Proc Typw

Front 1

abel 1

Back 1

Able owned several unused commercial greenhouses in Maryland. Baker and
Carr approached her with a proposal to go into business with one another to grow flowers
for sale to local florists. They drew up and signed a document entitled”Business Plan”
which provided that the three would form a Maryland corporation, that they would be
equal shareholders, and that Baker and Carr would each invest $25,000 for their stock.
The business plan provided that marketing efforts would be handled by Carr, that Baker
would be responsible for management, and the Able would be responsible for growing
the flowers in her greenhouses in return for her stock.
The three persons signed Articles of Incorporation for “ABC, Inc.” Baker said
that he would “take care of the rest of the paperwork,” but he did not file the Articles of
Incorporation.
Shortly thereafter baker wrote a check for $25,000 to ABC, Inc. and deposited it
in a bank account in ABC, Inc.’s name. Carr deposited $10,000 one week later. Baker
and Able met with a sales representative from Northern States regarding establishing a
credit account for fertilizer and supplies

Front 2

abel 2

Back 2

They told the account manager that ABC, Inc.
was a start-up business, gave him a copy of the business plan, and told him that ABC,
Inc. had $35,000 in working capital and was expecting an additional $15,000 from Carr.
The credit manager approved the application, and, for six months, Able purchased
supplies from Northern States. Invoices were sent to her in the name of “ABC, Inc.” and
Baker paid the invoices with checks drawn on the company’s account.
The business did not prosper and, after six months, it had no money in its account.
Baker and Carr told Able that they were ending the corporation’s operation. Able
protested, saying that the business had fine prospects. Carr said that he “had lost enough
money already” in the business. Baker informed Northern States that ABC, Inc. had
ceased operations and had no assets to pay its balance due of $10,000. Northern States
has filed suit in a Maryland court of appropriate jurisdiction and venue against ABC,
Inc., Able, Baker, and Carr personally for $10,000

Front 3

abel defend

Back 3

Able will attempt to assert the defenses of de facto corporation and corporation by
estoppel against Northern States. The corporate form protects officers of the corporation
for personal liability for the actions of the corporation, as long as they act on behalf of the
corporation. The defense of de facto corporation is available if the corporation has
substantially gone through all of the elements of incorporating, but has failed to become
incorporated because of a minor detail. Here, this defense is not available to ABC
corporation because the articles of corporation were never even filed with MDAT.
Corporation by estoppel will be available as a defense to Able because Northern at all
times dealt with ABC as if it was a corporation, sent ABC inc invoices and was paid by
checks from ABC inc's account. Northern is now estopped from asserting that ABC is
not a corporation for this reason. Furthermore, ABC will be liable to the corporation
only as far as her personal investment in the corporation if she is protected by the
corporate form. Therefore, Northern could argue that it has a right to put a lien on the
green houses because it could consider them corporate property since she contributed
them in return for corporate stock. However, Able is probably not liable to No

Front 4

baker defend

Back 4

Baker will not be able to assert either de facto corporation status or corporation by
estoppel.. As above, de facto corp is not available here since no effort was made to file.
Furthermore, since Baker was the one responsible for filing the articles with MDAT, but
he didn't do it, he cannot claim to be protected by the estoppel defense because he has
unclean hands. His failure to file can be seen as a violation of his duty of care to the
corporation - which is what a reasonably prudent person would have done. Here, a
reasonably prudent person would have filed with MDAT. Therefore, he may be liable to
the other members of the corporation if ABC or any of its members are found liable. The
court is likely to rule that Baker is personally liable to Northern

Front 5

caarr defend

Back 5

Carr will be able to assert corporation by estoppel because Northern dealt with
ABC as if it was a corporation, and Carr believed that he was protected by the corporate
form. However, he may be liable to ABC for the 15000 that he promised before
operations were commenced. AN offer to buy stock before the corporation is begun will
be held open until the corporation is created, and Carr only paid 10,000 of his own share.
Therefore, he may be compelled by other officers of the corporation to contribute this
money now that the corporation is winding up, in order to satisfy the debt owed toCarr will be able to assert corporation by estoppel because Northern dealt with
ABC as if it was a corporation, and Carr believed that he was protected by the corporate
form. However, he may be liable to ABC for the 15000 that he promised before
operations were commenced. AN offer to buy stock before the corporation is begun will
be held open until the corporation is created, and Carr only paid 10,000 of his own share.
Therefore, he may be compelled by other officers of the corporation to contribute this
money now that the corporation is winding up, in order to satisfy the debt owed toFEBRUARY 2009 MARYLAND BAR EXAMINATION
QUESTIONS AND REPRESENTATIVE GOOD ANSWERS
Page 17 of 38
Northern. Even though Carr has manifested a desire to end the corporation, he would still
be protected by the corporate form during the dissolution process. Therefore, it is likely
that since Car thought he was acting under the protection fo the corporate form and
Northern dealt with him as such, he will be protected by corporation by estoppe
Northern. Even though Carr has manifested a desire to end the corporation, he would still
be protected by the corporate form during the dissolution process. Therefore, it is likely
that since Car thought he was acting under the protection fo the corporate form and
Northern dealt with him as such, he will be protected by corporation by estoppe

Front 6

gemenral mpartnership definmition

Back 6

general partnership is created by two or more people for a profit making
purpose and the partnership does not give protection to the personal assets of the
partners. Here, Northern States is likely to claim that ABC Inc. was actually a
partnership since it was not formed under Maryland corporate laws and thus the partners
are personally liable for the debts of the partnership

Front 7

defacto corproarion definitiion

Back 7

A defacto corporation is one that does not meet the technical specifics of the law
but where the shareholders honestly believed that there was a corporation and held
themselves out to the rest of the world as a corporation. Here, Able and Carr truly
believed that ABC was properly incorporated because Baker stated that "he would take
care of the rest of the paperwork." However, Baker knew that ABC was not a
corporation and thus may be estopped from shielding his assets under the doctrine of
defacto corporation.

Front 8

northersn lawyer

Back 8

Northern will also try to claim that since Carr did not make his entire investment,
the company is owed another $15,000 and that Northern can attach a judgment against
that outstanding equity. However, this appears to be a matter of internal corporate
business and thus does not entitle Northern to a claim against the outstanding equity
investment.

Front 9

cda porchlight on clown extereme and outrageous conduct

Back 9

Piercing the Corporate Veil is when a third party claims that the corporation is a
sham and the court must find that there has been a substantial fraud or extreme and
outrageous conduct that would work an injustice if the corporate veil is not pierced.
Here, Northern believed that they were dealing with a corporation, there is no evidence of
fraud by Able, Baker, and Carr, and thus it is unlikely that the court will allow Northern
to pierce the corporate veil

Front 10

ph im tired im busyb u black

Back 10

Malpractice
As a final consideration, John may be liable for malpractice. An attorney owes a duty
of competence to his client, and must act as a reasonable professional would act under
similar circumstances. Here, if he failed to adhere to the reasonable standard of professional
conduct in representing Freebee, then she could sue him to recover her damages in the sale.
If John is liable for the disclosure to the opposing attorney, then he would be liable for
amount of the price reduction that Freebee was "pressed to accept" because that reduced
price flowed causally from John's breach of his professional duty of care

Front 11

grassold farm

Back 11

Mr. Burr owns Myrtle Farms, a 50-acre parcel in Garrett County, Maryland. During the
winter months, Garrett County routinely experiences six-foot snowfalls. As a result, the area is a
magnet for winter sports, especially snowmobiling on vast stretches of farmland, which is often done
without the permission of the landowner.
Tired of the frequent trespassing snowmobilers on his property, Mr. Burr convinced the local
legislators to enact a law banning snowmobiling on private property, and noticed a marked decrease
in trespassing on Myrtle Farms once the law was enacted. However, a few trespassers continued
to snowmobile on Myrtle Farms, so Mr. Burr decided to Aget them@ by erecting a barbed wire
electric fence in the middle of the back 10 acres where the snowmobiling usually occurred. The
fence was undetectable from distances greater than five (5) feet.
Joe is a neighborhood teen who often trespassed on Myrtle Farms. A few days after the
fence was erected by Mr. Burr, Joe took his girlfriend Judy, who was visiting from Pennsylvania,
for a ride on his single-passenger snowmobile. As Joe drove them through Myrtle Farms, their
snowmobile collided with the barbed wire electric fence which was partially obscured by a recent
snowfall. Both were thrown from the snowmobile and suffered severe cuts, bruises, and a few
broken bones.
Three weeks after their release from the hospital, Joe and Judy come together to meet with
you, a Maryland attorney, seeking advice as to their legal rights.What would you advise Joe and Judy as to any potential claim(s) or legal action?
Discuss fully.

Front 12

grassold farm represent

Back 12

First, I would tell them that there may be an ethical problem with me representing both
Joe and Judy. In Maryland, you can represent two plaintiffs in a civil suit as long as they give
written, informed consent. I would first need written informed consent. SI would tell them that they have a claim against Burr for negligence. A negligence claim
is composed of (i) a duty, (ii) breach of the duty, (iii) causation, both actual and proximate, and
(iv) damages. Although there was a marked decrease in the people who snowmobile, Burr still
anticipated there would be trespassers on his land. He knew they came and that is why he
erected the fence. Judy and Joe are anticipated trespassers. Under premises liability, burr has a
duty to anticipated or known trespassers. Burr must use reasonably prudent care for activities
and must protect the anticipated trespassers against known, hidden, man made, conditions that
could cause death or serious bodily injury

Front 13

grassold farm type of cause

Back 13

The barbed wire electric fence could cause death or serious bodily injury. He knew it
was there because he built it. It was also therefore man made. It was hidden because it was
undetectable from greater than 5 feet away and the snow partially obscured it. It would be
undetectable to a person traveling fast on a snowmobile. This was the actual, but for cause of
their injury. Since it was the direct cause, it is also the proximate cause. Proximate cause will be
found where the injury was foreseeable and therefore it is fair to hold the tortfeaser liable. It is
foreseeable that by building a fence riders will be severely injured. Even though Joe driving
may have been the direct cause of Judy’s injury, but for the fence the injury would not have
occurred.
In Maryland minors are not owed a duty of care higher than what is owed other
anticipated trespasse

Front 14

grassold farm batery to wall

Back 14

hey could sue Burr for battery. Battery is the unconsented application of force to a
person or something touching that person’s body that causes offensive touching or harm. Here
the barbed wire touched the snowmobile, and possibly their bodies. If it only touched the
snowmobile it is still battery because this was connected to their bodies. The tortfeaser needs to
intend to harm the victims. Her, intent may be shown because Burr did this to “get them”, he
knew that this would cause serious bodily injury and erected it for that purpose.

Front 15

grassold farm2

Back 15

In June, 2008, Jud and Keith were finally released by their treating physicians and
physical therapists. They have severe and permanent injuries.
Sheila promptly entered into settlement negotiations with Alvin’s motor vehicle insurer,
but was unable to reach a satisfactory settlement. Therefore, on January 2, 2009, Sheila filed a
Complaint in the Circuit Court for Baltimore County against Alvin, alleging negligence, seeking
damages of $5,000,000 and electing a jury trial. Sheila sends a summons, copy of the Complaint
and Plaintiff’s Information Report to Alvin and his insurance company via first class mail. . What preliminary motions should Alvin’s lawyer file on his behalf, and how
should the Circuit Court rule on them? Explain the reasons for your answer

Front 16

grass farm2 venue

Back 16

Improper Venue. Pursuant to Rule 6-201, a civil action “shall be brought in a county
where the defendant resides, carries on a regular business, or habitually engages in vocation.”
In addition, in a negligence action, venue is proper in the county where the negligence occurred.
Here, Alvin, the defendant, lives in Anne Oriental County, and the accident occurred in Kent
County. Sheila, however, brought the suit in Baltimore County. Accordingly, venue is improper
and this ground for the motion to dismiss should be granted.

Front 17

grass farm2 not going to trial till facts are right

Back 17

deposition issue by a Motion
under first 2-432 then potentially 2-433, the court will overrule her objection and permit Alvin
to testify. Discovery disputes are to be addressed prior to trial, and these Rules are there for that
purpose. Sustaining the objection would severely prejudice Alvin’s case. Sheila should have
moved the court much earlier.

Front 18

grass farm2 alsocda

Back 18

Under Rule 2-432, Sheila should have moved for sanctions and for an order compelling
discovery. This is available because Alvin - a party - failed to appear for a notice of deposition.
In addition, Sheila would need to certify that she has, in good faith, attempted to resolve the
issue without involving the court. Sheila did not, however, move for an order compelling
discovery. She simply waited until trial and then objected to Alvin testifying on the ground that
he did not appear. And under Rule 2-432(d), this motion must be filed with “reasonable
promptness.”
Although

Front 19

grass farm2 challenge stat of limitations

Back 19

There is, however, an exception for Jud.’s 14 year old son which would allow the suit
to continue in his name. Under Rule 5-201, persons under a disability toll the statute of
limitations. Keith is considered under a disability with respect to his age - he is a minor and is
incapable of bringing a suit in his own name. As a result, the disability would toll the statute of
limitations, and thus Keith must file his action within the lesser of three years of the applicable
period of limitations after the date the disability is removed. The disability will be removed on
the day before his 18th birthday, and thus the three year statute of limitations period will appl

Front 20

joint tnacy talk

Back 20

George and his wife, Laura, as tenants by the entireties, purchased Tidewater, a 20 acre
tract of waterfront land, bounded on one side by Sandy Drive, a public road in Charles County,
Maryland. In 1980, George and Laura built a house on five acres of the tract (Parcel A). Parcel
A did not front on Sandy Drive, but had access to it by a 200 foot private driveway installed
when George and Laura built their house.
On September 1, 1985, George and Laura conveyed the remaining 15 acres (Parcel B)
to their sons, Bush and Chaney, as joint tenants. The deed made no reference to the 200 foot
driveway which traversed Parcel B, and which George and Laura continued to use.
On September 30, 2005, Laura died. On December 31, 2005, George sold and conveyed
all of his right, title and interest in Parcel A and the house to Chaney, who financed the purchase
with a mortgage to Local Bank which included Chaney’s interest in Parcel A and Parcel B.
Bush, a widower, died intestate in 2006, survived by two daughters. Thereafter, a new
public road, providing direct access from Parcel A to Sandy Drive was constructed by Charles
County.
See diagram below.
Advise Chaney as to:
a. The interest, if any, of Bush’s daughters in Parcel B;
b. The status of the private driveway

Front 21

joint trnacy define

Back 21

Joint Tenancy
A joint tenancy occurs when the four unities of possession, interest, title and time exist.
A joint tenancy creates a right of survivorship, which means each tenant owns an undivided
interest in the tenancy. This means, that if one tenant dies, the other inherits their interest, unless
that interest has been severed. Here, George and Laura conveyed Parcel B to Bush and Chaney
as joint tenants. A joint tenancy is severed when one tenant grants an interest in the tenancy to
another party. MD is a title state, which means if one joint tenant grants a mortgage in the
property, this severs the tenancy and becomes owned as tenants in common.

Front 22

joint trnacy un commonn

Back 22

Tenants in Common
Chaney purchased Parcel A, by granting a mortgage to Local Bank which included his
interest in Parcel B. This severed the tenancy and following the mortgage on December 31,
2005, Bush and Chaney owned Parcel as tenants in common. They each owned a divided ½
interest in the property without a right of survivorship. When Bush died intestate in 2006, his
interest in the property passed to his heirs. His two daughters now own their father’s ½ interest
in the property. Maryland does not have a presumption of a joint tenancy, therefore, the
daughter’s interest in the property will pass to them as tenants in common. They each own ½ of
the father’s interest in the property.
PA

Front 23

joint trnacy 2 types easement

Back 23

. Status of the driveway
Implied Easement: An implied easement occurs when there was a common ownership,
necessity, and quasi easement. George and his wife had an implied easement in the driveway,
because there was previous common ownership, there was necessity to get to Sandy Drive and
they used the road as an easement.
Easement by Necessity. Easement by necessity occurs when there is absolute necessity
and common ownership. Both existed here, prior to the road being built.

Front 24

joint trnacy easment analysis

Back 24

There was no express easement, because nothing was in writing and recorded. An
implied easement and easement by necessity are destroyed when there is no longer the necessity
or if one owner acquires both the burdened and servient estate. Here, after building of New
Public Road, Chaney no longer needs to use private drive to get to sandy drive, therefore no
more necessity exists. Additionally, since Chaney now owns both Parcel A and Parcel B, the
easement is destroyed

Front 25

y subpoena

Back 25

Testimony of Dugooder
Dugooder’s testimony was based upon his first hand information because C made the
statements about her illegal business directly to him. Thus, I would overrule the objection.

Front 26

drag ass cxriminal brady

Back 26

Motion to Dismiss
A Motion to Dismiss on the basis of speedy trial is granted whenever the trial date
occurs after 180 days after arraignment, and the Defendant has been prejudiced by the
delay. In this case, the trial began a year after arraignment, and the Defendant had been
incarcerated the entire time, unable to assist in the defense, and causing a witness to
remain unlocated. The witness could have had a substantial effect on the outcome of the
case, as he would have testified to consent, thus, showing that one of the elements to third
degree sexual assault had not been met. Because the trial was past the 180 day mark, and
the Defendant was prejudiced by the delay, the Court erred in denying the motion to
dismiss

Front 27

buly hall mafison fatmiuthiung

Back 27

The Montgomery County Council decided to enact legislation to address an increase in
teenage gang participation and gang violence at the local high schools. The Council held a
hearing on the proposed legislation. Tom Teen and his parents attended the hearing and were
amazed when Councilmember Smith pointed to Tom and declared “those kinds of teens need to
be punished; when they get together they always wreak havoc!” The Council then duly enacted
the following law:
Three or more students wearing gang colors who gather on school property, after
being warned by any school official to disperse, will be in violation of this law,
and will be subject to immediate expulsion and a civil fine of $3,500.
Tom Teen, a student enrolled in a Montgomery County public high school, and his
parents come to you, a licensed Maryland attorney, and ask whether they can challenge the law,
and whether Councilmember Smith can be sued individually for his statements.
What would you advise? Discuss fully.

Front 28

buly hall can doo

Back 28

Challenging the law
Standing is required to challenge a law. The plaintiff must have suffered actual harm or
imminent harm and it is fairly traceable to the government. Here, Tom Teen has not been caught
in violation of this law, thus he has not been actually harmed, but the law restricts his ability to
wear certain colors, associate with certain people on school property, and express himself.
Thus, he is in immediate risk of violating the law restricting all of these rights of his. Also,
Councilmember Smith pointed directly at Tom and said “those kids”, which may have been
specifically referring to Tom and his friends

Front 29

buly hall dont like the company u keep

Back 29

The 1st Amendment right to assemble limits the government’s ability to control who people can
associate with and assemble together with. Here, the law prohibits three or more students from
wearing gang colors who gather on school property after being warned by school officials to
disperse. This limits the right to assemble with whom you would like to at school because if you
do you could be expelled. The right to assemble is a fundamental right, thus the law must pass
the strict scrutiny test. Strict scrutiny provides that the government has the burden to prove that a
law is necessary to serve a compelling government interest. Here, the purpose of the law is to
decrease teen gang participation and gang violence at the local high schools. The law is narrowly
tailored to only those wearing gang colors and gathering in groups of three or more. The law’s
purpose regarding gang violence is a very compelling government interest. The law may not be
found necessary to achieve this compelling interest because there are less restrictive means to
achieve the same interest such as not permitting any gang colors to be worn in school, instead of
restricting assembly rights.Here the interest in curtailing teenage gang
participation might be a compelling one, but subjecting students to expulsion is in no way the
least alternative means of achieving this result. A suspension or a counseling program would be
better.
The E

Front 30

buly hall canyt weasr skin color or cultural identifiers ob be expelled

Back 30

st Amendment freedom of expression is also infringed by restricting the right to wear colors
to school that are gang colors but the law would pass a rational basis test because it is rationally
related to serve a legitimate government interest as the students simply can’t wear gang colors
and gather and stay there after being told to disperseThe Equal Protection Clause of the 14th Amendment prevents the government from
discriminating on the basis of certain classifications. Here, the statute punishes 3 or more
students who gather but does not punish less than 3 students. Gathering on school property is not
a fundamental right and therefore subject to rational review. Rational review requires the law to
be rationally related to a legitimate interest. Here, although curtailing gang violence is a
legitimate interest, no showing has been made that expelling 3 or more kids who gather at school
will lower gang participation.
Due process is implicated here also. Although expulsion results after a warning by the school
officials to disperse, no notice or opportunity to be heard is present.

Front 31

buly hall cda rule book

Back 31

he 14th Amendment Due Process Clause may also be violated as the law infringes on an
individual’s right to liberty. Here, students may not gather in particular colors at school, and if
they do are warned to disperse and do not, they would be expelled and fined.

Front 32

buly hall if madison law backs cda

Back 32

The 8th Amendment may be violated because it prohibits government from imposing cruel and
unusual punishment. Here, if someone violates the law they will be expelled immediately and
have a civil fine of $3,500. This is cruel and excessive.

Front 33

cda rule

Back 33

Conclusion:
Since the law appears to violate the fundamental right to free expression, and is so overbroad and
vague it cannot even survive a rational basis review, it will likely be held unconstitutional.

Front 34

got ripper of by bad computer guy discussion

Back 34

Lewis Latimer owns an electric power systems company, the Latimer Inc., in Holbrook
Maryland. The Latimer Inc. uses a computer that controls its check-writing machine which was
programmed to cause a check to be issued to Supplier Co. which is owed money monthly by the
Latimer Inc. for services. The address of Supplier Co. was programmed into the computer by
Latimer. Ernie Employee was a clerk at the Latimer Inc. Employee changed the address of
Supplier Co. in the computer data bank to his own address. As a result, the next check produced
by the check-writing machine for $285,000 was mailed to Employee’s address. After receipt of
the check at his home, Employee endorsed the check in the name of Supplier Co., and then
deposited it into an account at ABC Bank which Employee had opened in the name “Supplier
Co.” The check was later honored by the Latimer Inc.’s bank, Boswell Bank. Employee then
withdrew $285,000 from his account and left town leaving a balance of $5.
Upset over what has transpired, Latimer comes to you, a Maryland attorney to advise him
regarding the recovery of the company’s money.
Give a detailed analysis of any civil redress Latimer Inc. may have under Maryland
Commercial and Common Law.

Front 35

got ripper of by bad computer guy latimer vs ernie data embezzle

Back 35

Latimer Inc. v. Ernie Employee
Conversion is exercising wrongful dominion and control over property of another without
permission of the owner. Here, Ernie “was a clerk at Latimer, Inc.” and he “changed the address
of Supplier, Co. in the computer data bank” of Latimer, Inc. who routinely writes monthly
payment to Supplier Co. When he had the check sent to his address to obtain access to the
payment, Ernie committed conversion by exercising wrongful control over the check that did not
belong to him.

Front 36

got ripper of by bad computer guy larimer vs boswe;;

Back 36

Latimer Inc. will want to bring a claim against its bank, Boswell Bank for paying the item
to Ernie instead of properly paying to Supplier Co.
A fictitious payee is one who impersonates the payee of an instrument when they are not
truly the intended beneficiary of the payment. (3-404). Here, Ernie was an impostor when he
endorsed the check as Supplier Co. because he did not intend the check to be paid to Supplier
Co. and was not the Supplier Co. Latimer intended to pay the money to. Where there is a
fictitious payee the endorsement will only be effective against the payee if the payee, Latimer,
gave authority to the employee "to supply information determining the names or addresses of
payees of instruments to be issued in the name of the employer". (3-405). Here, Ernie was given
access to change "the address of Supplier Co." and therefore he had authority over the checks.
Thus, the responsibility of this action will rest with Latimer, Inc.
The bank that pays a fraudulently endorsed instrument, if it was done in good faith, will
have the endorsement remain effective as long as the drawee bank exercised ordinary care in
negotiating the instrument (3-405). Here, the check in the name of Supplier Co. was deposited in
a bank account “at ABC Bank which [Ernie] had opened in the name of Supplier Co."
demonstrating that Boswell Bank negotiated the instrument in good faith. Latimer, Inc. is
precluded from asserting the forgery against Boswell Bank because they acted in good faith and
because they provided Ernie will responsibility over the checks.

Front 37

got ripper of by bad computerguy latimer vs abc

Back 37

Latimer, Inc. we'll have no claim against ABC Bank because as with Boswell Bank,
Latimer gave responsibility to Ernie over the checks and because they acted in good faith when
allowing Ernie to deposit the check into an account bearing the same name as the instrument was
made payable to. The facts did not indicate any way that ABC Bank would know that the check
was not properly endorsed by Latimer, Inc. Accordingly, the bank exercised ordinary care in the
transaction. Similarly, Latimer, Inc. will not be able to assert any presentment warrantees
because the item was not altered or forged and there is no knowledge that the signature was
forged as required by Section 3-417.

Front 38

schoolkid caser

Back 38

QUESTION 9
The State of Maryland, in an effort to provide an economic boost to the Maryland tourism
industry, recently enacted legislation decreeing that “No billboard of any kind shall be erected
advertising, recommending, endorsing, or otherwise promoting in any way any town located on
or within 25 miles of the Atlantic coast of the United States of America, other than Ocean City,
Maryland. Any such violation of this provision shall be punishable by a civil penalty not to
exceed $10,000 and/or 15 days in jail. This provision shall be applied retroactively to January 1
of the current calendar year.”
On February 1, 2012, Dan erected a billboard on a piece of real property he owns along
Interstate 95 in Cecil County, Maryland, encouraging people to visit the town of Hilton Head
Island, South Carolina, which is located on the Atlantic coast. On March 1, 2012, the billboard
ordinance was signed into law by Maryland’s Governor. On April 1, 2012, Dan was issued a
citation by the Maryland State Police charging him with a violation of the billboard ordinance
and imposing the maximum financial penalty applicable for a violation of the billboard
ordinance. In accordance with the procedures outlined on the citation, Dan immediately
requested a hearing.
Dan has engaged you, a licensed Maryland attorney, to defend him at the hearing.
What arguments would you make to the court on his behalf? Explain fully

Front 39

schoolkid casers standing

Back 39

1) Standing
As a preliminary matter, Dan meets the requirements of standing necessary to challenge this law.
Standing requires a plaintiff to show (1) injuries, (2) causation, and (3) redressability. Dan has
been injured by the law and by the government’s enforcement, and his injuries can be remedies
by overturning this law.

Front 40

schoolkid caser free and commercial

Back 40

free and commerccial My first argument on Dan’s behalf is based on the 1st Amendment’s Free Speech Clause. The 1st
Amendment initially applied only to the federal government, but was incorporated against the
federal government by means of the Due Process Clause of the 14th Amendment.
The 1st Amendment prohibits interference with citizens’ right to free speech. When state laws
interfere with this fundamental right, and whenever the law restricts speech on the basis of
content, that law is analyzed under the strict scrutiny standard. This standard requires the state to
prove the law is narrowly tailored to achieve a compelling government interest. Here, the only
apparent reason for the Maryland law is to achieve the “boost” of economic protectionism. This
is not a compelling state interest, and so the law should fall. Moreover, there is no tailoring
whatsoever; the law imposes a blanket restriction on all non-Ocean City ads. Therefore, even if
the government had a compelling interest, the law would fall.
The government may attempt to defend on the grounds that this law is merely a regulation of
commercial speech, because the law is limited to billboard advertisements. With respect to
commercial speech, the government may ban untruthful advertising, but any limitation o

Front 41

schoolkid caser post exfacto

Back 41

3) Ex Post Facto Law
My second argument would be that this is an ex post facto law. The Constitution (through the
Ex Post Facto Clause) prohibits the passage of any law that retroactively imposes criminal
liability. Here, Dan’s advertisement went up in February, when the billboard was legal. When
Maryland passed its law on March 1, it made Dan’s prior act of erecting the billboard, as well as
any other citizens’ billboards back to January 1, illegal. Therefore, Maryland’s law had a
retroactive effect and is a violation of the Ex Post Facto Cla

Front 42

schoolkid caser contracts

Back 42

4) Contracts Clause
I would also argue that Maryland’s law is a violation of the Contracts Clause. The Contracts
Clause prohibits the passage of laws that interfere with existing contractual relationships absent
some overriding government emergency. Here, Dan and other advertisers presumably had
contracts related to their advertising, which is now illegal. As discussed above, this law is not
supported by any government emergency. Therefore, Maryland’s laws violated Dan’s rights
under the Contracts Clause

Front 43

schoolkid caser cruel and unusual

Back 43

5) Cruel & Unusual Punishment
My fifth argument on Dan’s behalf would be that this law is a violation of the 8th Amendment’s
prohibition on cruel and unusual punishment. Like the 1st Amendment, the 8th applies to the
states by way of incorporation through the Due Process Clause of the 14th
.
The constitutional prohibition on cruel and unusual punishment prohibits punishments that are
unfairly or unreasonably disproportionate to the charged offense. Here, even if the law was
legitimate, Dan was subjected to a $10,000 fine, which seems extremely excessive in relation to
the crime charged. However, to better determine the legitimacy of this argument, it would be
good to know how much Dan profited by these advertisements

Front 44

schoolkid caser dormant

Back 44

6) I would also challenge this law as a violation of the (Dormant) Commerce Clause. The
Commerce Clause gives the US Congress plenary power to regulate interstate commerce.
Supreme Court jurisprudence has read into this provision a doctrine that prohibits states from
passing laws that “unduly burden” or discriminate against interstate commerce. Moreover, if the
state has no legitimate health and safety purpose for its law—i.e., if the law is purely
protectionist—the state’s law is automatically void. Here, as discussed above, the facts suggest
there is no legitimate purpose for this law. Because the law targets all out-of-state
advertisements to the exclusive benefit of Ocean City, MD, it is a protectionist law that
impermissibly discriminates against out-of-state advertisers. There is no obvious health or safety
rationale that could be used to excuse this law and, even if there was, the law would still only be
permissible if it was the least intrusive means of achieving that legitimate state purpose. Here,
there is simply no way that this law is the least intrusive means to achieving any state interest