February 1997 - 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 1997

     (A) The first will would be revoked, if the second will is valid. 
(There are significant problems with several of the bequests in the first
will.  However, these problems do not affect the facial validity of the will
as a whole.  There is nothing in the question that suggests that the first
will was not properly executed.)  As to the second will, Sam gave clear
directions regarding preparation of the document, and all the required
formalities were met at the signing of the document:  Sam orally acknowledged
that he had read the document, that it was in fact his last will and
testament, and that he wanted the persons present to act as witnesses to his
signing of the document.  He began the act of signing, and the witnesses
signed the document, in each other's presence, to attest to their witnessing
this event.  The only question is whether something more than merely having
the pen make contact with the paper is required to constitute a "signature." 
Vermont law requires that a will shall be in writing and signed by the
testator, or by the testator's name written by some other person in his
presence and by his express direction.  14 V.S.A. §5.  In this case, an
argument can be made either way: that the pen's contact with the paper was
sufficient to equal a "signature," particularly if some ink was left on the
page, and that an actual representation of Sam's name is required.  Vermont
does not allow oral, deathbed wills, known as "nuncupative" wills, to be
effective except for personalty of $200 or less.  14 V.S.A. §6.  Therefore,
Sam's oral statement that this was his will would not be effective.  If the
Court found that the second will was not valid, the first will would
automatically become valid.

     (b) Under the second will, all of the property would pass to Dorothy, as
Sam directed.  The fact that Sam died before expiration of the nisi period
set by the decree is immaterial, under 15 V.S.A. §554(a), as amended in 1995,
effective July 1, 1996.  This statute provides that the decree shall be
deemed absolute immediately prior to death.  Under former Vermont law, Sam
and Ann's divorce stipulation (since it appears they had one) would have been
effective to waive Ann's rights to claim a spousal interest in Sam's estate
if it clearly stated that it was an agreement between them, and was intended
to stand on its own, independent of the divorce action.   Estate of Ladd v.
Estate of Ladd, 161 Vt. 270 (1994).  

     Under the first will, the first bequest, "$50,000 to my son Bob," is
effective.  However, as Charlie was not born until 1982, after this will was
executed, there is a question as to how he should be treated.  Under Vermont
law, a child born after the making of a will, as to whom no provision is made
in the will, inherits the same share that he or she would get if the testator
had died intestate.  14 V.S.A. §555.  This means that Charlie is entitled to
1/2 of the estate, i.e. his "equal share."  14 V.S.A. §551.  This share of
the estate should come first from any portion of Sam's estate not disposed of
by will, and if that is not sufficient, from all the devisees and legatees in
proportion to the amount of property each is given under the will.   14
V.S.A. §557.

     Sam's bequest of $1 million to his wife is ineffective, as no such
person existed at the time of his death.  As stated above, the nisi became
absolute just before his death, so he and Ann were divorced.  Vermont does
not recognize common law marriage, so any claim by Dorothy that she was his
"wife" would be unsuccessful.

     Sam's bequest to the Foundation also appears ineffective, as no such
foundation exists, or ever did exist.  However, the doctrine of "cy pres"
permits a superior court to order the administration of the bequest as nearly
as possible to fulfill the general charitable intention of the testator.  14
V.S.A. §2328.  If the court found that Sam's bequest showed a "general
charitable intent", this bequest could be given to another institution whose
purposes as nearly as possible are the same as those of Sam's nonexistent
Foundation.  Parol evidence of Sam's actual intentions in this regard may be
admitted to assist the court.

     Sam's bequest of his boat to his attorney is problematic for two
reasons.  First, his attorney was a witness to the signing of the will. 
Under 14 V.S.A. §10, a legacy to a witness (or his or her spouse) to the
signing of the will is void, unless there are three other witnesses present
at the will signing.  Only three people witnessed the signing of this will,
and one of them was Evan, so the legacy to him is void.  (His daughter could
be a proper witness, as the statute specifically disqualifies only
beneficiaries and their spouses, not their children.)  Even if the bequest
was not voided because of Evan's acting as a witness, it would be ineffective
because the property was not part of Sam's estate.  The horse is such a
complete different kind of property that it could not be substituted for the

     As the question is written there is no indication regarding whether
there is any residuary clause in the first will.  In the absence of any such
clause, all of the property not passing under valid provisions of the will
would pass as if by intestacy.  In this case, all of that property would be
divided between Bob and Charlie, as Sam's surviving children.  Charlie would
receive a full 1/2 of the estate's total value (after payment of expenses and
debts), under the pretermitted heir statute, while Bob would receive the
balance of the residuary, plus his $50,000 specific bequest.


In defending Paul Hines, the following issues are raised by the facts given:

1) An objection should be made to the use and admission of Paul's testimony
in his father-in-law's trial.  The statements made by Paul at that time are
hearsay in the context of this current trial, and violate V.R.E. 802.  They
were made out of court, and are being offered to show that Paul knew the
intersection was dangerous.  However, the chances of being successful in
keeping the statements out of court are very slim.  Plaintiff can argue that
Paul's prior testimony is admissible against him as a prior inconsistent
statement, given under oath (V.R.E. 801), and, as such, it does not
constitute hearsay.  In addition, Plaintiff can offer the testimony to
impeach Paul, as a prior inconsistent statement (V.R.E. 613).  The previous
testimony will be admitted by the court.

2) When Paul Hines had the stroke, and the trial judge refused to continue
the trial, Paul became unavailable as a witness.  His counsel must find
another way of offering his testimony at the trial.  Assuming that Paul is
too ill to testify from the hospital, his attorney should ask the court for
permission to use the deposition taken of Paul in this case at trial.  Under
V.R.E. 804, the statements of an unavailable declarant may be admitted as
evidence if they were taken at a deposition in this case, and the opposing
party had an opportunity to question the declarant.  The definition of
unavailability includes a physical illness.  Although Plaintiff may object to
the use of the deposition, the court will probably allow it.

3) A motion to exclude Mary Hines' testimony about Paul's admission that the
accident had been his fault, should be made on the grounds that it violates
the husband-wife privilege (V.R.E. 504).  A communication between spouses
that is intended to be confidential is not admissible if one of the spouses
asserts the privilege.  Paul's attorney should argue that the statement was
made privately to Mary, in the parties' home.  Plaintiff will probably oppose
the exclusion, and maintain that the statement was not intended to be
confidential because Mary's father was present.  In response, Paul's counsel
should stress that Mary's father was a trusted member of the family, and that
the statement was directed at Mary and was not intended to be made public. 
If the court is convinced that Paul made the admission to both Mary and her
father, and that he wanted both of them to hear it, the court will probably
allow the testimony as evidence.  The presence of Paul's father-in-law will
take the admission outside of the husband-wife privilege.

4) The actions taken by the City of Whoville to install stop signs at the
intersection in question are evidence that Paul's lawyer will want to admit
at trial.  In his defense against John Smith, Paul can argue that the City
had a responsibility to control the traffic flow at this intersection, and
that it was negligent in not doing so.  The City's attorney will object to
the use of this evidence on the grounds that subsequent remedial measures
taken by a party are not admissible against that party to prove negligence
(V.R.E. 407).  However, Paul's counsel can point out that such remedial
measures are admissible if offered to show ownership and control, and the
feasibility of taking precautionary measures.  The evidentiary rule allows an
exception for these purposes.  Since there had been accidents at this 
intersection before, the City was on notice as to the dangerousness of the
corner.  Paul can argue that the stop signs should have been installed long
before the June 4th accident.  

Evidence that the City erected the signs within a few months after John
Smith's accident would be relevant to demonstrate that the City had the
authority and capacity to install those signs.  The trial court is likely to
admit the evidence.

5) Paul's attorney will also want to offer as evidence the motor vehicle
accident reports that predated the June 4th collision between Smith and
Hines.  They are relevant to show that the City of Whoville had notice about
the dangerousness of this intersection.  The City's attorney may object on
the basis that the reports are hearsay and should be excluded.  They are
reports made by out-of-court witnesses (the police officers) that are being
offered to show the City's culpability.  Paul's counsel should respond that
the public records exception to the hearsay rule allows the records to be
admitted in evidence.  The accident reports were compiled by a public office
in the course of its regularly recorded activities, and they are concerning
incidents that the public office is required to report by law.  It is likely
that the trial court will admit the reports.

6) Finally, it is also possible that Plaintiff will try to offer Mary Hines'
initial statement to her husband, "Slow down!", through a witness other than
Mrs. Hines.  For example, Paul was asked questions about this in his
deposition, and his attorney should object to the use of this statement
because it is hearsay.  Plaintiff will probably respond that Mary's comment
is admissible as an excited utterance, and is an exception to the hearsay
rule.  The court will probably agree with Plaintiff, and allow the testimony. 
Mary made the statement when she was agitated and scared.  In addition,
assuming that Mary also testifies at trial and is asked questions about her
comment, the court will probably permit the testimony to come in through
other witnesses because it is cumulative evidence.


There are several business forms available to Tom and Jane Goodlife. They
include a sole proprietorship, a general partnership, a limited partnership,
a corporation (C, S, or close) or a limited liability company.

A sole proprietorship would require only one owner and not provide any
liability protection.

A general partnership would provide a pass through taxation, but would not
offer any liability protection. Additionally, all of the partners would be
involved in decision making and day to day operation of the business,
although partnership interest could be limited by agreement.

A limited partnership consists of a general partner(s) and limited
partner(s). The general partner is responsible for managing the business and
is liable for the debts of the partnership. The limited partners do not
share in the management of the business but enjoy limited liability to the
extent of their investment. The entity is taxed like a partnership so there
is not double taxation; however, the general partner is liable for the
obligations of the partnership. This would not offer much protection to Tom
and Jane as general partners, although they could form a corporation of which
they would be principals, to act as general partner. Robert Tent Eagle could
later be brought in as a limited partner.

A C corporation would allow for control by the Goodlifes, liability
protection and the opportunity to bring in an additional shareholder, such as
Mr. Tent Eagle at a later date. There would be a double layer of taxation
with a C corporation.

An S corporation would allow a pass through income tax treatment; however,
there are limitations which make this entity less likely for the Goodlifes.
There is a limitation of 75 shareholders and none may be foreign citizens.

A close corporation might be a good choice for Jane and Tom as this Vermont
corporation provides for a very informal operation, dispensing with the need
for a board of directors and other corporate formalities. The same
deficiencies exist here, however, as in a C corporation regarding double
taxation or in an S corporation regarding residency requirements for
shareholders should Mr. Tent Eagle later wish to invest in the company.

A limited liability company seems to offer the most flexibility for the
Goodlifes. A limited liability company offers corporate style liability
protection but flexibility for taxation. With the new 'check the box' IRS
regulations, limited liability companies may now choose (with some
constraints) whether they want to be treated as a partnership or corporation
for income tax purposes. An LLC may be member-managed or manager-managed
depending on its Articles of Organization and the requisite written Operating
Agreement. Unlike a limited partnership all members may participate in the
operation of the business without losing their limited liability.

Jane and Tom could also set up a separate LLC at the time they wish to
purchase the additional land and operate the x-country ski/golf course.

With regards to the financing of the inn, a prudent lender would require a
promissory note signed by the business entity and guaranteed by Tom and Jane
personally. The lender may require the guarantees be secured by additional
collateral if the business collateral was not adequate. The note would need
to be secured by a mortgage deed which would be signed by the owners of the
property giving the bank an unencumbered first lien on the property. A
security agreement signed by the owner of the personal property and evidenced
by UCC Financing Statements would also be required. An assignment of the
lease by the lessee to the bank would be recommended.

Any corporate entity would need to provide a certificate of resolution
authorizing the execution of the loan documents and the authority of the
agent signing the documents. A partnership loan should be evidenced with a
certificate of partnership identifying the authority of the partner signing.
The LLC authority would be based upon the requirements spelled out in the
Articles of Organization and whether it is manager-managed or member-managed.

If the borrowers were delinquent in making payments on the loan, the bank
could foreclose on the mortgage, sue on the note, pursue its rights to the
personal property under Article 9 of the Uniform Commercial Code and pursue
the guarantors if the assets of the business do not satisfy the outstanding

Connie Careful would have a cause of action against the owner of the property
and the operator of the business, with consideration given as to the
maintenance responsibility of the premises by the lessee if there is a
division of ownership between the business and the real property.

If the business is a sole proprietorship or partnership, the individuals will
be personally liable. If a limited partnership, the general partner will be
personally liable while the limited partners are exposed only to the extent
of their investment. Absent some reason to 'pierce the corporate veil', a
corporate structure will allow investors protection from individual liability
for Connie's claims. Members of a limited liability company are, generally,
also shielded from liability if the company's assets are insufficient to
satisfy the creditor claims.

MODEL ANSWER - QUESTION IV - FEBRUARY 1997 1. As Amelia's lawyer, I would advise her to sue the club's surviving individual members, Fred, Flora, and Fran, as well as Frank's estate. She should also sue the Flying Aces Club, which appears to be a legal entity akin to a partnership according to the facts provided in the question. As such, the partners in the partnership are responsible individually and jointly for the debts of the partnership. In this case, that debt is the remaining $13,000 or the balance owed under the contract. Amelia should sue all of these parties based on her financial loss measured by the contract price agreed on by the club members. Amelia should argue that Fan represented the other members and the Club. As the Club's agent, Fran negotiated with Amelia and agreed to purchase her plane for the sum of $14,000. Amelia and Fran reached an oral understanding, Fran paid her $1,000 as a downpayment, and arrangements were made to pick up the plane. The plane was in fact towed from the barn by Fred. Accordingly, the facts justify Amelia's view that Fran acted as an agent for the Club and by these actions Fran entered into a contract and bound the partnership and its individual members. Amelia's superior court lawsuit is based on a breach of contract. To succeed she will have to overcome several likely defense arguments. First, the Club and the partners, aside from Fran, will argue that Fran was not an agent of the Club. Amelia is likely to prevail on her agency claim under these facts. Additionally, the Club and the individual partners may argue that there was no "meeting of the minds" since the details were unsettled. The facts suggest that Fran and Flora had differing memories of the conversation in which the purchase was discussed. The court is likely to reject this claim since the principal points of the oral contract were agreed on. The defendants will also assert a defense based on the Statute of Frauds. Because the agreement to purchase the plane, a good valued in excess of $500, was not reduced to writing, the defendants will claim that there is no valid contract. Amelia will counter that the Statute of Frauds defense is inapplicable when the contract has been validated by partial performance. In this case, the Club paid a downpayment, took possession of the plane and was using it at the time of the crash. As a result of the partial performance, the parties cannot be returned to their former positions. Amelia should prevail since she relied on the representations and actions of the club members. She cannot be made whole through the return of the goods since the crash destroyed the plane. Additionally, the Club and the individual members may also defend against Amelia's legal actions by arguing that the plane was not "air-worthy" since hay in the engine caused the accident. Contrary to Amelia's description of the plane, it was not safe to fly the plane. The Club and its members will assert that Amelia breached an implied warranty of merchantability. The court will probably reject this defense and rule that it would have been prudent for the Aces to have inspected the plane before flying it. Apart from her action in contract, Amelia should also seek equitable relief. In this way, Amelia will bypass the Statute of Frauds issue by proceeding in equity. She should assert claims premised on quantum meruit or unjust enrichment. The Club and its members should be estopped from unfairly benefiting from a voided contract. Under a quasi-contract theory the court would look to the market value of the plane at the time of its sale. The court would also factor in the condition of the plane, i.e. if the plane was not air-worthy, Amelia bargained with unclean hands and would not be entitled to full market value for the plane. Amelia may also attempt to attach the insurance proceeds from the policy held by Farmer's Supply. Although Amelia was not a named payee under the policy, her equitable interest in the plane should entitle her, instead of Farmer's Supply, to the proceeds. She should proceed under a theory of equitable or
constructive trust against the Club, its members, and Farmer's Supply, who
Amelia should interplead. Amelia will argue that Fred did not have the
authority to list Farmer's Supply as a creditor/payee on the insurance
policy, especially since Amelia still had an interest in the plane until she
received the outstanding $13,000. (The insurance proceeds totalled $14,000.)
Farmer's Supply interest was created to secure a debt remaining on the
tractor in the amount of $3,000.

2. If I were representing Fred, rather than Amelia, I would have to analyze
his debts or liabilities and his assets to see if bankruptcy would be a good
option for him.

It Appears that Fred has exposure to $1,200 in lease payments to Happy
Hangers as a member of The Flying Aces; $3,000 to Farmers Supply for the
balance due on the tractor; $13,000 to Amelia for the plane as a member of
The Flying Aces; $6,000 for Frank's funeral expense also as a member of The
Flying Aces; and his unknown credit card debt.

Depending on how much of the lease payments, airplane cost and funeral
expenses might be collected from other members of The Flying Aces, Fred's
share would be reduced.

Fred's assets include his farm and cabin, his Subaru, his watering troughs
and fencing, his stable and perhaps 1/4 of the life insurance on Frank.

Although it is not necessary for Fred to be insolvent to file for bankruptcy,
it seems as though he would be after his exempt assets are removed from the
assets available to satisfy his creditors.

The most likely course of action for Fred would be to file a Chapter 7
bankruptcy petition, which results in the liquidation of Fred's non-exempt
assets. This will do several things for Fred.

a. An automatic stay will go into effect, preventing his creditors from
taking any steps to collect what they are owed, other than through the
bankruptcy proceedings. Any other lawsuits will be stayed and Fred may not
be harassed for payment. Farmers Supply, which has a secured interest in the
plane for the balance due on the tractor, may move to have the stay lifted so
they can pursue the insurance proceeds from the plane even though Fred has
already spent them or so they can reclaim the tractor to satisfy the debt.
Farmers Supply also has a claim against the insurance company who insured the
plane since Farmers Supply perfected their security interest, but were not
paid. If Fred has no equity in the tractor, the Trustee may abandon it to be
taken by the creditor.

b. The trustee who is appointed to administer Fred's bankruptcy estate will
take control over Fred's assets. Fred can elect to use either the federal
schedule of exemptions or the Vermont statutory exemptions. In Fred's case,
the Vermont exemptions are probably the better advice.

Vermont recently increased the homestead exemption from $30,000 to $75,000.
The last federal exemption was only $15,000.

Fred's new saddle should be exempt if it is necessary to utilize his horse to
run the sheep farm. Up to 10 sheep, growing crops and farm tools will also
be exempt.

c. Upon the liquidation of the non-exempt assets, the creditors will be paid
in their order of priority. In Fred's case, they would be:

(1) costs and expenses of the bankrupt estate;

(2) secured creditors;

(3) taxes owed to the United State or Vermont in the last 3 years.

After all non-exempt assets are liquidated and the creditors paid, Fred's
liability to any unpaid, unsecured creditors will be discharged, and they
will be barred from any attempts to collect them.

Fred may have also considered a Chapter 11 reorganization which would allow
him to file a plan allowing him to pay off his debts without a liquidation.
This is typically used by businesses to continue operation while they obtain
some relief from the immediate pressure of meeting all obligations.

Under a Chapter 13 petition, if Fred had sufficient income to make regular
payments, he could file a so-called "wage earner" petition. A trustee acts
to see that the debtor makes all his payments.

As a farmer, Fred might also be eligible for a Chapter 12 petition. In that
case, he would have to show stable and regular income to make payments under
a plan.

Amelia's rights against Fred are limited. She will be stayed from commencing
or continuing any legal action against Fred once he files for bankruptcy.
She does not have any secured interest in any of Fred's property and would,
therefore, be an unsecured creditor along with Happy Hangers, the funeral
home and the credit card companies. Given Fred's limited non-exempt assets,
it appears unlikely that Amelia will be successful in her claims against

MODEL ANSWER - QUESTION V - FEBRUARY 1997 1. Jill has a number of short term and long term options under civil law: As a short term option Jill can seek a relief from abuse order. Relief from abuse complaints are governed by 15 V.S.A. §1110, et seq and V.R.A.P. 9. A relief from abuse complaints can be filed which asks for an order that the defendant refrain from abusing the plaintiff, from interfering with her personal liberty and which requests restrictions on defendant's ability to contact the plaintiff in person, by phone or by mail and prohibits him from coming within a fixed distance of the plaintiff, the plaintiff's residence or other designated locations where the plaintiff is likely to spend time. 15 V.S.A. §1103(c)(1). In addition, the relief from abuse order can provide that the defendant immediately vacate the household and that the plaintiff be awarded sole possession of the residence. 15 V.S.A. §1103(c)(2). If there is a finding of a duty to support, the court can also order the defendant to pay the plaintiff's living expenses and to pay child support, both for a fixed period of time not to exceed three months. 15 V.S.A. §1103(c)(5) and (6). In the event that the husband refuses to leve the premises, the assistance of a law enforcement officer can be obtained to assist here in gaining sole possession of the residence. 15 V.S.A. §1108(a)(2). Generally, the court can only grant this relief after notice to the defendant and a hearing. 15 V.S.A. §1103(b). However, such orders may be issued ex parte without notice to the defendant upon motion and affidavit and findings by the court that the defendant has abused the plaintiff, and if there is an immediate danger of further abuse, the court may order defendant to refrain from abusing the plaintiff. 15 V.S.A. §1104(a)(1)(A). Upon finding that the plaintiff and her children, or both, have been forced from the household and will be without shelter unless the defendant is ordered to vacate the premises, the court may order the defendant to vacate immediately and order sole possession of the premises to the plaintiff. 15 V.S.A. §1104(a)(2). Any order pursuant to the above is required to indicate when the defendant may appear to petition the court for modification or discharge of the order. The opportunity to contest shall be scheduled not more than 10 days from the date of issuance of the order. 15 V.S.A. §1104(b). Defendant can request a hearing on modification on an expedited basis. V.R.F.P. 9(g). Jill can also request that the abuse prevention order award her temporary custody of the children. Although she can request that Jack be denied parent-child contact, the court will only allow this if she can show that contact is not in the best interest of the child, considering the factors laid out in 15 V.S.A. §665 or the factors set out in 15 V.S.A. §1115. It may be difficult to convince the court to deny all parent-child contact; however, an alternative request can be made for supervised visitation. When a child support order is issued, it will, unless the court finds good cause or the parties have a written agreement to the contrary, include an order for immediate wage withholding in an amount equal to the support obligation. 15 V.S.A. §781. With respect to a spousal support order, if it is not paid within 7 days after the amount is due, wage withholding can be requested at any time. 15 V.S.A. §783(a). The court can then enter an order requiring wage withholding under 15 V.S.A. §783. A hearing date is scheduled within 10 days of the filing of the petition. V.R.F.P. 4(o)(5). If defendant objects, the objection shall be presented at the hearing. Id. If wage withholding is ordered, the employer will be required to withhold amounts specified in the order and forward it to a registry. 15 V.S.A. §787(a). If the employer does not pay, it may become liable. 15 V.S.A. §787(c). For a long term solution Jill must seek either a legal separation or a divorce. In the event that she wishes to proceed with a divorce or separation, the child support orders (custody, visitation and support) shall be continued beyond the period fixed by the abuse prevention order (which is otherwise limited to three months). Upon filing for divorce Jill can seek a temporary relief order in accordance with 15 V.S.A. §594(a). This order can include an order for temporary possession of the home and for spousal support. If no abuse prevention order was obtained, the temporary order may also assign parental rights and responsibilities and child support. 2. Explaining arrest, arraignment and release on conditions. Jack was arrested, most likely for spousal assault. A law enforcement officer has the power to arrest, without warrant a person whom the officer has probable cause to believe has committed a crime in front of the officer or who the officer has probable cause to believe committed a misdemeanor which involves an assault on a family or household member. V.R.Cr.P. 3(a)(2)(C). In accordance with V.R.Cr.P. 3(C)(7), after a law enforcement officer arrests a person he or she must contact a judicial officer for determination of temporary release without unnecessary delay. The defendant must be notified of the charges against him, of certain rights that he has, the circumstances under which he may secure pre-trial release, the approximate scheduling of further pre-trial proceedings if he is unrepresented, and determine the arraignment date. V.R.Cr.P. 5. Generally, the court then, if the defendant requests, conducts the arraignment as part of the proceedings under Rule 5. V.R.Cr.P. 5(f). If he does not so request, the defendant is ordered to reappear for arraignment. An arraignment consists of reading the indictment or information to the defendant, unless he waives the reading, and he then enters his plea of guilty, not guilty or nolo contendere. V.R.C.P. 10. If he pleads not guilty, he is given a schedule for further proceedings. If he pleads guilty or nolo, the court must address him personally and determine whether the plea is voluntary and that he understands such things as the mandatory minimum and maximum penalty, that he has a right to plead not guilty, then if he pleads guilty or nolo no further trial will be required, etc. See V.R.Cr.P. 11. When the defendant is arrested and is not released with a citation, and when the prosecutor does not agree to release him on his own recognizance, the judge will determine whether and upon what conditions the defendant shall be released. V.R.Cr.P. 5(g). In this case the judge will probably make the defendant agree not to have any contact with Jill as a condition of his release. 3. Comparing protections of criminal and civil remedies. A relief from abuse order offers great protection for Jill insofar as a law enforcement officer may immediately arrest an individual who the officer has probable cause to believe has violated the order. This provides a quick and effective remedy in the event that Jack disregards the order. Note, however, that a limitation of this remedy is that it is temporary, and will expire after a period fixed by the court. The court may extend the order upon request. A divorce or legal separation order can provide more complete protection insofar as it will resolve issues of parental contact, spousal and child support and distribution of property. A divorce order will not protect Jill from Jack's violence, however, so continuing abuse prevention orders may be necessary. The criminal remedy provides some protection; however, an individual is not necessarily arrested for violating conditions of release. Rather, he will be given a citation to appear in court. In addition, after the criminal matter is resolved (perhaps Jack will be put on probation or plead guilty to a lesser offense), Jill is no longer protected. MODEL ANSWER - QUESTION VI - FEBRUARY 1997 Courthouses, and access thereto, are of critical importance to the freedoms that we hold dear. Because the "people's business" is conducted, at least in part, in courthouses and because people are entitled to observe the business of courts, not to mention to gain access to public places, impediments to access are to be viewed with extreme care. That is not to say that no controls on access may be imposed; there may be limits to protect public safety and security. However, controls, if imposed, must afford constitutional protections. The courthouse is a public building, controlled by the state or county government. Consequently, any policies regulating access are state action and scrutinized under both the U.S. and Vermont Constitutions. The U.S. Constitution's requirements of equal protection and freedom of religion apply to the states through the Fourteenth Amendment. While theoretically the Vermont Constitution can have higher standards than the U.S. Constitution, I could not find a difference in standards on the concepts applicable here. Vermont's common benefits clause of Chapter I, Article 7 provides in this context the same protection as the equal protection clause of the Fourteenth Amendment. Although Chapter I, Article 4 covers the right to free access to the courts, I could find no caselaw discussing free access for an observer of court business, rather than for a litigant. The freedom of religion standards are essentially the same under the First Amendment and Chapter I, Article 3 of the two constitutions. It appears first of all that different classes of people who seek to gain entry to our county court are treated differently depending upon circumstances which does not appear to bear significantly on the apparent goals of the security procedures. Because we have no suspect class (race, national origin or aliens), the test for most of the variations of disparate treatment for different classes presented here is the rational basis test, not strict scrutiny. (The test for discrimination on the basis of gender is slightly different as discussed more fully below.) First, "court personnel", including judges and prosecutors are allowed in without passing through metal detectors or providing any information. Presumably all other members of the legal profession who are "officers of the court" by their oath, are required to pass through screening devices, as are members of the public. Absent more information, there is no indication that members of the legal profession are more likely to cause harm (i.e. to carry handguns, knives, explosives or other harm causing devices) than are "court personnel." Indeed, news reports have documented that "bad acts" more often are caused by those familiar with and to their workplaces than by strangers. Assuming that correlation carries over to courthouses, it would appear that "court personnel", more than other members of the legal profession or the public, should be subject to screening. I would argue that the procedures in place violate the equal protection of the laws by differentiating among and between classes of people on a basis that is not rationally related to the need to provide safety in the courthouse. The State will argue that regular "court personnel" and certain attorneys are known to the sheriff on duty, while other lawyers and the public are not, thereby justifying the different treatment. The problem with that argument is that it is directed to whom the sheriff on duty knows, not to whom may conduct "bad acts". If the purpose is to prevent "bad acts", the screening should be conducted to achieve that end. The State also will argue that letting people in whom the sheriff knows speeds up processing at the courthouse door and is an efficient use of court staff time. I think the court is likely to find a rational basis for the procedure. Our clients may not have standing to raise the argument distinguishing court personnel from other "officers of the court" since they are not attorneys, although they would have standing to raise the analogous question of whether
court personnel should be treated differently from the general public.

Next, I would argue that different procedures adopted and applied throughout
the state violate the equal protection clause because there is no rational
basis for the differences that exist in administration from one location to
the next. The procedure is not mandated by the Court Administrator's office
and, evidently, has been adopted on an ad hoc basis. While it may be argued
that each courthouse is the responsibility of those on duty there and that
different locations may experience different risks, the facts presented do
not support such an argument. Nevertheless, again I'm afraid the court will
find a rational basis for the differences in procedures among different

The sheriff's refusal to let A, B and C in without government issued
identification even when their religious beliefs prohibit them from carrying
such identification raises the question of whether the procedure burdens
religion. Freedom of religion applies to the states through the due process
clause of the Fourteenth Amendment of the U.S. Constitution. Strict scrutiny
is employed when testing the legality of government actions which affect
people's right to practice their religion. First, the person with the
religious belief has the burden of proving that the practice burdens
religion. Next, the government has the burden of proving (1) that there is a
compelling state interest at stake, and (2) that the solution to the problem
has been narrowly tailored, or the least burdensome alternative solution has
been adopted. (This test is contained in the Religious Freedom Restoration
Act of 1993 enacted in response to a U.S. Supreme Court decision that the
Constitution does not require application of this balancing test when the law
-and presumably the policy- under scrutiny is a neutral law of general
application which only incidentally burdens religion.)

Here A, B and C can meet their burden easily because they are being denied
access to a public building for failure to carry something which their
religion prohibits them from carrying. The government can meet part (1) of
its burden because of the compelling state interest in maintaining public
safety and the safety of government employees and property. However, I don't
think the government can meet its burden on (2) because neither
identification cards nor recording of names or purpose, both of which can
easily be fraudulent, bear any relation to the safety of persons or things in
the building. (The metal detector would, I think, meet the standard of a
narrowly tailored restriction relating to the compelling state interest.)

Also, the facts here raise the question of possible violation of equal
protection on the basis of gender: A refused to go through the metal
detector because she is pregnant, and obviously only women can get pregnant.
Discrimination on the basis of gender requires an intermediate level of
scrutiny: the restriction must be substantially related to an important
government interest, not just rationally related nor necessary to protection
of a compelling state interest. Arguably, because some members of the public
may have reasonable fears or concerns regarding passing through a metal
detector some other means should be available whereby such individuals may
enter without passing through such a device. Without more facts regarding
the health and safety effects of metal detectors, it is hard to

evaluate this argument. (I doubt whether there is strong scientific evidence
to support it.) On the other hand, hand-held detectors may not be offensive.
In the alternative, A could be offered the opportunity to undergo a physical
examination, conducted in private, by a female officer, and in a dignified
manner, that would serve the same ends of determining whether A carries any
dangerous weapons. In the absence of such alternatives, blanket denials of
access result in a denial of equal protection.

Further, although the sheriff on duty knows A, she was required to give
identification, record her purpose and to pass through the metal detector,
failing which she was denied entry, in contrast to the treatment afforded
others known to the sheriff. The clear implication is that A specifically
has been denied equal treatment on the basis of her religious beliefs or
affiliations. The sheriff will argue that she was denied entry because she
refused to give information. However, she was required to give information
only because of the sheriff's admitted prejudice against her "since she
joined the religious sect." I would argue that the requirement to give
information which was not imposed on others known to the sheriff, was imposed
because of her religious beliefs and affiliation, thereby denying A the
freedom to practice her religion, or, conversely, thereby requiring A to
choose between her religion and gaining access to the court, both of which
choices should be available to her. A should win this argument.

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