Constitutional Law - Section 2
Professor Harpaz
Final Exam
April 30, 1998
Question I
(Suggested time: 60 minutes) (40 out of 120 total exam points)
Geraldine Larkin applied for a license to operate an Adult Foster Care Facility which would provide 24-hour supervised care for up to four physically handicapped adults in Westland, Michigan. The Michigan Adult Foster Care Licensing Act (MAFCLA) governs the issuance of such licenses. Under the Act, no license may be granted to operate an Adult Foster Care Facility (AFCF) for the physically handicapped within 1500 feet of an existing AFCF for physically handicapped persons. Geraldine Larkin's application for a license was turned down on the ground that the property she wanted to use for an AFCF was located within 1500 feet of an existing AFCF for the physically handicapped.
The State of Michigan adopted the 1500 foot spacing requirement for Adult Foster Care Facilities for the physically handicapped for two reasons. First, it did not want to create areas with an excessive concentration of such facilities so as to isolate physically handicapped persons from others in the population. It preferred such homes to be spread throughout a community so that the handicapped could be integrated into normal community life. Second, it believed that the types of special equipment normally required by residences for the physically handicapped, such as specially equipped vans for transportation, would create congestion and traffic safety problems if concentrated within an area, but that such problems would be avoided by the careful spacing required by the MAFCLA. While the spacing requirements of the MAFCLA apply to Adult Foster Care Facilities for the physically handicapped, they do not apply to other foster care facilities for other special populations such as the mentally retarded or to other group homes such as fraternity and sorority houses. The State of Michigan does not believe that these other varieties of group homes and foster care facilities create the same degree of traffic safety problems as facilities for the physically handicapped.
After the rejection of her application for a license to operate an AFCF for the physically handicapped, Geraldine Larkin filed a lawsuit in federal district court claiming that the MAFCLA was unconstitutional as applied to facilities for the physically handicapped.
You are the law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law describing all of the constitutional arguments that can be made on behalf of Geraldine Larkin in challenging the MAFCLA as well as all of the constitutional arguments that can be made on behalf of the State of Michigan in its defense of the Act.
You have already done some preliminary research in the case. Your research has found a federal statute, the Federal Fair Housing Act (FHA), which outlaws housing discrimination on the basis of race, national origin, gender and handicap. As applied to handicapped persons, the FHA makes it unlawful to discriminate against a potential buyer or renter or occupier of a dwelling because of that person's handicap or the handicap of any person who is intending to reside in that dwelling after the dwelling is sold, rented or made available. Among its provisions, the FHA provides that "any state law that requires or permits any action that is designed to discourage the sale, rental or occupation of a residence because of bias directed at the handicap of its prospective occupants shall be invalid." No other provision of the FHA describes the intended effect of the federal law on provisions of state law.
Question II
(Suggested time: 60 minutes) (40 out of 120 total exam points)
In recent months, Congress has become concerned that the technology to clone human beings will soon be available through the process of somatic cell nuclear transfer and that scientists may soon begin to experiment with human cloning. In a series of hearings on the subject, Congress heard testimony from a variety of witnesses including: (1) people who believe that human cloning is morally wrong; (2) scientists who believe that the technology of human cloning is not sufficiently developed and will, in the short term, produce infants with significant abnormalities; and (3) participants in the one billion dollar infertility industry, such as doctors who specialize in helping people to have children through the process of in-vitro fertilization and other forms of modern reproductive technology, who believe that people who are desperate to have children will be duped into paying large fees on the false promise a doctor will be able to produce a human clone.
As a result of the hearings, Congress recently enacted the Human Cloning Prohibition Act of 1998. The statute makes it a federal crime to: (1) create a human clone through the technique of somatic cell nuclear transfer or other cloning technology; (2) implant or attempt to implant the product of somatic cell nuclear transfer or any other human cloning technology into a woman's uterus; and (3) ship the product of somatic cell nuclear transfer or other human cloning technology in interstate or foreign commerce.
Dr. David Madison is a scientist who has announced that he has developed the ability to clone a human being. Mary Hudson and her husband, Joseph Hudson, have consulted Dr. Madison. Joseph Hudson is a carrier of a rare genetic defect that will almost certainly result in the painful death of any child born to Mary and Joseph within one year of the birth of that child. Desiring to have a child, Mary and Joseph have consulted Dr. Madison about producing a human clone of Mary. Mary and Joseph do not want "their" child to be the biological offspring of a sperm donor and do not want their child to inherit the genetic defect that Joseph carries. Mary and Joseph believe that human cloning is the perfect solution to their problem and have asked Dr. Madison to proceed with producing a human clone of Mary.
Dr. Madison has informed Mary and Joseph that he cannot honor their request because human cloning is illegal under the Federal Human Cloning Prohibition Act. Dr. Madison and Mary and Joseph Hudson have filed suit challenging the constitutionality of the Human Cloning Prohibition Act. Their lawsuit argues that Congress lacks the power under the Commerce Clause to enact the Human Cloning Prohibition Act and that the provisions of the Act violate the Fifth Amendment Due Process Clause.
You are a law clerk to the judge assigned to the case. The judge has asked you to write a memorandum of law describing the Commerce Clause and Due Process arguments that can be made by Dr. Madison and Mary and Joseph Hudson in challenging the Federal Human Cloning Prohibition Act as well as the arguments that are available to the federal government in defending the Act against these constitutional attacks.
Question III
(Suggested time: 60 minutes) (40 out of 120 total exam points)
To practice law in New Jersey, an attorney must maintain a bona fide office within the state. A bona fide office is defined as "a place where clients are met, files are kept, the telephone is answered, mail is received and the attorney or a responsible person acting on the attorney's behalf can be reached in person and by telephone during normal business hours to answer questions posed by the courts, clients or adversaries and to ensure that competent advice from the attorney can be obtained within a reasonable period of time." The definition also states that a bona fide office is "more than a maildrop, a summer home that is unattended during a substantial portion of the year, an answering service unrelated to a place where business is conducted, or a place where an on-site agent of the attorney receives and transmits messages only."
New Jersey adopted the bona fide office requirement in order to ensure that attorneys who provide legal services to New Jersey residents are available on a regular basis to consult with their clients, the courts and their adversaries and will be likely to devote sufficient time to the practice of law in New Jersey so as to stay current with developments in New Jersey law and to be knowledgeable about local rules as well as the unwritten conventions of legal practice within the State.
Margaret Sullivan is a resident of New Jersey who has been in the practice of law in New Jersey for 10 years, maintaining a law office in Cherry Hill, New Jersey. Ms. Sullivan is licensed to practice law in both Pennsylvania and New Jersey. Recently, because more than 50 percent of her clients are either from Pennsylvania or conduct business regularly in both New Jersey and Pennsylvania, Ms. Sullivan decided to close her Cherry Hill office and relocate her office to Philadelphia. Ms. Sullivan continues to reside in New Jersey. As a result of closing her Cherry Hill office, Ms. Sullivan was notified by the State of New Jersey that she is no longer eligible to practice law in New Jersey.
Alan Brooks is a resident of Pennsylvania and a member of the Pennsylvania Bar who has been in the practice of law for three years and who maintains a law office in Philadelphia. Mr. Brooks specializes in corporate law and many of his clients do business throughout the United States. Recently, because an increasing number of his clients are New Jersey corporations with their headquarters in New Jersey, Mr. Brooks applied to become a member of the New Jersey Bar. After passing the bar examination, he was told that he could not be licensed to practice in New Jersey unless he maintained a bona fide office within the State. Mr. Brooks believes it would serve no useful purpose for him to open a second office in New Jersey since his Philadelphia office is very convenient for his New Jersey clients.
Both Margaret Sullivan and Alan Brooks have filed lawsuits challenging the New Jersey bona fide office requirement. You are a law clerk to the judge assigned to both cases. The judge has consolidated the two cases and has asked you to prepare a memorandum of law detailing the constitutional arguments that are available to Margaret Sullivan and/or Alan Brooks in challenging the New Jersey bona fide office requirement as well as the constitutional arguments that are available to the State of New Jersey in defense of its bona fide office requirement for New Jersey lawyers.
END OF EXAMINATION