July 1998 - 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 - July 1998
MODEL ANSWER - QUESTION I - JULY 1998
If the merger proceeds, John will be able to obtain a "fair price" for
his shares. 11A V.S.A. § 13.01, et seq. provides for dissenters' rights.
The statute provides that a shareholder is entitled to dissent from and
obtain payment of the fair value of his or her shares in the event of
corporate action involving a merger if shareholder approval is required for
the merger and the shareholder is entitled to vote thereon. 11A V.S.A. §
In the notice of the shareholders' meeting, it is required to state
that shareholders are or may be entitled to assert dissenters' rights under
Chapter 13 of Title 11A, and be accompanied by a copy of Chapter 13. 11A
V.S.A. § 13.20(a).
When John receives the notice of the shareholders' meeting at which
the merger is to be considered, he should deliver to the corporation,
before the vote is taken, written notice of his intent to demand payment
for his shares if the proposed action is effectuated, and he must not vote
his shares in favor of the proposed action. 11A V.S.A. § 13.21. If the
merger passes, the corporation is required to deliver a dissenters' notice
to the shareholders who complied with § 13.21 no later than 10 days after
the corporate action was taken. In this notice, the corporation must
indicate, among other things, where the payment demand must be sent, supply
a form for demanding payment, which requires certification of whether or
not the dissenter acquired beneficial ownership of the share before the
specified date, and set a date by which the corporation must receive the
payment demand, which must be no fewer than 30 and no more than 60 days
after the date notice was given. 11A V.S.A. § 13.22. When John receives
that notice, he must demand payment and certify whether he acquired
ownership of the shares before the date required to be set forth in the
notice and deposit his certificates in accordance with the terms of the
notice. 11A V.S.A. § 13.23.
The corporation is then required to pay John the amount the
corporation estimates to be the fair value of his shares plus accrued
interest. 11A V.S.A. § 13.25. The payment from the corporation must
include, among other things, copies of various financial documents and a
statement of the corporation's estimate of how the fair market value was
arrived at. Id. If John is dissatisfied with the amount of the payment,
he should notify the corporation in writing of his own estimate of the fair
value of his shares and demand payment of the fair value if he believes the
amount paid is less than the fair value. 11A V.S.A. § 13.28.
If his demand for payment remains unsettled, the corporation is
required to commence a proceeding within 60 days after receiving the
payment demand and petition the court to determine the fair value of shares
and accrued interest. 11A V.S.A. § 13.30. If the corporation does not
commence the action within 60 days, it is required to pay the amount
demanded. 11A V.S.A. § 13.30(a). John is required to be made a party to
the action. 11A V.S.A. § 13.30(c). The court can appoint one or more
persons as appraiser to recommend a decision on the question of fair value.
11A V.S.A. § 13.30(d).
With regard to John's questions regarding forms of business
organizations that he and his brother might use in their new endeavor,
there are several basic forms that would be available, including
partnership, corporate and limited liability company.
With regard to partnerships, two options that exist are a general
partnership or a limited partnership. In either case, the tax losses would
flow through to the two individuals. A limited partnership would involve
John being a general partner and his brother being a limited partner.
Limited partnerships are governed by 11 V.S.A. § 1391, et seq.. The
primary advantage is that a limited partner is not liable as is a general
partner unless, in addition to the exercise of his rights and powers as a
limited partner, he takes part in the control of the business. 11 V.S.A. §
1397. A general partner, with a few limitations, see 11 V.S.A. § 1399,
has a wide scope of rights and powers with respect to the management and
operation of the partnership. A limited partnership is formed by the
signing and swearing of a declaration which sets forth certain information,
and filing it with the Secretary of State. 11 V.S.A. § 1392. Although a
partnership agreement is desirable, no real formalities are required to
establish and operate a general partnership.
The principal drawback with regard to a general partnership is that
the brother could be held liable for injuries to clients. 11 V.S.A. §
1207. It would, therefore, appear that if the partnership form is desired,
a limited partnership would be most suitable to John and his brother's
needs and desires.
A corporation may be formed which would limited the brother's
liability as long as he were not an active participant in any activity
which resulted in injury to a client. Assuming that the corporate
formalities were maintained, he would have no direct liability to an
The establishment of corporations in Vermont is governed by statute.
11A V.S.A. § 1.01, et seq. In essence, articles of incorporation are filed
with the Secretary of State containing certain specified information. 11A
V.S.A. §§ 2.01, 2.02. The corporation needs to adopt bylaws and have a
board of directors. 11A V.S.A. § 2.05. To the extent there is a desire to
have the tax losses pass through to the individuals, the corporation could
elect "S" status. An "S" election would enable the individuals to receive
the benefit of any losses that the corporation sustains.
It would also be possible to set up a limited liability company in
accordance with 11 V.S.A. § 3001, et seq. The company is set up by
delivering articles of organization containing certain specified
information to the Secretary of State for filing. 11 V.S.A. §§ 3022, 3023.
A limited liability company is required to have an operating agreement
which governs the affairs of the company and the conduct of the business,
as well as relations among the members. 11 V.S.A. § 3003. The liabilities
of the company remain the liabilities of the company and, therefore, would
protect John's brother from liability. 11 V.S.A. § 3043. With regard to
taxes, it is possible for the losses to flow through to the shareholders.
Vermont law also provides for a close corporation. A close
corporation is established under 11A V.S.A. § 20.01 et seq. A close
corporation is set up much like any other corporation; however, its
articles of incorporation must contain certain additional requirements and
restrictions. 11A V.S.A. § 20.02. In a close corporation certain
formalities are relaxed. A close corporation is not required to have a
board of directors, 11A V.S.A. § 20.08, and may not need to have annual
meetings. 11A V.S.A. § 20.07. It is possible to regulate the exercise of
powers and management of business and affairs of the corporation or the
relationship between the shareholders by shareholder agreement. 11A V.S.A.
§ 20.09. It is also possible to create a relationship among shareholders
or between the shareholders and the corporation that is otherwise only
appropriate among partners. 11A V.S.A. § 20.09. Once again, it would be
possible to pass the tax losses through to the individuals by making an "S"
MODEL ANSWER - QUESTION II - JULY 1998
To overturn the legislation criminalizing the possession or
cultivation of industrial hemp, I will have to base my challenge on
constitutional grounds. I will bring a declaratory judgment action
claiming that my client's right to substantive due process is violated by
these statutes. In order to make this claim, I will need to bring the
action on behalf of plaintiffs who have suffered some real injury from the
statutory prohibition so that they will have standing to sue. Vermonters
for Agriculture may have standing to represent the interests of its
members. New York State Club Association, Inc. v. City of New York, 487
U.S. 1 (1988). However, to be sure that the complaint will survive a
challenge based on standing, I should find one or more farmers who want to
cultivate and sell industrial hemp and, but for these statutes would do so,
to be plaintiffs in the action.
Article 4 of Chapter I of the Vermont Constitution is considered
Vermont's equivalent to the due process clause of the Fourteenth Amendment
to the Federal Constitution. Levinsky v. Diamond, 151 Vt. 178 (1989).
However, Article 4 does not create substantive rights. It merely
guarantees access to the courts. Shields v. Gerhart, 163 Vt. 219 (1995).
The Fourteenth Amendment to the Federal Constitution guarantees substantive
as well as procedural rights. See, e.g., Scott v. Sandford, 60 U.S. 393
(1857) (the infamous Dred Scott case); Roe v. Wade, 410 U.S. 113 (1973).
Although a Vermont court is obligated to implement the guarantees of the
Federal Constitution, the United States District Court for the District of
Vermont probably provides a preferable forum for this action.
Plaintiffs should argue that industrial hemp is an economically
valuable plant; that its possession and cultivation poses no threat to the
public health, safety or welfare; that it can be distinguished easily by a
trained law enforcement officer from marijuana containing THC; that its
cultivation, possession and sale is lawful in Canada in other states; and
that the State therefore has no legitimate governmental interest in
prohibiting the possession or cultivation of industrial hemp. The
plaintiffs should conclude that the legislation deprives them of their
liberty -- to pursue the cultivation, possession and sale of industrial
hemp -- without due process of law in violation of the Fourteenth
The defendant in the action will be the State of Vermont. I might
consider suing the Chiefs of Police in all municipalities, County Sheriffs,
the Commissioner of the Department of Public Safety, the States' Attorneys
and the Attorney General to enjoin them from enforcing the legislation, but
a declaratory judgment holding the legislation unconstitutional as it
applies to industrial hemp would serve the same purpose.
The defendants will argue that the legislation carries with it a
presumption of constitutionality; that a court should apply only a minimum
level of scrutiny because the action does not call into question any of the
first ten amendments to the Federal Constitution (fundamental rights), does
not restrict those political processes which can ordinarily be expected to
bring about repeal of undesirable legislation (fundamental rights), and is
not directed against discrete and insular minorities (suspect class).
U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). Therefore,
the State will argue, the constitutionality of the legislation must be
upheld if the State can establish any rational basis for the legislation.
Massachusetts Municipal Wholesale Electric Co. v. Vermont, 161 Vt. 346
(1994). The State will conclude that, at a minimum, allowing the
cultivation, possession or sale of industrial hemp will cause some
interference with the State's legitimate objective of eradicating
marijuana; that this is a rational basis for this particular exercise of
the State's police power; and that the legislation is therefore
The plaintiffs' claim, which is actually being litigated in Kentucky,
will probably fail and the constitutionality of the legislation upheld.
Therefore, Vermonters for Agriculture should be advised to lobby the
legislature for repeal of these prohibitions in addition to bringing this
MODEL ANSWER - QUESTION III - JULY 1998
Mines-R-Us must answer the complaint by July 30, 1998 or face a
default judgment. V.R.C.P. 6, 12, 55 (twenty days to answer from date of
service June 10, plus thirty day extension). Mines-R-Us will want to raise
the affirmative defense of the exclusivity bar of the Vermont Workers'
Compensation Act. 21 V.S.A. § 622, V.R.C.P. 12. As Mr. Peron was an
employee of Mines-R-Us, and the injury arose out of and in the course of
his employment with Mines-R-Us, workers compensation is his sole remedy
against Mines-R-Us. All of his claims for damages, both physical and mental
are covered by the Vermont Workers Compensation Act. The allegation that
Mines-R-Us is vicariously liable for the actions of the supervisor David
Deloise is likewise barred by the exclusive remedy clause. Similarly, any
attempt at a cross-claim by Downdeep Drillers, absent an express
indemnification clause, would be barred by this exclusive remedy. Hiltz v.
John Deere Industrial Equipment Co., 146 Vt. 12 (1985), V.R.C.P. 13.The
fact that Mines-R-Us was cited for a safety violation is not sufficient to
remove this claim from the workers' compensation arena. The only method by
which Mines-R-Us could be sued is if Peter Peron can allege that Mines-R-Us
acted with the specific intent to harm Peter Peron at the time of the
accident. Kittell v. Vermont Weatherboard Inc., 138 Vt. 439 (1980). As the
complaint, in its poorly drafted current state, uses intentional and
negligent allegations in the same sentence, Mines R-Us may want to seek a
motion for a more definite statement in an attempt to have Susie Solo
delineate the true nature of the claim; negligence or intentional tort.
V.R.C.P. 12(e). If the intentional tort claim is eliminated, or in
conjunction with the answer, Mines-R-Us should file a motion to dismiss on
the pleadings based upon the exclusive remedy clause of the Vermont
Workers' Compensation Act. V.R.C.P. 12(c). If the intentional tort claim is
clearly raised in a subsequent amended complaint, then Mines-R-Us may want
to file affidavits denying any such intentional conduct and file a motion
for summary judgment. V.R.C.P. 56. If the claim against either Denise
Drackmed or Downdeep Drillers is successful, Mines-R-Us would be entitled
to reimbursement for the workers' compensation benefits paid to Mr. Peron.
21 V.S.A. § 624. Finally, the venue of the current claim, in Chittenden
County appears to have been done solely at the convenience of Susie Solo as
all of the parties reside in and the accident took place in Rutland County,
a change in venue may be considered by Mines-R-Us.
Susie Solo may wish to consider a claim with the Vermont Department of
Labor and Industry alleging a workers' compensation claim for an injury
arising out of and in the course of Mr. Peron's employment with Mines-R-Us.
If workers' compensation is raised as an affirmative defense, there
probably will be no contesting this workers' compensation claim. Mr Peron
would be entitled to payment of all of his medical bills, wage loss for the
time he has been out of work as well as some as yet undetermined amount of
permanent partial disability benefits and probably vocational
rehabilitation benefits as well. Therefore, while the claim against
Mines-R-Us may be barred, Mr. Peron is not without substantial benefits
while he continues his lawsuit against Denise Drackmed and Downdeep
Drillers. Susie Solo may also currently seek Default judgments against
Denise Drackmed for failing to file an answer in this case. V.R.C.P. 12,
55. As a co-employee of Mr. Peron, as opposed to the employer of Mr. Peron,
Ms. Drackmed is not protected by the exclusive remedy provision of the
Vermont Workers' Compensation Act. Susie Solo may also amend the complaint
to delineate an intentional tort claim against Mines-R-Us. V.R.C.P. 15.
Susie may also consider amending the complaint to add the supervisor, David
Deloise, as an additional Party. V.R.C.P. 13, 19, 20. Susie Solo needs to
balance her obligations pursuant to V.R.C.P. 11 to make a good faith claim
against Mr. Deloise with the likelihood of such a claim being found
meritorious. Clearly Susie Solo should further investigate the facts and
the law on this issue prior to bringing such a claim. Finally, Susie Solo
has not specifically sought a jury trial in this matter. V.R.C.P. 38(b).
She may move to amend her pleadings to request such jury trial but the
trial court is not required to grant her a jury trial if no other party has
so requested trial by jury.
MODEL ANSWER - QUESTION IV - JULY 1998
Validity of Deed
The deed is not valid. Under 27 VSA § 341(a), a deed must be signed
by the party granting the land, signed by one or more witnesses, and
acknowledged by the grantor before a town clerk, notary public, master,
county clerk or judge or register of probate. Here, even if the conveyance
by Wrent N. Lees, as Pross Tate's guardian, is valid, there is no
acknowledgment of Rhyllis Tate's act of conveyance. The term
"acknowledgment" in its technical legal sense means a formal declaration or
admission before an authorized public officer by a person who executed an
instrument that such instrument is his or her act and deed. In addition,
the term is ordinarily used to include the certificate or written evidence
of the act of acknowledgment made by the officer as well as the act itself.
1A CJS Acknowledgements, § 1. An acknowledgment need not be made on the
same date that the deed or act of conveyance is made (the date that the
deed is signed).
Cy Pres is not a competent attesting witness since he is a party to
the deed, In re Gorman, 82 B.R. 253 (Bkrtcy D. Vt. 1987), but there is
another witness so that the one witness requirement has been met.
In order for Wrent N. Lees's conveyance to be valid, he must be Pross
Tate's lawful guardian, and he must have a license to sell the property, 27
VSA § 345.
Even if the deed otherwise meets the requirements specified above, the
deed cannot be recorded unless it is accompanied by the survey referred to
in the deed, 27 VSA § 341(b).
Recordability of Deed
Under 27 VSA § 341(b), a deed or other conveyance of land which
includes a reference to a survey prepared or revised after July 1, 1988 may
be recorded only if it is accompanied by the survey to which it refers, or
cites the volume and page in the land records showing where the survey has
previously been recorded. In order for the deed to be recorded, the survey
must be recorded with it.
Advice Regarding Recording
Unacknowledged Deed Proceedings
Every effort should be made to obtain acknowledgment of Rhyllis Tate's
act of conveyance. If this cannot be done promptly, the deed should be
recorded to protect Cy Pres's rights.
The unacknowledged deed may be recorded under 27 VSA § 378, and, when
recorded in the proper office, it is as effectual as though it had been
duly acknowledged and recorded for 60 days thereafter. If proceedings for
proving the execution of the deed are pending at the expiration of 60 days,
the effect of such record continues until 60 days after the termination of
(B) Conveyance by Guardian
Under 27 VSA § 345, when the guardian of a married man is licensed to
sell the interests of the ward in any real estate of his wife, the wife may
join with the guardian in the conveyance and convey her estate and interest
in the granted premises as she might have done with her husband if he had
not been under legal disability, but this section does not authorize the
conveyance of the ward's homestead estate. Documents pertaining to Wrent
N. Lees's status as guardian and his license to sell should be recorded
with the deed.
The survey should be recorded with the deed, 27 VSA § 341(b).
Grantor and Witness Dead
Under 27 VSA § 371, when a grantor dies without acknowledging his or
her deed, the execution of the deed may be proved by the testimony of a
subscribing witness to the deed before a Justice of the Supreme Court or a
Superior Court Judge. If all the subscribing witnesses to such deed are
dead, the deed may be proved before the Supreme Court or the Superior Court
by proving the handwriting of the grantor and of a subscribing witness or
adducing other evidence to the Court's satisfaction. The evidence entered
on the deed or annexed to the deed is equivalent to the grantor's
acknowledgment of the deed. Since 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), the Court action should focus on proving the handwriting of
Rhyllis Tate and Shelley Skase, not of Cy Pres.
Under 27 VSA § 372, when a grantor refuses to acknowledge his or her
deed, the grantee may apply to a District Judge who shall thereupon issue a
summons to the grantor to appear at a certain time and place before the
Judge to hear the testimony of the subscribing witness (Shelley Skase) to
the deed. Such summons, with a copy of the deed annexed, must be served
like a writ of summons, at least 7 days before the time therein assigned
for proving the deed.
27 VSA § 375 provides that, when a grantor refuses to acknowledge his
or her deed and the subscribing witness is dead or out of state, the deed
may be proved before the Supreme Court or any Superior Court by proving the
handwriting of the grantor and of a subscribing witness, such Court first
summoning the grantor as provided above.
Acknowledgment Out of State
Rhyllis Tate may acknowledge the deed before Mendon Proctor out of
state. Acknowledgments for deeds which are taken out of state before a
proper officer of Vermont are as valid as if taken within Vermont, 27 VSA §
In addition, 27 VSA § 379(a) provides for an acknowledgment to be
taken out of state by other persons specified in the statute.
7. Recording of Deed
A deed should be recorded in the clerk's office of the town in which
such lands lie, 27 VSA § 341(a). A purchaser of lands, in addition to the
record in the town clerk's office, may cause the deed, with the certificate
of its record in the town clerk's office, to be recorded in the county
clerk's office. If the records of a town in which such deed is recorded
are destroyed, an attested copy of the deed from the county clerk's office
is as valid as a copy from the town clerk's office, 27 VSA § 402. Here,
the deed should be recorded in the Montpelier Town Clerk's office, and it
may also be recorded (with the certificate of town clerk's office
recording) in the Washington County Clerk's office.
MODEL ANSWER - QUESTION V - JULY 1998
1. Under Chapter 21 of 15 V.S.A., (Abuse Prevention), Pat can
petition the Family Court for an Emergency Relief From Abuse Order. The
initial petition may be granted ex parte if the court finds that Pat and/or
her children have been abused and are in fear of imminent serious physical
harm. If the court grants an initial temporary order, the court will then
serve the Defendant with the petition and initial temporary order and hold
a hearing on the merits. Pat and all four children are protected under
the Relief From Abuse Order as it applies to all family and household
members. Thus, Pat's daughter would qualify for protection as she is a
Jurisdiction is conferred pursuant to 15 V.S.A. §1102(c). If the
Plaintiff has left the residence or household to avoid abuse, the Plaintiff
shall have the option to bring an action in the county of the previous
residence or in the county of the new residence or household. Therefore,
it is likely that Pat will be able to bring the action for a restraining
order in the Vermont county where she is currently located.
2. Parental rights and responsibilities and parent-child contact
are determined in accordance with the provisions of 15 V.S.A. §665. Under
this section of the statute, the court shall be guided by the best
interests of the children, and shall consider at least the following:
(1) the relationship of the children with each parent and each
parent's ability and disposition to provide the children with love,
affection and guidance;
(2) the ability and disposition of each parent to assure that the
children receive adequate food, clothing, medical care, other material
needs and a safe environment;
(3) the ability and disposition of each parent to meet the children's
present and future developmental needs;
(4) the quality of the children's adjustment to the children's present
housing, school and community and the potential effect of any change;
(5) the ability and disposition of each parent to foster a positive
relationship and frequent and continuing contact with the other parent,
including physical contact, except where contact will result in harm to the
children or a parent;
(6) the quality of the children's relationship with the primary care
provider, if appropriate, given the children's age and development;
(7) the relationship of the children with any other person who may
significantly affect the children;
(8) the ability and disposition of the parents to communicate and
cooperate and make joint decisions concerning the children where parental
rights and responsibilities are to be shared or divided;
(9) the court shall also consider evidence of abuse and the impact of
the abuse on the children and the abusing parent.
Pat can get a temporary order for custody of all four children under
the provisions of the Relief From Abuse Order. Given the fact that Dan has
been abusive to Pat and the children throughout their marriage and the most
recent incident of abuse, (which the children witnessed), as well as the
fact that Pat has been the children's primary care provider, it is very
likely that Pat will be granted temporary custody of the children under the
restraining order. The court will also consider Dan's ability to provide a
safe environment for the children as the facts indicate that he was abusive
in the past and has threatened to kidnap the children. It is also helpful
that Pat's relatives live in the area as the court will consider the
children's relationships with other individuals, like relatives, who may
significantly affect their lives.
3. Under 15 V.S.A. §1110, Pat can request child support in her
petition for a Relief From Abuse Order. The court can transfer the issue
of child support to the magistrate for determination. Any order for
support which is granted in the context of a restraining order cannot
exceed three months unless it is consolidated for with an action for legal
separation, divorce or parentage.
In order to avoid a lapse in child support between the expiration of
support under the Relief From Abuse Order and the time for filing for
divorce, Pat can bring an action for support under 15 V.S.A. §293. Under
this statute, when parents of minor children live separately and there is a
legal presumption of parentage the court can make orders regarding parental
rights and responsibilities, parent-child contact and child support as in
cases where either parent deserts or without just cause fails to support
Pat can receive support for her three children fathered by Dan if
there is the legal presumption of parentage, (the children were born during
Pat and Dan's marriage). Pat can also receive support for her daughter
under 15 V.S.A. §296, which requires stepparents to support a stepchild if
they reside in the same household and if the financial resources of the
natural parents are insufficient to provide for the child. The duty of a
stepparent exists as long as the marital bond creating the step
Child support can be enforced through UIFSA, The Uniform Interstate
Family Support Act, which was adopted in Vermont in January 1998. Under
UIFSA, the State of Vermont can forward the child support order to the
appropriate support enforcement agency in Alabama for enforcement. The
responding state, in this case Alabama, can enforce the order through
income withholding, civil and/or criminal contempt, setting aside property
to satisfy a judgment, and placing liens on an obligor's property.
4. Pat cannot file for a divorce in Vermont until she has met
the residency requirement. Under 15 V.S.A. §592, Pat can bring an action
for divorce if either party to the marriage has resided in the state for a
period of six months or more, but a divorce shall not be decreed for any
cause unless either party has resided in the state for at least one year
prior to the final hearing for divorce. At the time Pat files for a
divorce the Order for Relief From Abuse can be consolidated with the
You can also counsel Pat that she may be able to bring an action for
divorce in Alabama immediately; however, she would need to consult with an
attorney licensed to practice in Alabama.
5. The Vermont family court has subject matter jurisdiction to
hear the divorce as long as Dan has adequate notice (i.e. been personally
served with the Complaint for Divorce) and Pat is validly domiciled in the
state. While the court can dissolve the marriage, it cannot make a
determination regarding the property unless personal jurisdiction exists
over Dan. The Vermont Supreme Court in Von Ohlson v. Von Ohlson, 137 Vt.
377(1979), held that the state's long-arm statute gives a Vermont court
power to make an alimony or property award if the Defendant has sufficient
minimum contacts with the state to justify personal jurisdiction.
From the fact pattern we do not know if jurisdiction exists. If Dan
does not appear and submit himself to the court's jurisdiction, then the
Vermont court does not have the jurisdiction over the property. If Dan
enters his appearance, he will consent to jurisdiction in the state. If
the Vermont court has personal jurisdiction over Dan, it has the authority
to order an equitable distribution of the marital assets.
Under 15 V.S.A. §751 all property, however and whenever acquired, is
considered marital property and is subject to the court's jurisdiction.
Title to the property, whether in the names of the husband, the wife, both
parties or a nominee, is immaterial, except where equitable distribution
can be made without disturbing separate property.
The court will consider all relevant factors in making an award of
property, including but not limited to:
(1) the length of the marriage;
(2) the age and health of the parties;
(3) the occupation, source and amount of income of each of the parties;
(4) vocational skills and employability;
(5) the contribution by one spouse to the education, training, or increased
earning power of the other;
(6) the value of all property interests, liabilities, and needs of each party;
(7) whether the property settlement is in lieu of or in addition to maintenance;
(8) the opportunity of each for future acquisition of capital assets and income;
(9) the desirability of awarding the family home or the right to live there
for reasonable periods to the spouse having custody of the children;
(10) the party through whom the property was acquired;
(11) the contribution of each spouse in the acquisition, preservation,
and depreciation or appreciation in value of the respective estates,
including the nonmonetary contribution of a spouse as a homemaker;
(12) the respective merits of the parties.
As long as the Vermont court has jurisdiction it can divide all of the
property set forth in the facts. The court will likely consider that Pat's
doll collection came from her great-grandmother and may award that asset to
her as it was acquired from her side of the family. The court can dispose
of the car and savings account regardless of how each is titled. The court
may also consider the fact that Pat supported Dan through law school.
Although his law degree is not considered marital property subject to
distribution (Downs v. Downs, 154 Vt. 161, 1990), the contribution by one
spouse to the increased earning capacity of the other spouse is a relevant
factor in determining a fair distribution of property.
Dan's pension is also a marital asset. The facts indicate that he is
vested in the plan and that his monthly payments will be sizable. The
court can issue a Qualified Domestic Relations Order which will provide Pat
with a percentage of Dan's pension payable directly to her in the future.
MODEL ANSWER - QUESTION VI - JULY 1998
Questions 1 and 2 are answered together.
The following pre-trial motions should be filed:
I. Major Issues
a) Motion to suppress the results of the photo line-up as unduly
suggestive in violation of the defendant's due process rights under the
Fifth Amendment. The test for determining the admissibility of a pretrial
photographic identification procedure is whether the procedure is "so
impermissibly suggestive as to give rise to a very substantial likelihood
of irreparable misidentification." Simmons v. United States, 390 U.S. 377,
384 (1968), cited in State v. Bissonette, 145 Vt. 381, 385 (1985). Only
two of the men fit the description of the attacker as described by the
victim - a beard and a mustache. In addition, the defendant's photo
included the handcuffs, which strongly suggested he was the attacker.
Finally, Amy's identification was uncertain. The defendant was not
entitled to counsel pursuant to the Sixth Amendment at this point, as he
had not been charged with any offense. Assuming that the men in the
photographic line-up are relatively similar in appearance, the facial hair
and the handcuffs are likely not sufficient to require suppression, since
people do change their facial hair on occasion, and since it is a fair
assumption that most if not all of the men in the photographic line-up are
present or former arrestees. Amy's lack of certainty is a matter for
cross-examination, not exclusion.
b) Motion to suppress the fruits of the traffic stop, as a pretextual
stop in violation of the Fourth Amendment's prohibition against
unreasonable seizures. The police were not interested in the traffic
violation, and only wanted to question the defendant concerning the
assault. In addition, the argument may be made that Sam's agreement to
accompany the police to the station was not truly voluntary, but was
coerced. The officers' statement that he would be released if his story
checked out suggests that he was, in fact, under arrest.
The motor vehicle stop, even though pretextual, was not illegal, since
police may stop a vehicle if they have objective grounds for the stop, even
where their true reason for taking that action was in order to investigate
another crime. State v. Towne, 158 Vt. 607, 628-30 (1992) (arrest on one
ground in order to question suspect on another crime was legitimate where
the officer had probable cause for the offense for which the suspect was
arrested, and arrest was authorized by state law). In Towne, the Court
adopted the "objective" test of the validity of a pretext arrest. Under
this test, the arresting officer's actual motive for the arrest is
irrelevant to the analysis, as is the question of whether the arrest would
have been made in the absence of the allegedly improper motive. The sole
issue for the trial court is whether there was probable cause for the
"[T]he fact that the officer does not have the state of
mind which is hypothecated by the reasons which provide the
legal justification for the officer's action does not
invalidate the action taken as long as the circumstances,
viewed objectively, justify that action."
State v. Hollis, 161 Vt. 87, 92 (1993) (citation omitted)
The United States Supreme Court recently unanimously re-affirmed this
test in a case with facts similar to those here. In Whren v. United
States, 64 U.S.L.W. 4409 (June 10, 1996), the Court held permissible the
stop of a motor vehicle for failing to signal a turn. The stop was
conducted by plain clothes police officers patrolling a high drug area,
following the officers' observation of suspicious activity by the occupants
of the vehicle. The Court held that inquiry into either the officers'
actual motives for the stop, or whether a reasonable police officer would
have made the stop for the reason given, was unnecessary. The existence of
probable cause based upon the observed traffic violation rendered the stop
reasonable under the Fourth Amendment.
Once Sam was legitimately stopped by the police, they were entitled to
ask if he would voluntarily accompany him back to the station, and the
voluntariness of Sam's agreement would be a factual issue to be determined
by the court. State v. Noble, 148 Vt. 615, 616 (1987) (defendant's
agreement to return to police station was voluntary where the record "fails
to disclose any evidence of involuntariness or coercion beyond the coercive
elements which may exist ""simply by virtue of the fact that the police
officer is part of a law enforcement system which may ultimately cause the
suspect to be charged with a crime.""); State v. Hunt, 150 Vt. 483, 495-496
(1988) (defendant's consent to accompany the police to the station was
voluntary where he was asked in a manner neither threatening nor
compelling, if he would mind going to the police station to answer some
routine questions; the defendant was told he was not under arrest.) The
officers' assurance to Sam that he was not under arrest would be taken into
account, as would the fact that the police told him that he would be
released if his story checked out (suggesting that he was not free to
decline to accompany them).
Even if his agreement is found not to have been voluntary, the court
may find that the police had probable cause to arrest him, based upon Amy's
photographic identification, the information from the anonymous caller and
from Florida, and Sam's apparent intent to leave the State. Probable cause
for arrest exists where the "arresting officer has knowledge of facts and
circumstances ""sufficient in themselves to warrant a [person] of
reasonable caution [to believe] that" the defendant has committed or is in
the process of committing a felony."" State v. Stanislaw, 153 Vt. 517, 527
(1990). The concept of probable cause is a "practical, nontechnical one
that we evaluate in a common sense manner." Id. A probable cause
determination does not require a finding that it is more likely than not
that the defendant committed the crime. The inquiry instead is one of
whether a ""man of reasonable caution' would conclude that a crime has
been or is being committed..." State v. Ballou, 148 Vt. 427, 433-434
(1987) (discussing probable cause standard in context of search warrant
application). The "reasonable cause" standard, according to the Vermont
Supreme Court, is thought to be a "modern analogue more closely
approximating the original meaning of probable cause, without any reference
to probability." State v. Towne, 158 Vt. 607, 614 (1992) (same).
Probable cause will be found where the defendant matches the
description of the offender and is found in flight from the general
vicinity of the crime. State v. Unwin, 139 Vt. 186, 189 (1980). Although
the defendant in Unwin was located minutes after the offense, the defendant
in this case was also located near the offense, was apprehended while in
apparent flight, and matched the description of the offender. See also,
State v. Caron, 155 VT. 492, 500 (1990) (probable cause to arrest found
where defendant's vehicle matched that seen at the scene, the defendant had
the same first name as one of the assailants, and the defendant gave
inconsistent answers to police questions).
c) Motion to suppress Amy's identification of the defendant at the
police station as unduly suggestive in violation of due process. The
United States Supreme Court has held that the standard for admission of a
suggestive out-of-court identification, such as a show-up, is whether there
was "a very substantial likelihood of ... misidentification." Neil v.
Biggers, 409 U.S. 188, 198 (1972). Subsequent in-court identifications are
admissible unless there was a "very substantial likelihood of irreparable
misidentification." Id. Vermont has accepted the Neil test, and quoting
Neil, has cited the following factors in determining whether an
identification is reliable even though the confrontation may have been
suggestive: the opportunity of the witness to view the criminal at the time
of the crime, the witness' degree of attention, the accuracy of the
witness' prior description of the criminal, the level of certainty
demonstrated by the witness at the confrontation, and the length of time
between the crime and the confrontation. State v. Smith, 140 Vt. 247, 253
(1981). In this case, the defendant was in the custody of the police, with
no other possible suspects nearby, which might lead Amy to identify him.
On the other hand, the identification by Amy was spontaneous - she was not
told that she was going to be shown a suspect, and Sam was not clearly a
suspect in custody. In addition, Sam had shaved since the attack, giving
Amy's identification greater credibility.
d) Motion to suppress the defendant's statement that he was home at
11:00, as a fruit of the unduly suggestive identification and the unlawful
pretextual stop. In addition, it could be argued that when the police
arranged for Amy to view the defendant at the station, they should have
expected that the defendant would make a statement in response, and
therefore that he was subjected to custodial interrogation at this point.
Under this view, the defendant's statement should be suppressed as a
violation of the Fifth Amendment and the Miranda decision, since he had not
been given his Miranda warnings before this "interrogation." This motion
is unlikely to be successful, since the defendant "blurted" out his
statement, without any questioning, and since his statement was most likely
completely unexpected by the police. State v. Jeffreys, 165 Vt. 579 (1996)
(defendant's statements at police station were admissible because
spontaneously volunteered, and not the product of interrogation.)
II. Minor Issues
e) The defendant's confession should be suppressed because it was the
fruit of all of the proceeding illegalities (assuming that the earlier
motions are successful). In addition, it is not clear from the facts
whether Sam actually waived his Miranda rights and public defender, and
whether, if so, that waiver was in writing.
f) Motion to suppress the fruits of the public surveillance of the
defendant. This motion should be denied, because the defendant has no
privacy expectation as to his actions in public.
g) Motion to suppress any in-court identification of Sam by Amy, as
having been tainted by the earlier, suggestive identification procedures.
This motion will be denied if the earlier procedures are upheld, and/or if
the court finds that Amy's opportunity to observe Sam at the time of the
offense was sufficient to provide an independent basis for her
identification of him in court.
h) Motion to exclude Sam's prior convictions. Should Sam take the
stand to testify at his trial, these convictions should not be used to
impeach his credibility, since they lack probative value on that point.
Nor may they be introduced to prove Sam's propensity to commit assaults or
sexual assaults. (The facts underlying the convictions might be admissible
to prove Sam's motive, intent, knowledge, or other relevant matters.)
i) Motion for a change of venue, based upon adverse pretrial
publicity arising from the distribution of the fliers.
j) Motion to dismiss for lack of a prima facie case, as a result of
the exclusion of Amy's identification, and because there is no evidence
that Sam intended to commit a sexual assault.
k) Reliance upon the Vermont Constitution as an independent ground
for any of the above motions.
l) Any other reasonable issue.
Board of Bar Examiners
Mailing address: 109 State St.
Montpelier VT 05609-0702
Office Locaation: 111 State St.