Law Dude

EDSA Dos

2005-09-24T05:51:00.000-07:00

This is my winning piece ... I forgot which year. I must have grown a lot older... yet nothing much have changed in the Philippines.. We still havent learned anything.

Lessons from People Power II

EDSA II have given many of us many things to be proud of yet many things to be ashamed of as well. We felt proud because we have once again ousted the highest official of our land who have recklessly and flagrantly/shamelessly depicted how a man of power can do almost anything he wants to do at the expense of the massive population which he has vowed to serve. Well, almost.

But how was it when the very same leader was proclaimed the winner after the election? Did we not have a feast and did we not rejoice with him in his victory? Did we not laugh at his stupid jokes and the jokes about him? How many of them were really there with him during his winning moments acting in pretense or for real? Were there plenty of them who proclaimed that “their boss” was not guilty, is a good man and that they would stay with him, defend and protect him but have left him the moment he was almost helpless and wanting?

What have we learned of the People Power II then? Was it really a people power at all? Is the EDSA Dos something that we should be proud of or be ashamed of, or both feel equivocally? How was it with the first People Power? Why was there a second? Will there be a third?

EDSA II have become a scary symbol of how unstable our system of government is for all of us. The constitution was supposedly the basis of how a public servant is to be put in place and replaced. But it seems that the people, considerably not the majority though, have a better way of ending and starting the terms of our leaders. Proven twice. The supremacy of the people is said to be the very existence of the state, the general welfare is said to be the main basis of laws. And this is what the People Power is all about, that is why it works every time. What is the constitution for then if we resort to People Power every time a leader cannot prove his worth in a short span of time during his reign? Does this not pose a threat to the book of laws itself? Are we not becoming a country of mob rule? An anarchic
system of moving on to the utopia? These are the questionable sides of the People Power.

EDSA II however, has obviously become a strong factor which would and could put our leaders on their toes and move them to act according to the principle and essence of their being in the public service. The historical event would flash in their minds and give them a solid reminder of how strong and united most of the Filipino people are and this knowledge will make them think twice before acting on a diversion of their original function. The ripples of the People Power will motivate them to do better in their line of duty lest they become the next hero to be held for inquisition, the next who would make a sad wave of goodbye to the very same people who carried him to the palace. All leaders want a good place in history and EDSA II provides them the most solid pillar to hold on to in case they become hesitant and lost in their roles as the Biggest Filipino Symbol. It would be foolishness if they ever falter in being reminded of the soul of the People Power.

It is often said that if there is a beginning there is an end. In People Power II I think the saying does not apply. The event started with I and now it has a II and I believe it will go on to three, four and so on. The question is how many EDSA Revolution or People Power would it take to make us feel secure about our bureaucracy and in the stability of our nation? Must we always then take our protests to the streets in order to overthrow the very person we voted for? The very person whom the masses loved and elected in the position we thought he deserved to be in?

When will we achieve a government that we believe “shall embody our ideals and aspirations, promote the common good”? Did we ever have a government as such? Did we ever have leaders who knew what the “common good” was? How many administration have said that they are against graft and corruption, that they are for the betterment of the society, upliftment if not eradication of poverty, but have never made any visible change in all these aspects? How many of them have said that the poorest of the community deserve the most priority in their agenda, but have actually forgotten that there are indeed poor people in the provinces, in the urban areas and even in rural communities. Was there ever one of them who actually remembered the poor they have made several empty promises to in exchange for their votes as they bask in the grandeur of their authority and bathed in the power we have crowned them?

Will there come a time when the Filipino people would actually feel relieved that the most eligible candidates of the society were elected in the right places and the guilty officials locked in jails? When will that day be? Will the Filipino people ever learn to take a risk in voting for a radical choice instead of clinging on to a cancer? Will we as a whole ever be mature enough to know the difference between the bill that our leaders are supposed to make and the bills that they long for?

As long as our masses believe that the role of our leaders is to give them medicine and bags of food we will never move on from the shadow of EDSA II. As long as the masses believe that election is the best time for them to earn plenty of money, we will often be a land of distress. As long as the less educated continue to sell their votes for a hundred peso bill every election our country will continue to become a circus of protests and rallies led if not influenced by the ecclesiastical leaders of our community.

As long as the educated few refuse to recognize the fact that each of us has a responsibility in the betterment of our society we will linger in this dreadful disease of longing. We the new generation must accept the fact that we too must hurdle in our everyday struggle to take time and talk to every man who listens and we, in turn listen to how the less privileged feel about the reflection of our society. We must feel blessed in the wisdom we have gained and as a way of thanking, we share this to others who have not been given the blessing of such important commodity. Only in this least manner can we feel grateful for what we have. And only in this will we able to repay what we owe. In this small token we will feel contentment and only in the lack of this will we forever miss the days given for us to fill in the gaps and in the omission of this will we always feel remorse every time another leader is placed. We would have made a great difference in all these
then. It is not to o late but if we forget to do something about it now, it might be too late tomorrow.

It will go on as long as the Filipino people do not learn how to choose their leaders wisely. Every election we put persons to be our leaders but we in the later years of their service condemn them and regret the very reason we voted for them, the very reason we imposed on others who refuse to believe that the person we chose is indeed worthy.

There must be something wrong in this. This has been going on for a long time. We must have found the cure already. What is it then? When will we find out and what do we have to do about it? And why are we not doing something about it now?

The struggle is a long one and it does not take a day to exert a principle. It takes longer than a moment to make a person know what something means. It takes more than half or less than that to elect a president. It takes not only one person to make a revolution. If it takes myriad of people to make a People Power I want us to know that it only takes only you and me to talk to one another and move others to do the same to others. In this manner we will find the change we long for and the consolation is a gift we do not receive alone but will be savored by the next generations as well. We live by a dream, we work by a standard, we vote by a background and a promise but we talk by the heart. This can move anything. Well, almost maybe.

PhilippInes My Philippines

2005-09-23T22:20:00.000-07:00

Philippines: Imelda's Jewels (CRAP!)

A Girl's Best Friend
Imelda Marcos is suing to keep her jewelry off the auction block
BY ANTHONY SPAETH
Monday, Sep. 19, 2005
When Philippine strongman Ferdinand Marcos fled the country on Feb. 25, 1986, First Lady Imelda was forced to leave behind the 3,000 pairs of shoes that would place her in the record books. But she wasn't traveling light: when the couple landed in Hawaii, the U.S. Customs Service confiscated Pampers boxes stuffed with jewelry, including a gold crown and three gem-encrusted tiaras (not to mention $200,000 worth of gold bullion and $1 million in Philippine pesos). And that's just what they managed to load onto the C-141 cargo plane to Hawaii: back at Malacaٌang Palace, officials discovered a stash of jewelry estimated by the government to be worth $310 million, while a further $13 million in gems (which Marcos has admitted were hers) were confiscated from a Greek national attempting to leave the country a few days later.

Now, after nearly 20 years, the Philippine government wants to cash in on that trove, saying it was paid for with public funds. It has invited three different auction houses—Christie's, Sotheby's and Bonhams—to examine 760 pieces in the collection. Representatives of Christie's flew in last week to inspect three crates of gems. Marcos, who claims the jewels are her private property and that some are heirlooms, is having none of it. The former First Lady filed a 10-page petition before a Manila court last week asking for a restraining order to prevent an auction from being held by the Presidential Commission on Good Government (PCGG), the task force assigned to track down the Marcoses' illicit wealth. "Enough is enough," she told reporters last Thursday. "What this government is doing to me is no longer right ... Why are they selling my jewels, which are mine and mine alone?"
Despite Marcos' petition, PCGG commissioner Rick Abcede is confident the sale will go ahead. "The government needs money to put into the treasury," he says. "And the Imelda jewels are the immediate answer." The government hopes the jewelry might sell for as much as $20 million. But legal action by Marcos blocked previously planned auctions in 2003 and 2004. "If Imelda wants to buy the jewels, she's free to do it," Abcede says. "But the Bureau of Internal Revenue might run after her."

—With reporting by Nelly Sindayen

From the Sep. 26, 2005 issue of TIME Asia Magazine

Divorce in the Philippines... There is no such thing..

2005-09-17T23:32:00.000-07:00

Divorce and Annulment in the Philippines and Australia
By Michael Jones
Article XV
THE FAMILY

Section 1. The State recognizes the Filipino Family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

The Constitution of the Republic of the Philippines, from which the above words are taken, forbids the making of laws which would "violate" the institution of marriage, and charges the State with the duty of actively intervening to protect that institution.

As a result, the legal ending of what had been a valid marriage between two living spouses, allowing them both to go on their way in life and, if they so desire, marry again, is not possible in the Philippines, and the State actively intervenes in marital disputes wherever it feels that the institution of marriage is under attack.

The law of Australia is completely different. Although the Constitution of this country gives the Federal government the power to make laws with respect to "matrimonial causes", it says nothing whatsoever about the nature of marriage. In Australia, the State prefers to facilitate the legal termination of marriages that are not working. This reflects an attitude in this country that personal relationships are a private affair which the State should have little or nothing to do with.

For Filipinos who have made this country their home, the difference between the two approaches to marriage can be a source of great personal and legal difficulty.

Divorce and nullity
But is it true that there is no divorce in the Philippines? How can it be that the Solicitor General of the Philippines recently claimed in the Supreme Court that the Philippines had the "most liberal divorce procedure in the world"? What he was referring to, in the case of Republic of the Philippines v Court of Appeals and Roridel Olaviano Molina (decision of February 13, 1997) was Article 36 of the Family Code. According to that provision, a marriage entered into by a person who was, at the time of the marriage ceremony, "psychologically incapacitated to comply with the essential marital obligations of marriage", is null and void.

To say that a marriage is "null and void" is to say that it never really happened. The couple went through the ceremony, the papers were signed, it looked like a marriage, but in fact it never was a marriage. In a divorce, the couple are legally married up until the divorce takes effect. Where the Court rules that a marriage is void (called a "declaration of nullity"), the law treats the couple as never having been married at all.

There are several other grounds on which a marriage can be declared null and void, some of which apply under Australian law as well. Since a person can only be legally married to one person at a time, any subsequent or bigamous marriage is null and void. So are marriages where one of the parties is under the legal age for getting married (now 18 in the Philippines, as in Australia), or marriages between close relatives (first cousins can't marry in the Philippines, though they can in Australia), or in some cases of mistaken identity or failure to comply with legal requirements. To complicate matters, certain other marriages in the Philippines (though not in Australia) are "voidable", which means they can be declared void in certain circumstances but remain valid until "annulled".

It goes without saying that Filipino law with respect to marriage is based on the law of the Catholic Church, known as Canon law. However, a declaration by the Marriage Tribunal of the Church that a marriage is void does not automatically make it void in Filipino law. That can only be done by the Regional Trial Court or a higher Court. It is possible therefore for a couple to be unmarried in the eyes of the Church but married in the eyes of the State.

Psychological incapacity
Article 36, which was only introduced in 1988, was put into the Family Code because Filipino law was actually stricter than the law of the Catholic Church. The "psychologically incapacitated" ground has been part of Canon law for many years.

In the case of Roridel Olaviano Molina, the Regional Trial Court of La Trinidad declared her marriage to Reynaldo Molina void under Article 36. She claimed he was immature and irresponsible as a husband and father, preferred the company of his friends to that of his family, squandered his money, was dishonest about finances, would not get work to support the family, and was highly immature and habitually quarrelsome.

That decision was upheld on appeal to the Court of Appeals, but was finally struck down by the Supreme Court. In doing so, it was following the precedent set in 1995 in the case of Leouel Santos v Court of Appeals. After these two decisions, the scope for use of Article 36 has been greatly reduced, but not removed altogether. The noted commentator Ernesto L. Pineda lists a number of examples of psychological incapacity taken from Canon law: homosexuality; lesbianism; satyriasis; nymphomania; emotional immaturity or irresponsibility; epilepsy; habitual alcoholism; criminality. It must be said that epilepsy would be unlikely to be considered a psychological problem by a modern secular Court.

Void and "voidable" marriages
As I have said, a marriage that is declared void never really happened, while a divorce just brings a marriage to an end. Unfortunately, and no doubt in large part because of the difficulty of getting out of a marriage in the Philippines, some Filipinos take the risk of marrying again while their first spouse is still alive. This is a criminal offence (bigamy) in both the Philippines and Australia, and the second marriage is considered void in both countries. A second marriage is not made valid by the subsequent termination of the first one. Thus if a person marries once in the Philippines, then marries again in Australia, then the first marriage ends because the other spouse dies or a divorce is obtained in Australia, the second marriage remains invalid and the liability to be charged with bigamy remains. But what if the first marriage is declared void?

This is where another difference arises between Filipino and Australian law. Although a void marriage is no marriage at all, in the Philippines there must be an actual declaration by a Court that the marriage is void before the person can marry again (Article 40). Any second marriage before the Court order is made is also void. Australian law takes what seems to be the more logical approach. If the marriage never happened, then all the Court is doing is stating it for the record. So if a first marriage is declared void after a second marriage has taken place (in Australia), the second marriage is perfectly valid in Australian law and the parties cannot be charged with bigamy.

The situation with respect to "voidable" marriages is more complicated. Voidable marriages can be annulled until a certain event happens or a certain time passes. After that, they are no longer open to challenge. For example, in the Philippines a person aged 18 or over but under 21 needs the consent of a parent or guardian to marry. If such a person marries without that consent, the marriage can be annulled up until the party turns 21 or for five years after that, unless after turning 21 the couple freely cohabit and live as husband and wife. If that happens, the validity of the marriage cannot be challenged.

Under Australian law, foreign marriages which are voidable under the law of the other country are considered invalid until such time as they are no longer voidable (Marriage Act, s 88D(4)). This means that a Filipino whose marriage remains voidable in the Philippines could legally marry in Australia. An example would be someone who married under the age of 21 without parental consent, and either has not yet turned 21 or did not live with the spouse after turning 21. No Court order is necessary in Australia, but would be required in the Philippines.

But Filipino law contains an even more complicated idea than the voidable marriage. Under Article 41 of the Family Code, a person is free to remarry if the first spouse has been absent for four consecutive years and the person wanting to remarry has a "well-founded belief" that the first spouse is already dead. This four year period can be reduced to two years where the first spouse disappeared in certain dangerous circumstances. In any event, there must be a Court order that the first spouse is presumed dead. Where a second marriage takes place, and the first spouse then reappears, the second marriage is "automatically terminated" (Article 42).

Choices for Filipino-Australians
A Filipino or former Filipino residing lawfully in this country for more than 12 months can of course obtain a divorce under Australian law and is then free to marry in this country. As most readers would be aware, however, the Australian divorce is not recognised in the Philippines and the first marriage continues to be valid in that country. Where possible, a declaration of nullity under Filipino law can therefore have advantages.

Generally speaking, even if both of the parties to the first marriage are living permanently in Australia, the application should be lodged in the Philippines. This is not to say that Australian Courts could not be called upon to apply Filipino law to determine the marital status of someone living in Australia, say in a bigamy case, but generally they would be reluctant to do so on the principle that each country's Courts are the ones best suited to interpret their own laws.

Perhaps because it was a new ground introduced into the law, the legislature decided to limit the availability of Article 36 in respect of marriages contracted before the Family Code came into effect on August 4, 1988 to ten years from that date. Therefore action to declare nullity on the grounds of "psychological incapacity" in respect of a marriage entered into before that date must be commenced by August 4, 1998. An action in respect of a marriage contracted on or after August 4, 1988 can be commenced at any time.

Matters of marriage and divorce are not just private issues, even in Australia. They can have serious implications in relation to property, children, immigration and even the criminal law. It can never hurt to discuss the situation confidentially with a qualified legal practitioner.

Alternative Law

2005-08-21T23:47:00.000-07:00

In my search for MSU barpassers, I stumbled across this article. I felt a lump in my throat in reading this. Knowing that there are now new-blood lawyers seeking for betterment for the environment, and actually applying laws on protecting them and educating people makes me feel this heavy pull in my heart to make want to go back and finish what I started a few years back.

Alternative law, anyone?
Posted: 6:58 AM (Manila Time) | Jun. 20, 2004
By Rex Godinez Ortega
Inquirer News Service

THERE is no money in alternative lawyering.

Besides, what respectable lawyer would trade his barong tagalog and attaché case for a backpack and a ride on a habal-habal (an improvised motorcycle transport with extended seats) to far-flung places just to go to work? It's hardly the ideal picture of a lawyer that people have in mind.

But for alternative lawyers in Mindanao, money and glamour are not everything.

To this unique breed of lawyers, saving the environment and empowering the disadvantaged are more important -- and summer sees them working hard to win the hearts and minds of law students.

Lying just under the shadow of all the writers' workshops that blossom in the country during summer is the little-heard-of Alternative Law Groups' Summer Internship Program (ALGSIP) for law students.

Held from April to May, the ALGSIP helps law students choose the right career paths for them to take as lawyers in the future and provide them opportunities to bond and have a great time.

Lawyer Normita Batula of the Cagayan de Oro-based Balay Alternative Legal Advocates for Development in Mindanaw (Balaod-Mindanaw) said the internship program introduces law students to alternative lawyering.

Balaod-Mindanaw, the Legal Rights Center (LRC) and the Pagadian City-based Environmental Legal Assistance Center (Elac-Mindanaw) held the ALGSIP for the Northern Mindanao cluster for 24 interns from seven law schools.

Seventeen of this year's interns came from the Mindanao State University's College of Law in Iligan City, Liceo de Cagayan University in Cagayan de Oro City, and Urios College in Butuan City.

Four interns from the San Carlos University and San Juan Recoletos in Cebu City, San Agustin University in Iloilo City and La Salle Bacolod joined the Northern Mindanao cluster.

The program opened the eyes of participants to women issues, the plight of the poor, the indigenous peoples and the environment. It showed them a different side to lawyering -- one that is not so high profile but noble nonetheless.

LRC intern Eric Talja, a law student from Urios College, described his immersion with the Higao-nons in the hinterlands of Naawan town, Misamis Oriental province: "Out there you are forced to learn the law since that is what you use to help the people."

Talja also said that there was no other place in the country where he felt the need for social justice more acutely than in the charming hills overlooking the beautiful Macalajar Bay.

"I am aware of the injustices committed against indigenous peoples and the poor but it is truly different when one ... sees it face to face," said the 30-year-old former bank officer.

Balaod-Mindanaw intern Audrey Abamonga of Liceo de Cagayan University shares Talja's sentiments saying what she saw in her immersion in a town in Negros Oriental province opened her eyes to the ever widening chasm between the landed rich and the dirt-poor peasants.

The 23-year-old Abamonga said she was moved by the poverty of peasants who until now are still fighting for their benefits under the Comprehensive Agrarian Reform Program (CARP).

It was while Abamonga was helping document cases of abuse there that she heard her "calling."

"This experience has shown me that I can be in a position to help these people; and when I become a lawyer in the future I really will help them."

Another intern who also heard his "calling" is MSU-College of Law student Margarito Pacilan who entered law school because it was the "most economically profitable."

"Now, I don't even think of the money," swore the 25-year-old Elac-Mindanaw intern who was dismayed to learn -- first hand during the internship -- that even judges were ignorant of environmental laws, "especially the new laws." But no matter the personally-fulfilling and heart-warming perks of alternative lawyering, its reputation as a cash-strapped profession still remains a stumbling block for most law students.

Alternative law groups are trying to address this by establishing links with law schools in Northern Mindanao.

Lawyer Jennifer Ramos, Elac-Mindanaw area manager, and a former law student intern herself of the Ateneo Human Rights Center in 1999, said the internship program is their way of finding new blood for alternative law.

"Lawyers have to find their mission in life. This is ours," she said.

Torts

2005-08-21T23:22:00.000-07:00

Torts Rules of Law
The following contains the Rules of Law you'll need for the Torts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Negligence
Duty
Breach
Causation
Damages
Defenses to Negligence

Negligence
The prima facie case for negligence requires:

Duty is owed to the plaintiff by the defendant
Breach of the Duty
Causation: The defendant caused the harm to occur.
Damages: The plaintiff suffers harm.

Duty
In order to hold a defendant liable for negligence, the defendant must owe a duty of reasonable care to the plaintiff. Two issues arise in terms of duty of reasonable care:

Foreseeability
Standard of Care
Foreseeability
The duty of care must be toward a foreseeable plaintiff.

Test for foreseeability: A plaintiff is foreseeable if he was in the zone of danger created by the defendant.

Standard of Care
The Standard of care that the defendant must exercise towards the plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances.

Factors to consider that may or may not modify the circumstances include:

Physical characteristics
A person who has great physical strength will be judged according to an ordinary person of great physical strength. Likewise, a weak person will be judged according to a standard of what an ordinary weak person would do.

Average Mental Ability
Everyone is judged as being of average mental ability and no accommodation is made for being extraordinarily intelligent.

Same knowledge as an average member of community
Presumed to have common knowledge about known dangers in the community.

Professionals
Professionals are judged according to other professionals in same community.

Children
Children are judged according to children of same age, education, intelligence and experience.

Breach of the Duty
In order to be held liable for negligence the action by plaintiff must fall below standard of care.

The primary issue is where to draw the line as to the standard of care. Factors to consider in drawing the line are:

Custom in the community

Violation of statute (negligence per se)
Violating a statute creates a rebuttable presumption of negligence. Defendant is presumed to be liable for negligence if he breaks a law and cause harm to the plaintiff but he can rebut that presumption by showing that there was a custom to break the law.

Res Ipsa Loquitur
Latin for "The thing speaks for itself." This doctrine draws an inference of liability because the thing that caused the accident was in the exclusive control of the defendant. In other words, it couldn't be anyone but the defendant who caused the harm.

Causation
The defendant caused the harm to occur. There are two types of causation:

Actual Causation

and Proximate Causation.

Actual Causation: Did the defendant actually cause the harm to occur? There are two different tests you can use.

"But for" Test: Ask yourself the question: "But for the defendant's actions, would the plaintiff's harm have occurred?"

Substantial Factor Test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable.

Proximate Causation: This sometimes difficult to grasp concept is actually very simple on most exams. Be sure to check with your professor but if in doubt, use the following generally accepted test:

Foreseeability Test: If harm is unforeseeable, then defendant is not held liable by reason that there is no proximate causation.

Famous Proximate Cause Case: Palsgraf v. Long Island RR. Judge Cardoza. Railroad guard pushes man who drops package. Package contains hidden fireworks that explode and cause scales to fall harming plaintiff. Illustrates that harm was not foreseeable by guard as to plaintiff so no proximate cause.

Damages
The plaintiff must suffer some harm. Two issues arise:

Was there actual harm?

Did plaintiff attempt to mitigate the harm?

Actual harm or injury: Can be shown by the following:

Personal Injury

Property Damage
Plaintiff gets Cost of repair OR fair market value

Punitive Damages
Extra damages beyond actual damage is available if the defendant's behavior was wanton and willful, reckless or malicious

Duty to mitigate: Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is not liable for damages where plaintiff did not mitigate.

Defenses to Negligence
Even if a defendant is found liable for negligence, he can argue to be relieved of or share liability because of a valid defense. Defenses include:

Contributory Negligence
In these circumstance, the plaintiff contributed to the negligent act. The defendant must prove the plaintiff was negligent using the negligence test above.

Under common law, if both parties are negligent, then the one with the last clear chance to prevent the accident is liable; otherwise both plaintiff and defendant share liability.

Assumption of Risk
If plaintiff knew the risk and voluntarily assumed the risk by engaging in the behavior then the plaintiff will be denied recovery.

Emergency Doctrine
Allows defendant to lower standard of care because an emergency required them to act rashly in order to avoid a greater harm from occurring.

Custom
Custom can be used to show that behavior was in line with the behavior of everyone else, thus resulting in no breach. E.g. Everyone drives at 50 MPH on that particular stretch of the highway even though it is posted at 30 MPH.

Torts Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Negligence issues. If necessary, review the Torts Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.

Torts Fact Pattern
David is driving 25 MPH in 25 MPH zone down a four lane street where there are children playing. One nine-year-old child, Kevin, runs into the street chasing a soccer ball. David, without looking over his shoulder, swerves into the other lane to avoid Kevin and in the process he hits a car, driven by Peter, that was speeding past him in the left-hand lane going in the same direction.

Peter loses control of his car, hits a telephone pole and is seriously and permanently injured. The telephone pole, owned by the local phone company TeleCo, easily snaps into two pieces and hits Kevin, who is still in the street, knocking him unconscious and resulting in permanent injuries.

TeleCo never did any testing of its poles to establish how easily the poles broke. The only factor used in manufacturing the poles was cost. The poles were made of low quality trees and were not treated in any significant manner except for a coating of tar. No reinforcement was used on the poles.

Question: What are the various liabilities and rights of the parties involved?

Once you have completed the practice exam in the time allotted, then compare your answer with this Torts Sample Answer.

Torts Sample Answer
The following is a sample answer to the Torts Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Torts Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

The injured individuals can seek damages based on a theory of negligence. I will examine the potential liability of each party in turn. The prima facie case for negligence is established by showing a duty of reasonable care, breach of the duty, actual and proximate cause and damage.

Peter v. David
Although David may have breached a duty in not looking when changing lanes, he has a defense in the emergency doctrine. To prove negligence, Peter has the burden to prove that David had a duty to drive more carefully. One theory would be that David should drive slower than the speed limit when kids were present. Evidence of breaking the law is automatically considered a breach of a duty, but not breaking the law doesn't necessarily establish that a breach didn't occur. All of the facts and circumstances must be considered. Since 25 MPH is a standard speed limit for residential areas where kids normally play, I don't think that David had a duty to drive slower.

David, however, probably breached a duty of care by not looking before he changed lanes. A reasonable and prudent person would naturally look before changing lanes. Here, however, David can claim two defenses. First, he can claim contributory negligence since Peter was speeding. (See below for an analysis of Peter's liability.) Second, David can claim the emergency doctrine. Since his swerving into the lane avoided an accident with Kevin, he was justified in making the split-second decision to swerve. I think that under the duty of reasonable care analysis, David acted with the care of an ordinary and prudent person under the circumstances of an emergency. Therefore, David will probably not be found negligent in regard to Peter's claim. Even if he is found negligent, David's liability is limited if Peter is found to be liable for contributory negligence.

Kevin v. David
As to Kevin's claim of negligence against David, it is arguable that David's action was the cause of the injury that occurred to Kevin. Under the "but-for" standard of review, if he hadn't swerved into the other lane, he would not have sent Peter's car crashing into the phone pole. However, Kevin's claim against David probably loses on the issue of proximate cause. Proximate cause limits the liability of David to those risks that were foreseeable. Here, I don't think that a telephone pole snapping in half and falling on top of a kid is a likely result from swerving into another lane in order to avoid the kid in the first place. It is as improbable a result as that in Palsgraf. David is probably not liable for negligence in regard to Kevin's injuries.

Kevin, David v. Peter
Both Kevin and David can state a claim against Peter for their damages as a result of Peter's negligence in driving over the speed limit. Peter is liable under the theory of negligence per se since he was over the speed limit. Breaking the law - such as posted speed limits - creates a rebuttable presumption of negligence and doesn't require further analysis. Peter can rebut the presumption of negligence by showing it was the custom to speed on that street; however, the fact that children were present would go to show that Peter had a duty of care to ignore the custom and slow down under those circumstances.

Peter can also argue contributory negligence against both David for swerving and Kevin for running into the street. While David was not judged to be negligent for, I don't think his claim for damages to his car will survive. Peter's claim of contributory negligence against David is valid since David had a duty to look before changing lanes. Although the emergency doctrine relieves David of liability, it does not confer liability on Peter. David, or his insurance company, will probably have to pay damages on David's car.

Kevin will be judged by the standard of what a reasonable and prudent nine year old would do when playing games in his own neighborhood. The neighborhood represents safety in Kevin's mind, thus an exuberant nine-year-old might feel safe enough to run in the street. Even so, most kids are taught at an early age to look both ways before crossing the street. I think it is likely that Kevin, or his parents, will bear some responsibility for Kevin's injuries since he did not belong in the street.

Peter's strongest defense against Kevin's claim is to argue - as David did above - that the injuries arising form the telephone pole were not foreseeable and therefore the damage is too attenuated for Peter to be held liable. Here, it is less clear. The casual connection is closer than it was with David. I think that it is foreseeable that when someone is speeding they might lose control and damage would result from that loss of control. While the pole snapping was not foreseeable, the risk of some type of harm coming about was foreseeable. It is not necessary to show that a specific harm was foreseeable as it is that some harm was foreseeable. I think Peter will be liable for some measure of Kevin's damages.

Kevin v. TeleCo
Although it may not have been foreseeable for this accident to happen, I think that TeleCo is probably liable to Kevin for damages. Here, TeleCo was under a duty of reasonable care since it knew that its telephone poles would be placed along the sides of roads. It was foreseeable that a car might hit a pole with sufficient force as to knock the pole down. Since the poles are commonly placed in neighborhoods, it is reasonable to conclude that a pole might fall on someone.

Despite its duty to protect against potential harm, TeleCo did not do any testing to determine the danger involved in falling poles. Furthermore, it did nothing to mitigate the danger by seeking to reinforce the pole with metal strips, to sink poles deeper in the ground or buy a harder type of wood. The only factor that TeleCo thought was relevant was keeping its costs down. Consequently, I think that TeleCo's failure to seek alternatives was a breach of its duty of care.

Under a causation analysis, the breach was both a direct and proximate cause of Kevin's injuries. But-for TeleCo's breach, Kevin's injuries would not have occurred. Furthermore, it is foreseeable in a car accident where a pole falls, that an innocent bystander will get hurt. Since Kevin has shown damages, I think that TeleCo will probably be found negligent and liable for damages.

Property

2005-08-21T23:19:00.000-07:00

Property Rules of Law
The following contains the Rules of Law you'll need for the Property Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Duty to Deliver Possession
Duty to Pay Rent
Implied Covenant of Quiet Enjoyment
Constructive Eviction
Implied Warranty of Habitability
Duty to Repair - Permissive Waste
Surrender and Acceptance

Duty to Deliver Possession
Majority View:
Landlord is under a duty to deliver actual possession of the premises to the tenant when the term of the lease begins. Failure to do so puts the landlord in breach and subject to damages. Tenant may recover costs to find housing during the term she cannot inhabit the premises and any business losses that may have occurred because of the holdover tenant.

Minority View:
It is the responsibility of the tenant to evict the holdover tenant. The landlord merely has to transfer the legal right for the tenant to have possession and not actual possession.

Duty to Pay Rent
Tenant has a duty to pay rent for the entire lease term according to the provisions of the lease as to amount and when the rent shall accrue.

If a tenant is in breach of the duty to pay rent, then at common law, the landlord has a right to sue for damages but collect only that amount which is in arrears. However, the modern view is to allow the landlord to sue for both damages and evict the tenant.

The duty to pay rent may be overcome by a breach by the landlord.

Implied Covenant of Quiet Enjoyment
Every lease has an implied covenant of quiet enjoyment, whereby the landlord (or someone with paramount title) promises not to interfere with the tenant's possession or quiet enjoyment of the property. Interference with quiet enjoyment occurs when the there is a total eviction, partial eviction or constructive eviction.

Constructive Eviction
A constructive eviction occurs when the following occurs:

The landlord does not provide a service he obligated to provide or acts in some way that causes injury to the premises.

The conditions as a result of the above make the premises uninhabitable such that there is substantial interference with the tenant's quiet enjoyment of the property.

The tenant abandons the premises within a reasonable time after the covenant is breached.

Implied Warranty of Habitability
The majority of states impose a rule on landlords for residential rental property that leased premises are reasonably suitable for residential use - i.e. heat, hot water, no flooding, etc.

The remedy is for the tenant to:

Move out and terminate the lease.

Stay on property and sue for damages.

Duty to Repair - Permissive Waste
Generally, a tenant does not have a duty to make major repairs on the premises unless they are required to do so under the lease. However, under the doctrine of permissive waste, a tenant has a duty to inform the landlord of situations where major repairs are needed in order to prevent damage to the premises by the elements - such as leaky roofs, broken windows, potential flooding. Failure to do so makes the tenant liable for damages to the premises but not for the cost to repair the problem.

Abandonment, Surrender and Acceptance
At common law, when a tenant abandons the premises, he is still liable for the rent for the entire term of the lease even if the landlord does nothing to attempt to relet the premises. However, the majority of states now require that the landlord make reasonable efforts to mitigate the damages by attempting to relet the premises. Successfully reletting the premises does not remove the liability of the original tenant for the costs of reletting and for the time in which the premises stood vacant.

Tenant may also avoid liability for rent if it can be proven that landlord has accepted surrender of premises by re-entering and occupying the premises himself. Entering to make repairs after abandonment does not usually constitute acceptance the surrender.

Property Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Landlord-Tenant issues. If necessary, review the Property Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.

Property Fact Pattern
Theresa was about to start her first year of law school in a new city. While visiting the school in June, she entered into a one-year lease for an apartment with Larry, a landlord. The lease stated that rent was to start on September 1 and that rent of $500 was due at the first of each month.

Theresa showed up at the apartment on September 1, having already paid the first month's rent, with a rental truck loaded with her furniture but she was unable to move in because Harry was still living there. Theresa immediately called Larry and informed him of the situation. Larry said, "It's not my problem." Theresa checked into a motel and kept her furniture in the rental truck incurring additional charges on the rental truck. Two weeks later, Harry moved out of the apartment, and Theresa moved into the apartment on September 15.

On October 15 just as the weather began to turn cold, L turned off the heat and hot water to the apartment because T had not paid her rent on October 1. T insisted that L owed her for the two weeks in September that she was unable to live in the apartment. On investigating the lack of hot water, T noticed that the roof leaked. She did not inform L about the leak. T had to pay for a gym membership to take a hot shower every day.

On November 15, Theresa had become disgusted with the cold water and moved out of the apartment without ever having paid October or November rent. She immediately informed Larry of her reasons. Larry didn't do anything until December 1 when he finally inspected the apartment and discovered the leak. During the period of November 15 to December 1, there had been substantial rains and the leak caused considerable damage to the apartment. Larry fixed the leak and hot water, and put a one-line ad on the Internet looking for a tenant. The ad cost Larry $10. No one rented the apartment until February 1.

Question: What are the rights and obligations of both the Landlord and the Tenant?

Once you have completed the practice exam in the time allotted, then compare your answer with this Property Sample Answer.

Property Sample Answer
The following is a sample answer to the Property Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Property Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

The rights and responsibilities of the two parties can be best understood by breaking them into three periods of time.

From Date that Lease Term Begins to Date Tenant Begins Occupancy
(September 1 to September 15)
The primary issue is whether Larry (L) had a duty to deliver actual possession of the property to Theresa (T). The applicable rule depends on the jurisdiction. The majority view is that the landlord must deliver the premises to the tenant at the beginning of the leasehold term. Failure to do so means that the landlord is in breach. Under the majority view, L had a duty to evict H in order for T to gain possession. Since the holdover tenant, Harry (H), prevented T from gaining possession, L would be in breach of the lease and be liable to T for the cost of the motel and other reasonable expenses such as the cost of rental van during the two weeks she did not occupy the apartment.

The minority view is that it is up to T to evict H to gain possession. Consequently, under this view, T is liable to L for rent even though she cannot occupy the apartment. L has no liability or duty to T under this rule.

From Date Tenant Begins Occupancy to Date Tenant Abandons Premises
(September 15 to November 15)
The issue is whether L's affirmative act of turning off the hot water and heat in retaliation for T's failure to pay was either a constructive eviction or a breach of the warranty of habitability sufficient to relieve T of her duties under the lease.

T has a duty to pay rent under the lease. Even though L may have been liable for two weeks worth of living expenses in September, T would probably have to seek a judgement in a court of law to get those expenses. Since T did not pay rent on October 1, L's remedy under the common law is to sue for the rental payment. Under the more modern view, L could sue for both the amount of rent due and to evict T. T owed L $500 on October 1 and another $500 on November 1. However, those duties may be mitigated by L's failure to provide necessary services.

However, under all leases there is an implied covenant of quiet enjoyment. The landlord can engage in no act that prevents the tenant from quietly enjoying her tenancy. Thus, the landlord must provide for services that make the residential property habitable. Alternatively T also has a theory to limit her liability for rent under the implied warranty of habitability.

Under the quiet enjoyment theory, T will argue that a constructive eviction occurred. T can argue that she can properly terminate the lease and seek damages (at very least, the cost of the gym membership to take the shower) because the landlord acted to make the premises uninhabitable by turning off the heat and hot water. In a cold climate, turning off the heat and hot water is considered by most reasonable people to make the apartment uninhabitable.

However, L can argue that since T stayed in the apartment for a month, she did not vacate within a reasonable time and therefore waived her right to terminate the lease. He will further argue that proof of her being bale to take a shower at the gym goes to show that the premises were not uninhabitable. L can also argue that changing the condition was in the hands of T. She could have had hot water and heat merely by paying her rent. This argument will probably not hold up under close scrutiny. One month is not a long period of time given the circumstances. With winter approaching and the coldest weather still ahead, T could argue that she waited a month because she felt that she might be able to reason with L to turn on the heat and that she only moved once it became clear that redress was not available. Consequently, T can probably terminate the lease and seek damages for the cost of her showers at the gym and the loss of quiet enjoyment of the property during the period she went without heat or hot water (October 15 to November 15).

If T does not prevail under a constructive eviction theory, she can alternatively pursue redress under the theory of implied warranty of habitability, which gives a broader footing to tenants. Under this view, L had a duty to maintain the apartment in a habitable state. The standard is usually the same as the local housing code. To the extent that the jurisdiction requires hot water and heat, T has rights and can seek a remedy for breach of those rights. T can either move out and terminate the lease or reduce or abate the rent to an amount that is equal to the fair market value of the apartment without heat or hot water. Since T moved out, she might seek an offset of the rent she owed for the period of October 15 through November 15.

During this time period, however, T had a duty to report the leaky roof to L. Under the doctrine of waste, T had a duty to prevent permissive waste. Most leases do not require tenants to make substantial repairs, such as repairing roofs. However, T did have a duty to report the leaky roof. Her failure to do so made her liable for any subsequent damage but not for the cost of repair. To the extent that T was still under the lease when the damage was done, she will be liable to L for any of that damage. T will argue that the substantial damage was done after the lease was terminated on November 15. To the extent that her theory survives, she will not be liable.

From Date Tenant Abandons Premises to End of Lease Term
(November 15 to August 31)
If T prevails under either of the above theories, then she does not owe L rent for any time after she abandoned the premises on November 15.

If T does not prevail under a constructive eviction or breach of implied warranty of habitability, then she must pay L rent for the entire lease period subject to the state's rules on abandonment.

Under the traditional common law view, L can let the apartment lie idle for the entire rental period. However, most jurisdictions require the landlord to make reasonable efforts to mitigate the damages by trying to rent the apartment out to another tenant. Here, L made the premises ready on December 1 and put a one-line ad on the Internet. L's duty to mitigate is met to the extent that putting a one-line ad on the Internet would reasonably alert potential renters to the availability of the apartment. The fact that no one rented the apartment until February might indicate that his efforts were not reasonable; however, L will argue that the holidays made renting the apartment more difficult and that any greater effort would not have yielded better results.

T's liability for future rent may also depend on whether L has accepted her surrender of the premises. T can argue that L's act of turning on the hot water, repairing the roof and reletting the premises meant that L resumed possession of the premises and those acts constitute acceptance of surrender. However, most jurisdictions hold that merely making repairs and attempting to re-rent the premises is not enough to constitute acceptance. Thus, if T was still under the lease, she would be liable for any month where there was not a tenant present in the apartment as well as the cost of the Internet ad since that expense was not incurred but for her abandonment of the premises.

Criminal Law

2005-08-21T23:15:00.000-07:00

Criminal Law Rules of Law
The following contains the Rules of Law you'll need for the Criminal Law Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Conspiracy
Rape
Attempted Rape
Murder
Accessory After the Fact

Conspiracy
A person is guilty of conspiracy if:

Two or more people agree to commit a crime, and

the people intended to enter into the agreement, and

at least one of the conspirators commits some overt act (such as some act of preparation) that furthers the conspiracy.

NOTE: A party is guilty of conspiracy when these elements are satisfied. The actual crime does not have to occur in order to hold someone accountable for conspiracy.

NOTE: A conspirator is guilty of all the crimes that his co-conspirator commits that 1) further the conspiracy and 2) were foreseeable.

Defense to Subsequent Crimes

Withdrawal
A person who is guilty of conspiracy does not have a valid defense if they withdraw, however, he has a valid defense to the subsequent crimes of the conspirators if he does the following:

engages in an affirmative act, and

the affirmative act gives notice to all co-conspirators that he is withdrawing, and

the co-conspirators have enough time to halt their plans to commit the crime.

Rape
Common Law rape is present if the following elements occur:

sexual intercourse between a female and a male, who is not her husband

AND the female does not consent.

Lack of consent is present where

the intercourse occurs by force or

the intercourse occurs by threats of force or

the female is unable to consent because she is unconscious

Attempted Crimes
A person can be charged with an attempted crime (such as "attempted rape" or "attempted murder") even though the criminal did not complete all of the elements necessary to make the person guilty of the actual crime.

The following must occur for a person to be guilty of an attempted crime.
Criminal shows intent to commit a crime, and

the criminal comes dangerously close to successfully completing the crime but somehow does not complete all of the required elements.

Murder
Murder occurs when the following elements are satisfied:

killing of a human being

with malice aforethought.

Malice aforethought exists if any one of the following states of mind exists in the person committing the act:

intent to kill, or

intent to cause substantial injury, or

reckless indifference to risk that a person may die, or

intent to commit a felony (See felony murder).

Felony Murder
A criminal is guilty of felony murder if a death occurred while the criminal committed or attempted to commit a felony that is inherently dangerous.

An inherently dangerous felony includes any one of the following:

Arson
Battery
Burglary
Kidnapping
Mayhem
Rape
Robbery

Accessory
Someone who does not actually commit a crime may be guilty as an accessory after the fact if the following elements of the crime are met.

Must have knowledge that a felony has been committed.

Must aid or assist the felon in some way.

The purpose of the aid must be to help the felon escape from the authorities.

Criminal Law Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 90 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of Rape, Murder and related issues. If necessary, review the Criminal Law Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Criminal Law Sample Answer.

Criminal Law Fact Pattern
Five male university students (Abe, Bob, Chris, Dan and Edward) were on Spring Break. They met a young woman named Mary who they lured back to their hotel room. The guys made repeated sexual advances to Mary. She rebuffed the sexual advances from all of the students except for Dan. Mary said she would have sex with Dan but not with the others.

Abe said, "If Mary isn't willing to have sex with all of us, then we'll have to force her. Are you guys with me?" Bob nodded his assent. Chris, Dan and Edward just stood there and did not respond. Mary objected and said she wanted to leave. Abe locked the door so Mary couldn't get out.

Bob suddenly had a change of heart and said, "I'm not going to go through with it, and I think all of you should stop as well." At that point, Bob left the hotel room and went to his own room, but didn't do anything further.

Abe then forcibly held Mary down and proceeded to have intercourse. Chris, who was very drunk, then said "I'm going to force her to have sex with me too." He took his clothes off and got up on the bed. However, before he actually had intercourse with Mary, Chris passed out from the alcohol. In relief that she wouldn't be forced to have sex again, Mary passed out.

Dan decided that since Mary had said she wanted to have sex with him, it was OK and he proceeded to have sexual intercourse with the unconscious Mary. After Dan had sex with Mary, Mary woke up and started screaming. Afraid that someone would hear the screaming Mary, Abe choked her until she was dead. Edward just watched the whole time and said and did nothing.

After Mary died, Abe, Chris and Dan went to Bob's bedroom. Edward went back to his bedroom and did nothing. Abe, Chris and Dan told Bob everything that had happened. Bob said that Abe, Chris and Dan could spend the night in his room so that they wouldn't be found with the dead body. The next morning, the police found Mary and arrested all five students.

Question: What crimes are the students guilty of? Are there any possible defenses?

For purposes of this question, consider battery and assault to be lesser-included offenses under the greater charge of rape. Also, do not cite cases or precedent for this question. In your actual exam, you may want to cite cases depending on what your professor wants. However, because casebooks vary widely between schools, we have not included cases in the sample answer or analysis.

Once you have completed the practice exam in the time allotted, then compare your answer with this Criminal Law Sample Answer.

Criminal Law Sample Answer
The following is a sample answer to the Criminal Law Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Criminal Law Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

Conspiracy
The agreement to commit rape gives rise to the issue of whether any of the students are guilty of conspiracy to commit rape.

The common law rule for conspiracy requires that two or more people actually agree and intend to agree to commit a crime and that one conspirator commits some overt act in furtherance of the conspiracy.

Here, A asked whether the other men would forcibly have non-consensual intercourse with a woman who was not their wife, which is the definition of common law rape (see below). B agreed by nodding his head. If any of the defendants had intended to just play along, then the intent element required for conspiracy would be absent and the party would be not guilty of the charge. However, there is nothing shown on the facts to suggest that any of the defendants had a different intent than that which their words and gestures showed. When A actually locked the door of the room, this was an overt act, which prepared for the crime. These elements, taken together, are sufficient to make A and B guilty of conspiracy without any further action on their part. Since C, D and E never agreed, they are not guilty of conspiracy.

B effectively withdrew from the conspiracy because he engaged in an affirmative act that gave notice to the other conspirator - A- that he was withdrawing and there was enough time for A to halt his plan to rape Mary. While this does not provide B with a defense for the conspiracy charge, it does give him a defense against the charges of subsequent crimes by A.

Rape
The next issue is whether any of the students are guilty of rape.

The rule on common law rape requires sexual intercourse between a female and a male, who is not her husband, and where the female does not consent. The lack of consent can be shown if the intercourse occurs by force, threats of force or if the female is unable to consent because of unconsciousness.

Here, A and D are both males who had intercourse with Mary, a female, who was not the wife of any of the guys. B, C and E never had intercourse with Mary and thus are not guilty of rape.

Mary showed a lack of consent to have sex with A before the actual conspiracy began. She again showed her lack of consent when she objected as the conspiracy began. Finally, the mere use of force in A's case showed that there was no consent.

In the case of D, the issue is not as clear cut. Although she had agreed to have sex with D prior to the conspiracy, the fact of the conspiracy, false imprisonment and rape by A would probably result in any reasonable person changing their mind. Furthermore, since she was in a state of unconsciousness, this manifests a lack of consent under the law. While D may have a defense of consent, it all likelihood, he is also guilty of rape.

Attempted Rape
The issue is whether C is guilty of attempted rape.

Under the common law, a defendant is guilty of an attempted crime when the criminal shows intent to commit a crime and comes dangerously close to successfully completing the crime.

Here, C showed his intent to commit the crime of rape by stating that he intended to force Mary to have sex. He came dangerously close because he took his clothes off and got on the bed until he finally passed out. Although he never actually had intercourse with Mary and thus is not guilty of rape, he came quite close to completing the crime and thus can be charged with attempted rape.

Murder
The next issue is whether any of the defendants is guilty of murder.

Common law murder requires a killing of a human being with malice aforethought. Malice aforethought exists if there is intent to kill, intent to cause substantial injury, reckless indifference to the risk that a person may die or intent to commit a felony.

Here, Abe choked Mary, another human being, until she was dead. Malice aforethought is shown because Abe's choking Mary was, at very least, reckless as to the risk that a person will die. It is common knowledge that cutting off the air to a person by choking him may cause him to stop breathing and die. Abe has no reasonable defense under these circumstances. If a jury finds that he was not reckless, then he can be brought in under the felony murder rule.

Common law felony murder exists if a death occurred while a criminal committed a felony that is inherently dangerous. Rape is considered an inherently dangerous felony.

Since A and D both committed rape and Mary died while still within the time and place of the crime, both are guilty of felony murder. It is less clear whether attempted rape is an inherently dangerous crime and whether C would also be guilty of felony murder. Here the issue probably hinges on intent. In Felony Murder, malice is inferred from the intent to commit the underlying dangerous felony. Since C intended to commit the crime of rape, malice should be inferred to the same degree that it is in the case of A and D. Therefore, following that theory, it was as if C had actually committed the rape and therefore would be guilty of the crime of felony murder.

Since B withdrew from the conspiracy, he is not responsible for the crimes of his fellow co-conspirators and therefore is not guilty of felony murder or murder.

Accessory to Rape and Homicide
The issue is whether B is guilty as an accessory after the fact to rape and murder.

The common law rule on accessory after the fact requires that a defendant have knowledge that a felony was committed and aided or assisted the felon in some way to avoid being caught by the authorities.

Here, B knew of the crimes because A, C and D told him. Because he let them stay in his room in order that they wouldn't be found with a dead body, one can reasonably conclude that he was helping them escape detection by the police. Thus, B is guilty of being an accessory after the fact to rape and homicide.

It should be noted that E had no part in any of the crimes. Although he was a witness to the events, that does not make him guilty of the crimes since he neither acted nor showed any intent to act. Furthermore, he was not an accessory after the fact because he did not aid in the others escape. He went to his own room after the events. Although an argument could be made that he complied in the crimes, there is no actus reus that suggests he could be found guilty for any of the crimes.

Contracts

2005-08-21T23:11:00.000-07:00

Contracts Rules of Law
The following contains the Rules of Law you'll need for the Contracts Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

Uniform Commercial Code (UCC) 2-102
Uniform Commercial Code (UCC) 2-302
Unconscionability
Procedural Unconscionability
Substantive Unconscionability

Uniform Commercial Code (UCC) 2-102
Contracts for the sale of goods should be interpreted by the UCC.

Uniform Commercial Code (UCC) 2-302
If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made, the court may refuse to enforce the contract....

Unconscionable Contracts
Courts that find any contract or clause to be unconscionable at the time it was made can refuse to enforce the contract or limit the application of an unconscionable clause to avoid an unconscionable result.

Unconscionability requires two elements, both of which must be present in order to make a contract invalid - procedural unconscionability and substantive unconscionability. In applying element, a sliding scale allows for a greater degree of one factor and a lesser degree of another to result in a finding of unconscionability.

Procedural unconscionability may be shown by either:

Inequality in Bargaining Power
Evidence of inequality in bargaining power can be shown by 1) terms unreasonably favorable to other party, 2) terms that are hidden in the contract, and 3) a plaintiff with a lower education.

OR Unfair Surprise
Evidence of unfair surprise is shown by hidden terms in a prolix document.

Defense: Although procedural unconscionability may be present, this element can be defeated if the complaining party had other sources of supply at a price, which was not unconscionable.

Substantive unconscionability may be shown by:

Overly harsh allocation of risks or costs not justified by the circumstances.

Great price disparity
Three to four times the fair market value is considered to be a great price disparity.

Contracts Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 30 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of unconscionable contracts. If necessary, review the Contracts Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Contracts Sample Answer.

Contracts Fact Pattern
Fast Eddie is the only car dealer in the west end of Anytown. The west end is in the slums and has a high crime rate. Eddie sells junkers with a high mark up -- typically twice what a similar car would cost in the north end where there are three car dealers.

Fast Eddie has just bought a brand new electrified fence at a substantial cost and hired several security people with attack dogs to patrol his lot at night. Up until the new security measures, one out of three cars had been stolen off of his lot. "The security cost me a bundle," Eddie says, "but I bet I'll only lose one out of six of these junkers now."

Only one bus drives through the west end and makes only two circuits. It picks people up at 10 am and drops them off in the north end at 11 am. It starts from the north end at 3 PM and drops them off in the west end at 4 PM. There are no other buses. There is no way to reasonably walk out of the west end. You either take the bus or have a car.

Laura is a welfare mom. She dropped out of high school to have her baby. Laura is about to lose her welfare money as part of the new welfare-to-work program. She has secured a job in the north end which pays her $1000 a month after taxes. She must report to work by 9 am each day and stay until 4 PM or she will lose the job. There are no taxis willing to go to the west end.

Laura goes to Fast Eddie to buy a car. He offers her any car on the lot for $2400, which is approximately twice the cost of the same vehicle if you bought it in the north end. She tries to negotiate with Eddie, but he brushes her off by saying, "It's part of my 'No Haggle Policy'. One price for everything -- $2400. Take it or leave it. Here's the contract."

The terms are that Laura can pay off the $2400 over the course of a year in 12 equal installments, or $200 a month. If Laura defaults on any payment then Eddie gets to repossess the car and keep all of the payments. Laura's expenses are $750 a month, which Eddie is aware of. The interest rate on a good loan in this city would be 20%.

Laura reads the contract, but doesn't understand the part about keeping all of the payments and repossession. She's desperate for a car, however, so she signs an agreement to these terms and buys the car. She starts work and everything goes well until the 11th month when her baby gets sick. Laura has to pay the doctor and misses a payment on the car. Eddie repossesses. Laura loses her job, gets evicted from her apartment and ends up in a homeless shelter where her baby gets even more sick because of the drafty conditions. Laura's boss says that if she can get the car for transportation, then she gets her job back.

Question: Does Laura have a remedy under a theory of unconscionable contracts?

Once you have completed the practice exam in the time allotted, then compare your answer with this Contracts Sample Answer.

Contracts Sample Answer
The following is a sample answer to the Contracts Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Contracts Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

This problem raises the issue of whether the agreement between fast Eddie (Ed) and Laura (L) should be enforced or instead should either be modified or rendered void because it was unconscionable.

This agreement should be interpreted by the relevant provisions of the UCC because it involves the sale of goods. (UCC 2-102). Normally, bargains are enforced according to their terms. However, courts may choose not to enforce contracts, which they deem unconscionable. (UCC 2-302). The case law states that unconscionable contracts have two major elements -- procedural and substantive -- and that both elements must be established to prevail on this defense. Traditionally courts have applied a "sliding scale" analysis to unconscionability claims: the greater the procedural unconscionability, the less the plaintiff must show substantive unconscionability and vice versa.

L could prove procedural unconscionability in one of two ways. She could demonstrate that there was unfair surprise in the bargaining process or she could show that there was an inequality of bargaining power, which left her no meaningful choice. Per the former, L's argument would be that she didn't understand the contract provisions regarding what would happen should she default. Her argument is bolstered if we assume, as the facts suggest, that she has little formal education and that Ed didn't explain the default provision (he only said "Here's the contract."). Courts often consider the plaintiff's lack of education, the technical wording of the default clause and the fact that the clause was buried in fine print in holding that there was procedural unconscionability.

Ed's best argument would be that L read the contract and should reasonably have known what she was agreeing to. Ed could bolster his case by showing that the default clause was written in plain English and was prominently located in the contract. A court armed with these facts could well find for Ed. However, the facts we have lead me to conclude that L could likely establish unfair surprise.

L has a strong case that she had no meaningful choice in this decision. Ed was the only car dealer in the West End, L needed a car to get to work, and L had to work in order to survive. Ed's response would be that L didn't have to accept employment, which required a car and that she could have gone to the North End to buy a car. This is a situation where more facts would be helpful in establishing the merits of each side's arguments. If we assume, however, that L did job-hunt and that this job best fit her needs and qualifications, she would have a strong case.. Here, L could establish that she tried to find other work before settling on this position. Further, it is possible that a dealer in the North End would not have sold L a car because she was a poor credit risk. Therefore, she may not have had a choice in car dealers. Again, this is a close call but on these facts I would conclude that L has a better-than-even chance of prevailing on this prong of the procedural unconscionability analysis.

Substantively, L will have difficulty establishing unconscionability, at least with respect to the purchase price. The basic rule is that a contract is substantively unconscionable if involves an overly harsh allocation of risks or costs. L's argument is that the car cost twice what it did in the North End. However, Ed can make a strong case for his pricing scheme. His security costs are presumably greater than those dealers must bear in the North End. The facts state he had to install an expensive fence and hire security guards and that despite these measures, one out of every six of his cars will still be stolen. Ed may also have a lower sales volume than dealers in the North End because his shop is located in a poor community. Further, he does not require full payment up front. Given that interest rates in the city hover around 20%, the effective price of the car is $2000. This price may be justified given his costs and sales volume.

L can make a better case that the default clause which allowed Ed to repossess the car and keep all payments previously tendered is unconscionable. Ed was fully aware of L's precarious financial position. This clause smacks of bad faith and I believe it likely that a court would render this provision void. Alternatively, it might, as allowed under the UCC, modify the arrangement so that L could be given additional time to make the last two payments plus pay additional interest at the prevailing rate until she does so.

In sum, L can probably show that the default provision of the contract was both procedurally and substantively unconscionable. I think the price would stand but that the court would either allow her additional time to make the payment or would have her return the car and receive most of her money back.

Civil Procedure

2005-08-21T23:08:00.000-07:00

Civil Procedure Rules of Law
The following contains the Rules of Law you'll need for the Civil Procedure Practice Exam. These rules are presented in outline form only for purposes of the practice exam.

NOTE: Some rules are stated with elements that must be proven. Other rules are just stated without being broken into elements. In the latter case, you should figure out what the elements of the crime are yourself and incorporate that into your answer.

In personam jurisdiction
Subject matter jurisdiction

In personam jurisdiction
Personal, or in personam, jurisdiction is imposed over a defendant when both statutory and constitutional issues are met.

Statutory issues
The forum state must have granted power to the courts to exercise jurisdiction over the defendant. This can be done in one of four ways:

the defendant is present in the forum when served.

the defendant is domiciled in the forum

the defendant consents to jurisdiction or

the state's long arm statute provides for jurisdiction.

Constitutional Issues
In order for the court to exercise personal jurisdiction, the Due Process clause of the US Constitution requires that the defendant has maintained minimum contact with the forum state:

Minimum Contacts Test (International Shoe, Burger King)
Does the defendant have such minimum contacts with the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice?

Minimum Contacts is demonstrated by:

Purposeful availment, such that the defendant's voluntary act to reach out into the forum state was for some benefit to himself. Examples include putting goods into the stream of commerce, using the forum state's highways or taking advantage of the state's corporate law.

Foreseeability. The Defendant knew or should have known that it could get sued in the forum state.

Fair Play and Substantial Justice is a balance of the following factors:

The closeness of the relationship between the claim and the contact.

Whether it is convenient to call the defendant into the forum state.

The state's interest in protecting its citizens.

Subject matter jurisdiction
A defendant can be drawn into Federal court only if the subject matter of the claim is within its jurisdiction. There are two primary types of claims -- Federal Question and Diversity of Citizenship.

Federal Question
The complaint must find its basis in some federal law, such as the US Constitution, US Federal Law or Case Law. Citizenship is not relevant and parties can be from the same state.

Diversity of Citizenship
Diversity of citizenship cases require that the plaintiff and defendant be citizens of different states and that the amount in controversy be over $75,000.

Citizens of Different States
The parties must be of diverse citizen, such no single defendant can be a citizen of the same state as any plaintiff.

Citizenship
People: Whether a person is a citizen of a particular state is determined by domicile. Domicile is defined as presence in the state with the intent to remain indefinitely.

Corporations: Whether a corporation is a citizen of a particular state is determined by 1) state of incorporation and 2) the state where the corporation has its principal place of business.

Amount in Controversy
The claim for damages must be over $75,000 and must be made in good faith.

To reach the $75,000 limit, a plaintiff can

aggregate claims that arise from the same case or controversy

aggregate claims from different controversy if it's there's only one defendant and one plaintiff

Civil Procedure Practice Exam
Instructions:
Read the following fact pattern, and answer the question. Give yourself 60 minutes to complete this exam. Do not go over the time limit.

We recommend that you take this exam only after you have completed your study of jurisdictional issues. If necessary, review the Civil Procedure Rules of Law before starting this exam.

Once you have completed the practice exam in the time allotted, then compare your answer with this Civil Procedure Sample Answer.

Civil Procedure Fact Pattern
Peter is a model rocket hobbyist who lives in the State of X on the border with Y State. The closest shopping district next to him is in Y State. Donner Industries makes a model rocket called the A-5. Donner is incorporated in the state of Delaware and has its only place of operations in Z State. Donner does no national advertising itself and does not sell directly to stores or hobbyists. Donner sells only to a nationwide distributor in New York City. Donner provides the distributor with various promotional materials including tapes of radio advertisements that hobby stores can use to buy time on local radio stations. No hobby store in X State carries the A-5.

Peter hears the Donner-produced advertisement on a radio state broadcasting from the State of Y about the new A-5 model rocket being sold at a local Henry's Hobby Store in Y State. Peter travels from X State into Y State and buys an A-5 rocket. At his home in X State, Peter assembles the rocket correctly. Following all safety precautions, Peter attempts to launch the A-5 rocket but, due to a faulty design, the A-5 explodes causing substantial personal injury to Peter and igniting a fire that damages Peter's house. In Federal District Court in X, Peter sues Donner Industries claiming $40,000 in damages to the house, $30,000 in medical bills due to personal injuries and $10,000 in lost wages due the injuries.

State X's long-arm statute provides for jurisdiction against tortfeasors whose actions cause injury in the state of X.

You are a law clerk for the Federal District Court in the state of X, and the presiding judge has asked you to prepare a memo analyzing whether or not the case should be heard in this court. What are the issues, correct result and reasoning on whether or not this case should be heard?

Once you have completed the practice exam in the time allotted, then compare your answer with this Civil Procedure Sample Answer.

Civil Procedure Sample Answer
The following is a sample answer to the Civil Procedure Practice Exam. If you have not already done so, take the exam and then compare your answer to this sample. If necessary, you can also review the Civil Procedure Rules of Law for this exam. Since law school professors vary in what they consider excellent work, this answer is only presented as a sample.

Under the Federal Rules of Civil Procedure, a district court may hear a case only if it has both personal jurisdiction and subject matter jurisdiction.

Personal Jurisdiction
Personal (in personam) jurisdiction is imposed over a defendant when both statutory and constitutional issues are met.

From statutory point of view, one of four situations must occur to impose in personam jurisdiction. The defendant must 1) be present in the forum when served, 2) domiciled there, 3) consents to jurisdiction or 4) the state's long arm statute provides for jurisdiction.

Since Donner Industries (D) is not present in the forum of X, Peter (P) must use the state's long arm statute to reach D. X's long arm statute provides for jurisdiction over a defendant whose tortious actions cause injury in X. In this case, the underlying tort-the defective manufacture of the A-5 rocket - occurred in Z. However, since the actual injury occurred in X, the state's statute properly provides for jurisdiction.

Constitutionally, the court has jurisdiction over D only if brining D into the forum state comports with the Due Process Clause. The Due Process Clause is satisfied if the defendant meet the minimum contacts test (International Shoe, Burger King) in order that the defendant has "such minimum contacts with the forum so that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice."

Minimum contact has been interpreted by the courts as including two elements 1) actual contact and 2) fairness. Under the actual contact prong, the factors considered are purposeful availment and foreseeability. Under these facts, D could argue that it did not purposefully avail itself directly to X residents because it did not sell directly to any hobby stores or to any hobbyists in the state. Furthermore, it does not advertise, therefore D could claim that it does not try to benefit from the state's consumers, and it was not foreseeable that it would be drawn into the state's court.

P, however, has a compelling argument that by merely selling its products to a national distributor in New York City, D knew or should have known that its rockets - a potentially dangerous item by its very nature - would be put into the stream of commerce nationwide. D will counter that even if was foreseeable that it might be called into Y, it was not foreseeable that X residents would cross the border into Y. In addition, the A-5 was never sold in X, therefore D could not have foreseen an action in this forum. However, the mere fact that the rocket was advertised on a State Y radio station suggests that Henry's Hobby Store (H) was reaching across to X citizens. P will argue that given the strength of the signal of some radio stations, it was foreseeable to D that stores in one state using the D-produced advertising would reach across borders into other states. Therefore, I think that the purposeful availment and foreseeability tests for contact have been met in these circumstances.

Fairness is tested by looking at factors such as 1) how close the relationship is between the claim and the contact, 2) whether the forum is convenient and 3) the state's interest. Here the evidence suggests that it is fair to call D into court in X. The injuries were a direct result of faulty design. But for the sale of the rocket to P, the damage would not have occurred. Therefore, the relatedness factor is satisfied. The forum is arguably as convenient as Y and bears no great burden to D. Given the wide availability of nationwide flights, D will have no great burden to appear before the X Federal District Court. In addition, the sate has a great interest in seeing that its citizens are protected from faulty design in potentially dangerous products such as model rockets.

Given all of these factors, it is reasonable to conclude that bringing D within the forum is both fair to the defendant and meets the minimum contacts test, therefore in personam jurisdiction is proper under these circumstances.

Subject Matter Jurisdiction
A defendant can be drawn into Federal court only if the subject matter of the claim is within its jurisdiction. Typically, cases fall into one of two classes - federal question and diversity of citizenship. Since there doesn't appear to be any federal law impacted here, we will proceed to analyzing this case on diversity issues.

Diversity of citizenship cases require that the plaintiff and defendant be citizens of different states and that the amount in controversy be over $75,000.

In the case of citizenship, the diversity must be complete. Citizenship for a person is determined by domicile. Here, all facts point to P being a citizen of X since he lives there, presumably with an intent to remain indefinitely. Citizenship for a corporation is determined by its state of incorporation and its principal place of business. Since D is incorporated in Delaware but operates only in Z, it has dual citizenship in both Delaware and Z. Since neither the plaintiff nor the defendant are citizens of the same state, the first prong of diversity jurisdiction is met.

The amount in controversy requires that the plaintiff make a good faith allegation that the claim exceeds $75,000. Here, P has aggregated three types of damages - none of which is over $75,000. However, since the damages all relate to the same case and since there is only one plaintiff and one defendant, P can aggregate his claims against D in order to meet the jurisdictional limit. The good faith requirement merely means there is a legal basis for the assessment of potential damages. If D is found liable for the tortious act, it is reasonable to conclude that they may have to pay damages for all three of the claims since property damage, personal damage and lost wages are likely results from a rocket that was not correctly designed.

Consequently, the defendant is subject to both personal and subject matter jurisdiction and may be properly brought before the X District Court.

Lawnerds Site

2005-08-21T22:41:00.000-07:00

I have found this very useful site called Lawnerds. It aids me into practicing my brain with legal issues and some basic cases. Probably this will help me practice so when I decide to go back to law school I will have some background. Most of these are actually U.S. based cases but I am sure they are relevant in my brainstorming sessions. Just need to stretch my brain once in awhile. I also have to check if the lessons I have enrolled in Xavier University in Cagayan de Oro City and in Mindanao State University would still be valid because they actually require you to take the courses consecutively. And if you have a break, you should refresh your courses. I have been out of the country for three years now and have only refreshed it in 2003. What a pity. Most of my classmates have become lawyers already. Lots of them. I have cheked the barpassers from Xavier but I have not read any passers from MSU or from MSU Main Campus. I wonder why.

I will post the basic questions and answers here just so I can refresh my memory of the course on my own. Too bad there are no online courses for Law from the Philippine schools.

Mountaineering in Politics

2005-07-17T06:38:00.000-07:00

I like my Mountaineering egroups. Aside from mountain climbing, bantering and some other crap sometimes, some can still give good inputs such as this one.

MABUHAY ang PILIPINAS!!! (sana..)

Mag-imbestiga at Alamin ang KATOTOHANAN!

Kilalanin ang mga personalidad na nagbabatong akusasyon sa ating administrasyon at humihiling nabumaba sa pwesto si PGMA:

1. Wilfredo "Boy" Mayor

· Jueteng witness who admits to being a former operator of jueteng in the Bicol Region.
· He claims to have given Monthly Jueteng Payola to bagmen of Congressman Mikey Arroyo.
· He was an opposition candidate for Mayor inDaraga, Albay in the 2004 elections. He lost the elections.
· Mayor admits that he has no evidence to show that the money he claims to have given these bagmen went to Congressman Mikey Arroyo

2. Richard Garcia

· Jueteng witness who is a self-confessed former operator of the illegal numbers game in the Bicol Region.
· He claims to have given Monthly Jueteng Payola to bagmen of Congressman Mikey Arroyo. He admits that he has no evidence to show that the money he claims to have given these bagmen went to Congressman MikeyArroyo
· A former member of the PC-INP and a known"asset" of Ping Lacson

3. Sandra Cam

· She claims to have personally given Jueteng Payola to Congressman Mikey Arroyo and Congressman Iggy Arroyo at the Congress Session hall (whileCongress was in session)
. She claims to have deposited Jueteng Payola for former Region 5 Regional Director Gen. Restituto Mosqueda.
· Ran for Mayor in Masbate under Reforma in the2004 elections and lost.
· Has a pending illegal recruitment case and pending large-scale estafa cases
· Known in Bicol to have engaged in all possible illegal activities and to be "close" to generals previously assigned in the Bicol region. The staff of known hotels in Bicol would know this.
· Reportedly a lover of Governor Tony Kho
· linked to several election-related incidents, including dynamiting houses of political opponents, kidnapping and murder.
· In her testimony before the Senate, Cam admittedto being a supporter of Governor Tony Kho, who has been charged with masterminding the killing ofRepresentative Tito Espinosa. The case is still pending in court.

4. Archbishop Oscar Cruz

· Says that it is his personal advocacy to stop Jueteng
· His name never came out during the 2000 impeachment trial where jueteng was a key issue. If it is the archbishop's personal advocacy to stop jueteng, why is it only now that Archbishop Cruz is coming out with all these witnesses and accusations ?
· Previously hugged the headlines when he accused Pagcor chairman Efraim Genuino of using female employees of Pagcor as GRO's or Guest Relations Officer during a birthday celebration of First Gentleman Mike Arroyo. This was denied by the Pagcor chairman and the female employees themselves who apparently were with their families during the said birthday celebration. Archbisop Cruz made an apology to the families of the Pagcor female employees.

5. Alan Paguia

· He initially claimed to be the source of theaudio tape
· Known to be a former lawyer of Erap and reportedly gets a monthly salary of 1 Million pesos a month from the detained former president
· License as a lawyer was suspended by the Supreme Court
· His credibility and background was being questioned; and more critical, was his own admission that he made the annotation and thereby tampered withthe original audio tape.

6. Samuel Ong

· Former NBI deputy director
· Came out on National TV on June 10 and claimed that he was the source of the original copy of theaudio tape and that it was given to him by anIntelligence official (ISAFP) who was later identified as Tech. Sgt. Vidal Doble. Doble claims that he was offered 2 Million pesos and his family was threatened by Ong.
· Ong had often organized mass actions to support his ambition to be director of the NBI.
· During the NBI investigation of theDacer-Corbito murder case, the principal suspect Superintendent Teofilo Vina who could link Ping Lacsonto the case was killed in Cavite in January 1993. It is known that Ong who was still influential then as deputy director had a hand in this to get Lacson ofthe hook. During the 2004 elections, he was ordered byLacson to join the FPJ camp to serve as Lacson's eyes and ears
.· He said that he fears for his life. One would wonder how these words would come from a person who once aspired to be an NBI director. He chose a career in the National Bureau of Investigation that entails agents to confront death threats on a daily basis. Was the media presentation, with Ong almost crying out of fear for his life and character actor Rez Cortez beside him a mere "sarzuela".

WE SHOULD TAKE NOTETHAT SINCE PGMA BECAME PRESIDENT, THERE HAS NEVER BEENA CASE OF AN EXECUTION OR PROLONGED INCARCERATION OFANY OF HER CIVILIAN CRITICS INSPITE OF THE FACT THAT ALOT THESE CRITICS HAVE GONE OVERBOARD.

7. Jose Marie Gonzalez - "voice expert"

· Media's so called electronics and communications expert who initially said that the audio tapes were authentic and not tampered. What audio tape was he referring to when Paguia's version was (according toPaguia himself) recorded with annotation and thus was tampered. The other "so-called original" version was only released by Ong on June 10, 2004.
· A former congressman and well-known Erap supporter
· He slapped the house sargeant-at-arms in front of national TV during the transmittal of the impeachment complaint against Erap in late 2000.
· Was given a house in Subic and a brand new red Lincoln Navigator during Erap's presidency.
· Reportedly got 10 million from Mayor JV Ejercitofor coming out with his "expert opinion" on the audiotape.

8. Senator Nene Pimentel

· Senate President during the Erap administration.
· resigned from then majority party when the envelope containing the Jose Velarde account was not allowed to be opened by majority of senate members.
· Held the Bible during PGMA's oath taking at Edsa 2.
· Went back to criticizing PGMA when he was not chosen as Vice President after EDSA 2.
· His No. 1 soldier is his long time ally in PDPLaban - Mayor Jejomar Binay. During EDSA 2, Binay brought in the goons to intimidate protesters from the business community in Makati. Since then, Makati has been the site of destabilization attempts against PGMA namely the Coup/Mutiny in Oakwood and their planned EDSA 4 in San Carlos last June 11. Binay was one ofthe first people seen in San Carlos Seminary.
· Still has ambitions to be president.

9. Senator Ping Lacson
· He once said that he despised and he never wants to be a politician.
· He is on his 2nd term as senator and he ran for president during the 2004 elections
· has always portrayed a clean, incorruptible image. he always says that he never took a single centavo from illegal means, jueteng included. He has also boasts of not utilizing his pork barrel.
· Most generous when it comes to "envelopmentaljournalism". Lacson has a pool of media personnel on a monthly payola. Lacson's most effective media tool is mass-based publication Abante where Ping Lacson writes in a regular column. Mr. Allen Macasaet, Owner ofAbante, reportedly has been receiving 5 million pesos a month from Ping Lacson since 2003 . 37 year old Allen Macasaet, lives in posh Ayala Alabang and reportedly owns a Ferrari(worth 12 Million), a BMW 9series (worth 11 Million), a Porsche 911 (worth 10Million), a Jaguar (worth 8 million), a Range Rover(worth 9 million), two Chevrolet Suburbans (worth 2.5Million each), a Ford E150 Chateau Van, and a Honda Accord - all purchased brand new. Perhaps, his neighbors in Ayala Alabang can attest to Mr. Allen Macasaet's ownership of these luxury vehicles.

NO WONDER 95% OF ABANTE HEADLINES IS ANTI-PGMA·

Now comes the Million Dollar Question ????

Where does Senator Ping Lacson (who boasts that he does not get his PhP 200 Million a year "pork barrel fund) get funding to finance a successful senate campaign, a decent but unsuccessful presidential campaign, and still afford a very generous media payola ???

· He has been linked to kidnap-for-ransom of richFil-Chinese nationals, illegal drug trafficking, Kuratong-Baleleng massacre, Dacer-Corbito slay.
· In 1993, Ping Lacson reportedly was getting the biggest monthly payola from jueteng lord and convicted rapist-murderer Mayor Antonio Sanchez of Calauan,Laguna. Thus, the attempt to cover-up Mayor Sanchez'scrime by initially pointing to Kit Alqueza , son of general Dictador Alqueza, as the mastermind of the celebrated rape-slay of Aileen Sarmenta and boyfriend Allan Gomez. Ping Lacson was then head of PACC who presented the young Kit Alqueza to then vice-president Erap Estrada and media.
· Ping Lacson has had access to suppliers of wire-tapping devices as early as his PACC days. During a raid of the CIDG after EDSA 2, wire-tapping devices purchased during Ping Lacson's term as PNP chief were confiscated from camp crame and stored in CIDG's warehouse. Said confiscated devices remain stored in the CIDG warehouse until this day.
· With his seemingly infinite monetary resources and political clout as 2nd termer senator, it is highly probable that Ping Lacson himself owns the latest model of wire-tapping/ bugging devices.
· Even with the exposure of his links to peoplebehind the audio tape, he was still the one who hadthe tape authenticated by a private australian firm.
· He came out with the results from the Australianfirm on the night Friday, June 10.

How could he have gotten a copy of the original when Sammy Ong (whoclaims to be acting on his own and says he does not know Ping Lacson) only surfaced with the so-calledoriginal copy on the afternoon of June 10 ? The previously claimed original was the annotated and tampered version of Alan Paguia.
· Ping Lacson's former men in the PACC that could implicate him in his criminal activities are either dead (Supt. John Campos, Supt. Teofilo Viña, KitMateo) or hiding in the US ( Michael Ray Aquino and Cesar Mancao). Lacson quickly points to his enemies as behind the execution of his former trusted aides. If this allegation were true, why would Lacson's enemies target his men instead of killing him (Lacson). The fact is Lacson ordered the execution and hiding of his former men before the May 2004 elections to make sure that no one could directly implicate Lacson in his criminal activities. Perhaps Samuel Ong should fear Lacson as Ong is also a person who could implicateLacson in the present destabilization moves.
· After the 2004 elections, Ping Lacson became supportive of PGMA's government and even did not join the opposition's protest actions during FPJ's wake. He believed then that if he behaved this way, he would be a sure bet for President come 2010. However, he again started to be PGMA's biggest critic recently. Perhaps PGMA's illegal drugs campaign which has closed down the most number of Shabu Laboratories in recent years and anti-kidnapping campaign is already affecting Lacson's treasure chest and he fears that by2010, his funds would not be enough to run asuccessful presidential campaign against a popular MarRoxas.

10. Erap, Jinggoy, Loi and JV Ejercito

· They clearly want one thing : to exact revengeon PGMA
· This is very evident at how Senator Jinggoy and Loi have been grand standing during the senate inquiry on jueteng.
· Senator Jinggoy and San Juan Mayor JV Ejercito were one of the first people to join Sammy Ong ( who said that he was acting on his own and the he was calling on Ms. Susan Roces to join him) in San Jose Seminary. They were interviewed over ANC and both Jinggoy and JV attacked PGMA and repeatedly said that the opposition had an executive committee, with ERAP as ex-officio chairman, that was ready to replace the administration " in case we are miraculously swept into power".

We Filipinos should investigate further why key people coming out with all these accusations and calls on PGMA to step down have in one way or the other been linked to leaders in the opposition like Ping Lacson or Erap. We should not take everything that media comes out with as absolute truths since it is alread your country's future that is being threatened by these people. During the wake of FPJ last year, it was already reported that the opposition was hatching a plan to bring down the Arroyo administration. The opposition clearly wanted to use FPJ's death to bring down PGMA. Susan Roces herself mentioned to a confidant during the wake that some opposition leaders then were convincing her to lead them in bringing down PGMA. If indeed the opposition had in its possession the audio tape that they claim to be a phone conversation made immediately after the May 2004 elections between PGMA and Comelec Commissioner Garcilliano, why did they not come out with the audio tape during the wake or burial of FPJ when millions of FPJ mourners were out on the streets ? It could have easily resulted to an early end to the Arroyo administration. Perhaps they were still working on the tape with their "expert engineers" during that time.

The people behind the efforts to bring down PGMA have not succeeded in spite of the desperate moves they have made primarily because they have never been united . They have several leaders who all want to be acknowledged as the legitimate and the unanimous opposition leader. There is Erap and his families who want to regain lost glory and power; there is a Ping Lacson who despises politicians and yet desperately aims to be president; and there is Nene Pimentel who still dreams of becoming president which he hopes would happen before his eye bugs covers his face. All these destabilization moves is a result of the individual aspirations of these people to grab power. Susan Roces has experienced this when the opposition could not even unite behind a strong FPJ during the2004 elections. She experienced this during her husband's wake and burial when public sympathy was there but again the opposition was not united. She experienced this during the opposition's planned call for an EDSA 4 last June 11 when according to her confidant, the opposition were still fighting among themselves even during the early hours of June 11 on what moves to take. At around 2:30 am of June 11, Senator Ping Lacson, Senator Jinggoy Estrada, Senator Serge Osmeña, Senator Jamby Madrigal and Mayor Binay were in Manila Peninsula Hotel in Makati discussing their next steps but still arguing on the details as well as to who would be their leader when they succeed in bringing down PGMA. Susan Roces was supposed to call for their supporters to March to the streets. According to her confidant, Susan Roces just decided to call for sobriety and just manifest her moral support for Sammy Ong out of disgust over the opposition's squabbling.The opposition's plan for another EDSA did not and will not succeed because the people know the opposition's motives. Of the many witnesses paraded in the Senate Inquiry and media, not a single person would pass as a "credible witness"

According to the UP College of Psychology, the typical characteristics of a CREDIBLE WITNESS are :

1) The witness is close to the person being accused

· A good example given by the UP College of Psychology is Governor Chavit Singson who was part of Erap's inner circle or "midnight cabinet". He was very close to the Erap and practically knew the day-to-day activities of the former president which made him a credible witness in the impeachment trial.

2) The witness has an untainted moral background

· A good example given by the UP College of Psychology was Clarissa Ocampo who testified that Erap signed the name Jose Velarde in front of her. Clarissa Ocampo was then Vice President of Equitable-PCI Bank with an unblemished record ofintegrity and professionalism.

MAG-IMBESTIGA AT ALAMIN NATIN ANG KATOTOHANAN !!!

Zld's

http://www.law.harvard.edu

2005-06-28T09:35:00.000-07:00

The J.D. Admissions Process

Admission to Harvard Law School is competitive. Last year approximately 7,300 persons applied for approximately 550 places in the entering class. We understand that applying to law school is costly, time-consuming, and can be anxiety-producing. Most admitted candidates graduated in the top ten percent of their college class, have LSAT scores in the top five percentiles, and have substantial accomplishments in work or outside activities, although the number of candidates who meet these characterizations far exceeds the number of offers of admission we can make. We look far beyond the "numbers" to select an entering class and admit some candidates who do not have such high college or LSAT standings but whose combined academic and personal achievements are comparable nonetheless. We have long been committed to a policy against discrimination based on race, color, creed, national origin, age, gender, sexual orientation, marital or parental status, disability, source of income, military status or status as a Vietnam-era or disabled veteran.
The Selection Process for J.D. CandidatesUndergraduate Education/Academic Record
We want our graduates to be educated, cultured, and caring lawyers, in the best tradition of the learned profession. We realize that the foundation of liberal culture must usually be laid in college. While we prescribe no fixed requirements with respect to the content of pre-legal education, we take into account the nature of college work done as well as the quality of demonstrated academic performance.
As preparation for law school, a broad college education is usually preferable to one that is narrowly specialized. We look for a showing of thorough learning in some wide cultural field of your choice, such as history, economics, government, philosophy, mathematics, science, literature or the classics, rather than a concentration in courses given primarily as vocational training. Some academic disciplines tend to emphasize practical aspects of a subject rather than the fundamental theories surrounding it. We consider that those programs approaching these subjects on a more theoretical level, with attention to educational breadth, are better preparatory training for the legal profession than those emphasizing the practical.
Undergraduate academic performance is a significant indicator of potential success in law school, and we are convinced that one of the primary considerations for admission must be scholarship. Besides being one measure of general ability, a strong scholastic record indicates persistence, organization and motivation - all important factors that have few direct measures. The cumulative grade point average is one measure of scholarship, and not always the most accurate one. A weak start in college may be irrelevant if subsequent performance is outstanding. Trends are important, in both directions, as are the quality and difficulty of the courses taken. Unusual creativity, exceptional research skills, analytical prowess and other intellectual factors enter in where they can be ascertained, and are not always reflected on a transcript.
The LSAT
The Law School Admissions Test (LSAT) is also a useful aid in the selection process. It is designed to measure some of the acquired skills that are important to successful law study and, within broad limits, provides a reasonable assessment of these factors. Standing alone, the LSAT provides only a partial evaluation of anyone's qualifications for law study. When combined with other assessments, the LSAT is helpful in assessing individual promise and in making comparisons among those who compete for admission.
Non-Quantitative Factors
Quantitative factors, while informative, do not play a decisive role in our selection process. We have no computational methods for making admissions decisions, no mechanical shortcuts, no substitutes for careful assessment and good judgment. We try to assess a number of intangible qualities - energy, ambition, sound judgment, and high ideals. We actively encourage applicants from minority groups, women, and others who are well qualified but who might not seek admission for financial, geographic or other reasons. Information concerning economic, social or educational obstacles that have been successfully overcome often helps us to understand an applicant's achievements in a meaningful perspective. We have also found merit in allowing several strong factors to offset another factor on which you may perform only modestly in comparison with other applicants. We are often asked whether we give any preference to children of Harvard Law School graduates. Our practice is to take such status into account in borderline cases. This may help a few candidates each year, and applicants who fall into this category should make note of this in their applications.
Diversity of interest, background, and experience among members of each entering class is an important objective. Your personal statement is important in this regard. We are interested in what you find interesting; what is important to you; what you are good at; your ideas, hopes, and dreams.
Applicant Pool
We expect a volume of applications in line with recent years for the class entering in September 2005. Based upon past experience, most applicants will meet the minimal standards any admissions system might establish. Our selection process involves comparison of multiple factors among those who apply. We see our task as selecting the best class from a large pool of exceptionally well-qualified candidates. Defining "best" in this situation is a delicate and complex task. We use as many definitions as we can reasonably formulate and rationally evaluate to assemble an entering class that is talented, diverse, and stimulating. A careful evaluation of individuals' past accomplishment and future promise is at the heart of the process.
It is hard to measure how well an admissions system works. However, our classes in recent years have been able, interesting, lively, energetic, and promising. We are confident that all those admitted are capable of handling the work. The low rate of attrition (below one percent) confirms this.
While our methods are not perfect, admissions is a complex process, and we do our best to be sensible, flexible, and understanding.
Page last updated: Wed, Oct 20, 2004, 16:34:25 EDT.
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HLS websiteAdmissions section

Still on Eminent Domain

2005-06-28T09:31:00.000-07:00

Executive Summary of Property Owners' Rights
Fair Market Value. You have the constitutional right to receive “just compensation” when an agency acquires your property; in other words, to receive the “fair market value” of the land or property acquired. Just compensation can include compensation for a decrease in the market value of the portion of your property that remains when part of your property is acquired, if that decrease in value occurs because of the public improvements planned. In some cases, just compensation can include damages caused by the project to property that is not acquired, but which is damaged by the project.
Full Payment. You have the right to receive full payment for “just compensation”, in the full amount that is determined by negotiation or by a court, jury, mediation, or arbitration before the agency takes title to your property.
Early Occupancy. If the agency wishes to occupy your property before “just compensation” can be agreed upon, you are entitled to receive the money that the agency is offering you for the acquisition of your property before they occupy it. In such cases, you may still reserve the right to have the “just compensation” determined by a court, jury, mediation, or arbitration and to receive more compensation if you are found to be entitled to more.
Public Documents. You have the right to examine and make copies of any public documents, including project maps, specifications, or other project materials in the agency’s possession.
Open Meetings. You have the right to attend any meetings held by an elected or appointed council or commission to discuss the project and to tape record the proceedings. You do not have the right to speak unless the meeting is a public hearing. You may be legally excluded if the officials move to go into an executive session to discuss the acquisition of real property or to discuss imminent legal proceedings.
Other Property Owners. You have the right to request that the agency provide a list of any other property owners whose property is also being acquired for the project.
Public Purpose. You have the right to know for what public purpose your property is being acquired and to challenge the necessity of the acquisition. This must be done early in the process, however. You are entitled to know that the project has been designed to accomplish the greatest good with the least private injury.
Offer and Negotiation. You have the right to negotiate with the agency before condemnation proceedings begin. For that purpose, the agency is required to provide you with a written determination of the value of the property that is to be acquired from you and of any damages that will a rise as a result of the acquisition.
Appraiser. You have the right to accompany the appraiser hired by the agency during his or her inspection of your property and to talk to the appraiser before a value is reached.
Appraisal. You have the right to know the amount of the appraised value of your property and of any damages assessed and to request a copy of the appraisal report. Homeowners are entitled to a copy on request. Business and farm owners are entitled to know what appraisals exist and why they are not allowed to see them during negotiations. If the matter goes to formal mediation, arbitration or trial, you will be entitled to see the appraisal well before the hearing.
Other Damages. Your right to just compensation includes payment for the land, and also for any improvements on the land such as fences, landscaping and other things attached to the land if they contribute value to the property. Just compensation also includes any additional net lost value of any remaining property that you continue to own. (Known as “severance damages”) You may also be entitled to just compensation for any special and unique damage done to any portion of your property that is not acquired for the project. The agency may also be required to pay “rent” for any temporary occupancy of any portion of your property that is not acquired, but which must be used by the agency or its contractors during construction of the project.
Relocation Costs. You have the right to be paid certain relocation expenses from the agency if it requires you to move your home, farm, or business as aresult of the condemnation. These amounts are determined by statute, but may be mediated or arbitrated if, after using whatever appeals processes the agency provides to review such matters, a dispute stillexists. Tenants are entitled to relocation costs, just as owner-occupants are.
Replacement Dwelling. Homeowners who are displaced have the right to be offered a comparable replacement dwelling that is safe and clean and reasonably close to your employment and public services. If the just compensation offered is not enough to pay for a suitable and comparable replacement dwelling, then additional compensation may be due.
Displaced Business or Farm. You have the right, if your small business or farm is displaced by the project, to receive the agency’s assistance in identifying replacement properties available for sale and located within the agency’s jurisdiction.
Prior Notice. Unless an emergency exists, you have the right to receive 90 days written notice before a move is required.
Rollback Taxes. You have the right to have the agency pay any greenbelt rollback taxes if condemnation results in your land losing greenbelt status.
Ombudsman. You have the right to consult with the State of Utah’s Property Rights Ombudsman and to inquire about your rights and responsibilities in eminent domain proceedings. He can be reached tollfree at 1-877-882-4662 (1-877-UTAH OMB) .
Second Appraisal. You have the right to an additional appraisal at the agency’s expense, if you request it, and the Ombudsman, or a mediator or arbitrator appointed by him, considers the appraisal reasonably necessary to resolve a dispute about just compensation.
Alternate Dispute Resolution. If the amount of just compensation cannot be negotiated, the agency has the right to institute legal action against you. If you would rather arbitrate eminent domain issues than go to court, you have the right to request mediation or arbitration through the Ombudsman. If theOmbudsman determines that mediation and/or arbitration is appropriate, you have the right to insist on that process even if the agency objects. The results of any arbitration held can be appealed to the district court, so it is not binding unless the parties agree to make it binding or neither side appeals a decision by the arbitrator or arbitrators.
Evidence. You have the right to offer any relevant and admissible evidence at arbitration or trial,including the use of expert witnesses, to justify the amount of just compensation you consider appropriate. Any witness (other than a property owner) who testifies to property value must be a licensed appraiser.
Disclosure and Review. You have the right to know about and examine any evidence that will be used by the agency to establish the amount of just compensation prior to formal mediation, arbitration or trial. This includes copies of any appraisals the agency has obtained to determine just compensation and other evidence they plan to offer.
Testify. As a property owner, you have the right to testify at arbitration and/or at trial regarding the value of your property.
Cross Examination. You have the right at arbitration or trial to cross examine the expert witnesses that the agency relies upon in establishing the amount of just compensation that it claims to be fair. The agency can cross examine any witnesses you call as well .
Appeal. You have the right to appeal to the district court if you are not satisfied with an arbitrator’s determination.
Jury Trial. If the matter goes to court, you have the right to choose to have the amount of compensation determined by a jury rather than by a judge.
Appellate Review. You have the right to appeal a district court decision to an appellate court, if appropriate.
Please feel free to call the Property Rights Ombudsman if you have any questions about these rights.
Definition and Purpose of Eminent Domain
Under Utah law, there are a variety of purposes or reasons for which property can be acquired by eminent domain. The State, through legislation, has delegated its condemnation powers to various agencies, political subdivisions, and even private companies and individuals. These include the Utah Department of Transportation, cities, counties, special districts, redevelopment agencies, and school districts. Private corporations such as public utilities, canal companies and mining and lumber companies and railroads can use the power of eminent domain to acquire private property. Even land-locked private property owners can use eminent domain to acquire access to their land for a residence or farm. For purposes of this summary , all these potential condemnors will be referred to as the “Agency." The U.S. and Utah Constitutions basically provide two major protections to property owners: (1) that the property must be acquired for a public use or purpose;and (2) that the property owner must be paid “just compensation” for private property. “Just Compensation” means that you are to be paid the “fair market value” of any property actually taken by the Agency as well as any net loss of value in the property remaining when only a portion of a larger parcel is acquired. Although that concept may appear simple, its application is sometimes very complex. Each piece of property is unique and “just compensation” must bedetermined on a case-by-case basis. The term “public use” generally means that the property will be used or available for public use after it is acquired. Examples of such public uses include condemnation for roads, schools, parks, public buildings, or to eliminate a “blighted area” and accomplish redevelopment. “Public use” does not mean that the property must be owned by a government entity. Many uses have been statutorily designated by the Utah legislature as a public use even though they appear private in nature. Property can be in private ownership after condemnation, and used for power lines and private canals, commercial shopping centers, industrial parks and hotels, etc., so long as the condemnation was to accomplish a “public use” as defined in statute. Incidental private benefits can result from a project that will nevertheless be considered as a “public use.
The Condemnation Process
It may be necessary in certain situations that private property be acquired for projects that improve the general welfare of the community even if the property owner refuses to sell or cannot agree with the government on the amount of just compensation to be paid. When negotiations to acquire the property fail and an agreement cannot be reached, the Agency can proceed in court to acquire the property. The property owner has the right to use an alternative dispute resolution process outside of court, if preferred, but some third party entity will eventually determine the amount of just compensation that is to be paid of the condemnor and the property owner cannot otherwise agree.
Project Planning - Public Meetings
The acquisition process begins when an Agency determines that the construction of a necessary public project will require the acquisition of private property and that it has the funds or funding process to acquire it. Sometimes property owners are not notified of pending projects until the process of land acquisition begins. This is not necessarily illegal, although there are special notice requirements if your property is being considered for redevelopment, where special advance notice is given and public hearings are required. If you become aware ahead of time of a project that may involve your property, it is in your best interest to stay informed during the planning of the project. You have the right to attend meetings held by a city council, county commission, redevelopment agency board or other appointed body and there you may listen to them discuss the project. Sometimes public meetings are required to allow landowners to comment before final decisions are made. In limited cases, an Executive Session can be held to discuss the acquisition of property and you will be excluded from those meetings. If that happens, you may still be entitled to information about the closed meeting. Review Chapter 52-4 of the Utah Code (Open and Public Meetings Act) and/or call the Property Rights Ombudsman if you would like to know more information about open and public meetings. A separate summaryt like this one has been prepared by the Ombudsman to inform the public about open meetings and public documents.
Government Records - GRAMA
Citizens are legally entitled to access to public, non-privileged documents under the Government Records Access and Management Act, or “GRAMA” (Chapter 63-2 of the Utah Code). This Act may be helpful to you in understanding the proposed project and how it will affect you and your property. If your informal requests for information are not honored and you are not given all the documents you need with an informal request, you can make a formal demand under GRAMA. GRAMA applies only to governmental agencies, however, and not to private corporations. You have the right to examine and make copies of maps and most other relevant materials in the possession of a government entity regarding the project and affected property. You may also request that the Agency provide a list of any other property owners whose property must be acquired for the project. While prices paid by the Agency for other properties may be of interest to you, they are generally not admissible in court to establish the value of your property since each property is unique and each owner’s motives and desires may be different. You are encouraged to contact the Agency or the Ombudsman if you have any questions concerning your entitlement to information and records from a government condemnor. Most cities, counties, and state agencies have procedures in place to explain how to access public records. ( Sample form to use to request a copy of a government record.)
Access To Your Land For Surveys
The Agency is generally required to conduct surveys, studies, tests and examinations to determine which parcels of land are needed and which are suitable to complete the project in a manner that will accomplish the “greatest public good and the least private injury.” To do that the Agency will often need access to your property even in the early stages of projectconsideration. Before doing so, the Agency’s surveyors and consultants must give reasonable notice and can only come on the property at reasonable times. If you refuse access, the Agency may apply for and will usually be entitled to a court order permitting the access. The Agency will, however, be required to pay for any damages it causes to the property while conductings urveys, tests, and examinations, or will be required to restore the property to its former condition.
Required Appraisal and Negotiations
Before condemnation of your property can commence, negotiations must be undertaken to acquire the property by purchase or exchange. An Agency isrequired by law to make a reasonable effort to negotiate with you before filing for condemnation. The negotiation process usually begins with the Agency’s obtaining an appraisal of your property, including all compensable damage to any property not acquired. You have the right to be informed of the Agency’s designated appraiser’s inspection of the property and the right to accompany the appraiser during the property inspection. You should take advantage of this opportunity to explain to the appraiser any aspects and characteristics of the property that may have an effect on the property’s value. The appraiser may other wise not become aware of these features. Your comments may well influence the final opinion as to what the fair market value of your property is. You also have the right to obtain various types of information about the Agency’s appraisers, such as their names and addresses. If you would like to see the appraisal and know the valuation the appraisers arrived at, you may request access to that information, filing awritten GRAMA request if necessary. If the government denies access to the record, it must identify what documents it will not make available. The government’s decision can be appealed under GRAMA. You may also request help in getting access to the appraisal from the Property Rights Ombudsman. In any event, you will be entitled to see the Agency’s appraisal(s) well before any formal hearing on valuation, whether in mediation, arbitration or court. The appraisal process can be very complex, especially if all of your property is not acquired by the Agency. Any appraisal must be completed by a Utah State Certified Appraiser. There are many holding this license who are willing to do work in condemnation. The best appraisers to use in eminent domain proceedings are usually those with extensive prior experience and training in such matters. Real estate agents and others generally associated with property are not permitted by law to testify in court about property values. Their opinions may be of some assistance to you, but cannot be used in the formal process of condemnation. In arriving at just compensation, the appraiser must generally look at as many as six independent factors, depending on what type of property is being acquired, and depending on whether all or just a part of your property is being acquired. These factors include:
1) Land Value. This is the base value of the land that is to be acquired. The appraiser usually estimates this by looking for recent sales of similar property in the vicinity, although other valuation methods may be used. The best comparables are about the same size and shape and have the same use or potential use as your property. Adjustments are made to accommodate differences between your property and the comparables. Land value is generally expressed as a dollar amount pers quare foot or per acre. Once determined, that unit price is applied mathematically to the size of your property and to the size of the portion of your property that the Agency plans to acquire, if only part of the property is needed.
2) Improvements Improvements on the property such as landscaping, fences, buildings, etc. generally contribute value to the property, although that is not always the case. If they are in very bad condition they may detract from value. The value of improvements that are affixed to the property or which will be lost because of the proposed acquisition must be separately assessed and paid for by the Agency. The market value of improvements on the property is added to the land value to reach a total value of the property being appraised. The essential aspect of improvements valuation that must be understood is that the courts have said that the Agency must pay for the amount that the improvements contribute to the over all value of the property, not there placement cost. “Contributory value” means the difference between the market value of the property with the improvements on it and the market value of the property without the improvements. If the improvements can be replaced at a cost that is less than the “contributory value”, the Agency will often simply replace the improvements when the project is done, or offer the replacement cost to the property owner so that he or she can do the work. If the Agency chooses to pay for the lost market value that occurs because the project destroys an improvement, that may be legally sufficient, even though the property owner may attach a much greater value to the landscaping, building, natural features or other amenities that are lost. Sentimental value, forexample, is not recoverable. Sometimes an Agency will consider the overall fairness of the process, however,and make accommodations that are appropriate, though not necessarily required.
3) Severance Damages If only a portion of a parcel is being acquired, then an analysis must be made to estimate whether the acquisition will result in damage to the value of the property which is not being acquired (known as “the remainder”). Severance damages are generally expressed as the difference between the value of the remaining property in its “after” condition and the value of the remaining property in the “before”condition. The most common situation where severance damages occur is when the remaining property no longer has the same function or utility as it had prior to the condemnation. If the remaining parcel has no utility or has lost all market value, the Agency may be required by law to acquire all of your property, particularly in state highway projects and when a redevelopment agency is involved. Severance damages do not apply when the entire property is acquired under eminent domain. These damages are only due if the property owner keeps a portion of the property, and the project involved substantially lowers the value of that remainder even more than the amounts due for the land taken and the improvements lost. This lowered value may be due to proximity, such as when a widened highway comes very close to a home; from loss of utility, such as when a new curb and gutter eliminate parking spaces; or other adverse effects such as loss of view, loss of access, or exposure to nuisancesand hazards. Severance damages may be due when a property is rendered “nonconforming” and the remaining use is therefore “grandfathered” under the local land use regulations. Nonconforming uses can be severely restricted by local ordinance. Perhaps they cannot be rebuilt if damaged by fire or casualty. Sometimes they cannot be remodeled or expanded. Be sure that these factors are considered in the analysis of severance damages. The key is whether the changes created by the project would lower the value of the remainder in the marketplace, not just whether the remaining property is less useful or valuable to the current owner.
4) Offsetting Benefits. In some instances the construction of the public improvement for which a portion of your land was taken enhances the market value of the rest of your property. These “special benefits” must also be valued. Examples might include the addition of curb and gutter, access to utilities, or other benefits. If there are such enhancements, and they add to the value of your remaining property, then these added values must be deducted from any severance damages in the calculation of just compensation. Even if the project’s positive impact on property value is significant, however, the benefit may only be used to offset severance damages as explained in item 3. Offsetting benefits may not be used to reduce any compensation due for land, improvements or other damages discussed above. Remember that each case has to be considered on its own merits in order to make this determination and that it is the marketplace which determines this value, not the preferences of the current owner. Please feel free to call the Ombudsman with questions about your specific situation.
5) Project Damage. Damages to the property arising during the construction may also be compensable, unless the damages are cured and the property repaired by the Agency or its contractors. If, for example, construction damages the foundation or walls of an adjacent structure, those damages must be compensated for. Sometimes the contractor is expected to cover these damages and the Agency will direct any such claims to it. These damages may not be part of the eminent domain process and payment for these claims may not be part of “just compensation”. Be sure to respect the formalities that must be followed if you have claims that result from negligence, neglect, trespass, construction problems, failed promises and incidental issues that are not essential to the project’s design and construction. Any claim for such injury to property must be filed within a year of the damage and strict notice rules must be followed. If you miss the twelve month deadline, your claim cannot be recovered from a government agency, though you may still be able to pursue a private contractor. The Ombudsman does not assist with all construction damage claims, but hecan explain the claims process and help you get in touch with the right people to contact.
6) Temporary Use or Occupancy. Often during construction part of the property not actually acquired is “used” by the Agency for construction purposes. This temporary “use” must be compensated for and is assessed much like a fair short term rental would be negotiated. No permanent interest in the property is acquired and the right to use and the obligation to pay for use terminates when construction is completed. At that time, the “used” property returns to the exclusive ownership and use of the landowner. Usually temporary occupancy compensation is calculated by determining the market value of the land involved and multiplying that value by an annual percentage rate such as 10% for each year that the land must be used. This payment is in addition to item 5, which includes reimbursement for damages done to the property while it is used by the Agency.
Items which are not genearally compensable: All property is unique in its owner's eyes. We all purchase or hold property because it appealed to us more than other properties, based on our particular wants, tastes,and desires. Property values, however, are determined objectively, by market forces, and not subjectively by the unique value it holds to the current owner. Loss of sentimental value, of historic interest, and emotional trauma associated with having to sell property through condemnation are not compensable under the law and may not be considered. It is also not a factor in valuation that the condemnor may have special or unique need or use of the property. The measure ofcompensation is not the profit the Agency may make, but the lost value the property owner suffers. Just compensation is determined by analyzing objectively what a reasonable and well-informed buyer, who is not compelled to buy, would pay to buy the property from a reasonable and well-informed seller, who is not compelled to sell. The price is to be that which would be negotiated under normal market conditions for a cash sale. The proposed use by theAgency cannot influence that price – it cannot increase it, or decrease it, and the valuation is arrived at as if the proposed project for which the property is needed does not yet exist. Noise, dust, inconvenience and other unavoidable aspects of construction that affect all properties in the area are not considered in determining just compensation. Unless the interference is very unreasonable and of long duration, no compensation is due for construction inconveniences. All six of the above issues must be addressed in the appraisal process, when applicable, and you are entitled to know how any offer of compensation addresses each of these items. Any aspect of the project that affects just compensation should be disclosed to the appraiser and he or she must take them into account in arriving at a conclusion as to value.
Negotiation
Once the appraisal is completed and accepted by theAgency, the Agency must offer to you the full accepted appraised value and damages as defined above. You are entitled to receive a written statement showing how that value is established. In most cases, particularly when the property owner is the occupant of a residence involved in the acquisition, the Agency will give you theentire appraisal report. Since appraisals can be very technical, a summary should be provided that explains the data, analysis, and final conclusions of the appraiser. You are entitled to have time to consider any proposals for compensation, to have those proposals in writing, and to be protected from any coercive or heavy-handed negotiation technique. The Agency cannot commence condemnation proceedings until it has negotiated with you in good faith in an effort to acquire the property without legal action. Proposed construction schedules and demands for occupancy of your property must not interfere with negotiations. Negotiations require the involvement of both parties. You should reply in a timely manner to any offers made to you. If you do not respond, your silence may be viewed as a rejection of an offer. The Agency is not bound to negotiate when negotiation is futile or continue to accommodate unreasonable demands by property owners Feel free to ask questions in the process of negotiation and to consult with experts, lawyers, appraisers and other people knowledgeable about the process. Find out all you need to know to make an informed decision about whether to accept the proposed just compensation or not. Obviously, it is easier and more convenient to settle without extended negotiations or dispute resolution. Condemnation proceedings can be expensive and time consuming. A reasonable resolution of any disagreements through negotiation or mediation is usually in everyone’s best interest. Remember that negotiations can continue even after the formal arbitration or court process has begun. Many cases are settled just before or even during trial. You have the right to reject any offer for any reason, or to request more information if you are unable to make a decision due to insufficient facts. The Agency also has the right, after it has determined that good faith negotiations have reached an impasse, to proceed with condemnation and seek resolution in court. At that time you are served with a Summons, and the date of valuation of your property is fixed. There will be no compensation paid for any improvements you make to your property after the date that an action is filed. NOTE: Government entities are unique in American law. Although the agent of a corporation or individual can bind that individual, agents of government rarely do. If the Agency’s negotiator makes representations to you that you rely on to make decisions, make sure that those representations are in writing. All of the essential factors that are part of your decision to accept just compensation should be in any final document you sign with the Agency to convey title or agree to a final resolution. Often an Agency will agree to provide fences, landscaping, or other non-cash incentives as part of a settlement. Make sure these terms are reduced to writing and approved by the governing body of the Agency. Understandings that are not part of these written documents are not likely to be binding and cannot be enforced. There are times when property owners want enforceable assurances that condemnation will not be used against them in the future. Such covenants are illegal, and are unenforceable as a matter of law. You should not seek, nor accept, such a condition.
Gifts
Sometimes, usually for tax purposes or to improve the community, property owners may wish to make a “gift” of the property to the government, to waive payment for some compensation that they may otherwise be entitled to, or to sell property for less than market value. This is entirely appropriate and may be useful to you. In state highway projects or other projects supported by federa lfunds, the Agency must disclose to you the amount of just compensation that would be offered if the property were not given to the government. The Agency must then offer to pay for the property instead of receiving it by gift. There are some projects however, where funds are limited, that will not be accomplished without private donations of land. All involved have to decide if the project justifies the gift of land or not. While the project may not be completed if the land is not gifted, that does not justify any coercive tactics to compel you to give. Such demands for property are wholly inappropriate. A gift must be made without duress, misrepresentation, or other abusive tactics.
Hardship Acquisitions
There may also be times when the property owner needs to sell, but the government entity is not ready to buy under normal circumstances. Knowing that the specter of a pending condemnation can chill the market to sell property, some agencies have programs to acquire property from families where a normal delay may work a hardship on them. Sometimes a job transfer, health problems, financial difficulties, or other factors make selling property necessary. If this is your situation, discuss the matter with the Agency involved and find out if they have a procedure for hardship acquisition. Under these circumstances, the normal rules of eminent domain may not apply and the transaction is one of negotiation only. The acquisition is probably totally voluntary. The property owner does not have the right to protest the terms or timing of the sale unless the Agency has taken some action that would constitute a breach of a constitutional right by unreasonably delaying condemnation or taking some other inappropriate action.
If Negotiation Fails, The Government Can File Legal Action
If you and the Agency are unable to reach an agreement based on the appraised value, the Agency will likely choose to use its power of eminent domain. Prior to filing a Complaint, a local government entity must approve a condemnation resolution within a public meeting. They do not have to notify you that the condemnation resolution is on the agenda, but it must be posted publicly 24 hours in advance as any other public meeting would be. State agencies and private companies are not required to adopt a resolution of condemnation. The condemnation process is commenced with the filing of a Complaint in the local district court, and by serving you with a Summons and copy of the Complaint. The Complaint must identify the parties, (the parties include the Agency and you and all others who have an interest in your property, such as the holder of a mortgage or lien on your property) and describe specifically the property to be taken. If less than the entire property is being acquired, the Complaint will include a site drawing showing the“whole property”, the portion being acquired (the“take”) and that which is not being acquired (the“remainder”). The judicial process in eminent domain is technical and the Agency is required to follow those procedures precisely. Any deviation may result in the condemnation case being dismissed, although it can and usually is re-filed once a defect or omitted procedure is cured.
Attorneys and Attorneys Fees
If you wonder whether or not you should consult with your attorney about a pending condemnation, the answer is yes. You need all the information that is available to you about the choices you face, and your attorney will have a perspective you should consider. This does not mean that you are obligated to retain counsel to deal with condemnation negotiations. You can consult along the way and decide at any time to bring your attorney into the process, or consider the advice she has while responding to the process on your own. Legal fees incurred by the landowner in a condemnation case are generally not recoverable in Utah, even if you prove in court that the condemnation is unjustified and it is dismissed, or if you prove that you are entitled to more compensation than was offered. There are special rules for redevelopment agencies, however, where legal fees can be recovered in some instances. Generally, you are only entitled to reimbursement for attorney fees if the government abandons an eminent domain action after it is commenced or refuses to pay the just compensation ordered. When any Agency uses federal funds, there are a few more instances where legal fees must be paid by the government, but only in very limited circumstances. You may contact the Private Property Ombudsman for more specific details related to your particular circumstances. Landowners can often negotiate with attorneys to represent them on a contingency fee basis, where the lawyer receives a percentage (sometimes 1/3) of the difference between the amount ultimately obtained for the client and what was offered by the Agency before the lawyer became involved. Some attorneys will also consult with you on an hourly basis and not take a share of the ultimate award of just compensation.
Mediation or Arbitration
You do have the right to request that an attempt be made to resolve the matter through arbitration or mediation instead of through legal action in the court. If you request him to become involved, the Property Rights Ombudsman has the power to stop the court proceedings and arrange mediation or arbitration of almost any issue in the process of condemnation. You are entitled to have an attorney represent you in mediation or arbitration, just as you may have legal counsel at trial. Mediation is a negotiation that involves a neutral third party who works with you and the Agency to arrive at a settlement that both parties agree is fair. Each party remains in control of the outcome. Arbitration is more formal. An arbitrator may make a decision that resolves the dispute like a judge would make but the process is much more informal than a court proceeding. The Ombudsman may determine that the matter is not appropriate for mediation or arbitration and allow the legal proceedings to continue or he may intervene in the proceedings and stop legal action. Usually the legal process takes long enough that an arbitration can be completed within the time it takes to schedule a trial. The Agency may prefer mediation or arbitration and suggest it. But you as property owner need not participate if you do not choose to. On the other hand, if you want to mediate or arbitrate and the Ombudsman determines it to be appropriate, the Agency involved is compelled to participate. After arbitration, either you or the Agency involved in the case may appeal the resulting decision to court. The court will rehear the evidence, and may or may not give any deference to the record established at the arbitration. The Ombudsman and/or your attorney will attempt to help you make the best decision from your remaining options. It is the mediator, arbitrator, or court’s duty to ensure that you are not wrongfully deprived of the right to use and enjoy your property. The mediator, arbitrator or judge will work to assure that the Agency has complied with each and every one of its requirements in the condemnation proceeding.
Taking Immediate Possession
If the Agency determines that good faith negotiations have reached an impasse, the Agency may attempt to take immediate occupancy of your property so long as you are not displaced by their doing so. If you are to be displaced, they can usually only obtain immediate occupancy after they have given you the required 90-day displacement notice and met the other statutory requirements they must meet prior to taking occupancy. This issue cannot be forced to arbitration, but must be decided in a courtroom unless both parties agree to arbitrate. The court will consider the value of your property and the damages that may result if immediate occupancy is granted. The Agency must show why the property must be made available quickly. If the court decides in favor of the Agency and grants occupancy, the Agency must immediately deposit into court the full amount of the estimated just compensation. You may withdraw this money if you wish to. If you refuse this payment, and leave the money with the court, all of your legal rights to challenge the amount of just compensation in court or arbitration remain unaffected. If you withdraw the money, you may not challenge any part of the condemnation process except whether or not you have been paid the full amount you should have been paid. If you wish to preserve all your rights to challenge, you must not withdraw the funds that the Agency has paid into court. If you believe that the only real issue is whether you are owed more money, there is probably no reason not to take the funds. You will not receive interest on the money if you do not take it at the time of immediate occupancy. As an alternative to legal action, you and the Agency may negotiate a right of occupancy agreement that would avoid the need for filing a motion in court. This is usually a good thing to do, since it avoids the Agency’s having to file a lawsuit against you. Since both you and the Agency may be better off if no legal action is filed, they may agree to pay you their estimate of just compensation in exchange for the right of occupancy, just as they would have to do if they took the matter to court. The date of occupancy usualy fixes the date that just compensation is to be based upon. Be sure that it is understood that you are entitled to interest on any future funds received as additional just compensation. The Ombudsman has prepared a form that can be used to agree to occupancy of the property and can explain such agreements to you or to your attorney.
Determination of Just Compensation
According to Utah courts, “just compensation” means that you are to receive fair market value for your property. After formal condemnation proceedings have begun, the arbitrator, jury or judge must hear legal evidence regarding just compensation offered by you and the Agency. At mediation, arbitration or trial, you are entitled to have a state certified appraiser testify regarding your appropriate compensation. You may have to pay the witness for his or her time, however. In addition, you may testify yourself about your property if you have intimate or special knowledge of its uses and value. By hearing evidence from you and the Agency, all of the factors described in the appraisal process above may be determined by the arbitrator or court. If you are dissatisfied with an arbitrator’s determination of just compensation, you may appeal the matter to district court. If no arbitration is held, the first resolution of the issue of just compensation will be made in the district court. If you are dissatisfied with the district court’s decision, whether you arbitrated the issues before hand or not, you can usually appeal certain aspects of the court’s decision to an appellate court.
Relocation Benefits
In some circumstances, the amount of property acquired means that you may have to move. The Utah Relocation Assistance Act was created to offset some of the hardships associated with having to move from your home, business, or farm. Under the Act, if you are displaced or required to move for the project, you may be entitled to reimbursable relocation costs, which can include actual moving expenses, and certain other costs depending on the type of property being acquired. Residential. If you are the homeowner and you are displaced from your home, the relocation costs due may include the cost of replacement property if you must pay more for equivalent property than you received in just compensation. Payments to you may also include interest rate penalties and other incidental costs of the move. In addition, the Agency will usually pay any transfer taxes and recording fees. Whether you own or rent a home, if you are displaced the Agency is also required to offer you a comparable replacement dwelling that is safe and clean and reasonably close to your employment and public services. If one cannot be found for the compensation you received for your former residence, additional sums may be paid to you so that you can find an appropriate home. If you are a renter and cannot find an appropriate rental unit at the same or lesser rent, the Agency may be obligated to pay some of your rent. Small Business or Family Farms. If you must move your small business or family farm, the Agency will assist you by identifying replacement properties available on the private market located within the jurisdiction of the Agency. Again, you are usually not required to move from your property until 90 days after receiving written notice that the move is required. If you are not satisfied with the relocation assistance offer, you may ask the Ombudsman to appoint a mediator or an arbitrator to consider the issue, which he will do after you have attempted to resolve any disagreement using the Agency’s appeals procedures. If you are involved in a court action over the condemnation, the court could also consider relocation issues, but this is rare. Condemnation cases are usually limited to just compensation. Relocation issues are handled separately Any Agency that displaces the occupants of property under condemnation or the threat of condemnation may adopt rules and regulations explaining the procedures for compensating those who must relocate. If it does not, then it must follow the rules that have been adopted by the Utah Department of Transportation. Ask to see those regulations and call the Agency and/or the Ombudsman with any questions that you may have.
Tax Information
Your just compensation will sometimes not be considered as income for tax or welfare purposes, but there may be income tax questions if your property has increased in value substantially since you acquired it. The IRS classifies this type of property purchase as an involuntary conversion. You should contact the IRS and the Utah State Tax Commission to obtain additional tax information if you have questions. You are responsible for paying your property taxes. If all of your property is taken, the taxes are usually prorated based on the date of occupancy or the date you closed the transaction and transferred title. If part of your property is taken, this will sometimes trigger an adjustment to your taxes by the County Assessor. If this does not occur, consider appealing your property valuation next time you are notified of an annual assessment. If your property is being taxed under the Farmland Assessment Act as “Greenbelt Property,” the law requires the Agency to pay any rollback taxes that are due as a result of an acquisition. Remember that you must provide marketable title to the property being acquired. Sometimes your mortgage document, the deed of trust or other liens and encumbrances recorded on your property provide that creditors are paid the proceeds of condemnation actions instead of the property owners. Check with a title company, your lender, or an attorney about specifics if you have questions
Property Rights Ombudsman
The Property Rights Ombudsman can advise you about your rights and responsibilities in the event of a condemnation proceeding. He is an attorney employed by the State and an expert in the law of eminent domain. There is no charge for his services. His goal is to help you avoid the cost, delays and hassle of legal action. Agencies can also benefit from using mediation and arbitration, thus avoiding costly court action. While the Ombudsman will answer questions when asked by agencies and by property owners, he will not actively work to resolve your condemnation matter unless you request that he do so.
Inverse Condemnation
So far, we have talked about what to do when the government wants to buy your property. If you believe that some government action has substantially affected the use or value of your property and the Agency involved does not wish to pay you for the taking or damaging of your land, you may have a cause of action in “inverse condemnation." These claims are known as “takings” cases, and more information about takings are found on the Ombudsman’s web site and in another booklet like this one that is also produced by his office. Violation of constitutional property rights by inappropriate entry onto private property, regulations that go too far in limiting uses, nuisances conducted adjacent to private property by public entities, and other taking issues are beyond the scope of this summary.
Conclusion
This booklet is not intended to describe every issue involved in the acquisition of property for public projects or every right that you may have. If you have further questions concerning the process or your rights, you are urged to contact the condemning Agency, a qualified attorney knowledgeable about condemnation proceedings, or the Property Rights Ombudsman.
Definitions
Appraisal
The process of estimating fair market value in a property or property interest. This valuation is done by a qualified state-certified appraiser.

Condemnation
The acquisition of private property for a public use, for just compensation. Condemnation is not used until all attempts to reach an agreement have failed. Condemnation actions are brought under the power of eminent domain.

Eminent Domain
The legal process by which the government or private utilities acquire property by condemnation for a public use and pay the property owner just compensation.

Fair Market Value
The sales price that a willing and informed seller and buyer would agree upon within a reasonable time. The price is usually arrived at by an analysis of the values of comparable properties in the area.

Noncompensable Damages
Those damages that are not compensated because they are not specific and peculiar to the property. Loss of use and convenience due to dust, noise, interruption of access, and other inconveniences are often not compensable because all property owners and residents in the area suffer these effects, whether property was acquired from them for the project or not.

Just Compensation
The price the Agency must pay for property as a result of the eminent domain process. Just compensation is the established fair market value as of the date that is fixed by law that the acquisition became sure. Unless otherwise negotiated, this is the date that a summons was served on all those holding an interest in the property.

Offer to Purchase
A written offer stating the Agency’s intention to buy property at a specific price.

Order if Immediate Occupancy
A judicial order giving the Agency the right to use the portion of a property that is necessary for public use.

Property Owner
The person or entity that owns or leases land subject to eminent domain proceedings.

Right of Occupancy Agreement
An agreement entered into by the owner with the Agency, giving the Agency the right to proceed to occupy the project. A right of occupancy agreement can be used as an alternative to the Agency’s going to court to obtain an Order of Immediate Occupancy.

Severance Damages
If part of the property is aquired for a project, and the remainder suffers a net loss of value because of the project (after allowing for the beneficial effect of the project on value), then severance damages are owed to the property owner. Severance damages are calculated by comparing the value of the remainder (as part of the whole property) before the project to its value, if any, must be paid as severance damages.

Taking
A legal term used to describe the Agency’s acquisition of property through the power of eminent domain, for the public use, and requiring just compensation.

Uneconomic Remnant
The portion of a property owner’s property that remains after a taking which is determined to be of little value and utility.
Sources of Law Referred to in This Summary
Utah Constitution:
Article I, Section 22.

Utah Code Annotated:

Eminent Domain:
Sections 78-34-1 thru 21

Relocation Assistance:
Sections 57-12-1 thru 14

Property Acquisition Procedures:
Section 78-34-4.5 and Section 57-12-13

Redevelopment Agencies:
Section 17A-2-1201

Dispute Resolution - Condemnation:
Section 78-34-21

Dispute Resolution - Relocation:
Section 57-12-14

Property Rights Ombudsman:
Section 63-34-13

Federal Rules related to Eminent Domain:
49 CFR 24
(49 CFR 24 applies to UDOT, all federally funded projects, and other projects where residents, farms and businesses are displaced and the agency or company that is displacing them has not adopted its own specific rules to regulate the process of relocation.) These statutes and other information are available via the internet at the Ombudsman’s home page: http://www.utahpropertyrights.com/index.htm
How To Contact The Property Rights Ombudsman
By Mail:
Craig M. CallProperty Rights OmbudsmanDepartment of Natural Resources Administration1594 West North Temple, Suite 3710Box 145610Salt Lake City, UT 84114-5610

By Phone:
1-877-882-4662-TOLL FREE(1-877-UTAH OMB)

By Fax:
(801) 538-7315

By e-mail:
ppombud@aol.com

By Internet:
http://www.utahpropertyrights.com/index.htm

Eminent Domain.. the most recent issue

2005-06-27T06:19:00.000-07:00

In law, eminent domain is the power of the state to appropriate private property for public use without the owner's consent. Governments most commonly use the power of eminent domain when the acquisition of real property is necessary for the completion of a public project such as a road, and the owner of the required property is unwilling to negotiate a price for its sale.
In many jurisdictions the power of eminent domain is tempered with a right that just compensation be made for the appropriation.
The term "expropriation" is often seen as synonymous with "eminent domain" and may especially be used with regard to jurisdictions that do not pay compensation for the confiscated property.
The term "condemnation" can also be used, particularly to describe the legal process whereby real property, generally a building, is deemed legally unfit for habitation due to its physical defects.
The exercise of eminent domain is not limited merely to real property. Governments may also condemn the value in a contract such as a franchise agreement (which is why many franchise agreements will stipulate that in condemnation proceedings, the franchise itself has no value).
In the United States, the Fifth Amendment to the Constitution requires that just compensation be paid when the power of eminent domain is used, and requires that "public use" of the property be demonstrated. Over the years the definition of "public use" has expanded to include economic development schemes which use eminent domain to displace private homes and businesses in order to transfer it to private developments that are more profitable. In 1981, in Michigan, the Supreme Court of Michigan, building on the precedent set by Berman v. Parker, 348 U.S. 26 (1954) [1] (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=348&invol=26), permitted the neighborhood of Poletown to be taken in order to build a General Motors plant. Courts in other states relied on this decision, which was overturned in 2004 [2] (http://michiganimc.org/feature/display/6334/index.php), as precedent. This expansion of the definition is before the United States Supreme Court in the fall of 2004 [3] (http://www.uncommonthought.com/mtblog/archives/092904-a_new_take_on_eminen.php), [4] (http://www.supremecourtus.gov/docket/04-108.htm), Kelo et al. vs. City of New London.
In other cases eminent domain has been used by communities to take control of planning and development. Such is the case of the Dudley Street Initiative [5] (http://www.dsni.org/), a community group in Boston who attained the right to eminent domain and have used it to reclaim vacant properties in the purpose of positive community development.
In many European nations, the European Convention on Human Rights provides protection from appropriation of private property by the state. Article 8 of the Convention provides that "Everyone has the right to respect for his private and family life, his home and his correspondence" and prohibits interference with this right by the state, unless the interference is in accordance with law and necessary in the interests of national security, public safety, economic well-being of the country, prevention of disorder or crime, protection of health or morals, or protection of the rights and freedoms of others. This right is expanded by Article 1 of the First Protocol to the Convention, which states that "Every natural person or legal person is entitled to the peaceful enjoyment of his possessions." Again, this is subject to exceptions where state deprivation of private possessions is in the public interest, is in accordance with law, and, in particular, to secure payment of taxes.
In France, the Declaration of the Rights of Man and of the Citizen similarly mandates just and preliminary compensation before expropriation.
In England and Wales, and other jurisdictions that follow the principles of English Law, the related term compulsory purchase is more commonly used.
Etymology
The Latin term dominium eminens ("supreme lordship") was used in the 17th century by Grotius to describe the concept explained above.
Further reading
Steven Greenhut, Abuse Of Power: How The Government Misuses Eminent Domain, Seven Locks Press, June, 2004, trade paperback, 312 pages, ISBN 1931643377
External links
"Panelists discuss eminent domain" by Thomas Ott, Cleveland Plain Dealer, September 30, 2004 (http://www.cleveland.com/news/plaindealer/index.ssf?/base/cuyahoga/1096536915218230.xml)
Commentary in The Washington Times by Dana Berliner, 2004 (http://www.washtimes.com/commentary/20040904-104702-3620r.htm)
"GOVERNMENT VS. PRIVATE PROPERTY OWNERS: DCX expansion forces small repair shop to give up land" Sarah A. Webster, August 17, 2004, Detroit Free Press (http://www.freep.com/money/autonews/jeep17e_20040817.htm)

Citizenship

2005-06-24T23:35:00.000-07:00

cit•i•zen•shipPronunciation: (sit'u-zun-ship", -sun-), [key] —n. 1. the state of being vested with the rights, privileges, and duties of a citizen. 2. the character of an individual viewed as a member of society; behavior in terms of the duties, obligations, and functions of a citizen: an award for good citizenship.
du'al cit'izenship1. Also called du'al national'ity. the status of a person who is a legal citizen of two or more countries. 2. citizenship of both a state and a nation, in nations consisting of a federation of states, as the U.S.
Conferred by a State, nationality constitutes the juridical expression of the individual’s connection with a particular State. It translates into juridical terms the fact that an individual is closely connected with the population of a particular State.
The concept of nationality was explored 46 years ago by the International Court of Justice in the Nottebohm case. This Court defined nationality as "a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with existence of reciprocal rights and duties" .
A shift in the view towards the concept of "nationality" is reflected in the definition given in the European Convention on Nationality, which is the first international instrument to codify the main principles and rules applicable to nationality. Article 2 of this Convention defines "nationality" as "the legal bond between a person and a State" which "does not indicate the person’s ethnic origin". It thus refers to a specific legal relationship between an individual and a State which is recognised by that State.
At a time when new democracies in Europe have to draft new nationality laws, there is a need to avoid confusion as to the indiscriminate use of the terms "nationality" and "citizenship". Under the international law but also as a result of recent developments in internal law, these two norms are now considered synonyms. Therefore, the term "nationality" is equivalent to the one of "citizenship" habitually used in the Central and Eastern European States.
citizen
citizen, member of a state, native or naturalized, who owes allegiance to the government of the state and is entitled to certain rights. Citizens may be said to enjoy the most privileged form of nationality; they are at the furthest extreme from nonnational residents of a state (see alien), but they may also be distinguished from nationals with subject or servile status (e.g., slaves or serfs; see serf, slavery). (It should be noted, however, that in Great Britain and some other constitutional monarchies a citizen is called a subject.)
The term citizen originally designated the inhabitant of a town. In ancient Greece property owners in the city-states were citizens and, as such, might vote and were subject to taxation and military service. Citizenship in the Roman Empire was at first limited to the residents of the city of Rome and was then extended in A.D. 212 to all free inhabitants of the empire. Under feudalism in Europe the concept of national citizenship disappeared. In time, however, city dwellers purchased the immunity of their cities from feudal dues, thereby achieving a privileged position and a power in local government; these rights were akin to those of citizenship and supplied much of the content of later legislation respecting citizenship.
Modern concepts of national citizenship were first developed during the American and French revolutions. Today each country determines what class of persons are its citizens. In some countries citizenship is determined according to the jus sanguinis [Lat.,=law of blood], whereby a legitimate child takes its citizenship from its father and an illegitimate child from its mother. In some countries the jus soli [Lat.,=law of the soil] governs, and citizenship is determined by place of birth. These divergent systems may lead to conflicts that often result in dual nationality or loss of citizenship (statelessness).
Although the Constitution of the United States, as written in 1787, uses the word citizen and empowers Congress to enact uniform naturalization laws, the term was not defined until the adoption (1868) of the Fourteenth Amendment, which gave citizenship to former black slaves. As this amendment indicates, the United States generally follows the jus soli. However, Congress has also recognized, subject to strict rules, the principle of jus sanguinis so that children born of American parents abroad are citizens during their minority and can retain this citizenship at majority if they meet certain conditions. In addition, in 2000, Congress granted automatic citizenship to most minor children of American parents who were adopted from abroad; previously such adopted children needed to be naturalized. Until the 1940s the United States recognized several classes of nationals who were not citizens, e.g., Filipinos and Puerto Ricans. Today, however, all U.S. nationals are citizens. The United States recognizes the right of voluntary extradition, and in 1967 the Supreme Court ruled that citizenship can be lost only if freely and expressly renounced; Congress does not have the power to take it away.
nationality
nationality, in political theory, the quality of belonging to a nation, in the sense of a group united by various strong ties. Among the usual ties are membership in the same general community, common customs, culture, tradition, history, and language. While no one of these factors is essential, some must be present for cohesion to be strong enough to justify the term nationality. Used in this sense, nationality does not necessarily denote membership within a specific political state. There are many examples of nations divided between several states and of states composed of several nations and parts of nations. Thus not all Albanians live in Albania, and, on the other hand, Switzerland has citizens whose native languages are German, French, Italian, and Romansh. In political theory the belief that a state should be identical with a nation is called the “principle of nationalities,” or, more commonly, “self-determination.” This view is a typical expression of nationalism; it was advanced partly as a means of solving the problem of the national minority after World War I. Nationality in its specific legal sense is a very different concept; it is attachment to a state by a tie of allegiance. Nationals in this sense are fundamentally distinguished from aliens (see alien) and in most, but not all, countries are identical with citizens. Nationality gives the state the right to impose certain duties, especially military service. Some states will punish their nationals for crimes wherever committed; the United States, however, punishes only those crimes, except treason, that are committed within American territorial jurisdiction. States may tax the income and other assets of their nationals regardless of whether they reside abroad. The national owes duties to his government but is also entitled to diplomatic protection when in a foreign country. Such protection includes the assistance of consular officials when the national is accused of crime and the offering of refuge in emergencies. In many instances certain persons, particularly those who have undergone naturalization, will be regarded as nationals by two states at once. Such problems of dual nationality have been a frequent cause of international diplomatic disputes.
Naturalization
When immigrants enter the United States, they are not American citizens. In order to enjoy many of the privileges of being an American, such as the right to vote and hold public office, a person must gain citizenship. The process for becoming a citizen is called naturalization. To become a naturalized citizen, a person must fill out an application with the Immigration and Naturalization Service and meet the following requirements:
be at least 18 years old (children who are immigrants and under age 18 can become citizens when their parents do);
have been a permanent resident for five years, or three years if married to a person who has been a U.S. citizen for at least three years (a permanent resident is an immigrant who has permission to live in the United States permanently);
have lived in the United States for at least half of required residency;
swear loyalty to the United States;
read, write and speak basic English;
show that he or she agrees with the principles of the constitution;
demonstrate knowledge of U.S. history and government;
take an oath of allegiance.
Although the terms "nationality" and "citizenship" are often used interchangeably, the two concepts are not always synonymous. While all citizens are nationals of a State, not all nationals are citizens. WEIS, supra note 12, at 5-6 (also noting that a few States create different categories of citizenship for their nationals). "Nationality" is often defined as the characterization a state makes of an individual for the purpose of controlling and protecting that individual. MYRES S. MCDOUGAL ET AL., HUMAN RIGHTS AND WORLD PUBLIC ORDER 737-38 (1980). Accordingly, nationality is a reciprocal relationship entitling one to the rights, and subjecting one to the burdens, of citizenship. WEIS, supra note 12, at 239.
17 A State's most basic duty is to admit nationals to the state's territory. See H.F. VAN PANHUYS, THE ROLE OF NATIONALITY IN INTERNATIONAL Law 56 (1959) ("The duty to admit nationals is considered so important a consequence of nationality that it is almost equated with it."). The right of the national to reside within the State's territory is a natural consequence of this duty. WEIS, supra note 12, at 45, 239-241. A United Nations survey of international instruments and national laws concluded that the right to leave and return is "a legal obligation according to customary international law." C. Mubanga-Chipoya, Analysis of the Current Trends and Developments Regarding the Right to Leave any Country Including One's Own, and to Return to One's Own Country, and Some Other Rights or Consideration Arising Therefrom, at 11, U.N. Doc. E/CN.4/Sub.2/1987/10, quoted in THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS As CUSTOMARY LAw 97 n.46 (1989). The national also gains from his or her state the benefit of diplomatic protection. See WEIS, supra note 12, at
A passport is a formal identity document or certification issued by a national government that identifies the holder as a citizen of a particular country, and requests permission, in the name of the sovereign or government of the issuing country, for the bearer to be permitted to enter and pass through other countries. Passports are connected with the right of legal protection abroad and the right to enter one's country of citizenship. Passports usually contain the holder's photograph, signature, date of birth, nationality, and sometimes other means of individual identification. Many countries are in the process of developing biometric properties for their passports in order to further confirm that the person presenting the passport is the legitimate holder.
A passport is usually necessary for international travel, as it normally needs to be shown at a country's border, although there exist agreements whereby the citizens of some countries can enter some other countries with other identity documents. It may be stamped or sealed with visas issued by the host country authorizing entry.
Some governments try to control the movements of their own and other citizens and issue so-called internal passports. For instance, in the Soviet Union, all citizens were issued propiski to control their movement around the country. This system has been partly retained in Russia.
As identifying documents, passports are frequent subjects of theft and forgery. See Sealand.