Environmental Justice Case at PIA: Potential Legal Actions and Class Certification, Exams of Civil Law

Download Environmental Justice Case at PIA: Potential Legal Actions and Class Certification and more Exams Civil Law in PDF only on Docsity! UNIVERSITY OF MARYLAND SCHOOL OF LAW (48 Hour Take-Home Exam) LTP/Complex Litigation/Environmental Justice, Fall 1995 Professor Ifill Examination No. INSTRUCTIONS Wednesday, December 13, 1995 (6:30 p.m.) to Friday, December 15, 1995 (6:30 p.m.) Printed Name: Sign and print your name in the blanks above. Put your examination number on each of your sheets and on the envelope. Please number your sheets consecutively, and indicate the question number on each sheet. Begin each question on a new sheet. Write on only one side of each sheet, writing only on every other line. Do not put you name on the sheets. There is a 25 page limit on this examination. If it is handwritten, it must be legible. You may use a typewriter or computer to prepare your answers for this examination. If you choose to do so, you must use plain white paper which is 8l/2 by 11 inches in size. Each page must include your examination number as well as the number of the examination question and the sequential page number. You must "print out" your answers. Answers may be printed on only one side of each page, double spaced. Computer discs will not be accepted. You will not be given any extra time to print your answers. You bear the exclusive responsibility for any mechanical malfunction or difficulties encountered in operating your typewriter, computer, or printer. For those using typewriters or computers, you should place your hard copy answers in the envelope provided, fasten the flap with the clasp, and hand in the envelope to the exam administrator. Be sure to enclose all of your answer pages. You will be graded only on what is inside the envelope. Do not put the examination questions inside the envelope. Upon completion of the examination, put the answer sheets in the envelope provided, fasten the flap with the clasp, and hand the envelope to the exam administrator. Be sure to enclose all of your answer sheets. You will be graded only on what is inside the envelope. Do not put the examination questions inside the envelope. You must make sure that the examination administrator receives both your answers' envelope and the examination questions. Unless you have received prior permission, no examination papers will be accepted after Friday, December 15, 1995 at 6:30 p.m. LTP/Complex Litigation: Environmental Justice Fall 1995 Professor Ifill YOUR ANSWERS SHOULD BE BASED UPON THE FOLLOWING FACTS: After graduating from law school and completing a federal judicial clerkship, you have been hired by Public Interest Advocates, Inc. (PIA), a tax-exempt, non-profit, nationally recognized public interest law organization. PIA has been in existence for 25 years and has been responsible for litigating cases throughout the United States that have resulted in landmark decisions in the areas of civil rights and civil liberties. PIA made its name with several high profile cases which made their way to the Supreme Court. In particular, PIA is known for its successful litigation of First Amendment cases (it litigated some of the most publicized draft card and flag burning cases during the Vietnam War), and for several highly controversial police abuse and misconduct cases in Chicago in the late 1970s. PIA receives its funding from foundations and individual and corporate donors. Like many other public interest organizations, PIA has been feeling a financial pinch since 1990. Individual and corporate donations are down, and the organization has had to close its San Francisco office to contain costs. PIA's main office in Baltimore and its other branch office in Chicago, have so far avoided making drastic cuts. Your supervisor at PIA, Joan Pinkins, has let you know that environmental justice is the "hot", new front-burner issue the PIA wants to take on. Foundations are very interested in the environmental justice issue. In fact, PIA has received a $30,000 start-up grant from a foundation to begin to work in the environmental justice area. The foundation that provided the money earmarked the donation for education and litigation purposes only. Ms. Pinkins, your supervisor, has reminded you on a number of occasions to keep on the incinerator in eastern Macombe. The First Presbyterian Church has had a longstanding relationship with the Covenant Baptist Church since the early days of the Civil Rights Movement, when members of First Presbyterian marched with African American residents through Macombe to challenge the refusal of County and City officials to register African Americans to vote. Karen Wares is a 37 year old school teacher at Eastern Macombe Middle School. Ms. Wares, her husband and three children also live less than 500 feet from the proposed enlarged area of the incinerator site. Ms. Wares' entire family has suffered from the rash. You have spoken with each of the residents listed above. They informed you that they have also spoken with representatives of the Environmental Justice Fund (EJF), a national environmental organization that specializes in negotiating or mediating legal and non-legal disputes between corporations or municipalities involved in environmental issues, and the communities that the corporate or municipal action will affect. EJF does not engage in litigation. EJF recently negotiated an agreement between a large chemical manufacturer and a Latino community in Virginia in which the company agreed to guarantee that 1/3 of its workforce would be hired from the Latino community and that a college scholarship program would be developed for Latino high school students in exchange for the community's agreement to cease its protest of the chemical manufacturing plant in the Latino community. As part of its negotiation, EJF engages in a complete "work-up" of the case. This includes hiring an independent expert to assess the toxic risk to the community, the viability of alternative sites for the corporate or municipal structure, and an estimate of the probable costs of litigation for both sides. EJF has been in the limelight lately, and was recently featured on a popular newsmagazine show which called the EJF staff "litigation-busters." Foundations have described EJF's non-litigation approach to environmental disputes between grassroots communities, corporations and municipalities as "innovative" and "visionary." The Eastern Macombe community has asked you to also advise them on whether they should retain EJF to try to negotiate a solution with the City. In your discussions with community residents Mr. & Mrs. Mitchell, Ms. Johnson and Mr. Snyder have expressed their strong desire to file a lawsuit against the City and the County. They are afraid that negotiations will ultimately result in the planned expansion of the incinerator. They have heard that cities that receive federal money for their programs are not allowed to administer those programs in a discriminatory way. They think that suing the EPA and the City seems like a good idea. Gabriel Highland believes that the solution is political. Highland's brother-in-law Jim Pierce was recently elected to the five member Macombe City Council. Highland thinks the chances of lobbying the Council is likely to result in success and the threat of a PIA lawsuit will encourage the City to negotiate with the African American community. A lawsuit would also provide some cover for his brother-in-law Jim Pierce, who wants to be vocal on this issue, but does not want to alienate the four other Caucasian members of the Council whose support Pierce needs on other issues of great importance to the African American community. In particular, Pierce has been quite vocal on behalf of the African American community in response to allegations of police misconduct. Karen Wares also advocates a litigation approach, although she is concerned that if the community sues the City, she might lose her job. Most of all she is concerned about the health effects of the existing incinerator. Rev. Owens is unsure of the best avenue to take. He asked you several times during your meeting what you think is the best action. He says he is willing to go along with "whatever strategy the lawyer thinks is right." He has guaranteed that his congregation will support any PIA efforts. Many members of his congregation have complained about the rashes. Groundbreaking on the expanded incinerator is scheduled for February 1996. Based on foregoing facts, our readings and discussions, and your experiences with your legal work this semester, ANSWER THE FOLLOWING QUESTIONS: QUESTION 1 (30 POINTS) Prepare a memorandum to your supervisor, Joan Pinkins, which identifies two potential legal actions PIA may be able to undertake on behalf of clients in Macombe. You should select from among legal actions we've studied this semester (intentional tort, civil rights, administrative). For each of the actions you identify please be sure to: (1) identify the legal elements of the action; (2) identify what facts you currently know that would satisfy or support the legal elements of each cause of action; (3) what additional information you need to know to support the legal elements of each cause of action; (4) how do you intend to obtain this information before taking legal action? In addition, provide some discussion about relief you can seek and might expect to get with regard to each of the legal actions you identify. Which of the legal actions provide the best opportunity to meet client goals? How do you intend to ascertain the clients' goal? QUESTION 2 (40 POINTS) (a) Assume that you filed a class action in trespass and battery on behalf of all homeowners of Eastern Macombe who live within one mile of the incinerator. Your class action complaint asks the court to enjoin further operation of the incinerator and seeks damages for the class totalling 3 million dollars. You must decide who from among your plaintiff class will serve as class representatives. In preparing your class certification petition you must also decide whether you seek certification in accordance with FRCP 23 (b)(2) or (b)(3). Prepare a memo to Joan Pinkins, your supervisor, in which you identify the named class representatives. You should be sure to describe the role that you anticipate class representatives will play. For each class representative explain why you've chosen this person, including what advantages (and any disadvantages) they may bring to your presentation of the case. If you need more information about a potential class representative, describe what information you need to know about that party and how it relates to their role as a class representative. (10 points) (b) In addition explain the relative advantages and disadvantages of seeking (b)(2) or (b)(3) class certification. Identify in your discussion what showing you will need to make to the court to justify (b)(2) and (b)(3) certification. What obligations does class certification under (b)(2) or (b)(3) impose on the class, the class representatives, class counsel, and the court. In what way does (b)(2) or (b)(3) class certification protect your clients? You should be sure to discuss both (b)(2) and (b)(3) classes in this memo. (20 points) (c) A group of residents of Eastern Macombe who are tenants, but not property owners, hear about your class certification motion. They are incensed. According to them, your class is too restrictive. Additionally, they contend that your class only represents middle class residents rather than the working poor in Eastern Macombe, most of whom do not own their own homes. Many of the residents who live near the proposed expansion area are tenants, not homeowners. What are the ways that they can legally vindicate their rights and air their concerns with regard to the class action litigation you have already filed? (10 points) QUESTION 3 (30 POINTS) (a) Assume the class action you file is in federal district in Maryland. You have had a Rule 26(f) meeting with counsel for the defendant. You were unable to agree to a settlement in the case and communicated this to the Court along with a joint discovery plan in accordance with the Rule. The judge to which the case has been assigned schedules a status or "scheduling" conference in accordance with Rule 16. At the conference which is held in chambers the judge says, looking at you and counsel for the defendants, "This case is a no-win situation. You've got an incinerator plant that provides jobs to the community and a community legitimately concerned about its health and safety. It seems to me this case is perfect for settlement. You folks need to sit down at a table and hammer this out. I'm going to appoint as a special master, a lawyer from the Environmental Justice Fund -- you know, that negotiating organization that is doing great things