CONSTITUTIONAL LAW--LIBERTIES WILLIAM MITCHELL COLLEGE OF LAW
FINAL EXAMINATION
Professor Kenneth Kirwin
Monday, May 11, 1998 - 6:30-9:30 p.m.3 Hours - Closed Book, Open Notes
Student Test No.____________
- For anonymity, use your assigned test number which was mailed to you.
- Put your test number on this page and on all bluebooks.
- If you do not know your test number, you may obtain it at the Communication Center or in the Records Office (Cindy Egeness) during the first 30 minutes of the exam period.
- If you do not use your test number, you will be deemed to have waived your privilege of anonymous grading.
- TURN IN YOUR BLUEBOOKS AND THIS EXAM AT THE END OF THE PERIOD.
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STUDENT CONDUCT CODE
IT IS A VIOLATION OF THE CODE:
- To use any sources which are forbidden by the instructor to complete an exam.
- To submit as one's own work the work of another.
- To engage in any conduct which tends to give an unfair advantage to any student in any academic matter.
Knowledge of any violation should be promptly reported.
VIOLATION OF THE STUDENT CONDUCT CODE MAY RESULT IN EXPULSION
OR SUSPENSION FROM THE COLLEGE OR DISMISSAL FROM THE CLASS.
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TYPING AREA: If you are going to type your examination, the typing area is located in Room 230. You must return the exam to this room at the conclusion of the exam period.
GENERAL INSTRUCTIONS
This is a closed-book, open-notes exam. You may use any written, typed, or word-processed materials you have prepared, but not any books, handouts, or other printed or photo-copied materials.
This exam has two ninety-minute questions. The answer to each question will be graded separately. Therefore, please make sure that each answer stands by itself and does not rely upon or refer to anything included in your answer to the other question.
You have three hours to complete the exam. Please take the time to read each question carefully and outline your analysis before you begin to write the answer. If you make notes or outlines to organize your answer, please put them on your exam paper or in a separate bluebook marked "SCRATCH." Only material written in essay form will be considered in grading.
Please discuss all issues reasonably presented, even if resolution of any particular one would alone dispose of the problem. Specify all reasons supporting your conclusions, including alternative grounds, and discuss possible contrary arguments.
If you believe that, with respect to any particular issue, there are insufficient facts to warrant drawing any conclusion, indicate what additional facts would be relevant and why.
Similarly, if you believe that any statement of fact is ambiguous, please resolve the ambiguity for yourself, indicating briefly the nature of the ambiguity and how you resolved it.
Please write legibly.
Good luck!
QUESTION I
Suggested time: ninety minutes
Henry, being Catholic, and Wilma, being Jewish, were married in a traditional Jewish wedding ceremony in 1988. Henry and Wilma had three children: Abraham, born in 1988, Moriah, born in 1991, and Rebekah, born in 1993. Abraham was circumcised in accordance with Jewish tradition and Moriah and Rebekah had traditional Jewish naming ceremonies. All three children are enrolled in a Jewish school.
In 1991, Henry became a member of the Mitchell Church of Christ, a fundamentalist Christian faith. Henry would like his children to accept Jesus Christ and says that he "will never stop trying to save [his] children."
In 1994 Wilma adopted Orthodox Judaism. (Orthodox Judaism is considered the most strictly doctrinal of the three Jewish movements, Reform, Conservative, and Orthodox). Abraham also began studying and adhering to principles of Orthodox Judaism. Wilma filed for a marriage dissolution in November 1994, based on an irretrievable breakdown of the marriage.
At the outset of the dissolution proceedings, Wilma sought to limit the children's exposure to Henry's religion, and Henry objected to any limitation on his ability to share his religious beliefs with the children. On the basis of a comprehensive report by a guardian ad litem, the district court issued the following findings of fact:
20. In early 1995, Henry threatened to cut the fringe off Abraham's tzitzitz (shirt with religiously meaningful fringes). This greatly upset Abraham and Wilma, and Henry later apologized.
21.In the summer of 1995, Henry shaved off Abraham's payes (religiously meaningful sideburns). Henry's explanation that he did so at Abraham's request is not credible.
22. The Mitchell Church of Christ services to which Henry has taken his children have included teachings that those who do not accept the Mitchell Church of Christ faith are damned to go to hell where there will be "weeping and gnashing of teeth."
23. Abraham has drawn from the above teaching the conclusion that Wilma may go to hell. This causes him substantial worry and upset.
24. Abraham has a strong Jewish self-identity. Abraham has clearly identified himself and his siblings as being Jewish. Henry reluctantly concedes that if asked, Abraham would unquestionably say he is Jewish.
25. Abraham perceives his Jewishness as being part of his "soul." For Abraham, efforts to convince him that his religion is wrong are logically equated with convincing him that his "soul" is damaged or inadequate.
26. Abraham is emotionally distressed by the conflict between his strong desire for affection and approval from Henry and his desire to maintain his Jewish religious practice, and as a direct result there has been a decline in his motivation and academic performance.
27. Moriah is experiencing emotional distress related to the parental conflict. Moriah has a very solid understanding of who she is and who her family is: "I'm not Christian. I'm Jewish. Mom is Jewish. My dad is Christian. My brother is Jewish and my sister is Jewish."
28. Rebekah is likely to experience a sense of not belonging in her own home by anything that serves to promote her identity as fundamentally different from that of her mother and siblings. This would be substantially to her detriment.
29. Should the children come to accept the religious beliefs that Henry reports he wants them to accept, they are likely to come to view their mother negatively and as a person who will be punished for her sins. This would harm their relationship with their mother and their ability to accept guidance from her. This would be to the children's substantial detriment.
The district court's judgment of dissolution contained the following paragraph:
5. RESTRICTIONS UPON RELIGIOUS EXPOSURE: Each parent shall be entitled to share his or her religious beliefs with the children with restrictions as follows: neither may indoctrinate the children in a manner that substantially promotes their alienation from either parent or their rejection of either parent. Henry shall not take the children to his church (whether to church services or Sunday School or church educational programs) or engage them in prayer or bible study if it promotes rejection of their mother or their own Jewish self-identity. Henry shall not share his religious beliefs with the children if those beliefs cause the children significant emotional distress or worry about their mother or about themselves. Thus, for example, Henry may have pictures of Jesus Christ hanging on the walls of his residence, and that will not serve as any basis for restricting his visitation with his children. But Henry may not take the children to religious services where they receive the message that adults or children who do not accept Jesus Christ as their lord and savior are destined to burn in hell. By way of further example, Henry may not shave off Abraham's payes. This provision shall not be construed to prevent Henry from having the children with him at events involving family traditions at Christmas and Easter.
Please discuss in full detail all Constitutional Law Liberties issues raised by paragraph 5 of the district court's judgment. Discuss only federal constitutional issues that we have covered this semester.
QUESTION II
Suggested time: ninety minutes
The legislature of the State of Mitchell became increasingly concerned with the incidence of babies born with health problems caused by their mothers' prenatal consumption of controlled substances (illegal drugs) and alcohol. The legislature found that the prenatal risks caused by both controlled substances and alcohol use were substantial, although the evidence presented at the hearings indicated that the health problems of babies whose mothers had consumed "hard" drugs and of babies affected by fetal alcohol syndrome were more severe than those of babies born to marijuana users. The State of Mitchell enacted Mitch. Stat. § 540.2385, which provided:
A. A person mandated to report shall immediately report to the local welfare agency if the person knows or has reason to believe that a woman is pregnant and:
(1) has used a controlled substance for a nonmedical purpose during the pregnancy; or
(2) has abused alcohol during the pregnancy.
B. The local welfare agency shall immediately conduct an appropriate assessment and offer services indicated under the circumstances. Services offered may include, but are not limited to, a referral for chemical dependency treatment and a referral for prenatal care.
C. If the pregnant woman refuses the recommended services or fails recommended treatment, she may be taken into custody and transported to a treatment facility, where she may be held up to 72 hours.
D. If the pregnant woman has used a controlled substance for a nonmedical purpose (as distinct from abusing alcohol) during the pregnancy and the court determines that she is unlikely to refrain from using controlled substances, the court may impose a civil commitment for a period up to and including the entire remainder of her pregnancy.
E. For purposes of subsection A, "person mandated to report" means professionals engaged in the practice of the healing arts, social services, hospital administration, psychological or psychiatric treatment, child care, education, or law enforcement.
At 8:30 p.m. on May 5, Marie, a 24-year-old woman, was driving home from dinner at a friend's house. Although she was not driving erratically, a police officer stopped her, having observed that she was smoking what appeared to be a marijuana cigarette. Upon approaching her vehicle, he observed that it was a marijuana cigarette. He also observed that Marie appeared to be pregnant. When he asked her whether this was the case, she admitted that she was four months pregnant. Under Mitchell law, possession of a small amount of marijuana, for a first-time offense, as was the case here, is a petty misdemeanor, punishable by not more than a $200 fine. Marie pleaded guilty and paid a fine of $200.
The police officer also reported the incident to the local welfare agency, which told Marie to come in for a chemical dependency assessment. Marie failed to report for the assessment. She was taken into custody and transported to a treatment facility, where she was held for 72 hours. During her confinement, the state district court, after appropriate notice and hearing, determined that Marie was unlikely to refrain from her habitual use of marijuana for the duration of her pregnancy. Accordingly, the court extended Marie's commitment until her child was born.
Please discuss in full detail all Constitutional Law Liberties issues raised by this scenario. Discuss only federal constitutional issues that we have covered this semester.
AT 9:30, PLEASE MAKE SURE YOUR TEST NUMBER IS ON EACH BLUEBOOK, PUT THE EXAM (UNFOLDED) INTO YOUR BLUEBOOKS, AND PUT YOUR BLUEBOOKS INTO THE BOX.
HAVE A NICE VACATION!