February 2004 - Vermont Bar Examination Essay Questions

PLEASE NOTE: QUESTION I was a "Multistate Performance Test" (MPT) will not be answered here.

Model Answer 1:

A Trustee appointed under a testamentary trust must administer the Trust and dispose of assets in accordance with the provisions of the Will and in compliance with applicable law.

Under Vermont Law, a Trustee has certain statutory duties under Chapter 105 of Title 14 VSA, including (i) to keep separate and distinct all money, properties or securities received by the Trustee in his capacity as Trustee; (ii) to make and return a true inventory of the real estate, goods, chattels, rights and credits belonging to the Trustee which come to his possession or knowledge, and return the inventory to the Probate Court; (iii) to manage and dispose of such estate and effects, and faithfully discharge his Trust in relation to the same, according to law and the Will of the Testator; (iv) to have the property appraised; (v) to render an account of the property in his hands and the management and disposition of the same; (vi) to settle his accounts with the Probate Court at the expiration of the trust, and to pay over and deliver the estate and effects remaining in the hands of the Trustee, or due from him on such settlement to the persons entitled to the same according to law and the Will of the Testator.

The Trustee is under a duty to the beneficiaries to administer the Trust to act solely in the interest of the beneficiaries. The Trustee is a in a fiduciary relationship to the beneficiaries, and the most fundamental duty owed by the Trustee to the beneficiaries is the duty of loyalty.

The Trustee is prohibited from using the advantage of his position to gain any benefit for himself (or his family) at the expense of the beneficiaries and from placing himself in any position where his self-interest will or may conflict with his duties as Trustee. This is so whether or not there is fraud or good intentions, and irrespective of whether the conflict of interest has resulted in profit or loss to the Trust.

The Trustee must follow strictly the terms of the Trust. Under the Trust, he may only distribute to Charlene income; the Trustee may no invade the principal because there is no provision in the Trust authorizing him to do so.

Vermont had adopted the cy pres doctrine, an equitable remedy used by courts to carry out the charitable intentions of testators under certain circumstances.

1. Please describe the steps that Charley should have taken to protect his security interest in the commercial leasehold, the equipment and the tow truck at the time of sale.

Charley should have received a conditional assignment of the lease and recorded it in the land records in the town in which the shop is located.

He should have received a security agreement and duly filed a UCC financing statement with the Secretary of State's office on the equipment.

He should be shown as a lienholder on the certificate of title to the tow truck.

2. Under which chapter of the bankruptcy code would you recommend that Dave file and why.

Dave can file under Chapter 7, Chapter 11 or Chapter 13 of the bankruptcy code, assuming that his business is a sole proprietorship (the facts do not mention that he ever incorporated).

If he files under Chapter 7 for liquidation, he may keep the tools of his trade. His other debts are wiped out, except for his medical expenses if they continue to accrue. This is probably the best option if his health would not permit him to continue his business.

It probably would be difficult for Chapter 13 (which would allow him to come up with a plan and pay his creditors a percentage of their claim over time) to work, especially if he is injured, as it would be difficult for him to continue the business.

Chapter 11 reorganization probably is not a viable option under these facts, because it is usually complicated and the prospects for the survival of this business do not appear good.

3. Please describe what impact, if any, the bankruptcy filing has on the $5,000 payment that Dave made toward his medical expenses, Charley's collection action in Superior Court, and the tow truck that Charley repossessed.

On the $5,000 payment, there is a 90 day preference period if Dave files before March 15. As a result, the $5,000 payment may have to be returned to the bankruptcy estate.

The filing of the bankruptcy action leads to an "automatic stay" which halts the superior court action.

Technically, the tow truck is part of the bankruptcy estate (the security interest is not transformed automatically to an ownership interest). However, if Charley appeared on the tow truck certificate of title, he would be in a secured position, and probably could obtain a relief from the stay on that asset and obtain possession and ownership.

4. Please describe the relative priorities in bankruptcy court of each of Dave's debts.

Under the Bankruptcy Code, payment of Eric's wages has priority over all claims except administration expenses and certain debts incurred by Dave in the ordinary course of business.

Charley and Acme had an opportunity to secure their interests. If they did (the facts are not clear), Charley would have a priority with regard to the collateral that secured his loans, and Acme would have a priority with regard to the inventory. Any additional amounts that they are owed above the value of the collateral would be unsecured and with respect to those amounts, they would be unsecured general creditors. If they did not properly secure their loans, they would be unsecured general creditors with respect to the entire amount.

1. The seizure and search of Cathy's suitcase by the customs agent and then the state police officer raises a potential claim under the Fourth Amendment to the U.S. Constitution and Chapter I, Article 11 of the Vermont Constitution. The actions of the customs agent, as a federal officer, are subject only to the requirements of the Fourth Amendment. The Fourth Amendment protects against unreasonable searches and seizures and in many contexts requires a warrant or some form of individualized suspicion prior to conducting a search. No such requirements apply at international border crossings, however. Customs agents may open and search personal belongings at border crossings without individualized suspicion or a warrant. The actions of the customs agent are therefore constitutional. The Vermont officer must comply with both the federal and state constitutions. Both provisions, however, allow law enforcement officers to examine items that are in "plain view" – that is, items that are visible to officers who are otherwise acting in conformance with the law. In this case, once the customs agent lawfully opened the suitcase and viewed its contents, Cathy lost any privacy interest in the contents. The subsequent inspection of the suitcase by the state officer therefore did not violate Cathy's rights under either the federal or state constitution. State v. Coburn, 165 Vt. 318 (1996). Cathy is not likely to succeed on appeal by challenging either the initial search of the suitcase by the customs agent or the subsequent search by the Vermont police officer.

A defendant in a criminal proceeding may object to the use of evidence obtained from an allegedly unlawful search or seizure by filing a motion to suppress the evidence prior to trial. V.R.Cr.P. 12(b)(3). Since Cathy failed to file such a motion, she waived any objection to the search of her suitcase. Id. 12(f); State v. Clark, 152 Vt. 304 (1989). The Supreme Court may nonetheless review her claim for plain error, State v. Clark, 152 Vt. 304 (1989), which is an error so obvious and so grave and serious that it strikes at the very heart of defendant's constitutional rights or adversely affects fair administration of justice, State v. Davis, 157 Vt. 506 (1991). However, as explained above, the handling of Cathy's suitcase met constitutional requirements and the Court is therefore not likely to find plain error.

2. Cathy might also argue that her consent to the search of her home was invalid, and therefore the evidence obtained in the search should be suppressed, because the officer violated her rights under Miranda v. Arizona by questioning her at the airport without advising her of her right to counsel and her right to remain silent. The facts of this case, however, do not provide strong support for a Miranda claim because only a person who has been taken into custody is entitled to Miranda warnings. Cathy was not "in custody" for purposes of Miranda while the officer questioned her in the airport. Although she had been cited for a misdemeanor offense, a citation is not an arrest under Vermont law. A person who has not been formally arrested may nonetheless be in custody if the person is subjected to restraints comparable to those that surround a formal arrest. See, e.g., State v. Lancto, 155 Vt. 168 (1990). The proper inquiry is whether, under the totality of the circumstances, an objectively reasonable person would have felt free to refuse to answer questions and to terminate the encounter. See State v. Brunell, 150 Vt. 388 (1988). Here, the questioning took place in a public place, the baggage claim area, with other people around. Cathy's movements were not restricted; nothing in the facts suggest that she was not free to leave the airport if she desired. See State v. Lawrence, 2003 VT 68. The facts do not describe the type of "incommunicado interrogation in a police dominated atmosphere" that concerned the Supreme Court in Miranda. See State v. Willis, 145 Vt. 459 (1985). Cathy is not likely to succeed on a claim that the questioning in the airport violated her rights under Miranda.

If Cathy wanted to object to the admission of the marijuana found at her home, she was required to file a motion to suppress as described above. Her failure to do so constitutes a waiver of her rights. Although the Supreme Court may still review for plain error, the Court is unlikely to find plain error in these circumstances.

3. The prosecutor's actions raise the question whether the prosecutor violated the constitutional guarantee of equal protection by using peremptory challenges to eliminate jurors based on their age. The US Supreme Court has held that prosecutors may not exercise peremptory challenges to remove jurors based solely on their race or sex. Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). These rulings apply to criminal proceedings in state court. See State v. Donaghy, 171 Vt. 435 (2000). Neither the U.S. Supreme Court nor the Vermont Supreme Court has extended Batson and J.E.B. to prohibit the exercise of peremptory challenges based on age. Unlike race and sex, age is not a protected category for purposes of federal equal protection. For purposes of the federal equal protection clause, age-based discrimination is constitutional if it has a rational basis. The Supreme Court acknowledged in JEB that parties may use peremptory challenges to remove members of groups normally subject only to rational basis review. Even assuming, based on the facts presented, that the prosecutor intentionally removed potential jurors based on their age, Cathy is unlikely to succeed on a Batson claim. [Would give full credit to an answer that acknowledged no existing right under state or federal constitutions but argued that Vermont Supreme Court might extend reasoning of Batson, under state constitution, to include age-based discrimination.]

If Cathy wanted to challenge the prosecutor's use of peremptory challenges, she should have done so at the time of the jury draw, before the jury was empaneled. The basis for her objection, that the prosecutor was using peremptory strikes to remove people younger than 30, would have been obvious at the time of the jury draw. The Vermont Supreme Court has generally held that once a jury is empaneled, the law presumes that the jury is beyond challenge. State v. Koveos, 169 Vt. 62 (1999). Although Cathy failed to properly preserve her claim, the Court could still review the issue for plain error. Id. However, no precedent supports extending Batson to age-based discrimination and Cathy's failure to object below means that the prosecutor was not afforded an opportunity to provide neutral explanations for the peremptory strikes. Under these circumstances, the Court is unlikely to find plain error.

4. The prosecutor's comments in the closing argument provide the best grounds for Cathy to prevail on appeal. A prosecutor has special obligations in the conduct of a criminal trial. They have a duty to "refrain from improper methods calculated to produce a wrongful conviction and to guard against conduct unintentionally trespassing the bounds of propriety." State v. Lawton, 164 Vt. 179 (1995). A prosecutor must avoid appealing to the prejudices of the jury or relying on improper inferences. Id. Among other things, the prosecutor may not indicate a personal belief that a defendant is guilty because the jury is likely to give special weight to that opinion. State v. Lawton, 164 Vt. 179 (1995). The prosecutor's comments cross this line, because they indicate a personal belief that Cathy is the kind of person who breaks the drug laws. Prosecutors should also not discuss evidence that is inadmissible. Id. Here, the prosecutor suggested to the jury that other matters, not in evidence, made Cathy more culpable than she might seem – suggesting, for example, that Cathy may have been involved in other criminal acts as a result of her marijuana use. The State might argue that Cathy "opened the door" to the prosecutor's comments by urging the jury to nullify. However, the prosecutor could have responded to Cathy's argument without commenting on her guilt or encouraging the jury to consider matters not in the record. For example, the prosecutor could have asked the judge to remind the jury of their obligation to follow the law and not substitute their personal preferences.

Cathy should have objected to the prosecutor's statements at the time they were made. Since she failed to do so, the Supreme Court may review her case only for plain error. The prosecutor's comments in this case were highly improper and may well have affected the jury's consideration of the case. On appeal, the Supreme Court could find that the comments amount to plain error and reverse the conviction. See Lawton, 164 Vt. 179. [Full credit as long as response discusses plain error; response could also conclude that court would not find plain error based on overwhelming evidence of guilt.]

1) What facts should Mary look for Plaintiff's counsel to elicit from Susan in order for her to be qualified as an expert witness?

In order to qualify as an expert witness, Plaintiff's counsel must establish that Susan has specialized knowledge in the relevant field based upon her skill, experience, training or education in order for her to give an opinion as to the right of way issue. Plaintiff's counsel should show her education, training and work experience and how that relates to the issue of the right of way of small private airplanes. V.R.E. 701. See State v. Perry, 151 Vt. 637 (1989).

2) If Emory is unable to attend the trial, can his report be introduced into evidence?

If Emory is physically unable to appear at the trial his report would be considered hearsay as it is a statement other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted. The admission of his report would be governed by V.R.E 804, Hearsay Exceptions: Declarant Unavailable. "Unavailability as a witness" includes: "Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity." V.R.E. 804(a)(4). If Emory is too badly injured to travel or testify, then he would qualify pursuant to this section and be "unavailable as a witness."

Unfortunately, his report is still hearsay and would not be admissible pursuant to any of the exceptions to this rule as the report does not constitute former testimony, statement under belief of impending death, statement against interest or a statement of personal or family history or concerning boundaries. V.R.E. 804(b). Nor, does the report fall into any of the other categories of non-hearsay V.R.E. 801(d) (prior statement by witness, or admission by party-opponent), or any of the exceptions set forth in V.R.E. 803. Therefore, the report will not be admitted into evidence if Emory is unable to testify at the trial.

3) If Emory is unable to attend the trial, can Mary enter into evidence Emory's opinions set forth in the book "Safety in the Skies"?

If the book "Safety in the Skies" can be qualified as a "Learned Treatise" then these opinions could be read into evidence, but the book itself would not be received as an exhibit. V.R.E. 803(18). Mary would need to establish through the cross-examination of Susan that "Safety in the Skies" is a reliable authority. Failing that the managing partner could attempt to have the judge take judicial notice of the book as a learned treatise, but this would be unusual.

4) If Emory is unable to attend the trial, could Mary elicit opinion testimony from David as to who had the right of way at the time of the accident?

There would be two approaches to this problem. The first would be to attempt to qualify David as an expert pursuant to V.R.E. 702. Given that he has significant flying experience he may be able to be qualified as an expert witness. As a licensed pilot, David must learn the "rules of the road" for flying. David may be in a position to explain both the rules of the road and the application of those rules to the facts of this case. However, weighing against this would be the fact that while David has significant flying experience he has virtually no experience with this type of plane. If it could be established through cross-examination of Susan that the rules governing right of way are the same whether you are flying military jets or small private aircraft then David may be qualified as an expert. However, it would be unlikely that the judge would allow expert testimony by David if previously he had not been disclosed as an expert given the looming trial and likelihood of a claim of unfair surprise by Plaintiff.

The other approach is that this opinion testimony is not the realm of expert witnesses and lay witnesses are competent to opine as to the application of the rules governing right of way of aircraft. Pursuant to V.R.E. 701, lay witnesses are allowed to elicit opinion testimony when "those opinions or inferences which are (a) rationally based upon the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." This approach would avoid the problem of the late expert witness disclosure. Mary should certainly be prepared for an objection from Plaintiff's counsel that this testimony is inappropriate for lay testimony.

Therefore, it is questionable if David's testimony as to his opinion as to who had the right of way at the time of the collision would be allowed in this matter, but it may be worthy of an attempt given the unusual circumstances of this trial. See Irving v. Agency of Transportation, 172 Vt. 527 (2001).

5) If Emory is able to testify, can Plaintiff's counsel elicit the facts and details of the conversations between Mary and Emory in preparation for his trial testimony?

The attorney work product privilege would not protect an examination of the facts or data supplied to Emory by Mary. V.R.E. 703. Questions of Emory as to Mary's beliefs as to the likelihood of the success of the defense of the claim or Mary's concerns as to the problem of Emory being involved in a similar accident should be objected to in this matter.

i.) The threshold question is whether Marsha can demonstrate a real, substantial, and unanticipated change of circumstances. 15 V.S.A. § 668. If not, the court would lack jurisdiction to modify physical rights and responsibilities. Although continued antagonism between parents who share custody may not be enough to constitute an unanticipated change in circumstances if the tensions were present at the time of the final stipulation or order, Gates v. Gates, 168 Vt. 64, a complete breakdown in the parties' previously amicable relationship as described here probably does satisfy the threshold. Meyer v. Meyer, 173 Vt. 195.

Alternatively, the court might consider whether Frank's relocation gave rise to a real, substantial and unanticipated change of circumstances. A custodial parent's decision to move to another state may trigger jurisdiction to modify a custody order, although it is not in and of itself sufficient to allow the court to second-guess the custodial parent's determination regarding the appropriateness of that change. Lane v. Schenck, 158 Vt. 489. In this case, Frank has not relocated out of the state; on the other hand, because the parties share physical rights and responsibilities, Frank's move, leaving the parties two hours apart, may constitute a sufficient change of circumstances to trigger jurisdiction.

ii) Assuming that the court does have jurisdiction to modify parental rights and responsibilities, the next question is whether it would be in the best interests of the child to do so. One factor the court should consider in determining whether shared physical rights and responsibilities are appropriate is the ability and disposition of the parents to communicate, cooperate with each other and make joint decisions concerning the children where parental rights and responsibilities are divided. 15 V.S.A. § 665(b)(8). Given the inability of parents in this case to cooperate, continued shared physical rights and responsibilities may not be appropriate.

In evaluating Cayla's best interests for the purpose of assigning physical rights and responsibilities to Marsha or Frank, the court should consider the factors outlined by statute. 15 V.S.A. § 665(b). Many of the relevant factors don't point strongly in favor of either parent (such as the child's material and developmental needs). To the extent that Frank has served more as Cayla's primary caregiver since the divorce, that factor might favor him. Id. § 665(b)(6). On the other hand, to the extent that Frank has shown an inability to cooperate with Marsha and foster a positive relationship between Cayla and her mother, that factor points against Frank. Id. § 665(b)(5); Meyer v. Meyer, 173 Vt. 195. Significantly, the non-payment of child support is not a ground for disrupting contact between a child and the obligor. 15 V.S.A. § 668a. Moreover, if the facts suggest that Cayla was well-adjusted to her housing, school and community in Bennington, that might be a factor supporting an award of parental rights and responsibilities to Marsha. § 665(b)(4). In the end, the court has broad, though not unlimited discretion to frame an award in the child's best interests.

If the court awards physical rights and responsibilities to Marsha, it will need to determine the child support due to her as the custodial parent.

The first step will be to calculate the child support obligation according to the Vermont child support guidelines. These guidelines are based on the concept that children should receive the same proportion of parental income after separation or divorce of their parents as they would receive if their parents were living together in one household. 15 V.S.A. § 654. The factors taken into account in the guidelines calculation include the gross incomes of both parents, the proportion of time Cayla spends with each, and the cost of health insurance.

Marsha's gross income may be disputed. Although Marsha no longer has any earned income from employment, because she voluntarily quit her job and gave up that employment income, her gross income should include her potential income unless she can show that she is physically or mentally incapacitated, is attending job-related education or training, or that her unemployment is in Cayla's best interests. 15 V.S.A. § 653(5)(A)(iii).

In addition, the magistrate must decide how to evaluate the inheritance in the context of the guidelines. The definition of "gross income" is broad; connoting "income from any source, including, but not limited to" income from a wide variety of sources including salaries, commissions, bonuses, dividends, severance pay, pensions, interest, trust income, annuities, capital gains, social security benefits, workers' compensation benefits, gifts, prizes, and spousal support actually received. 15 V.S.A. § 653(5)(A)(i). Inheritance is not included on the list, but given the broad language of "gross income," it could arguably include the inheritance as well as Marsha's imputed earnings. On the other hand, since the inheritance represents a single, non-recurring infusion of funds, the court could treat the inheritance as an asset, and view the interest or other income generated from that corpus as income to Marsha.

Finally, after calculating the guideline support amount, the court should consider, in its discretion, whether a deviation from the guideline child support amount is proper. In particular, the court should determine whether application of the guidelines is unfair to the child or to any of the parties considering a variety of factors including the financial resources of the custodial parent, the standard of living the child would have enjoyed had the marital relationship not been discontinued, the financial resources and needs of the noncustodial parent, and any other factors the court finds relevant. 15 V.S.A. § 659(b).

1c) Marsha's request that Frank be ordered not to enroll Cayla in a Catholic school

Major decisions concerning a child's religious upbringing and educational choices fall within the purview of the parent to whom legal rights and responsibilities are entrusted. 15 V.S.A. § 664. In this case, legal rights and responsibilities are shared and decisions about parochial school enrollment and religious upbringing should be made jointly. To the extent that the parties are deadlocked about such a major issue concerning Cayla's religious and educational upbringing, it is unlikely that a shared legal rights and responsibilities arrangement can continue, and the breakdown in relations likely does constitute a real, substantial and unanticipated change in circumstances. Meyer v. Meyer, 173 Vt. 195.

In assigning legal rights and responsibilities to Marsha or Frank, the court should consider the various factors identified in 1a above. If legal rights and responsibilities are awarded to Marsha, then the court should likely defer to her position concerning the Catholic schooling. Id. On the other hand, absent evidence of harm to Cayla, if Frank is awarded legal rights and responsibilities, his judgment regarding Cayla's upbringing should govern.

On motion of either parent or any other person to whom support has previously been granted, and upon a showing of a real, substantial and unanticipated change of circumstances, the court may annul, vary or modify a child support order, whether or not the order is based upon a stipulation or agreement. 15 V.S.A. § 660. If a new child support calculation under the guidelines would vary more than ten percent from the amounts required to be paid under the support guideline, that would constitute a real, substantial and unanticipated change of circumstances. Id. However, Marsha's voluntary reduction in income would not likely give rise to a real, substantial and unanticipated change of circumstances. Isham v. Isham, 152 Vt. 637.

If Marsha satisfied the threshold requirement, her inheritance is likely to be a factor affecting the calculation of child support as set forth in 1b.

Frank has essentially asked this Court to revisit the property division from the underlying divorce. The Court may not modify the property disposition aspects of a divorce decree absent circumstances, such as fraud or coercion, that would warrant relief from judgment generally. Meier v. Meier, 163 Vt. 609, 610; Boisselle v. Boisselle, 162 Vt. 240. No such factors appearing here, the Court has no authority to revisit the property disposition or allocate to Frank a portion of Marsha's post-divorce inheritance.

Modification of spousal maintenance is only proper where spousal maintenance appears in the original decree, or where the issue has been reserved. Meier, 163 Vt. at 610; Burroughs v. Burroughs, 132 Vt. 34, 36 (1973). In this case, the original order makes no provision for spousal maintenance and does not reserve the issue, so the request for spousal maintenance must fail.

Assuming the parental rights and responsibilities order remains unchanged, Frank may be able to establish a real, substantial and unanticipated change of circumstances on the basis of Marsha's inheritance. The key issues in the child support analysis are set forth in 1b, above.

February 2004- Vermont Bar Examination Essay Questions - Model Answers