Statutes of Limitations: Everything You Wanted to Know and BarBri Didn't Tell You

Criminal Statutes of Limitation:

[17-A M.R.S.A. § 8]

• Statutes of limitation set the expiration of the period during which a prosecution may be commenced.

No limitation for:

• Murder; and
• incest, unlawful sexual contact, sexual abuse of a minor, and gross sexual assault if the victim was under 16 at the time of the crime.

6 years for:

• Class A, B, or C.

3 years for:

• Class D or E.

Criminal tolling:

Limitations period does not run when:

• Defendant is absent from the state, but this tolling cannot extend the period of limitation by more than 5 years.
• During any time when a prosecution against the accused for the same crime based on the same conduct is pending in this state (i.e., if the indictment gets dismissed without prejudice before attachment of double jeopardy, the prosecutor can start over again even if the SoL otherwise would have run).

Defendant charged with murder or a class A,B,C crime within the limitations period can be convicted of any lesser included offense, even if the SoL has run on the lesser included offense.
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Various Civil Limitations Periods:

[14 M.R.S.A. § 751-754, 11 M.R.S.A. § 2-725, etc.]

6 years is the default rule that applies to every civil action that isn't specifically given a different period.

No limit for:

• civil recovery for sexual acts toward a minor.
  

20 years for:

• contracts under seal, promissory notes signed in the presence of an attesting witness, or on the bills, notes or other evidences of debt issued by a bank
  
• adverse possession
• right of reentry (20 years from date that right to re-enter arose)
  

4 or 20 years for:

• land surveyors: 4 years from discovery, 20 years from services.
  

4 or 10 years for:

• architects and engineers: 4 years from discovery, 10 years from substantial completion of the construction or services.

4 years for:

• Sale of Goods (UCC)
  

2 years for:

• property damage, bodily injury and death from skiing and hang gliding.
• assault
• battery
• false imprisonment
• slander
  
• libel

1 year for:

• sureties in a criminal case (bail bonds)

Civil Tolling:
Conditions of the Plaintiff:

• in real actions (to get your real property back), minors, the mentally ill, those imprisoned and those absent from the United States *when the cause of action first accrues* may bring the action within 10 years after the disability is removed (or through heirs), even if the 20 years has run.
• in other civil actions, for minors, the mentally ill, those imprisoned and those absent from the United States *when the cause of action first accrues* the SoL period begins to run when disability is removed.

Condition of the Defendant:

• If a person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State.
  
• If a person is absent from and resides out of the State, after a cause of action has accrued against him, the time of his absence from the State shall not be taken as a part of the time limited for the commencement of the action.

Discovery Rules:

• see above for architects, engineers, land surveyor rules.
  
• fraud and fraudulent concealment of any cause of action by the one liable for it tolls the SoL until the cause of action is discovered. Then 6 years.
• Attorney malpractice (6 years) starts to run immediately, even if malpractice is undiscovered, EXCEPT negligence in titles and wills/trusts which are tolled until discovery.

Miscellaneous Stuff:

• Debts barred by the SoL can be renewed only by a promise to pay that is in writing.
• There are too many SoLs for commercial paper to figure out. They're here if you don't believe me.
  

More Contractual Nuance: PMBR Blue Book

A written contract may be modified orally, despite a written contract requiring modifications to be in writing. The oral modification is an oral waiver of the requirement. EXCEPT: UCC says that oral modification of a contract that expressly requires modification in writing is not enforceable unless the aggrieved party has materially changed position in reliance on the oral modification.

When there is a contract for construction of a new building, and the first attempt is destroyed by fire, the builder is not excused from starting over. Contractor bears risk of loss until completion. The rule for repair is the opposite.

Instead of illusory contract, look for option/offer (even if not supported by consideration) that is not revoked prior to acceptance, e.g. by tendering the purchase price.

UCC: If seller acts in bad faith in setting a price term, buyer can set reasonable price.

UCC: Specific performance is authorized in favor of the buyer when the goods are unique.

Equal dignity rule: agency agreement must be in writing to bind principal on a contract covered by the statute of frauds.

Solving an obstacle to completion of a job is not a legal consideration. An attempt to resolve a bona fide dispute is.

Look for consideration substitute based on change in position in reliance... promissory estoppel.

Torts: Invasion of Privacy Torts

Another one of those "gee, why didn't we learn this in law school" sort of napkins:

1. Intrusion upon seculsion: 1) intentional; 2) intrusion, physical or otherwise; 3) upon solitude, seculsion or private affairs; 4) highly offensive to a reasonable person.

2. Appropriation of Name or Likeness: 1) appropriation of name or likeness of another; 2) for commercial advantage.

3. Publicity of private facts: 1) publication; 2) highly offensive to a reasonable person; 3) not a legitimate concern to the public. Truth is no defense. Newsworthiness is a defense.

4. False Light: 1) publicity; 2) places another in a false light; 3) highly offensive to a reasonable person.

Remedies: proof of special damages not required. injunctions available.

Defenses:

• Absolute privilege: judicial proceedings, legislative proceedings, communications (publication) only between husband and wife, equal time broadcasts.
• Conditional privilege: statements in the defendant's interest, statements in interest of third persons (these are generally statements made in response to a request, e.g. job/credit recs), statements in the public interest.
• consent.
  

Torts: Nuances and Tricky Tricks

Trespass to Land

• There are two types: intentional and reckless/negligent.
  
• Intentional trespass requires intent to enter and entry. Mistake re ownership/privilege is no defense, even if reasonable mistake. Nominal damages are available.
• Negligent/reckless trespass is actionable only if there is damage.
• Non-negligent accidental entries are not actionable.
  
• To be actionable, trespass by aircraft must be in the immediate reaches above the property and substantially interfere with use of land.
• Standing: actual possession or right to possession is needed. Lessee or adverse possessor can sue.
• Apparently, you should assume intentional trespass is intended on the MBE, unless it's not.

Privilege (Private Necessity)

• A defender of property acts at his own peril in using force against someone who is actually privileged to intrude.
• Similarly, those who intrude upon property without a privilege must suffer the consequences of their mistake.

Nuisance

• Courts can grant monetary damages and an injunction to prevent the continuation of the nuisance.

Tortious Battery

• Contact is only offensive if it offends a reasonable sense of personal dignity. The contact must be unwarranted by the social usages prevalent at the time and place where the touching occurs.
• If a bunch of guys who don't know each other start beating up on one guy, they may be found to be acting in concert, subjecting each to vicarious liability for the torts of the others.
  

Negligence

• If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of physical harm to another, he is under a duty of reasonable care to prevent the risk from taking effect.
• One confronted with an emergency must act reasonably under the circumstances.
• A rescuer must act reasonably under the circumstances and may be liable for negligence during the rescue. (Sometimes this liability is relieved by Good Samaritan statutes.)
  

Strict Liability

• misuse of the product is no defense if such misuse is reasonably foreseeable.
• assumption of the risk IS a defense.

IIED/NIED

• IIED requires: 1) extreme/outrageous conduct; 2) resulting severe emotional distress; 3) intent OR RECKLESSNESS.
  
• Third person liability if: 1) immediate family member present at the time; OR 2) any person present at the time when the distress results in bodily harm to the 3rd party.
  
• Lessened requirement of "outrageous" conduct for common carriers and innkeepers -- insulting or highly offensive behavior enough. Merely insulting conduct is not enough for others.
  
• NIED requires bodily harm resulting from the distress, except for negligent news of death of family member or treatment of a corpse.
• Third-party recovery for NIED requires: personally within the zone of danger AND bodily harm results from the distress.

False Imprisonment/Arrest

• An arrest under a warrant is privileged if the person arrested is the one named in the warrant, or reasonably believed to be the one named, or has knowingly caused the officer to believe him to be the one named.
• An arrest without a warrant is privileged for a police officer if 1) felony being committed or about to be committed in his presence; 2) misdemeanor constituting breach of the peace in his presence; 3) officer reasonably believes arrestee to be a felon even if no felony has been committed.
• An arrest without a warrant is privileged for a private citizen if 1) felony being committed or about to be committed in his presence; 2) misdemeanor constituting breach of the peace in his presence; 3) felony has in fact been committed and reasonably believes the person arrested committed it.
• Private citizen takes the risk that no felony was committed. His reasonable mistake as to whether there was a felony will destroy the privilege. Private citizen does not take a risk re misapprehension. His reasonable mistake re identity of the felon will not destroy his privilege.

Tricky, Tricky: Con Law-PMBR Red Book 61-110

I'm having a much happier day doing Con Law PMBR questions than I was doing Contracts...

Q75. Note that the supremacy clause can NEVER make a law valid. It can only make a law invalid, so answer B is wrong. D is correct only because all the other answers are wrong.

Q78. The right to be a candidate is a fundamental interest. Federal gov't will get involved (i.e. it's not a Guaranty Clause non-justiciable political question).

Q83. The answer explanation doesn't really say why D is wrong, but here's my guess. The 5th Amendment doesn't grant a power of eminent domain (that's a police power) but rather it limits the power by restricting it to public related uses and with adequate compensation, so A is a better answer.

Q85. The answer is D because the actor who passed the amendment was the people themselves, so it's not a police power action of the city, but rather a reservation of power by the people themselves.

Q91. Voluntary prayer recitals during the school day inside the school building should be held to be Establishment Clause violations for the purposes of the multi-state. Seems odd to me because there's lots of facts here to show that this is more like a "meet me by the flag-pole" case than an organized football prayer case, but oh well.

Q92. See Roemer v. Board of Public Works of Maryland (1976). No excessive entanglement because no more interference than the normal audit and accreditation process.

Q98. See Terry v. Adams (1953). Primary election procedures that are racially discriminatory qualify as state action because they are closely supervised by the state and effect right to vote/be elected. Violatory of the 14th/15th Amendments.

Q103. Discrimination against the poor may violate equal protection but not because the poor are a suspect class, rather because the right affected is a fundamental right. I think that's why B is more betterer than A.

Q107. A tricky standing question: who is hurt most directly by the tax? The purchaser of the cigarettes. The appropriation was a nonseverable provision of the law, so if the purchaser invalidates the appropriation, he invalidates the whole law = redress of his injury.

Con Law-Free Speech Nuances

In general:

1. content regulation: triggers strict scrutiny
2. time, place, manner regulation: middle-tier three part test -- 1) important gov't interest, 2) narrowly tailored, 3) alternative channels of communication left open

Commercial Speech:
If subject of the advertising/speech is lawful and ad is not misleading/deceptive, evaluate under the Central Hudson test: substantial governmental interest directly served/advanced and reasonable "fit" between ends and means (narrowly tailored).

Vice advertising: apply Central Hudson. Must be narrowly tailored - complete ban is overreaching.

Time, Place, Manner Regulations:

1. Public Forums:
1. subject matter AND viewpoint neutral
2. narrowly tailored to serve significant gov't interest
3. leave open alt. means of communication.

BUT
2. Non-public forums (including city buses and public schools):

1. viewpoint neutral (subject matter distinctions are ok)
   
2. reasonably related to legitimate interest.

Facial Attacks on speech regulations:

1. overbroad: includes protected and unprotected speech within its scope
2. vagueness
3. prior restraint
4. unfettered discretion

Con Law-Privileges & Immunities

4th Amendment Privileges and ImmunitiesThis clause prevents economic discrimination by one state against citizens or residents of another state unless substantial government justification exists.

Taxes can't be levied by states against income of nonresidents if residents are exempt.

Commercial license fees cannot discriminate against nonresidents.
Recreational license fees CAN discriminate against nonresidents because they are not "economic interest."

Durational residency requirements for dispensing government benefits are subject to strict scrutiny (but reasonable residency requirements for divorce and in-state tuition are ok).

Amendment 14 privileges & immunities is generally a wrong answer, but it was used by the Court in 1999 to strike down a state waiting period for welfare benefits: interference with right to travel freely from state to state which is a right of national citizenship.