys to his automobile and directed her to drive home. While driving, the girlfriend suddenly swerved the car across the median strip into the path of an oncoming car, killing the driver of the other vehicle.(C) A defendant, whose driver’s license had been revoked one week previously, was driving on an infrequently traveled country road one night. Knowing that his car brakes were defective, the defendant was traveling at 35 m.p.h. in a zone in which the speed limit was 25 m.p.h. when a victim suddenly darted in front of his car. In an effort to avoid striking the victim, the defendant applied his brakes to no avail. The car struck and killed the victim.(D) One afternoon a defendant was delivering pornographic materials to various adult bookstores in the community. In this jurisdiction, the delivery of pornographic materials constituted a misdemeanor. As the defendant was on his way to a book store for his final delivery of the day, he inadvertently struck a blind man who was crossing an intersection. Six months later, the blind man died as a result of injuries suffered in the accident.

Answer 453

28. (A) Under the theory of felony-murder, the defendant in choice (A) would be found guilty of murder for causing the death of the pedestrian (during the commission or attempted commission of the robbery/burglary at the department store). It should be pointed out that the defendant’s “withdrawal” would be ineffective, so as not to exonerate him of criminal responsibility for the pedestrian’s death. A withdrawal is effective only if communicated to his confederates made in time for his companions to effectively abandon the conspiracy. Thus, notice is insufficient unless it is given to all of the other conspirators. Choice (B) is not the best answer. In order to be found guilty of murder, the defendant must have acted with malice. He must have had the intent to kill, or cause great bodily harm, have acted with reckless disregard for human life, or have caused the death during the commission of a dangerous felony. Because none of these apply here, the defendant is not guilty of murder. Choice (C) is also wrong because the requisite malice is not present. This is an attractive answer choice because the defendant was negligent in driving his car knowing that his brakes were defective. However, negligence, even gross negligence, does not rise to the level of reckless indifference. Choice (D) is incorrect. If the defendant is criminally liable for the homicide because it occurred during the commission of a crime, the crime would be a misdemeanor-manslaughter (involuntary manslaughter).

Question 454

29. A brother and his sister, who was 15 years old, had just left a movie theater late one evening and were walking toward a dimly lit parking lot to get to their car. As they reached the car, a defendant, who was visibly intoxicated, emerged from behind a trash can and approached them. The defendant knocked the brother to the ground and hit him over the head with a trash can, causing the brother to lose consciousness. The defendant then forced the sister into the car and raped her.The defendant is charged with assault with intent to commit rape, based on his attack on the brother. The defendant’s best defense would be which of the following statements?(A) Although the sister was only 15 years old, she appeared to be 16 years old to a reasonable man.(B) The defendant did not intend to rape the sister.(C) The defendant’s intoxication at the time negated the required general intent.(D) It is impossible to prove that the defendant was the perpetrator because the parking lot was dimly lit.

Answer 454

29. (B) This question illustrates a number of Multistate principles: (1) answer the precise question asked; (2) read carefully; (3) select the BEST of the four answers; (4) if you cannot identify any answer as correct, at least eliminate the incorrect choices to increase your odds of choosing the best answer; and (5) in choosing an answer, note thata choice that is only possibly correct is preferred overone that is absolutely wrong. There are three important elements to the question asked: (a) a defense (b) to the crime of assault with intent to commit rape (c) based on an attack on the companion of a rape victim. Choice (A) is incorrect because this selection suggests an unsuccessful mistake of fact defense to the charge of statutory rape. Choice (C) is wrong because the crime involved in the question is a specific intent crime, and intoxication may be a defense only to a specific (not general) intent crime. In other words, choice (C) is an incorrect statement of law. Choice (D) is incorrect, as the mere fact that the lot was “dimly lit” will not preclude a guilty verdict. Consequently, only choice (B) applies, certainly an arguable and conceivably correct interpretation of the crime of assault with intent to rape.

Question 455

30. In which of the following situations is the defendant’s conduct most likely to make him criminally responsible for the victim’s death?(A) A defendant shot a victim in the head. The victim was then taken to a hospital for treatment of the wound. An earthquake later struck the city, causing the hospital to collapse. The victim was crushed to death in the rubble.(B) A defendant and a victim lived in the same apartment building. The defendant knew that the victim was having a love affair with a married woman. One day, the defendant learned that the victim was to be murdered by the married woman’s husband. Although the defendant had ample time to warn the victim, he failed to do so. That night, the victim was stabbed to death by the husband.(C) A victim, who was a gambler, was heavily in debt to the mob. The defendant, who was a mob enforcer, threatened to kill the victim if he didn’t pay up. Frightened, the victim boarded the next airplane flight out of town. The airplane crashed, and the victim was killed.(D) A defendant and a victim were driving to work together when the defendant, without provocation, stabbed the victim in the arm. The defendant then pushed him out of the car. The victim fell along the side of the street and fractured his ankle. Unable to move from the roadway, the victim was fatally crushed a half-hour later by a car driven by a drunk driver.

Answer 455

30. (D) This question deals with defenses to murder. In order to impose criminal liability, the defendant’s conduct must be the “proximate” cause of the crime. Where an intervening cause in the form of an unforeseeable act of God follows a defendant’s criminal act and thereby causes death, the defendant may be relieved of liability. In choice (A), the earthquake caused the hospital to collapse, crushing the victim to death. As a superseding cause, the earthquake will cut off the defendant’s liability, so choice (A) is incorrect. In choice (C) the defendant will not be liable for the victim’s death due to lack of causation, so this answer choice is incorrect. Although the threat to kill the victim may have frightened him enough to board an airplane, the defendant’s act in itself did not proximately cause the victim’s death; the plane crash did. Choice (B) is incorrect because omission to act isa basis to impose criminal responsibility only where there exists a legal duty to act—generally established by contract, by statute, or by relationship. The defendant had no familial or business relationship with the victim such that a duty to warn existed. Therefore, he would not be responsible for the victim’s subsequent death. Choice (D) is correct by process of elimination; the defendant pushed the victim directly out of the car after stabbing him in the arm, thereby causing the fractured ankle. Because of the immobility of the ankle, the victim was unabLe to move from the roadway. Being run over subsequently by a drunken driverwas not only a direct intervening cause of the defendant’s initial conduct, but it was a foreseeable result. Therefore, the claim of causation will not be broken, and the defendant will be criminally responsible.

Question 456

31. A defendant and his college roommate went home together for the holiday vacation. The defendant was to go back to college by himself. The day that the defendant was to drive back to college, his roommate asked him if he would deliver a package to one of their classmates. The defendant agreed, and the roommate gave him a small package, which the defendant placed in his glove compartment.While driving back to school, the defendant was stopped for speeding. When the state trooper asked the defendant for his license and registration, he reached into the glove compartment. As he did, the package that his roommate had given him fell onto the floor. When it hit the floor, the box broke open and a plastic envelope containing a white substance slid out. Seeing that the substance appeared to be cocaine, the state trooper arrested the defendant for possession of illegal narcotics under a state statute making it a felony to willfully possess a controlled substance. The package did, in fact, contain cocaine.If the defendant is later brought to trial for this charge, his best defense is that(A) the defendant didn’t know what was in the package.(B) the roommate didn’t tell him he was carrying illegal narcotics.(C) the package didn’t belong to him. (D) the cocaine was illegally seized.

Answer 456

31. (A) Many statutes defining conduct that is criminal will employ words or phrases indicating some type of bad-mind requirement: “intentionally” or “with intent to,““knowingly” or “with knowledge that . . . ,““fraudulently” or “with intent to defraud,”“willfully,” and so on. In our case, choice (A) is the best answer because if the defendant didn’t know what was in the package, she wouldn’t possess the required mental state for the statutory crime. Choice (B) is a correct statement of fact and, explains why the defendant did not know what was in the package, but it is not the best answer because this statement does not negate the mens rea of the crime. Choice (C) is also factually true, but is no defense to the crime of willful possession of a controlled dangerous substance. Choice (D) is incorrect. First, nothing in the facts say that the cocaine was illegally seized. Second, illegal seizure is not a defense, though it may result in the exclusion of the package at trial.

Question 457

32. A woman was in a public restroom at a mall. While the woman was at the sink, a man entered the restroom and told her not to make a sound. Frightened, the woman ran to an open window in the bathroom and jumped onto the fire escape. As she exited down the fire escape, the woman accidentally fell, bruising her legs.Which of the following crimes, if any, would the man most likely be convicted of?(A) Assault.(B) Battery.(C) Assault with intent to commit rape.(D) No crime.

Answer 457

32. (D) In a majority of jurisdictions, assault includes both (1) attempted battery, and (2) the doing of an act which that places another person in reasonable apprehension of receiving a battery. In those jurisdictions where an assault is limited to an attempted battery, intent to commit a battery (i.e., an intent to cause physical injury to the victim) is required. The second type of criminal assault requires some overt act by the defendant to arouse a reasonable apprehension of bodily harm. Thus, threatening words alone, without any overt act to carry out the threat, or indecent proposals by a man to a woman, not accompanied by any attempt to carry them out without her consent, will not suffice. Choice (B) is incorrect because there was no harmful or offensive touching; there was no contact at all, so the man may not be convicted of battery. Choices (A) and (C) are incorrect because there was no attempted battery; the man did nothing to put the woman in reasonable apprehension of imminent harm.

Question 458

33. A defendant was charged with attempted rape of a victim. The crime allegedly occurred at a party at the defendant’s home. During the party, the defendant invited the victim into his bedroom to show her his tattoos. When she entered his bedroom, the defendant ripped off her blouse and threw her onto his bed. He then jumped on the victim and tried to pull off her skirt. When the victim began to scream, some of the guests rushed into the bedroom and pulled the defendant off the victim. At trial, the defendant testified that he wanted to have sexual intercourse with the victim but he believed that she was consenting. The defendant further testified that he had consumed a pint of whiskey earlier in the evening and was intoxicated at the time the incident occurred.If the jury believes that the victim did not consent but also believes that the defendant, in his intoxicated state, honestly believed that she was consenting, the defendant should be found(A) guilty, because consent is determined by the objective manifestations of the victim and not the subjective beliefs of the defendant.(B) guilty, because voluntary intoxication is no defense.(C) not guilty, because he honestly believed that she was consenting.(D) not guilty, because his belief that she was consenting was reasonable.

Answer 458

33. (C) Voluntary intoxication may be a valid defense for a specific intent crime if it negates the requisite mental state. Attempt is a specific intent crime. Choice (C) is correct because if the jury believes that the defendant thought the victim consented, then they cannot find that he had the requisite mens rea. Choice (B) is wrong, but attractive, because it is a true statement of law; with respect to general intent crimes. If the defendant were charged with the crime of rape, then choice (B) would be correct, because intoxication is not a valid defense for the “general-intent” crime of rape. Choice (A) contains a true statement, but it is incorrect because the defendant’s guilt of the attempt crime does turn on his subjective belief. Choice (D) is incorrect because reasonableness is irrelevant here.

Question 459

34. A man is on trial for rape. The alleged victim testified that she went out to dinner with the man. Afterward, he invited her to his apartment for coffee. Upon entering the apartment, he violently assaulted her. Although she tried to resist, he overpowered and raped her.The man testified that during dinner, he and the victim drank two bottles of Champagne. When they returned to his apartment, he was so intoxicated that he honestly believed that she consented to the intercourse.The jury determined that the victim did not consent to the intercourse. The jury also found that the man, as a result of his intoxication, honestly but unreasonably believed that she was consenting. As a consequence, the defendant should be found(A) not guilty, because he honestly believed that the victim consented.(B) not guilty, because his intoxication negated his criminal intent.(C) guilty, because rape is a general intent crime. (D) guilty, because she did not consent, and his belief that she was consenting was unreasonable.

Answer 459

34. (D) This question involves a two-step approach. First, rape is a general intent crime. Second, mistake of fact can be a valid defense for a general intent crime if it is reasonable. Note that mistake can be a valid defense for a specific intent crime (such as larceny or burglary) whether it is reasonable, or unreasonable, as long as it is honest. Choice (A) is incorrect. Even if the jury believes that the man was honestLy mistaken about the victim’s consent, his mistake was unreasonable, so it will not provide a valid defense to the general intent, the crime of rape. Choice (B) is wrong because, as discussed, rape is a general intent crime. Choice (C) does not address the reasonableness of the man’s mistake. In other words, if the man’s mistake had been reasonable, then he would not be guilty of rape, despite the fact that it is a “general intent” crime.

Question 460

35. A defendant was playing cards with a group of friends at their weekly poker game. Earlier in the evening, one of the players handed the defendant a gun and told him it was unloaded. As a joke, the defendant pointed the gun at one of his friends and pulled the trigger. Unknown to the defendant, the gun was loaded and it discharged. The bullet grazed the friend’s shoulder, slightly wounding him.The defendant was charged with assault with intent to kill. In this jurisdiction, battery is a lesser included offense of assault. At trial, the defendant requested that the court instruct the jury that if his mistake was honest, whether reasonable or unreasonable, it would be a valid defense to assault and the lesser included offense of battery. Conversely, the prosecution wanted the court to instruct the jury that in order for the defendant’s mistake to be a valid defense for either crime, it must be reasonable.Regarding the jury instructions, which of the following statements is most accurate?(A) The defendant is correct with respect to assault, and the prosecution is correct with respect to battery.(B) The defendant is correct with respect to battery, and the prosecution is correct with respect to assault.(C) The prosecution is correct with respect to both the battery and assault charges.(D) The defendant is correct with respect to both the battery and assault charges.

Answer 460

35. (A) With respect to the defense of mistake of fact, it is necessary to distinguish between specific intent and general intent crimes. Any mistake of fact, reasonable orunreasonable, is a defense to a specific intent crime. On the other hand, in order to be a defense for a general intent crime, the defendant’s mistake must be reasonable (namely, the type of mistake that a reasonable person would have made under the circumstances). This question requires that the reader be able to differentiate between assault (a specific intent crime) and battery (a general intent crime). As a consequence, the defendant is correct with respect to assault, and the prosecution is correct with respect to battery. A mistake, even an unreasonable one, negates the specific intent required for an assault conviction, but with respect to the battery, mistake can only be a defense if the mistake was reasonable. Forthe foregoing reasons, choices (B), (C), and (D) are incorrect.

Question 461

36. A wife was unhappily married to her husband, an alcoholic. When the husband got drunk, he would become abusive and beat the wife. During the course of their marriage, the beatings became more violent and more frequent. Unable to endure the physical abuse any longer, the wife hired a hit man to kill her husband. One night while the husband was asleep, the hit man entered the home with a key given to him by the wife and shot the husband to death. Afterward, the wife was prosecuted for murder as an accomplice.At trial, the prosecution presented the facts outlined above. Thereafter, the defense sought to have the judge instruct the jury that the wife acted in self- defense under the battered women’s syndrome.Based on the given facts, should the judge give such an instruction to the jury?(A) No, because the wife’s belief in the necessity of deadly force in self-defense was unreasonable.(B) No, because even though the wife was the victim of spousal abuse, she could have avoided the danger by safely retreating.(C) Yes, because, on these facts, a reasonable jury could conclude that the wife acted in self- defense by using necessary force to protect herself from the husband’s constant violent attacks.(D) Yes, because a criminal defendant’s Sixth Amendment right to a jury trial prohibits a court from refusing to submit affirmative defenses to the jury.

Answer 461

36. (A) A person is privileged to use deadly force in self-defense if (a) she reasonably believes that she is in immediate danger of death or serious bodily injury, and (b) the use of such force is necessary to avoid this danger. The given facts indicate that the wife was not in immediate danger of unlawful bodily harm. In fact, the husband was asleep when she arranged to have the hit man kill him. The judge should not instruct the jury on self-defense because the wife has failed to show that she was in immediate danger of serious bodily injury when the murder occurred. Choice (B) is wrong. Not only does the retreat doctrine not apply in one’s own home, it does not apply here because, as discussed, the wife was not in danger of immediate harm. Choice (C) is wrong because it relies on a legally incorrect presumption that self defense may be asserted against intermittent attacks, when it is, in fact, limited to situations where one must use force to protect herself oneself from immediate danger of death or great bodiLy harm. Choice (D) discusses an issue that is not relevant on these facts.

Question 462

37. A woman and a defendant entered into an arrangement where the woman promised to pay the defendant $10,000 to act as a surrogate mother. In return, the defendant agreed to be implanted with the woman’s embryo and carry the baby to term. The woman paid the defendant the $10,000 upfront.During the seventh month of the pregnancy, the defendant changed her mind and decided to keep the child herself. The defendant moved out of state and gave birth to the baby, which she refuses to turn over to the woman.The defendant is guilty of(A) no crime.(B) embezzlement.(C) kidnapping.(D) false pretenses.

Answer 462

37. (A) Sometimes the best way to answer Multistate questions is by process of elimination, especially when the correct answer choice isn’t obvious. Choice (B) is wrong because embezzlement covers the misappropriation of either personal or real pro perty. Embezzlement is broader than larceny, which, at common law, was limited to the theft of personal property. Nonetheless, the defendant is not guilty of embezzlement because we are dealing with a child, not personal or reaL property. Choice (D) is incorrect because the original English false pretenses statute covered only “money, goods, wares, or merchandise,” and thus was limited to tangible personal property and money. By the same token, the defendant is not guilty of kidnapping, which is the forcible abduction of a person. Since we are not deaLing with abduction by force, choice (C) is incorrect. Therefore, by process of elimination, choice (A) is the best answer.

Question 463

38. A man, a woman, and their son went to their neighbor’s house. The man intended to take back some tools that he believed were his and that the neighbor was keeping unlawfully. The woman believed that the tools were the man’s, and she intended to help the man take them. When the son learned that the man and the woman were going to break into the neighbor’s home, he decided to accompany them. The son planned to find some items inside that might be worth taking.Arriving at the neighbor’s home, the man opened the front door, which was closed but unlocked. Upon entering, the son went to the neighbor’s upstairs bedroom and found a watch, which he took. In the meantime, the man and the woman went to the garage and began rummaging through the neighbor’s tools. The man found the tools, which he seized. The three of them then left the neighbor’s home.In this jurisdiction, burglary is defined as the breaking and entering of any structure with the intent to commit a felony therein.Which, if any, individuals should be found guilty of conspiracy?(A) The man, the woman, and the son.(B) The man and the woman.(C) The woman and the son.(D) None.

Answer 463

38. (D) The Common Law definition of conspiracy requires (1) an agreement between two or more persons (which constitutes the act), and (2) an intent to achieve a criminal or unlawful objective. To constitute conspiracy at common Law, there must be a combination of two or more guilty persons. Based on these facts, the “plurality” requirement is not satisfied, because the man and the woman lacked the intent to achieve a criminal objective. Both believed the man was the true owner of the tools. Therefore, neither the man nor the woman should be found guilty of conspiracy. The son intended to commit a crime when he decided to accompany the man and the woman in breaking in to the home, but he never entered into an agreement with the man or the woman to commit a theft inside the home. Since he has no co-conspirator, the son should not be found guilty of conspiracy. For the foregoing reasons, answer choices (A), (B), and (C) are incorrect.

Question 464

39. A driver drove his car into the full-service area ofa gas station. He told the attendant, “Ten gallons,please.” The attendant went ahead and pumped10 gallons of gas into the driver’s tank. When theattendant approached the driver for payment, thedriver drove off without paying.The driver is guilty of(A) larceny.(B) larceny by trick.(C) false pretenses.(D) embezzlement.

Answer 464

39. (B) The distinction between obtaining possession and obtaining title is the principal dividing line between larceny by trick and the crime of false pretenses. The crime of false pretenses requires that the defendant, by his lies, obtain title to the victim’s property. If he obtains possession without title by means of his lies, his crime is larceny by trick. In Hufstetler v. State, 37 Ala. App. 71 (1953), the defendant’s conviction for larceny by trick was affirmed where he (the driver) suddenly drove off without paying for the gasoline. In this particular situation, the court held that the defendant got possession but not title because the fraud vitiated the (gas station) owner’s consent. Because the fraud (i.e., the deception, here, the driver’s implication that he would pay) is said to vitiate consent, the fraud is the reason that the attendant pumped the gas. Thus, the driver has obtained possession, not ownership of the gasoline. Because both the crimes of false pretenses and embezzlement are crimes against ownership, choices (C) and (D) are incorrect. Choice (A) is not larceny because it was not a simple “trespassory taking”; instead, the driver told a lie to get the attendant to pump the gas.

Question 465

40. A boyfriend stole a diamond necklace that he gave his girlfriend as a birthday present. At the time the boyfriend gave the necklace to his girlfriend, she did not know that it was stolen. Three weeks later, while the boyfriend and his girlfriend were lying in bed, she whispered in his ear, “Gee, darling, I really love the diamond necklace you gave me. . . it must have cost a fortune.” The boyfriend responded, “Honey, the necklace didn’t cost me anything. . . I stole it.” Startled by her boyfriend’s confession, the girlfriend broke down and started crying. Moments later, however, after regaining her composure, the girlfriend decided to keep the necklace.The girlfriend is guilty of(A) receiving stolen property.(B) larceny.(C) larceny by trick.(D) no crime.

Answer 465

40. (D) This is another question that illustrates the helpfulness of eliminating the incorrect answers. Choice (A) is the most attractive answer, as the boyfriend did give his girlfriend a stolen necklace, and she did, in a literal sense “receive” it. However, choice (A) is incorrect because the girlfriend lacked the requisite mens rea for the crime of receiving stolen property. She would have to have known that the necklace was stolen at the time she received it. Receiving stolen property is statutorily defined, but in most states (1) the property must be received; (2) it must have been previously stolen; (3) the person receiving the property must know it was stolen; and (4) the receiver must intend to deprive the owner of his or her property. Choice (B) is wrong. The crime of larceny requires the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner. The mental state of intent to steal must concur in time with the act of taking and carrying away. In this question, the boyfriend, not the girlfriend, performed the act of stealing the diamond necklace. The girlfriend decided to keep it three weeks Later. Therefore, she cannot be guilty of common law larceny. At most, the girlfriend is an accessory after the fact. Since the girlfriend did not obtain possession of the neckLace by lying to someone, she cannot be guilty of larceny by trick, so choice (C) is wrong. By process of elimination, choice (D) is the best answer.

Question 466

41. One afternoon, a woman was having lunch with her boss when the boss excused herself to go to the bathroom. As the boss stood up to leave the table, her wallet fell out of her pocketbook onto the floor. The boss was unaware of what occurred and proceeded to the bathroom. The woman, however, saw the wallet fall. Intending to steal it, the woman picked up the wallet and placed it in her pocket. Before the boss returned to the table, the woman had a change of heart and decided to give the wallet back. Thereupon, the woman told her boss what had happened and handed her the wallet when she returned from the bathroom.The woman is guilty of which, if any, crime?(A) No crime.(B) Larceny.(C) Embezzlement.(D) False pretenses.

Answer 466

41. (B) Commission of the crime of larceny requires a taking (caption) and carrying away (asportation) of another’s property. A taking occurs when the offender secures dominion over the property, while a carrying away requires some slight movement of the property. Once the woman picked up the wallet (with the intent to steal) and placed it in her pocket (sufficient asportation), she committed the crime of larceny despite the fact that she later returned the property. The woman later had a “change of heart” and returned the wallet to her boss, but that would not constitute a valid defense. For this reason, choice (A) is incorrect. Both choices (C) and (D) are wrong because the crimes of false pretenses and embezzlement are both crimes against ownership, and the woman never had the right to possess the wallet.

Question 467

42. A defendant entered a department store and took the elevator to the eighth-floor toy department. He went there intending to purchase a new game. The defendant, who only had $8.00 in his possession, saw that the game he wanted was selling for $10.00 Realizing that he did not have enough money to pay for the game, he ripped the $10.00 price tag off the box. While no one was looking, the defendant then took the $7.00 sticker from another game and placed it on the box. He then purchased the game for $7.00 and walked out of the store.Which one of the following crimes may the defendant be convicted of?(A) False pretenses.(B) Larceny.(C) Deceit.(D) Conversion.

Answer 467

42. (A) Choice (A) is correct because the crime of false pretenses requires that the defendant by his lies obtain title to the victim’s property. Choice (B) is incorrect. If one obtains possession without title by his lies, his crime is larceny. At common Law, larceny consists of (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it. In this regard, larceny by trick is simply one way of committing the crime of larceny; it is not a crime separate from larceny. Answer choices (C) and (D) are easily eliminated because both refer to intentional torts.

Question 468

43. An owner took his car to an auto mechanic to have the oil changed. When he returned to pick up his car later in the day, the mechanic told him the charge was $1 The owner objected and said the charge was excessively high. The mechanic indicated that the amount was reasonable and showed the owner a price listing substantiating the charge. As the two men were arguing, the mechanic excused himself to answer the telephone in the rear of his shop. While the mechanic was on the phone, the owner got into his car and drove off without paying the servicing charges.If the owner is subsequently charged with larceny, he should be found(A) not guilty, because the car was his own property.(B) not guilty, if the jury finds the servicing charge to be excessively high.(C) guilty, if the jurisdiction has a statute making theft of services a crime.(D) guilty, because he took the car without the mechanic’s consent.

Answer 468

43. (C) At common law, larceny was limited to the taking (and carrying away) of tangible personal property. Modern statutes in most jurisdictions have broadened the scope of larceny to include the theft of Labor or services or the use of property. Consequently, choice (C) is correct, and the owner is guilty of larceny if the jurisdiction has a statute making theft of services a crime. Remember to apply the common law unless the question provides a statutory definition. Choice (A) is incorrect because the owner is being charged with larceny of the services, not his own car. Choice (B) is wrong. Even if the service charge was excessively high, the owner did not have the right to drive off without paying. Choice (D) presents a true statement, but, as discussed above, at common law, larceny is limited to tangible personal property. The owner can only be found guilty of larceny of the mechanic’s services in a jurisdiction that has statutorily defined larceny to include the theft of services; so choice (C) is preferred over choice (D).

Question 469

44. In most states, the division of homicide into degrees is distinguished according to which of the following?(A) the causal relationship between the defendant’s act and the resulting death.(B) the attendant circumstances surrounding the death.(C) the nature of the act causing the death.(D) the defendant’s state of mind at the time the killing was committed.

Answer 469

44. (D) It is important that students understand the common law definition of murder as distinct from statutory definitions of murder. This important concept is frequently misunderstood. At common law, there are no degrees of murder. “Murder is the unlawful killing of a human being with malice aforethought.” This is the common law rule. Malice can be found where there Is: (1) intent to kilL, (2) intent to inflict great bodily harm, (3) reckless indifference to human life, or (4) a killing committed in furtherance of a dangerous felony (felony murder). At common law, there are no degrees of murder. Degrees of murder are statutorily defined. Since the common law is the default rule, when approaching a question about murder, you needn’t discuss consider degrees of murder, unless the question prompts you to do so. In most jurisdictions that distinguish between first-and second-degree murder, first-degree murder will include the premeditated variety, as well as felony murder. Everything else is second-degree. Thus, choice (D) is the best answer. Choice (A) is wrong. Although causation is always required in homicide cases, the causal relationship is irrelevant to the distinction between first-and second-degree murder. Answer choice (B) is easily eliminated, since “the attendant circumstances” is so vague as to have no meaning at all. Choice (C) is incorrect because the key distinction is the defendant’s mental state, not her actions.

Question 470

45. A law school professor was hired to teach a bar review course. The professor taught the course in three cities. After conducting the sessions, the professor submitted an expense report to the owner of the bar review course. Her expense voucher included a $225 travel expenditure to a fourth city where the professor had attended a symposium unrelated to the bar review course.The professor also submitted the $225 travel expenditure to the administrator for the faculty at the law school where she teaches. The dean of the law school had previously approved the professor’s appearance at the symposium. The owner paid the professor for the symposium-related expenditure but indicated that the expense item was improperly billed to his company.The professor was indicted for false pretenses. In her defense, she contends that the double billing was the result of a bookkeeping error. Her defense should be(A) valid, if her mistake was reasonable.(B) valid, if she didn’t know that the billing to the bar review company included the symposium expenditure.(C) invalid, if her bookkeeping error was unreasonable.(D) invalid, because white-collar crime imposes absolute criminal liability.

Answer 470

45. (B) In order to answer this question correctly, the reader must know the elements of the crime of false pretenses. False pretenses involves: (1) a false representation of a material present or past fact (2) which causes the victim (3) to pass title to (4) his property to the wrongdoer, (5) who (a) knows his representation to be false, and (b) intends thereby to defraud the victim. Answer choice (B) is the best answer here because the defendant must intend to defraud in order to be guilty of false pretenses. If the professor did not know that the bill to the bar review company included the expenditure for the symposium, then she didn’t have the requisite meris rea, and her defense would be valid. Choices (A) and (C) are wrong for the same reason. Mistake of fact to a specific intent crime, even if unreasonable, will be a valid defense, so long as it negates the required mental state. Choice (D) is easily eliminated, as there is no strict liabiLity for specific intent crimes.

Question 471

46. Late one night, co-defendants broke into a warehouse and proceeded to load the large crates of appliances onto their truck. As they were leaving, one of the co-defendants inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the co-defendants had time to douse the fire without any danger to themselves, neither did so. Instead, they climbed into the truck and fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.At common law, the co-defendants should be found guilty of(A) burglary and arson.(B) larceny and arson.(C) larceny only.(D) burglary, larceny, and arson.

Answer 471

46. (C) At common law, the defendants could only be convicted of larceny, which is the taking and carrying away of the personal property of another by trespass with intent to permanently deprive that person of his interest in the property. The defendants could not be convicted of burglary or arson since, at common law, both offenses required commission in the dwelling house of another. Choice (A) is wrong because it includes burglary, and that is incorrect for the reason stated above. Choice (B) is incorrect because it includes arson, and that is wrong for the reason stated above. Choice (D) is incorrect for the reasons stated above.

Question 472

47. Two men were told by the defendant that a medical devices company was now using the old warehouse on the river for storing its supply of defibrillators. Late one night, the two men broke into the warehouse and proceeded to load the large crates of defibrillators onto their truck. As they were leaving, one of the men inadvertently threw his cigarette butt into a refuse pile of old cardboard boxes and papers. Soon afterward, the refuse ignited into a small fire. Although the men had time to douse the fire without any danger to themselves, they did not do so. Instead, they fled. Meanwhile, the fire quickly spread, engulfing the entire warehouse in flames.If the defendant is later charged as a co-conspirator, in all likelihood he would be held responsible as(A) an accessory before the fact.(B) a principal in the second degree.(C) an accomplice.(D) not respbnsible.

Answer 472

47. (D) Since the defendant only furnished factual information concerning the contents of the warehouse without knowledge or participation in the planned scheme to commit the burglary, he cannot be held as a co-conspirator, accessory before the fact, or principal in the second degree. Choice (A) is incorrect for the reason stated above. Choice (B) is incorrect because a principal in the second degree is typically an accessory. Choice (C) is incorrect for the reasons stated above.

Question 473

48. A defendant decided to rob a bar because he knew that the bar was now utilizing a new security system that was faulty and that nighttime was the best time to break in.Late one night, the defendant broke into the bar and proceeded to load large kegs of beer onto his truck. As he was leaving, the defendant inadvertently threw his cigarette butt into a trash can behind the bar. Soon afterward, the trash ignited into a small fire. Although the defendant had time to douse the fire without any danger to himself, he did not do so. Instead, he climbed into the truck and drove away. Although the fire spread beyond the trashcan, the fire department responded quickly and was able to put it out. The floor behind the bar was charred. The statutes for both burglary and arson in this jurisdiction include residential and business structures.The defendant should be convicted of which of the following crimes?(A) Arson, burglary, and larceny.(B) Arson and burglary.(C) Larceny and burglary.(D) Arson, robbery, and burglary.

Answer 473

48. (A) Choice (A) is correct because modern statutes have broadened the property, which, if burned and/or burglarized, include buildings. ALthough the defendant did not intend originally to set fire to the pub, an arson was nevertheless committed by his failure to douse the fire without endangering himself. Charring is sufficient for arson. Keep in mind, however, that blackening is not. In addition, the defendant should also be convicted of larceny because it was a trespassory taking and carrying away of the property of another with the intent to permanently deprive the victim of the property. Choice (B) is incorrect because the defendant is also guilty of larceny, and that makes choice (A) a more complete answer. Choice (C) is incorrect because the defendant is also guilty of arson for the reason stated above. Choice (D) is incorrect because there is no robbery here, as the defendant did not commit larceny from a person with the use of force or threat of force.

Question 474

49. A state has a statute defining burglary as “the breaking and entering without privilege of any building or occupied structure with the intent to commit a felony therein.” Late one night, the defendant broke into a warehouse located in the largest óity in the state. He carried with him an incendiary device with which he intended to commit arson. After breaking a window and putting his leg through the glass, the defendant was immediately arrested by a security guard.The defendant should be found guilty for which of the following crimes under modem law?(A) Burglary.(B) Burglary and attempted arson.(C) Burglary, attempted arson, and robbery.(D) Criminal damage to property.

Answer 474

49. (B) In accordance with the state burglary statute, the defendant is guilty of burglary because he (1) broke into and (2) entered (3) the warehouse (4) with the intent to commit a feLony therein. The defendant should also be found guilty of attempted arson because (1) he intended to commit arson and (2) engaged in an act constituting a “substantial step” in the commission of the crime — which consisted of the defendant’s breaking into the building with an incendiary device in his possession. The Model Penal Code sets forth several categories of conduct which that are sufficient as a matter of law to be corroborative of the actor’s criminal purpose. Model Penal Code Section 5.O1(2)(O hoLds that it is a “substantial step” to be in “possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which serve no lawful purpose of the actor under the circumstances.” Choice (A) is incorrect because the defendant is also guilty of attempted arson, as stated above. Choice (C) is incorrect because there was no taking from a person by force or threat of force. Choice (D) is incorrect because this would be a misdemeanor, and the defendant is guilty of far more serious crimes, as stated above.

Question 475

50. A state has a statute defining burglary as “the breaking and entering without privilege of any building or occupied structure with the intent to commit a felony therein.” Late one night, a burglar broke into a jewelry store located in the state. She was immediately arrested by the night security guard. When the burglar was apprehended by the security guard, she offered him $500 to let her go. The security guard agreed. The burglar then handed him the money and took with her the jewelry she intended to steal.If the security guard is later arrested, he should be found guilty for which, if any, of the following crimes?(A) Conspiracy to commit burglary.(B) Accessory before the fact to burglary(C) Accessory after the fact to burglary.(D) No crime.

Answer 475

50. (C) Here, the defendant shouLd be found guilty as an accessory afterthe factto burglary. According to LaFave, there are three basic requirements which that must be met to constitute one as an accessory after the fact: (1) a completed felony had theretofore been committed by another; (2) he knew of the commission of the felony by the other person; and (3) he gave aid to the feLon personally for the purpose of hindering the felon’s apprehension, conviction, or punishment. Choice (A) is incor rect because there was no specific intent on behalf of the defendant to commit the underLying crime of burgLary. Choice (B) is incorrect because you don’t have facts that the burglar committed another burglary. Choice (D) is incorrect for the reasons stated above.

Question 476

51. In which situation would the defendant most likely be guilty of murder?(A) As a practical joke, the defendant throws a firecracker in a crowded movie theater. A victim, who has a weak heart, becomes frightened and thinks someone is firing a gun. The victim suffers a heart attack and dies.(B) The defendant hates her husband after learning that he is having an affair with her best friend. She also knows that her husband owes a man a large amount of money, which he refuses to pay. Before the husband is about to leave for work, the defendant looks out the window and sees the man hiding outside with a gun. The defendant decides not to warn the husband, who then walks outside and is shot and killed by the man.(C) The defendant and his friend attended a party together. At the party, the friend became extremely inebriated. The friend asked the defendant if she could borrow his car to drive to the liquor store to buy more booze for the party. Although the defendant was aware of the friend’s intoxicated condition, he allowed her to drive his car to the liquor store. The friend drove through a red light and collided with the victim’s car. The victim was killed in the accident.(D) The defendant keeps a loaded gun in his house for protection. One day, the defendant leaves the gun on the kitchen table and leaves for work. That same day, a robber breaks into the defendant’s home, sees the gun, and steals it. The robber then uses the gun to rob a convenience store. During the robbery, the robber shoots and kills the proprietor with the defendant’s gun.

Answer 476

51. (B) For criminal liability to be based upon a failure to act, it must first be found that there is a legal dutyto act. The situations which that impose such a duty include:(1) duty based upon the relationship of the parties; (2) duty based upon statute; (3) duty based upon contract; (4) duty based upon voluntary assumption of care; (5) duty based upon creation of peril; (6) duty to control conduct of others; and (7) duty of landowner. Regarding duty based upon relationship, the common law imposed an affirmative duty upon a husband to aid his imperiled wife. InterestingLy enough, the common law is silent on a wife’s legal duty. LaFave states, however, that “it would seem that a wife owes a similar duty to act to safeguard her husband.” Criminal Law, footnote 11, pg. 204. Thus, choice (B) is correct. Choices (A) and (C) are incorrect. At most, the defendant would be guiLty of involuntary manslaughter, as the conduct in both situations would not rise to the level of depraved-heart murder. Choice (D) is incorrect. The defendant would not be guilty of any crime committed by the robber, as his conduct of leaving the gun on his kitchen table was not criminal.

Question 477

52. A passenger on a subway car placed her pocketbook on the seat next to her and began to zip up her jacket. Defendant was standing in front of the passenger and holding on to the hand rail. Seeing the pocketbook unattended, he suddenly grabbed it and tried to run away. As he did so, the passenger became very frightened and fell backward. She struck her head against the window and was knocked unconscious. In the commotion, Defendant dropped the pocketbook and hurriedly exited the subway car empty-handed.Defendant should be found guilty ofa. larceny.b. attempted larceny. c. assault.d. robbery.

Answer 477

52. (A) The distinction between larceny and robbery is tested on each and every Multistate exam. Robbery requires that the taking be done by means of violence or intimidation. Larceny from the person or presence of the victim is not robbery without the added element of force or violence. The line between robbery and larceny from the person (between violence and lack of violence) is not always easy to draw. The “snatching” cases, for instance, have given rise to some dispute. LaFave points out that “the great weight of authority supports the view that there is notsufficient force to constitute robbery when the thief snatches property from the owner’s grasp so suddenly that the owner cannot offer any resistance to the taking.” Criminal Law, pg. 696. Choices (C) and (D) are incorrect. This is larceny, despite the fact that the victim became frightened after the taking. Choice (B) is wrong because sufficient asportation occurred when the Defendant took the pocketbook off the seat (even if it was only a slight distance).

Question 478

53. A state has the following homicide statute in effect:“Whoever, purposely and with premeditated malice, or in the perpetration of, or attempt to perpetrate a rape, arson, robbery, burglary, or any other felony dangerous to human life, kills any human being, is guilty of murder in the first degree, and, on conviction, shall suffer death or be imprisoned in the state prison for life; Whoever maliciously but without premeditation kills any human being, is guilty of murder in the second degree, and, on conviction, shall be imprisoned in the state prison for life; Whoever unlawfully kills any human being without malice, express or implied, either voluntarily upon a sudden heat or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and on conviction, shall be imprisoned in the state prison not less than two years nor more than 20 years.”A man is having an affair with a married woman. The husband finds out about his wife’s relationship with the man. The next day, the husband sees the man walking down the street. Enraged by the man’s relationship with his wife, the husband pulls out a gun and shoots the man, killing him.The husband is subsequently arrested and prosecuted under the homicide statute for killing the man. At trial, the husband’s attorney attempts to introduce evidence that at the time the husband shot the victim, he was intoxicated.Upon objection by the prosecuting attorney, the evidence is(A) admissible.(B) admissible, but the jury must be cautioned that it does not pertain to manslaughter.(C) admissible, but the jury must be cautioned that it does not pertain to felony murder or seconddegree murder.(D) not admissible.

Answer 478

53. (B) This is another popular Multistate Criminal Law question dealing with voluntary intoxication as a defense for homicide. Always remember that voluntary intoxication will never mitigate murder to manslaughter. It may reduce first-degree murder to second-degree murder if the intoxication negates the defendant’s premeditation, deliberation, or intent. Furthermore, choice (B) is correct because voluntary intoxication is no defense to manslaughter. Choice (A) is incorrect because it is not as strong as choice (B), which speaks directly to the issue in the question. Choice (C) is incorrect because intoxication may pertain to felony-murder, even though it will not reduce a second-degree murder to manslaughter. In this regard, intoxication may be a defense for the underlying felony in a felony-murder prosecution, such as robbery, where it negates the intent to steal. Choice (D) is incorrect for the reasons stated above.

Question 479

54. Having just stolen a car, a defendant was operating the car within the posted speed limit when the steering suddenly malfunctioned. The car swerved out of control, jumped the curb, and crashed into a home. The defendant was arrested and charged with the separate crimes of larceny and malicious destruction of property.During the trial the judge instructed the jury that the theft of the car was sufficient evidence to satisfS’ the malice requirement for the malicious destruction of property charge. The defendant’s attorney has filed a motion objecting to the judge’s jury instruction.The judge’s instruction was(A) correct, because malice can be inferred from the intent to steal.(B) correct, because malicious destruction of property is a general intent crime.(C) incorrect, because larceny is not a lesser included offense of malicious destruction of property.(D) incorrect, because malice requires a showing of recklessness.

Answer 479

54. (D) Larceny and malicious destruction of propertyare separate criminal offenses. Choice (A) is incorrect. The mere theft of the auto does not satisfy the malice requirement for the destruction of property offense. Choices (B) and (C) are incorrect, as they do not answer the call of the question as to whether the judge’s instruction to the jury was proper. Choice (D) is correct because reckless conduct satisfies the malice requirement.

Question 480

55. A defendant went to a convenience store intending to rob it. The defendant had a gun inside his coat pocket. When the defendant entered the store, the owner saw that he had his hand in his coat pocket. Although the owner did not actually see the gun, he noticed a bulge in the defendant’s coat pocket.Paranoid because of a rash of recent robberies, the owner said, “Please don’t hurt me 11 do anything you want.” The owner then fainted and fell to the floor. The defendant walked behind the counter and opened the cash register. He took the money from the register and left the store.If the defendant is charged with robbery, he should be found(A) guilty, because the owner was placed in fear.(B) guilty, because the defendant entered the store with a gun in his possession.(C) not guilty, because the defendant did not make any threat of force.(D) not guilty, because the defendant did not take any money from the victim’s person.

Answer 480

55. (C) Robbery at common law consists of the same six elements as larceny, namely, (1) a trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it, plus the two added elements of (7) the taking must be accomplished by force, violence, or intimidation and (8) the taking must be from the victim’s person or presence. With respect to element 7, robbery requires that the taking be done by means of force, violence, or intimidation. The most common sortoffearin robbery, of course, isthefearengendered bythe robber’sthreat of immediate bodily injury or death, as where the robber points a gun, loaded or unloaded, at the owner, with a threat to shoot unless the latter hands over his property. In this question, the defendant did not actually threaten the owner nor did he brandish his gun. Therefore, choices (A) and (B) are incorrect. Choice (D) is incorrect because a defendant does not have to actually take money from a victim in order to be found guilty of robbery.

Question 481

56. A wealthy retiree had amassed a fortune after selling his pharmaceutical company. The retiree and his wife lived in an exquisitely decorated penthouse apartment overlooking a park. One night, the retiree and his wife were returning home from dinner when they were accosted by a man outside their apartment building. The man brandished a gun and told the retiree and his wife to take him to their apartment. Upon entering the apartment, the man blindfolded the retiree and his wife and tied them up with duct tape to chairs in the living room. The man then stole the retiree’s wallet and assorted jewelry from the bedroom. After the man exited the apartment, the retiree and his wife tried desperately to free themselves from their constraints. As the retiree was struggling, he suffered a heart attack and died.The man should be found guilty of(A) burglary.(B) robbery and burglary.(C) robbery and murder.(D) burglary, robbery, and murder.

Answer 481

56. (D) First, the man is guilty of burglary, which at common law was defined as the (1) breaking (2) and entering (3) of the dwelling house (4) of another (5) at nighttime (6) with intent to commit a felony therein. In the present case, students must assume that the man intended to commit a larceny or felony when he led the victims into the apartment at gunpoinL Second, the man is guilty of robbery because there was a violent taking of the victims’ personal property. Although robbery requires presence, “the robber takes property from the victim’s presence if he locks or ties the victim up in one room of a building and then helps himself to valuables located in another room.” LaFave, pg. 780. Third, the man is guilty of felony-murder because the retiree’s death was proximately related to the robbery and burglary. Therefore, choices (A) and (B) are incorrect. Choice (C) is wrong because burglary and robbery are separate criminal offenses.

Question 482

57. A husband and wife owned and operated a grocery store. The grocery store was situated in the first floor of the building in which the husband and wife occupied a second-floor apartment. Late one evening, the defendant was walking past the grocery store when he decided to steal the money he heard had been stashed in a cigar box inside the store.The defendant furtively walked to the rear of the building. He then proceeded to open the gate to the fenced-in back yard. Once inside the back yard, the defendant attempted to pry open the back window of the grocery store. Awakened by the barking of his watchdog, the husband went out onto his second- floor back porch and saw the defendant below. The husband yelled at the defendant. Startled, the defendant turned to run when he noticed a large package lying outside the rear door to the store. The defendant picked up the package, which contained baked bread that had been delivered earlier in the evening, and the defendant then ran off.Which of the following crimes will the defendant most likely be convicted of?(A) Larceny.(B) Burglary.(C) Larceny and attempted burglary.(D) Larceny and burglary.

Answer 482

57. (C) The defendant wouLd be guilty of larceny, which at common law may be defined as the (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it. In the present example, the defendant committed larceny by taking (caption) and carrying away (asportation) the package containing the baked bread. With respect to the crime of burglary, students should note that, at common law, burglary consisted of (1) breaking and (2) entering of (3) a dweLling house (4) of another (5) in the nighttime (6) with the intent to commit a felony therein. Here, the defendant would be guilty of attempted burgLary (rather than the completed crime) because he did not gain entry into the grocery store’s structure. According to LaFave, “a place of business used onLy during the day will not so qualify, but if it is attached to a residence it will.” Choice (A) is incorrect because the defendant is also guilty of attempted burglary. Choice (B) is incorrect because the defendant is also guilty of larceny. Choice (D) is incorrect because the defendant did not complete the crime of burglary for the reasons stated above.

Question 483

58. The victim owned and operated a small convenience store that was situated on the first floor of the building in which the victim occupied a second-floor apartment. Late one evening, the defendant was walking past the convenience store when he decided to break into the store to steal beer and cigarettes.The defendant threw a brick through the window of the convenience store and quickly went inside. Awakened by the alarm, the victim went down the stairs and into the convenience store. Seeing the victim, the defendant turned and began to run.Seeing the defendant running away with a case of beer and a carton of cigarettes, the victim ran after the defendant but tripped and fell, breaking his neck, which resulted in his immediate death.If the defendant is subsequently charged with the victim’s death, he will most likely be found(A) guilty of felony murder.(B) guilty of involuntary manslaughter.(C) guilty of voluntary manslaughter.(D) not guilty, because it was unforeseeable that a death would occur under the circumstances.

Answer 483

58. (A) In accordance with the felony murder rule, at common law, one whose conduct brought about an unintended death in the commission or attempted commission of a serious or inherently dangerous felony was guilty of murder. Choice (B) is incorrect because the defendant is guilty of felony murder, as stated above. Choice (C) is incorrect because a voluntary manslaughter is an intentional killing brought about by a reasonable provocation, and there are no facts to support it here. Choice (0) is incorrect because the victim’s death was foreseeable.

Question 484

59. A defendant and his friend were down on their luck. They decided they would make some extra cash by robbing the local liquor store. The friend didn’t like guns and decided to use a toy gun, which looked like a real gun, but only shot water. The defendant was aware that the gun was not real.Their plan fixed, they walked into the liquor store late one afternoon when few customers were in the store. The friend produced the toy pistol and pointed it at the customers and the clerk. The defendant ordered everyone to the floor, and the clerk began to rummage behind the counter for the key to the register. While his head was ducked, the clerk pulled a shotgun from behind the counter and fired it at the defendant and his friend. The defendant dived to the side, but his friend was shot and killed.If the defendant is subsequently charged with his friend’s death he should be founda. guilty of felony murder.b. guilty of voluntary manslaughter.c. guilty, because a felon may be convicted of the murder of a co-felon.d. not guilty, because the clerk was justified in killing the friend.

Answer 484

59. (D) The Redline limitation on the felony—murder doctrine holds that a felon is not liable for the death, which the felon did not intend, of a co-felon participating in criminal activity. According to LaFave, Criminal Law, 2Ed, pg. 629, “it is now generally accepted that there is no felony-murder liability when one of the felons is shot and killed by the victim, a police officer, or a bystander.” Although this is contrary to the common law rule, Redline is now the prevailing view in a majority of jurisdictions. Choice (A) is incorrect for the reasons stated above. Choice (B) is incorrect because a voluntary homicide is an intentional killing based on reasonable provocation. Choice (C) is incorrect because it reflects the common law rule.

Question 485

60. Under which one of the following situations would the defendant(s) most likely be found guilty of larceny?(A) A customer took his watch to a jeweler for repairs. The defendant inspected the watch and informed the customer that the watch needed a minor adjustment, which he would perform that afternoon. The customer gave the watch to the defendant and told him that he would return the following day to pick it up. As the defendant was repairing the watch, he discovered that it was an extremely valuable antique. He then substituted a less-expensive look-alike for the watch, which the customer picked up the next day.(B) As two defendants were walking down the street, they noticed a victim park his metallic gold sports car and enter the pool hail. When they approached the car, one of the defendants observed that the victim had left the keys in the ignition. Knowing that the victim would be hustling pool all evening, the defendants hopped into the sports car and drove off, intending to return the car later that evening.(C) During a craps game in the back room of a bar, the defendant lost $150 to the victim. The defendant left the bar after losing his money and returned an hour later with a gun in his possession. Honestly believing that the $150 still belonged to him, the defendant confronted the victim in the back room and demanded the return of his money. Frightened, the victim handed the money back to the defendant.(D) One afternoon, the defendant noticed the victim riding his racing bike in the park. The defendant, who always wanted to own a racing bike, saw his opportunity when the victim left his bike unattended to participate in a touch football game. The defendant jumped on the bike and quickly rode away. Later that evening, the defendant called the victim and demanded $200 for the return of the bike. The victim agreed to the defendant’s demand. The following day, the victim paid the defendant the money, and the defendant, in turn, returned the bike.

Answer 485

6o. (D) Choice (D) is correct. Choice (A) is incorrect because the defendant did not commit larceny when he fraudulently converted the watch which that he was lawfully in possession of. Therefore, the defendant would be guilty of embezzlement, not larceny. Choice (B) is wrong because one who takes another’s property, intending at the time he takes it to use it temporarily and then return it unconditionally within a reasonable time (and having the substantial ability to do so), lacks the intent to steal required for larceny. Choice (C) is wrong because one may take the property of another honestly, but mistakenly, believing that it is his own property. In such an event, the defendant lacks the intent to steal required for larceny, even though his mistaken but honest belief was unreasonable. A similar result was reached in People v. Rosen, 78 R2d 727 (1938), where the defendant used a pistol to recapture money he had lost by illegal gambling, honestly believing the money still belonged to him; conviction of larceny held reversed for lack of intent to steal. Consequently, choice (D) is correct, since it is no defense to larceny that the taker intended to return it (i.e., the stolen property), only if he should receive a reward for its return.

Question 486

61. A state has the following statute in effect:“No person shall sell, barter, furnish, or give to a minor under 16 years of age an air gun, rifle, shotgun, pistol, or other firearm; or being the owner or having charge or control thereof, knowingly permit it to be used by a minor under such age. Whoever violates this statute shall be fined not more than $1,500 (one thousand five hundred dollars), or imprisoned not more than 45 days, or both.”A mother purchased an air rifle, which she gave to her son. The mother, a police officer, who was familiar with firearms, trained her son in the systematic practice of care in the use of the air rifle. One afternoon, the son, who was 15 years of age, was playing with his friends. The three boys took turns firing the air rifle, which discharged small pellets, at various targets in the son’s back yard. As one of the friends, who was 16 years old, was using the air rifle, he fired a shot over the other friend’s head, intending to frighten him. The pellet missed the other friend, but struck a next-door neighbor in the eye, severely injuring her.The mother is subsequently charged with violating the state statute. As her defense, the mother claims that she erroneously believed the statute prohibited firearms to be given or sold to minors under 15 years of age.If the mother’s mistaken belief is honest, it should(A) result in her acquittal, because she didn’t have the necessary mental state required for the crime.(B) result in her acquittal, because the friend is 16 years of age or older.(C) not prevent her conviction, because mistake of law is no defense.(D) not prevent her conviction, because mistake of fact is no defense.

Answer 486

6i. (C) As a general rule, ignorance or mistake as to a matter of fact or law is a defense if it negates a mental state required to establish a material element of the crime. H ow- ever, LaFave states that a “quite different kind of mistake of law, whereby the defendant believes that his conduct is not proscribed by the criminal law, is generally not a defense.” Criminal Law, pg. 356. Choices (A) and (B) are incorrect because the statute may be violated in either of two ways. First, anyone who gives, sells, or furnishes an air gun (or firearm) to a minor is guilty of violating the statute. Second, anyone who is the owner or in control of a firearm and who knowingly permits it to be used by a minor is also in violation of the statute (which imposes strict criminal liability). In the present case, the mother violated the first section of the statute by giving the air rifle to her son, who was underthe statutory age. Choice (D) is incorrect because a mistake of fact, which is not present in our question, can be a defense.

Question 487

62. One morning in a Laundromat, a defendant approached a man and said, “If you don’t pay me $500 by July 2,, I’ll beat you to a pulp.” A week later, on July 2, the defendant met the man at a local bar and demanded the money. The man handed the defendant the $500. After receiving the money, the defendant then punched the man in the stomach and hurriedly left the bar.Under modem statutory law, the defendant will most likely be found guilty of which of the following crimes?(A) Extortion and battery.(B) Extortion and robbery.(C) Assault and battery.(D) Assault and robbery.

Answer 487

62. (A) Statutory extortion (or blackmail) covers threats to do future bodilyharm. The crime of robbery by intimidation requires that the threat be to do immediate harm. Since the defendant threatened the man with future bodily harm, the former would be found guilty of extortion, not robbery. In addition, the defendant should be found guilty of criminal battery, which may be defined as the unlawful application of force. Assault, on the other hand, does not require such physical contact. Therefore choices (B), (C), and (D) are incorrect.

Question 488

63. A woman entered a jewelry store and asked the store’s owner if he had any bracelets with turquoise and mother-of-pearl inlay. The owner answered affirmatively and showed the woman two display trays of bracelets. As the woman was looking at a few of the pieces, the telephone in the store began to ring. The owner excused himself and walked to the rear of the store where he answered the telephone call. While the owner was speaking on the phone, the woman placed one of the bracelets in her pocketbook and walked a few feet toward the front door of the store. She was about to leave the store, without paying for the bracelet, when she suddenly noticed one of the other employees. Thinking that the employee had seen her place the bracelet in her pocketbook, the woman walked back to the counter and returned the bracelet to the display tray. In fact, the employee had seen the woman take the bracelet but decided not to say anything after she put it back.If the woman is subsequently prosecuted for larceny of the bracelet, she will most likely be found(A) guilty, because it is not relevant that she returned the bracelet to the display tray.(B) guilty, because the employee had actually seen her place the bracelet in her pocketbook.(C) not guilty, because she returned the bracelet to the display tray.(D) not guilty, because she didn’t leave the store with the bracelet in her possession.

Answer 488

63. (A) Commission of the crime of Larceny requires a taking (caption) and carrying away (asportation) of another’s property. A taking occurs when the offender secures dominion over the property, while carrying away requires some slight movement of the property. Therefore choices (C) and (D) are incorrect. Choice (B) is incorrect. The fact that the employee did or did not see her place the bracelet in her pocketbook is not relevant as to whether the woman would be guilty of larceny.

Question 489

64. A man was at a hotel bar having a drink when the defendant approached him and sat down next to the man. The man was attracted to the defendant and immediately engaged her in conversation. After having a few drinks together, the man invited the defendant back to his room for a nightcap. Sensing that the man was wealthy, the defendant agreed to accompany him back to his hotel room.When they got back to the room, the man excused himself to go to the bathroom. While he was inside the bathroom, the defendant took some narcotics from her purse and placed them in the man’s drink. The defendant realized that the narcotics were a strong sedative and hoped that they would cause the man to pass out. She then planned to steal his wallet and jewelry. Upon returning from the bathroom, the man proceeded to finish his drink. Shortly thereafter, the man passed out. While he was unconscious, the defendant took his watch off his wrist and pulled the wallet out of his pants. She took $300 in cash from the wallet. As she was leaving, the defendant noticed that the man had a diamond earring in his left ear. She then ripped out the earring from his ear and stole that, as well. The man suffered a cut in his earlobe when the defendant snatched the earring.Which of the following crimes should the defendant be convicted of?(A) Larceny.(B) Robbery.(C) Larceny and robbery.(D) Battery and larceny.

Answer 489

64. (B) This question covers two important elements regarding robbery. At common law, robbery consists of all six elements of larceny: (1) trespassory (2) taking and (3) carrying away (4) the personal property (5) of another (6) with intent to steal, plus two additional requirements: (7) the taking be accomplished by force, violence, or intimidation, and (8) the taking must be from the victim’s person or presence. First, one may commit robbery by rendering his victim helpless by administering intoxicating liquors or drugs to produce unconsciousness as a means of force. LaFave, Criminal Law, pg. 782. Second, choices (A), (C), and (D) are wrong because larceny is a “Lesser included” crime and merges into robbery. A defendant cannot be guiLty of both larceny and robbery for the same criminal transaction.

Question 490

65. A defendant shot and killed a victim at close range with a revolver. After the shooting death, the defendant was arrested and charged with first-degree murder. In this jurisdiction, first-degree murder is defined as “knowingly or willfully causing the death of another human being.”Which of the following situations, if believed by the jury, would most likely result in the defendant’s acquittal of the first-degree murder charge?(A) The victim, who was the defendant’s brother, suffered from an incurable case of cancer and asked the defendant to kill him to put an end to his pain and suffering.(B) The killing was not done with premeditation or deliberation.(C) The defendant intended to kill himself, but the bullet grazed his head and struck and killed the victim.(D) The defendant intended to kill another man, but the victim unknowingly stepped in front of the other man and was struck and killed by the bullet.

Answer 490

65. (C) According to LaFave, “A is guilty of murder if he is actually the agent of B’s death, notwithstanding the fact that he acted at B’s request — as where A shoots and kills B upon B’s insistence that he wants to die now rather than continue to suffer from a serious illness.” Criminal Law, p. 650. Choice (A) is incorrect, since mercy killing would not result in the defendant’s acquittal of the first-degree murder charge. Choice (B) is also incorrect because the lack of premeditation and deliberation (subjective mental states determined from the defendant’s conduct in light of the surrounding circumstances) does not preclude the fact that the defendant’s conduct in firing the gun at the victim could still have been knowing and/or willful. Choice (D) is incorrect because the defendant’s intent to kill the other man, the intended victim, will be transferred to the victim, the actual victim, under the doctrine of transferred intent. By process of elimination, choice (C) is correct. Suicide is not murder under the statute, since the defendant would be required to have knowingly or willfully caused the death of another human being, not of himself. By attempting suicide, the defendant did not knowingly or willfully cause the death of the victim.

Question 491

66. A state has a statute prohibiting the sale of cigarettes to any person under the age of 17. Violation of the statute is a misdemeanor punishable by a fine not less than $500 or more than $5,000 The state courts have interpreted this statute as a public welfare offense requiring no particular mental state for its violation. As such, this is a strict liability crime whereby culpability is imposed on a defendant for doing the proscribed act.The defendant, a recovering alcoholic, worked as a cashier at a drug store. Late one night while the defendant was working alone, he got the urge to have a drink. He opened a bottle of rum that the store sold and soon began drinking. A short time later, the defendant became inebriated and passed out. Not long thereafter, a 15-year-old girl entered the store to purchase a package of cigarettes. She took a box off the shelf and went to the cashier’s counter to pay for them. Seeing the defendant lying on the floor, unconscious, the girl left the exact price for the cigarettes on the countertop and left the store.If the defendant is prosecuted for violating the state statute, he should be found(A) guilty, because the offense does not require any mental state.(B) guilty, because the defendant’s intoxication was voluntaiy.(C) not guilty, because the defendant was unconscious.(D) not guilty, because the defendant’s employer is vicariously liable for the violation that occurred.

Answer 491

66. (C) This Multistate question deals with statutory interpretation. Here, it is necessary to carefully read the facts to see that the statute makes it a crime to sell cigarettes to anyone under the age of 17. In the present example, the defendant did not violate the statute because he didn’t sell the cigarettes to the girl, so we know the answer must be choice (C) or choice (D). Note that choice (D) is wrong because if the defendant is not criminally liable, then no vicarious liability will be imposed on the owner of the drug store. Choice (A) is incorrect because although the statute is a strict liability crime, the defendant would still have to fulfill the actus reus requirement and because he was unconscious, he could not do so. Choice (B) is incorrect for the reasons stated above.

Question 492

67. A state has a statute prohibiting the sale of guns and ammunition to any person under the age of 17. Violation of the statute is a felony punishable by a fine of $5,000 and imprisonment for up to two years. The state courts have interpreted this statute as a public welfare offense requiring no particular mental state for its violation. As such, this is a strict liability crime whereby culpability is imposed on a defendant for doing the proscribed act.A defendant, a 15-year-old, entered the store to purchase a shotgun as a present for her father. She took a shotgun off the shelf and went to the cashier’s counter to pay for it. Not seeing the cashier anywhere, the defendant left the exact price for the shotgun on the countertop and left the store.If the defendant is prosecuted for violating the state statute, she should be found(A) guilty, because she purchased the shotgun while under the statutory age.(B) guilty, because the statute imposes absolute criminal liability.(C) not guilty, provided she was unaware that the statute prohibited the sale of weapons to a person in her age group.(D) not guilty, provided that the legislative intent was not to make the purchase of shotguns a criminal offense.

Answer 492

67. (D) The statute is interpreted to make the sale, not the purchase, of firearms (to minors) a criminal offense. As such, only sellers of firearms and ammunition may be convicted under the statute. Choice (A) is incorrect because, as stated above, only the sale of firearms is prohibited under the statute. Choice (B) is incorrect for the reasons already stated. Choice (C) is incorrect, because, even if this were true, ignorance of the law is not a defense.

Question 493

68. Late one night, a defendant, who had a long history of drug-related arrests, was attending a party at a house. During the party, the defendant approached an undercover narcotics agent and offered to sell him some drugs. The undercover agent purchased the drugs from the defendant. Immediately thereafter, the undercover agent arrested the defendant and charged him with conspiracy to sell narcotics and sale of narcotics. He was convicted of both crimes and given consecutive seven-year sentences.On appeal, the defendant’s best argument is which of the following?(A) There was no true agreement between him and the undercover agent and, hence, noconspiracy.(B) There was no true agreement between him and the undercover agent and, hence, no sale.(C) He cannot be convicted of both the sale of narcotics and conspiracy because each offense is essentially the same crime.(D) He cannot be convicted of both the sale of narcotics and conspiracy because both crimes arose from the same criminal transaction.

Answer 493

68. (A) The agreement is all-important in conspiracy. In order to have a conspiracy, there must be an agreement between two or more persons to engage in a criminal act. Since the buyer was an undercover poLice officer, he never intended to really purchase the narcotics; he feigned agreement because he wanted to trap the defendant. Therefore, no agreement (or “meeting of the minds”) existed. Choice (A) is preferred over choice (B) because in a conspiracy, you need the requisite plurality of two or more persons entering into an agreement. On the other hand, the defendant can be convicted of sale of narcotics because sale does not require an agreement between two or more persons. Choices (C) and (D) are incorrect, as double jeopardy would not prevent conviction for conspiracy and the sale of narcotics.

Question 494

69. A husband came home early from work one day. He walked to the bedroom and, upon opening the door, saw his wife and another man in bed together. Visibly upset, the husband told the other man to leave. As the man was reaching for his pants, he pulled out a gun, fearing that the husband was about to attack him. When the husband saw the gun, he jumped on the man and angrily twisted his neck, breaking it and killing him.The husband is guilty for which, if any, of the following crimes?(A) Murder.(B) Voluntary manslaughter.(C) Involuntary manslaughter.(D) No crime.

Answer 494

69. (D) In this question, the facts clearly indicate that the other man was the aggressor. When the husband caught the other man in bed with his wife, the husband did not threaten the other man with bodily harm or injury. It was only after the other man brandished his weapon that the husband acted in self-defense and killed him. Therefore choices (A) and (C) are incorrect. This type of question appears frequently on the Multistate because many students will skim the facts and go for choice (B), since they have been trained for that response anytime they see an apparent “heat of passion” killing.

Question 495

70. While on a camping trip, a defendant became intoxicated and decided to take a walk late at night. He was so drunk he could not find his way back to the campsite. He did, however, come across a secluded mountain cabin, in which he decided to take shelter for the night. Since the door to the cabin was locked, he broke a window and entered the structure. Once inside, he fell asleep on the sofa. When he awoke the next morning he was hungry. The defendant then found some food in the refrigerator, which he cooked and ate. Before leaving the cabin, the defendant looked around to see if there was anything worth stealing. He opened the door to the bedroom and found a gold watch on the nightstand. He placed the watch in his pocket and left the cabin. The defendant was later arrested and charged with burglary.The defendant’s strongest defense would be that(A) he was drunk when he broke into the cabin.(B) the crime was not completed until the morning hours.(C) he did not have the requisite intent at the time of the breaking and entering.(D) the cabin was empty when he entered it.

Answer 495

70. (C) The common law definition of burglary requires that there be a (1) breaking and (2) entering of (3) a dwelling house (4) of another (5) in the nighttime (6) with the intent to commit a felony therein. Although the defendant originally broke into the cabin at night, his breaking and entering was not accompanied by the requisite felonious intent. Thus, choice (C) is the best answer. Since burglary is a specific intent crime, intoxication is a defense to the crime if it negates a required element of the crime, and this is so, whether the intoxication is voluntary or involuntary. This makes choice (A) an attractive answer, but choice (A) is incorrect because there are no facts that say that the defendant’s intoxication prevented him from forming the requisite intent, but merely that he could not find his way back to the campsite. Choice (B) is not the best choice. The breaking and entering took place in the nighttime. If the defendant had the intent to commit a felony at the time, then the crime of burglary would be complete at the breaking and entering. Choice (D) is wrong because whether the dwelling house is vacant or occupied is irrelevant to the crime of burglary.

Question 496

71. A defendant and his friend were drinking heavily one night at the friend’s house. They both became intoxicated. After several hours, both the friend and the defendant passed out. In the middle of the night, the defendant awoke with a headache. He went down to the kitchen and poured himself another shot of whiskey. The defendant also felt hungry and decided to make himself some eggs. After fixing his snack, he inadvertently forgot to turn off the stove. A gas leak occurred, causing a fire that burned down the house.If the defendant is charged with arson, he will be found(A) guilty, because the defendant was reckless.(B) guilty, because the defendant was criminally negligent.(C) not guilty, because the defendant did not commit a felony.(D) not guilty, because arson requires the presence of malice.

Answer 496

71. (D) The defendant would not be guilty of arson under the common law, in that arson requires the presence of “malice.” A defendant will have the requisite intent of malice when that defendant acts intentionally or with reckless disregard of an obvious or known risk. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable riskthat the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation. The facts indicate that several hours passed after the drinking and that the defendant “inadvertently” forgot to turn off the stove. Even if the Defendant had not been drinking at all that night, his behavior does not appear to involve a “conscious disregarding” of the risk, nor is ita “gross deviation from the standard of conduct.” In other words, people do leave the stove on accidentally in everyday life. This is not the kind of legal reckless disregard of an obvious or known risk that malice is intended to capture. Therefore, answer choice (D) is correct.

Question 497

72. An elderly woman entered a convenience store and tried to cash her Social Security check. The owner told the woman that he was sorry but it was his policy not to cash Social Security checks. Terribly upset, the woman reached into her pocketbook and said, “Listen, buddy, I’ve got a bomb in here, and if you don’t give me the money, I’m going to blow up this joint.” Actually, the woman did not have a bomb in her possession. The owner, who was not deceived by her threat, felt sorry for the woman and agreed to cash the check. The woman, who walked with the assistance of a cane, took the money and limped out of the store. After she left, the owner noticed that the woman had not endorsed the check.The woman has committed which, if any, of the following crimes?(A) No crime.(B) Robbery.(C) Attempted robbery.(D) False pretenses.

Answer 497

72. (C) As noted earlier, the crime of attempt consists of: (1) an intentto do an act or bring about certain consequences which that would, in law, amount to a crime; and (2) an act in furtherance of that intentwhich, as it is most commonly put, goes beyond mere preparation. Robbery, on the other hand, consists of all six elements of larceny—a (1) trespassory (2) taking and (3) carrying away of the (4) personal property (5) of another (6) with intent to steal it—plus two additional requirements: (7) that the property be taken from the person or presence of the other and (8) that the taking be accomplished by means of force, violence, or intimidation. In the present case, the woman will be guilty of attempted robbery because she acted with the requisite intent to commit a robbery and performed an overt act (or “substantial step”) in furtherance of that goal. Her act of reaching into her pocketbook, and her statement accompanying this action would constitute an “act toward the commission” of the crime. Choice (C) is a better answer than choice (B) because the owner was not intimidated or deceived by her ruse. Although the woman is not guilty of a completed robbery, she, nevertheless, may be convicted of attempt. Therefore, choice (A) is incorrect. Choice (D) is incorrect because a false representation of a material fact did not cause the owner to pass title to the money to the woman.

Question 498

73. A homeowner was holding his annual party at his home. His parties attracted a wide variety of diverse individuals. On the night in question, a defendant was loafing at the local bar when a number of the invited guests came in to purchase spirits for the party. The defendant decided to crash the party. He arrived at the homeowner’s house around midnight when the party was in full swing. He went in through the front door, which was unlocked, and easily mingled with the other partygoers.During the party, the defendant wandered through the house and came upon a baseball, signed by a famous baseball player, in a glass case. Knowing the ball to be very valuable, the defendant put it under his jacket and made his way down the stairs and out the front door.If the defendant is subsequently charged with burglary, he will probably be found(A) guilty, because he crashed the party.(B) guilty, because he intended to steal the baseball.(C) not guilty, because he crashed the party only to have a good time.(D) not guilty, because the front door was unlocked.

Answer 498

73. (C) At common law, burglary consisted of breaking and entering the dwelling house of another at nighttime, with intent of committing a felony. The defendant did not intend to commit a felony at the time he entered the house. He did not formulate his criminal intent (e.g., to steal the baseball) until after he had entered the house. Choice (B) is incorrect because the intent was formed after the entrance to the house. Choices (A) and (D) are incorrect because both choices only address how the defendant entered the house and do not address whether or not there was any intent to commit a felony inside the home. Choice (C) is the best choice because it addresses the issue of his mental state when he entered. Since this choice negates an element of the crime, it is a better choice because it forecloses the possibility of liability for burglary.

Question 499

74. A defendant went to a party at his friend’s house. While he was there, the defendant drank a lot of beers and countless shots. The defendant eventually stumbled into the bathroom where he spotted a purse lying on the floor under the sink. Wondering vaguely if it might contain more beer, he opened it up and found his friend’s wallet. He grabbed some money from the wallet and left the bathroom.As he was descending the stairs with the money in his hand, his friend spotted him. She was initially concerned he might tumble down the stairs but upon seeing the money in his hand, she asked him where he got it. The defendant responded, “Ha! Your money or your life!” Not taking him seriously, the friend let him pass by. It wasn’t until later that she realized that the defendant had taken the money from her wallet.The defendant should be charged with which of the following crimes?(A) Larceny.(B) Larceny and burglary.(C) Larceny and attempted extortion.(D) Robbery and extortion.

Answer 499

74. (A) First, the defendant is guilty of larceny, not robbery. Robbery requires that the taking be done by means of force, violence, or intimidation. Larceny from the person or presence of the victim is not robbery without this added element of force or fear. The most common sort of fear in robbery is the fear, engendered by the robber’s intentional threat, of immediate bodily injury or death to the property owner himself (as where the robber points a gun, loaded or unloaded, at the owner with a threat to shoot unless the latter hands over his property). In this exampLe, the defendant never actually threatened the friend with bodily injury. The fact pattern tells you that the friend was never afraid, and the defendant’s statement itself makes it clear that it was not intended as a real threat. As a result, choice (D) is wrong because no robbery took place. Choice (C) is also incorrect because practically all extortion statutes cover the demand for (or acquisition oO money. Here, however, the defendant never extorted or demanded money (though “he had the idea” of doing so). Choice (B) is incorrect because the elements of burglary are not present here.

Question 500

75. The defendant was an off-duty police officer who frequently worked security at concerts on his free time. One night, he was working backstage security for one of his favorite bands when he noticed a groupie sneak in the back door, pick up a guitar, and begin to walk out with it. He drew his service revolver and exclaimed, “Stop or I’ll shoot!” The groupie looked at him and then fled. The defendant fired at the fleeing groupie, fatally wounding her. Use of force was not authorized by the concert promotion company that employed him.On these facts, if the defendant is charged with murder, he should be found(A) guilty.(B) not guilty, because the killing constituted justifiable homicide.(C) not guilty, because the killing constituted excusable homicide.(D) not guilty, because the defendant warned the groupie before he fired his gun.

Answer 500

75. (A) The defendant would be guiLty of killing the groupie, since a person may not use deadly force in the defense of personal property. A person may use deadly force in the defense of property generally only in conjunction with another privileged use of force, (i.e., self-defense or defense of another individual). Furthermore, the modern view is that deadly force may be used only to prevent the commission of dangerous feLonies (e.g., those involving a substantial risk of death or serious bodily harm). As a consequence, choices (B), (C), and (D) are incorrect.