February 2002 - Vermont Bar Examination Essay Questions - Model Answers

[Model Answer - Question I]
[Model Answer - Question II]
[Model Answer - Question III]
[Model Answer - Question IV]
[Model Answer - Question V]
[Model Answer - Question VI]

Examination Essay Questions - February 2002
MODEL ANSWER - QUESTION I - FEBRUARY 2002


Question 1:

       The issue raised is whether Steve's deed conveying the Dirt Road
  property to Betty is valid.  Pursuant to 27 V.S.A. § 341, deeds and other
  conveyances of land, or an estate or interest therein, shall be signed by
  the party granting the conveyance and witnessed by one or more witnesses
  and acknowledged by a notary public, county clerk, judge or register of
  probate.  The deed must state the consideration for the conveyance and an
  adequate description of the property.  Further, an individual who is a
  party to a deed is not a competent attesting witness.  In re Gorman, 82
  B.R. 253 (Bkrtcy. D. Vt. 1987).  Betty signed the deed as a witness to
  Steve's signature.  This is not permissible as she is the grantee. 
  However, Steve's lawyer, who acknowledged Steve's signature, can also act
  as the witness which serves to cure the defect in the deed.  Vermont also
  has a curative statute which provides that a deed will be deemed valid if
  it was properly recorded for fifteen years, despite any omission of a
  statement of consideration, or if it was not properly witnessed or
  acknowledged.  27 V.S.A. § 348.

Question 2:

       The issue is whether the mortgage and note from Betty to Mike is
  valid. In order for a mortgage deed to be valid it must meet the same
  requirements for a deed.  It must be signed by the mortgagee, witnessed by
  one witness and acknowledged by a notary public.  27 V.S.A. § 341.  Henry,
  who is Betty's spouse, signed the deed as the witness and this raises the
  question of whether this is proper.  Henry is not a party to the
  transaction since he is not a record owner of the property or a grantee
  under the deed.  Therefore, his signature as a witness is valid.

       There is also the issue of the recording of the mortgage prior to the
  recording of the deed from Steve to Betty.  A mortgage, as with any deed or
  other real estate instrument must be recorded in the town clerk's office
  where the property is located.  27 V.S.A. § 341.  If the mortgage is not
  recorded, it is only effective as to the grantor and his or her heirs.  27
  V.S.A. § 342.  The fact that the mortgage was recorded prior to the deed
  does not affect the validity of the mortgage.  The mortgage is effective as
  against Betty as the mortgagee and her heir, Henry.

Question 3:

 
       Henry has a homestead interest in the property by virtue of his
  marriage to Betty and her subsequent death.  A homestead interest is
  defined as the fixed residence of the family, together with the land and
  surrounding buildings.  The homestead in the amount of $75,000 is exempt
  from attachment and execution by creditors as long as it is occupied as a
  home.  If a person dies leaving a surviving spouse, his or her homestead
  passes to and vests in the surviving spouse without being subject to the
  payment and debts of the deceased as long as the spouse did not join in the
  obligations to repay.  Therefore, the mortgage from Mike to Betty is valid,
  but since Henry did not join in the execution and acknowledgment of the
  mortgage and note his homestead interest can not be defeated.  (Note: if
  this was a purchase money mortgage situation, Henry would not have to join
  in the execution of the mortgage in order to defeat his homestead
  interest.)

       Betty gave Mike a mortgage and note for $50,000.  Since Mike has a
  valid mortgage, he has the right to initiate foreclosure proceedings
  against Betty's estate.  Since the facts indicate that the house was
  purchased for $100,000 and Henry has a homestead exemption of $75,000,
  there appears to be $25,000 which is secured by the mortgage from Betty to
  Mike as against the real property.  Mike may be able to recover this amount
  in the foreclosure action.  Once Betty's estate is opened in probate court,
  Mike can try to recover on the note the remaining $25,000 from any
  non-exempt, unsecured assets that Betty had at the time of her death.
       
   
MODEL ANSWER - QUESTION II - FEBRUARY 2002
 

       1.  I would advise Denton to give the breath sample.  If the sample
  indicates that he has a BAC over the legal limit, then that can be used
  against him in a trial for DUI.  On the other hand, if he refuses, the fact
  that he refused can also be used against him, and his license will be
  suspended for 6 months, assuming that the officer's request was based upon
  a reasonable belief that Denton was DUI.  He can probably be convicted of
  DUI without the results of the breath test, especially with the fact of
  refusal being admitted.  Furthermore, the license suspension after a DUI is
  only 90 days.  Extra credit: if Denton had had a previous conviction of
  DUI, or had been involved in an accident involving death or serious bodily
  injury, he could fact a criminal charge for refusing to give the breath
  test.  Extra extra credit: this last point may be a violation of the Fifth
  Amendment.

       2.  An officer may stop a vehicle if he has reasonable grounds, not
  necessarily arising to probable cause, to believe that the operator is in
  violation of the law.  Weaving outside of the lane of traffic would be a
  clear case of a traffic offense, and a stop would be justified.  Weaving
  within the lane is borderline, but would probably justify a stop based upon
  reasonable suspicion that the operator was impaired.  Once the stop was
  effected, the officer's reasonable suspicion escalated to probable cause to
  believe that the defendant was DUI, which justified the continued
  detention.

       3.  The officer asked questions the answer to which tended to
  incriminate the defendant.  If the defendant were to have been in custody,
  asking these questions without receiving a waiver of the Miranda rights
  would normally be a violation of the Fifth Amendment.  However, the Vermont
  Supreme Court has held that roadside questioning during routine traffic
  stops does not require Miranda warnings, since these do not involve the
  sort of incommunicado interrogation of individuals in a police-dominated
  atmosphere that Miranda was concerned with.

       4.  The operation of the vehicle was solely in a driveway.  However,
  the statutory exception of the definition of a "driveway" as a public
  highway does not apply if the driveway serves more than a single or
  two-family residence.  The exception does not appear to apply here because
  the driveway served an apartment building.


MODEL ANSWER - QUESTION III - FEBRUARY 2002 


1. This question implicates both U.S. and Vermont constitutional issues.

Under the U.S. constitution, the Johnsons have two potential claims:
violation of the Equal Protection clause of the 14th amendment, and a
violation of the Due Process clause.

The Equal Protection clause prohibits states from applying laws in a
discriminatory manner. Generally, classifications under this clause are
subject to the "rational basis" test. This means that plaintiffs must
prove that the challenged action is not rationally related to a legitimate
government interest. If a suspect class is involved, the "strict scrutiny"
test is used instead. Under that standard, the government must show that
the law being challenged is necessary to accomplish a compelling government
interest. Finally, if a quasi-suspect class is involved, "intermediate
scrutiny" is applied, which requires a showing that the actions
substantially related to an important government interest.

In this case, the Johnsons will argue that the class being
discriminated against is either families with four or more children, or
children who are born fourth or later in their families. Because they are
not members of a suspect or quasi-suspect class, the "rational basis" test
will apply. Here, because the government arguable has an interest in
relieving over-crowding in public schools and reducing class sizes, this
may meet that test. While arguments can be raised that there are other
less drastic measures that could be taken to achieve those ends, the
rational basis test does not necessarily require the governmental action to
be the one most narrowly tailored to the goal, as the strict scrutiny test
does.

The Due Process clause claim will be analyzed in a very similar way:
if a fundamental right is involved, the claim will be subject to strict
scrutiny. Absent a fundamental right, the rational basis test will be
used.

Fundamental rights are found from express or implied rights in the
U.S. constitution. One of the fundamental rights recognized by the U.S.
Supreme Court is the right to privacy, which has been interpreted to
include the rights of parents to educate their own children through
home-schooling or enrolling them in religious institutions. The Court has
not yet recognized a fundamental right to an education, however. Thus
under the rational basis test, it is possible that this law may be deemed
to be rationally related to a legitimate government interest.

While providing protections similar to those under the federal
constitution, the Common Benefits Clause in Article 7 of the Vermont
constitution has recently been interpreted using different standards.
Thus, a challenge under the Vermont Constitution will be analyzed
differently.


The Common Benefits Clause states that Vermonters are entitled to the
benefits and protection of the laws of the state. The laws must be for the
benefit of the community and no t just certain members of the community.
Under Baker v. State, Article 7 requires a more stringent reasonableness
inquiry than the rational basis review afforded under the federal
constitution. The requirement is that the legislative classification must
reasonably relate to a legitimate public purpose, but it is a more
stringent reasonableness test.

First, the Johnsons will have to define the part of the community
negatively affected by the law or who suffer some disadvantage as a result
of the law. In this case, families with four or more school-aged children
as well as the children themselves are affected by the law. The families
have to pay for private education and the children are affected because one
or more must go to a different school.

Second, the government purpose must be examined: is the classification
reasonably necessary to accomplish the state's claimed objective of
relieving overcrowding and large class sizes in public schools? The Baker
v. State test is "whether the omission of a part of the community from the
benefit, protection and security of the challenged law bears a reasonable
and just relation to the government propose."

Since it is presumed all Vermonters are entitled to the benefit of the
law, three factors to be considered are how significant the benefits of the
law are, whether excluding some of the community from the benefits of the
law promotes the government's stated goals, and whether the classification
is significantly over-inclusive or under-inclusive.

The purpose of the new statute is to relieve over-crowding in public
schools and to reduce class sizes. The analysis of the validity of the new
law would look at whether this is a valid public interest that is furthered
by the exclusion of some children in families whose other children are able
to attend public school. The state certainly has an interest in providing
public education, but the means of assisting that interest in this case
seem to drastic. There may be other ways to meet the same goal without
excluding certain Vermonters from the benefit of public education. The
benefits of a public education are a significant benefit to most
Vermonters, and the Vermont Supreme Court stated in Brigham v. State that
public education is a constitutional obligation of the state under the
Education Clause of the Vermont constitution. The category of four children
or more seems an arbitrary line to draw and may not pass the Vermont
constitution's stricter "reasonableness" inquiry. It is likely that a
challenge to the law will be successful under this claim.

2. The school board policy can be challenged on two grounds.

First, the parents can challenge the law saying that it violates their
children's First Amendment rights. The First Amendment of the U.S.
constitution says that Congress shall make no law abridging the freedom of
speech. The Vermont constitution also gives the people the right to
freedom of speech. The government should not regulate free speech.

The challenge to the school board policy would be based on an argument
that banning certain material from the library suppresses ideas within the
school community and therefore violates both the U.S. and the Vermont
constitutions. However, the U.S. Supreme Court has held that "young
students have no constitutionally protected right of access on school
property to material that, whatever its literary merits, is fairly
characterized as vulgar and indecent in the school context." (See Bicknell
v. Vergennes Union High School Board of Directors, 638 F.2nd 438, and cases
cited therein.) The challenge on this basis will fail.

There would have to be a showing that banning certain books from the
library created a risk of suppressing ideas. The vulgar and indecent
analysis is not the same as the Supreme Court's obscenity analysis. The
analysis is different in the school context where material may be accessed
by young children. As long as the books are banned because they are
considered vulgar or indecent and not because of the school board's own
taste and attempt to apply their own taste to the school's choice of books,
the regulation and banning of books will be upheld. Concerns of
suppressing ideas or freedom of expression are not given as much
consideration in the school context relating to books that contain vulgar
or indecent material.

The second challenge may be based on a claimed lack of due process,
with the School Board making the decision without any opportunity for input
by students or parents. This challenge will also fail because "whatever
deprivation of rights can result from the removal of books from a school
library, it is not the sort of deprivation that entitles a student or
librarian to a hearing before the removal takes place." Bicknell v.
Vergennes Union High School Board of Directors, 638 F.2d 438. The
deprivation must involve a particularized and personal interest on the part
of the person asserting the right. The students cannot make this showing
when challenging the policy.


MODEL ANSWER - QUESTION IV - FEBRUARY 2002


1. The document Peter has signed constitutes a negotiable instrument
(Promissory note) pursuant to 9A V.S.A § 104. It is in writing and signed
by the maker. It is payable to the "order of David. (3-104(a)(1) It is
payable at a definite time. (3-104(a)(2). It is for a sum certain.
(3-104(a)). (The fact that an undetermined amount of attorney fees and
costs are payable if suit is brought does not destroy the sum certain
requirement.) It is unconditional. (3-104(a)(3)). Therefore, the
document constitutes a negotiable instrument pursuant to 9A V.S.A § 104.

2. Bill would have causes of action against each of the three
signatories to the note. Bill's claim against Peter would be for the
issuer of the note. (3-412). Bill has satisfied the presentment
requirement to bring a claim against Peter. (3-501). Bill's claims
against David and Tyrone would be as indorsers of the note (3-415). As
Peter has dishonored the note, Bill would need to give notice of that
dishonor to David and Tyrone in order to collect from either of them.
3-503. Bill may also have a claim for transfer warranty against Tyrone.
(3-416) Therefore, Bill's claim against Peter would be for primary
liability on the note as he was the maker of the note. Bill's claims
against Tyrone and David would be for secondary liability as the indorsers
of the note.

3. Peter would raise the defense of the failure of consideration
supporting the note, ie the carpeting does not stay down due to the faulty
glue. Failure of consideration is not a defense to a holder in due course.
Bill has holder in due course status as he is a holder of the negotiable
instrument, which he took in good faith, without notice and without reason
to question the validity of the note. (3-302) Bill obtains the holder in
due course status even though he did not give value for the instrument
through the benefit of the shelter rule as Tyrone, his immediate transferee
also had holder in due course status (payment of an antecedent debt
constitutes value for purposes of determining holder in due course status).
However, the Federal Trade Commission rule, Preservation of Consumers'
Claims and Defenses, allows these types of personal defenses (lack of
consideration) in consumer credit transactions. As Peter bought the goods
for his personal use, the FTC Rule would apply barring Bill's claim against
Peter.

David's liability is secondary as an indorser. Bill would need to
give notice to David of Peter's dishonor of the note. (3-503) Absent this
defense, however, David would be liable for the full amount of the note as
an indorser.

Tyrone is also secondarily liable to Bill as an indorser. However,
Tyrone indorsed the note "without recourse" which effectively eliminates
the indorser's contractual liability to Bill. (31415(b)). As to the
transfer warranty claim, Bill would need to prove that Tyrone knew of the
personal defense raised by Peter at the time Tyrone transferred the note to
Bill. 3-416 (Note if Tyrone is found to be liable pursuant to transfer
warranty, he could implead David as David clearly knew of the problem at
the time David transferred the note to Tyrone.)


MODEL ANSWER - QUESTION V - FEBRUARY 2002


Alan has several possible grounds for appeal of his conviction.

First, Alan could challenge the Court's ruling that allowed Betty to
testify about the prior violent incident. He should argue that the court
erred when it admitted evidence of prior bad acts because they are
proscribed under V.R.E 403 and 404(b). Rule 403 provides that evidence may
be excluded, even if it is relevant, if its probative value is
substantially outweighed by the danger that it may create unfair prejudice,
confuse the issues, or mislead the jury. Rule 404(b) provides that
evidence of other crimes, wrongs or acts is inadmissible to prove character
in order to show that the defendant acted in conformity therewith, such
evidence may be admissible, however, as proof of motive, intent and other
factors. Alan will have to show that the trial court abused its
discre5tion when it allowed Betty's testimony on this point, and that a
substantial right was affected by the error. In State v. Sanders, 168 Vt.
60, 62 (1998), the Vermont Supreme Court held that evidence of two prior
domestic assaults, one of which was uncharged, is admissible to gve context
to a charge of domestic violence, because evidence of a single act of
domestic violence, taken alone, may seem incongruous and incredible to a
jury. See, also, State v. Hendricks, 787 A.2d 1270 (Vt. 2001). Alan is
unlikely to prevail on this claim of error.

Alan could also challenge the Court's ruling to allow Betty to read
from her diary. He should argue that the diary entries are inadmissible
hearsay. However, Rule 803(5) allows a memorandum or record concerning a
matter about which a witness once had knowledge as evidence if the witness
now has insufficient recollection to enable her to testify fully and
accurately, if the memorandum was made by the witness when the matter was
fresh in her memory and correctly reflects that knowledge. This is called
recorded recollection. Assuming the entries qualified as recorded
recollection, they satisfy the Rule 803(5) standard and it was appropriate
for the court to allow Betty to read from the diary. However, the court
should not have allowed the written diary entries themselves to be received
as an exhibit.

Alan may also argue that Carol's testimony should not have been
admitted. His statement to Carol that he "beat up Betty pretty bad" is not
hearsay because it is an admission under Rule 801 (d)(2). However Rule
504, the marital privilege, allows a person to prevent his spouse from
disclosing any confidential communication between them that was made while
they were lawfully married. The privilege applies if (i) the couple was
married at the time of the communication, even if they are no longer
married when the testimony is offered, an (ii) it was made privately and
not intended for disclosure to any person other than the spouse. There is
an exception to this privilege under Rule 504(d) if one spouse is charged
with a crime against a person residing in the household of either spouse.
Since Betty and Alan lived together when the alleged assault occurred,
Carol's testimony was properly admitted as an exception to the marital
privilege rule.

Finally, Alan could appeal the judge's ruling that permitted the State
to impeach his credibility based on his prior conviction. Rule 609 allows
the introduction of evidence of conviction of a crime within the preceding
15 years to impeach a witness under two circumstances. They are (i)
conviction of a felony under Vermont law, or of a crime punishable by death
or imprisonment for more than one year under the law of the jurisdiction
where the witness was convicted, if the court determines that its probative
value outweighs its prejudicial effect of the evidence substantially
outweighs its probative value. However, evidence of a conviction is not
admissible under Rule 609 if it is the subject of a pending appeal. As
Alan's conviction is on appeal the evidence should not have been admitted
and he has strong grounds to appeal on this basis.


MODEL ANSWER - QUESTION VI - FEBRUARY 2002


1. Wills should be probated in the county where the decedent
resided at the time of their death. 4 V.S.A. § § 311, 311(a).
Accordingly, the Will should be probated in Chittenden County Probate Court
because that is where Alice resided at the time of her death.

2. The Will should be filed in Probate Court, 14 V.S.A. § 103
and a petition to commence a probate proceeding should be filed. 14 V.S.A.
§ 107. See also V.R.P.P.3. After a hearing or with the consent of the
surviving spouse, the heirs at law and the next-of -kin, the Will may be
allowed. 14 V.S.A. § 108. After the Will has been allowed, the Probate
Court will issue a letters testamentary. 14 V.S.A. § 902; see also 14
V.S.A. § 909.

3. As Alice's husband, Harold has the right to obtain one-third
of the personalty 14 V.S.A. § 401 and one-third of the value of the real
estate. 14 V.S.A. § 474.

4. Upon Alice's death, Debbie became the owner of the rental
property by virtue of her being a joint tenant. 27 V.S.A. § 2. As an
after-born child, Debbie would receive the same share as she would have
received had Alice died intestate. 14 V.S.A. § 555.

5. Vermont has an anti-lapse statute that saves devises or
legacies to deceased children or kindred who leave issue who survivor the
testator. Because Kevin was Alice's nephew the share left to him will go
to his son Matt. 14 V.S.A. § 558. Since Matt is a minor a guardian will
need to be appointed for him. 14 V.S.A. § 2647.

6. John will receive one-quarter of Alice's residuary estate.
He will not receive the proceeds of the life insurance policy. The
proceeds will go to Barbara, the beneficiary designated in the policy. He
also will not receive the rental property which went to Debbie as a joint
tenant. Both the life insurance and the rental property pass outside of
the probate estate.

7. Since Fay is a friend and not an heir at law, the bequest to
her is void unless there are three other competent witnesses. 14 V.S.A. §
10. The Will, however, is valid.

8. Since the named executor is deceased, the Court will appoint
an executor. 14 V.S.A. § 903. Harold will be named if he is willing and
competent. If not, Alice's children or such person as requested by Harold
and the children will be appointed. 14 V.S.A. § 903.


--------------------------------------------------------------------------- Board of Bar Examiners Mailing address: 109 State St. Montpelier VT 05609-0702 Office Location: 111 State St. Montpelier, VT Telephone: (802)828-3281