Federal Jurisdictionfinal Exam

FEDERAL JURISDICTIONFINAL EXAM

Fall 2006, Professor Dodson

Instructions

1.The exam is open-book, open-notes, and closed-everything-else.

a.The following is an exhaustive list of information resources you may use:

i.Any notes you have taken, jointly or individually. Your notes may reflect material identified in § 1(b) so long as that material was accessed prior to November 30, 2006.

ii.Any notes other students in this class have provided to you.

iii.Any materials assigned for this class, including the materials on this course’s TWEN site.

iv.Any commercial outlines, hornbooks, or educational supplements designed for use by law students studying the material covered by this course.

b.You may not use the Internet, law reviews, or assistance from other persons. The list in this § 1(b) is not exhaustive.

2.The exam is take-home and page-limited.

a.I will distribute exams in class on November 30, 2006. If you miss class that day, you may pick up the exam from the box on the wall outside my office at any time after class on November 30, 2006, until 4 p.m. on December 4, 2006. They are in unsealed manila envelopes with typed course-identifying information on them.

b.Regardless of when you pick it up, you may not look at the exam or begin the exam before 4 p.m. on November 30, 2006.

c.Include only your exam number and no other personally identifiable information on your exam answer. When you have finished the exam, seal it in the envelope provided with the exam. Do not include your exam number or any other identifying marks on the outside of the sealed envelope that contains your exam answer.

d.You must return the exam in the sealed envelope no later than 4 p.m. on December 4, 2006, either to my secretary (Barbara Smith, Room 107) or to the box on the wall outside by office.

e.You may take as much time as you wish between 4 p.m. on November 30, 2006, and the time you return the exam to complete it.

f.Your exam answer must be typed in 12-point, Times New Roman font, single-spaced, with reasonable margins.

g.The page limits for each answer, as identified in the exam, will be strictly enforced.

h.I have discretion to reduce your grade any number of points for noncompliance with any of the requirements of this § 2.

3.The exam is worth 95 points. (Recall that the other 5 points are discretionary based on class participation.)

GOOD LUCK!

1.Maximum points: 70

Page limit:7

It is December 2000, and you are a law clerk to Justice John Harlan III on the U.S. Supreme Court. A petition for a writ of certiorari to the Florida Supreme Court has just been filed by George W. Bush and styled Bush v. Gore. The facts are as follows:

Bush is the Republican nominee for President, and Al Gore is the Democratic nominee. Election day has passed, and the election hinges on the electoral votes of Florida. Florida Secretary of State Katherine Harris has just certified Bush as the victor in Florida. However, because the vote count is so close (smaller than a 2,000 vote margin), Gore filed a contest under Florida law in Florida state court and named Bush the defendant. The Florida trial court concluded, on Dec. 4, 2000, in favor of Bush, ruling that Gore had failed to prove a probability that he would prevail on a recount.

Four days later, the Florida Supreme Court reversed (hereinafter Bush I), holding that Gore met his burden by demonstrating receipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election. The Florida Supreme Court ordered a recount of 9,000 ballots in Miami-DadeCounty that had failed to be counted by the voting machines. The state court stated that “there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt.” The court defined “legal vote” as “one in which there is a clear indication of the intent of the voter.” The court left it to the Secretary of State to develop a detailed administrative scheme of recounting the votes fairly and on an equal basis.

Within days, Secretary Harris’s office implemented such an administrative scheme. It was intricate, detailed, and careful (including provisions for evaluating “hanging chads” (in which the punch hole was hanging by at least two corners), and a “dimpled chads” (in which a depression was evident but no hole was made)), but she was able to design it quickly because of the limited geographical scope of the recounting. Secretary Harris then immediately sought a ruling from the Florida Supreme Court as permitted by that court’s rules, as to whether her recount procedure conformed with the Florida Supreme Court’s mandate and any other state laws. Bush intervened, naming Secretary Harris as a defendant, and filed an application for a stay pending the court’s decision, arguing that the state procedures violate both state law and the Equal Protection Clause. The Florida Supreme Court denied Bush’s petition for a stay in a decision titled In re Harris without articulating any reasoning for the decision. The Florida Supreme Court is currently considering Harris’s petition, and Bush has filed an amicus brief arguing, again, that the state procedures violate both state law and the Equal Protection Clause.

Bush also has now sought, in the U.S. Supreme Court via the petition on your desk, reversal of the Florida Supreme Court’s decision in Bush I and a review of that court’s denial of his request for a stay in Harris. Bush seeks an injunction to stop the recount by the Secretary of State’s office. Bush’s only claim is that the counting of ballots without sufficient uniform standards violates the Equal Protection Clause of the U.S. Constitution. Bush argues that, having once granted the right to vote on equal terms (deciding legal votes by a machine), Florida cannot later value one person’s vote over another by more subjective recounting procedures. Bush asserts that different standards likely will vary among recount teams and, perhaps, even among individual recounters within the same recount team. Bush did not vote in Florida, so he does not claim a denial of equal protection on his own behalf. Instead, he argues on behalf of certain Florida voters whose votes likely will be devalued under disparate recount standards. He also does not argue that the voters likely denied equal protection are voters who voted for him; instead, he merely argues that certain voters, whatever their vote, will be treated differently than others, based on the different recount standards.

Neither party has raised the Twelfth Amendment to the U.S. Constitution:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President . . . ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for . . . and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States . . . .

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. . . . And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President . . . .

As you sit reading the briefs, you wonder whether the Court has jurisdiction and, even if so, whether the Court should exercise it, though neither party has raised those issues. Please draft a bench memo to your Justice explaining whether the Court should hear the case at all and why. Be sure to analyze all of the factors at issue, even those that might support a conclusion contrary to yours.

2.Maximum points:25

Page limit:3

Select one (or more) of the following:

(a) the federal question jurisdiction statute of § 1331;

(b) the diversity jurisdiction statute of § 1332;

(d) the removal statute of §§ 1441-47.

If you could amend the statute(s) that you selected in any way you wished, what amendments would you make and why? If you would not amend, why would you not? Be sure to address any counterarguments that might be lodged against your amendments (or non-amendment).