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legal memo

A Guide to Writing a Legal Memorandum

(for Small-Section Students)

University of Wisconsin Law School

Fall 2011

This guide summarizes general advice for first-semester students on how to write a memorandum of law. In the fall semester, the small-section memo writing project is designed to give you some initial experience with writing in the larger context of a doctrinal course. Writing can be a helpful tool in your learning process during the semester, and you can use your small-section memo as a writing sample for summer job applications. You will receive more detailed instruction and practice in legal writing during your formal Legal Research & Writing courses in the spring of your first year and the fall of your second year of law school.

NOTE: If your professor gives you instructions or preferences that conflict with anything in this guide, be sure to follow those instructions instead.

The Purposes of a Memo

The primary goals of a legal memorandum are to educate the reader about the law relevant to a particular issue and to explain how that law will apply to specific facts. A memo presents an objective analysis of the law, not a persuasive argument intended to advocate on behalf of a client. Although a memo can be a tool in preparing a persuasive case, it is typically an in-house document that tries to predict how an impartial judge would decide the case.

Lawyers and law students write memos for a variety of reasons. For example, a student in a law clinic might write a memo to a supervising attorney who has asked a question about the law. A judicial clerk might write a memo to a judge evaluating the strengths and weakness of the opposing sides of a case and explaining what result the law seems to require. A lawyer might write a memo to prepare colleagues for a meeting with a client who wants to know how the law affects her situation and who is seeking legal advice.

The Audience for a Memo

You should assume that the audience for your memorandum is a law-trained reader who is unfamiliar with the particular rules or facts of your case. Although you will submit your memo to your assigning professor—who is an expert in that area of law—you should not write your memo with your professor in mind. Instead, imagine that you are writing for a legal reader who does not know about the applicable law or your client’s case. This will help you to include necessary background information and better depth of discussion, and it will make your memo more useful for future readers.

The law-trained reader – In writing your memo, you can assume that your reader is trained in the law. This has several implications for your writing. First, it means that you should not explain very basic ideas relating to law or the legal system, or you risk writing “down” to you r audience. For example, you would not explain that judges look to previously decided cases to reach a decision in a new case. Any lawyer will know this basic rule of “stare decisis.” However, it is acceptable to emphasize certain aspects of basic legal concepts to anticipate questions your reader may have about your analysis. For example, if your issue is not governed by any binding cases (under rules of stare decisis), you could note that point briefly in your memo by saying, “Because there is no bind ing authority on point, the court will look to persuasive sources for guidance.” Although that sentence is not strictly necessary

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for a law-trained reader, it will prevent an unfamiliar reader from questioning your work and wondering why your memo discusses only lower-court cases or secondary sources.

Second, a law-trained reader will have certain expectations about how you should organize and present information. These expectations come from tradition, court practice, legal education methods, and pragmatic needs. Most legal readers are busy, impatient, and skeptical; meeting their core expectations for a memo will make your document seem familiar, efficient, and easy-to-follow. This guide summarizes some of the key expectations of law-trained readers.

Unfamiliar with the law and facts – Legal writers generally assume that their readers know little or nothing about the relevant law or facts and craft their explanations accordingly. Thus, in writing your memo, you should discuss the law and facts as if you were explaining the case to someone new to the area. Also try to make your memo “self-contained,” so the reader does not have to look up your sources separately to understand your explanations. This is especially important if you intend to use your small-section memo as a writing sample in future, because your potential employer will be an unfamiliar legal reader who will judge your work by how clearly you present your information.

Organizing a Memo

Legal readers expect information to be organized in certain ways. Meeting these expectations will avoid confusion and help an unfamiliar reader follow your explanations and reasoning more easily. Formal office memoranda often contain separate sections called Issue, Brief Answer, Facts, and Discussion, but some memos are more informal. Follow your professor’s directions, if any, on which sections to include.

An “Issue” section s tates the question asked by identifying the aspect of law in dispute along with the key facts triggering that question. (See sample memo.) In phrasing the question, try to find a balance between being overly general and overly detailed about the relevant rule and facts. A “Br i ef Answer” section should answer the question asked and briefly summarize your reasoning. The “Facts” section should include only those facts that affect the outcome of your question. It should not repeat every fact in the assignment.

The following advice about organization applies to the Discussion section—the main body of your memo.

Overall organization - Ordinarily, the main body of a memo is organized around rule structures overall, because that is how courts typically organize their analyses. Rules and rule structures can come from statutes, cases, or other types of legal authority, and sometimes the first challenge may be to identify the rule structure itself. A statutory rule may already be organized into elements or conditions that must be met. If not, break down the language of the statute into a logical rule structure yourself. For common-law questions, if a new rule has evolved through a series of cases, the legal writer must put those cases together and describe the resulting “synthesized” rule structure for an unfamiliar reader.

Once you have identified the rule structure, explain it to the reader, and organize your discussion accordingly. For example, if the applicable rule contains a series of elements, readers will expect to see an orderly discussion of those elements (or at least the disputed ones). If a rule requires a balancing of factors, readers will expect a memo to explain that balancing test, to explain the relevant factors, and to evaluate how a court will weigh the disputed factors in the client’s case. Most memos will not discuss all aspects of a rule equally. Instead, the legal reader will expect you to give an overview at the start of your memo discussion and then to focus your attention on whatever aspect of the rule is uncertain or in dispute.

Internal organization –“IRAC” - Within your discussion of rules or rule components, you should organize your information using the so-called “IRAC” order. IRAC stands for (1) I ssue, (2) R ule explanation, (3)A pplication to

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the facts, and (4) C onclusion. It is a general framework that most readers expect you to use in explaining your legal analysis. If you work well from an outline, you can start your outline with these sections for organizing your notes. (But do not label these very basic sections in your final memo.) If you do not ordinarily start a writing project with an outline, be sure to check your organization after you have written your first draft so that your paper conforms generally to the IRAC order.

Issue: Beginning your discussion of a rule with a thesis sentence will help your reader focus on whatever aspect of the larger rule or area of law you intend to discuss and lead the reader through your explanation.

Rule explanation: After stating an issue, the reader will expect you to identify and explain any relevant rules. It is not enough to merely state a rule in a sentence or two. Instead, the unfamiliar reader will expect you to explain that rule. For example, if the rule contains vague words or phrases, you should define those. You should also explain how the rule works, what the underlying reasoning or policy is, and perhaps how the courts have used the rule in the past. If a case example might illustrate any of the rule aspects that you have discussed, include it briefly and explain how it relates to your point. Never assume that the meaning and workings of a rule are obvious. Novice legal writers tend to spend much more time discussing their facts than they do explaining the relevant law, but for a legal reader, both aspects of the analysis are important.

Application of the rule to the facts: Only after you have explained a rule will the reader know which facts are important and which are not. In your fact-application section, show how the rule applies to the specific facts in your case. Be sure to detail your reasoning process for the unfamiliar reader, even if it seems obvious to you. It is not enough to merely recite the relevant facts and state a conclusion. The reader will expect you to spell out the connections between rules and facts.

Conclusion: Stating a conclusion at the end of your discussion of an issue or a sub-issue may seem a bit repetitive, but it ties up the discussion nicely and helps the reader understand that you are finished with that issue.

If your memo covers only one narrow question or aspect of a rule, you may apply the IRAC order to your entire discussion. If, however, your memo covers more than one conceptually distinct question, you may be applying the IRAC structure more than once within your discussion. It is largely your judgment call as a writer whether you should “IRAC” an issue overall or whether you should IRAC sub-issues as well.

If your issue is complex or if your rule structure contains several distinct elements or aspects, it may be best to IRAC some parts of the discussion separately. For example, assume that your memo addresses whether a prosecutor will be able to prove two of the four necessary elements of a crime in your client’s case. You should first give an overview of the rule (e.g., list the elements of the crime), then use IRAC to organize your explanation of the first disputed element, before using a new IRAC structure to organize your explanation of the second disputed element. If you discuss all the rules or facts together (e.g., relating to both the first and second elements), the unfamiliar reader may become confused.

Presenting Your Content

In deciding what information—and how much detail—to include in your memo, remind yourself again that you are writing for an unfamiliar reader. If it would be helpful to your reader, give some overall context, use explanatory transitions, and provide enough detail to show that your analysis of the law is correct.

Context usually includes background information related to your more specific issue that helps the reader place any new information in a larger framework. Context may also influence the meaning and significance of a particular statement of law or fact, just as it does for non-legal information. For example, if your legal issue centers

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on a specific element of a rule, be sure to tell the reader what the larger rule is first, so she can understand how your specific discussion relates to that larger rule.

A legal reader will also appreciate clear transitions as you move through your discussion. Transition words and sentences make your organization more obvious, guide the reader through the steps in your reasoning, and show the relationship of new information to old. For example, you can use obvious transition phrases like “the first factor requires . . .” or “the second factor requires . . .” t o remind the reader where she is within your larger discussion. U sing words like “additionally,” “thus,” or “however” signals to the reader that whatever follows will add to, follow from, or contrast with whatever came before the transition word. You should not overuse transitions, of course, but including some in your writing can be helpful to a busy, unfamiliar reader.

Finally, deciding how much detail to include in a memo about a point of law or fact can be difficult even for experienced legal writers. Writers must balance space limitations (and the attention span of a busy reader) with the need to educate the reader about the law and facts. As a general rule, legal writers follow the same principles as other writers do: to meet the needs of the reader, the level of detail and explanation in a document should depend on complexity and importance. Include more explanation and detail for complex or difficult points and less for those that will seem straightforward to your legal reader. Also include more explanation for the most important aspects of the analysis and less detail for secondary or minor points.

Using Legal Authority

Legal readers expect to see a reference (i.e., a “citation” or “cite”) to legal authority to support every statement of law in a memo. Readers will not assume that your explanation of the law is correct, so you must cite to your sources to show exactly where you got your ideas and information. You may have entire paragraphs in your rule explanation in which each sentence is followed by a citation to a legal source. You will attend a session during the memo-writing process in which you learn how to use citations and write them in the proper format, but as you work, be sure to keep notes of where exactly in your legal sources you found the information you want to use in your memo.

Writing Style

Legal readers value clarity and conciseness. The challenge for legal writers is to convey information in a way that is easy to understand and follow. You will refine your legal writing style over the course of many years, but for now, try to keep things simple. Avoid jargon, old-fashioned legal terms, and overly complex phrasing. Some legal terms of art may be necessary when you explain the law, but ordinary words often will serve you just as well. It may help to read your sentences aloud to yourself to judge whether your legal writing style is clear or overly complicated.

Lawyers overuse the passive form of verbs, and this can make legal writing vague and cumbersome. The passive voice hides the actor of a verb and focuses on the action more abstractly. Passives can make your writing vague and wordy. They consist of some form of the verb “to be” p lus a participle (e.g., it was decided, it must be agreed, it has been established, etc.). Identifying the actor will force you to use an active verb (e.g., the court decided, the parties will have to agree, the legislature has established, etc.).

Try to keep your sentence structures relatively simple. Avoid long introductory or interrupting clauses, and do not try to pack too much substance into any one sentence. Even though legal writers must convey complex information, it is better to present that information in small segments.

To be concise, try to convey your substance using fewer words. Being concise does not mean omitting substance. Indeed, editing out surplus words will give you more room to add substance to your document.

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Editing

After you are satisfied with the substance of your memo, check it carefully for substantive accuracy and mechanical errors. Editing your legal writing may take longer than you expect, so allow extra time in your project planning.

For substantive accuracy, check every statement of law or fact against your original source to confirm that your point is either stated in the source or follows from it. Be sure you have included a citation to legal authority after each statement of law.

Mechanical errors can include typos, grammar and punctuation errors, and citation format problems. Using the spell-checking function of your word processor is helpful for catching typos, but it will not catch all misspellings. Remember that a spell-checker will only review your document for the presence of words that are not in its dictionary. For example, it will no t catch a misspelling of “there” when you meant to say “their.” Also check carefully for grammar and punctuation errors. Use a style manual if your skills are rusty.

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Office Memo Format and Explanation

This handout sets out a short description of one way to put together an office memorandum. The format and structure may differ somewhat from law office to law office (and, here in law school, from professor to professor). Once you are in practice, you can adjust the format to your office's requirements.

You are writing this for the benefit of another lawyer who has asked you to address a specific question, and expects an answer to that question. Your reader may have a general familiarity with the law you are discussing but may not be familiar with specific cases (or, if applicable, statutory provisions) that you have found to be relevant to the analysis. Therefore, as you write, keep asking yourself: will the reader be able to follow my analysis? Have I organized my analysis to track all the steps in the "CRRACC" paradigm (conclusion-rule statement-rule explanation-application-counterargument-conclusion)? If your organization plan skips any steps of your thought process (for example, if you move directly from a bare statement of the rule to an application to your facts, without first discussing in greater depth the cases from which the rule is derived), your reader will not be able to follow your analysis and ultimately will not find your work to be useful. Remember to keep the needs and expectations of your audience (here, a legally-trained reader) in mind. One final but important reminder: an office memorandum is a predictive statement of the law. You are not writing to persuade a court but to predict how a court would apply the law to the facts of your situation. Therefore, you need to maintain an objective tone, and remember to address any counterarguments.

The standard office memorandum usually contains the following sections:

1. HEADING or CAPTION

2. QUESTION PRESENTED

3. BRIEF ANSWER

4. FACTS

5. DISCUSSION

6. CONCLUSION

HEADING OR CAPTION

Begin the first page as follows:

MEMORANDUM

TO: Name of person who assigned the research project

FROM: Your name

DATE: Date memo is turned in

RE: Name of client, and a short description of the subject matter of the memorandum

Put the title of each subsequent section of your memo at the beginning of that section, in all caps, and centered. QUESTION PRESENTED

The subject of the memo is a question: How does the relevant law apply to the key facts of the research problem? Thus, the question presented is analogous to the issue or question presented in a case brief. The question presented should be sufficiently narrow and should be objective. It is usually one sentence, and often begins: "Whether...." or "Does...." The question incorporates legally relevant facts as well as the rule involved. Although questions are usually framed so that they can be answered yes or no (or probably yes or probably no), sometimes they cannot (such as "Under New York law, has a retailer made a binding offer when...?"). Always include the name of the jurisdiction involved, e.g., New York, the Second Circuit.

BRIEF ANSWER

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The brief answer should clearly and fully respond to the question presented. Begin with your conclusion: yes, no, probably yes, etc., if the question can be answered that way. Then give a brief (usually no more than four or five sentences long) self-contained explanation of the reasons for your conclusion. Summarize for your reader how the relevant law applies to your significant facts. As a general rule, include no citations.

FACTS

Provide a formal and objective description of the legally significant facts in your research problem. The legally significant facts are the facts that are relevant to answering the legal question presented. For example, in an issue involving whether a minor can disaffirm a contract, a legally significant fact would include the nature of the item or service contracted for (was it clothing, food, shelter, related to health care, etc.) and whether the minor had access to the item in any case, without having to become contractually obligated to pay for it. The description should be accurate and complete. Present the facts in a logically coherent fashion, which may entail a chronological order. Include legally significant facts - facts upon which the resolution of the legal question presented will turn, whether they are favorable or unfavorable to the client for whom you are writing - and include background facts that will make the context of the problem clear. In this section, do not comment upon the facts or discuss how the law will apply to the facts. All factual information that later appears in the discussion section of the memorandum should be described in the facts section.

DISCUSSION

This is the heart of the memo. Here, you need to educate the reader about the applicable legal principles, illustrate how those principles apply to the relevant facts, and explore any likely counterarguments to the primary line of analysis you present.

Many law offices will expect you to begin with a short thesis paragraph that briefly identifies the issue and the applicable rule (without elaboration), and restates the short answer. Follow with an introductory section, which provides a map or framework for the discussion as a whole. The introductory section should summarize and synthesize the rule, setting out all subparts of the rule and clarifying how they relate to one another. When the synthesized rule is derived from case law, the discussion of the cases should focus on general principles, on the criteria that courts use to describe the rule, rather than on the specific facts and reasoning of the cases. The introductory section is also where you would mention, if applicable, information about the procedural posture of a case, about burdens and standards of proof, and about rules of interpretation pertinent to the law you are applying. You should identify any undisputed issues, and explain why they are not in dispute. Then state the order in which the remaining issues or subparts of an issue will be discussed. For a useful discussion of an introductory section, please see pp. 111-114 in Linda H. Edwards, Legal Writing and Analysis (Aspen 2003).

You should use "CRRACC" as a guide to constructing the discussion section. Use a separate "CRRACC" for each issue or sub-issue.

After setting forth the conclusion and the rule, you should explain the rule by providing an in-depth discussion of the cases from which the rule is derived. Your discussion of the cases should be specific as to their facts and reasoning.

In your application section, you should compare the facts and the reasoning of the cases to the facts of your client's situation. You need to analogize and distinguish the cases - show why they are similar to or different from your client's circumstances. Be sure to address any counterarguments that could be raised, but show why you believe they would not prevail.

Ultimately for each issue or sub-issue you should conclude as to how you think a court would likely rule on your facts. The basic structure of the discussion section might look like this:

Short thesis paragraph: = C

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Briefly restate the question and your answer

Introductory paragraph: = R

Provide a map or framework for the discussion as a whole, including statement of the synthesized rule

Provide background regarding the general rule

Explain policy reasons underlying the rule

Explain any exceptions to the rule

Explain policy reasons underlying the exception(s)

In-depth explanation of the rule = R

Illustrate how rule has been applied in other cases

Application of law to facts = A

Analogize and distinguish other cases to your case

Counterargument = C

Discuss and resolve any counterarguments in favor of your principal line of analysis

Conclusion = C

Answer the question presented

CONCLUSION

Summarize your analysis and conclusion to the question presented. Identify the level of certainty with which you render a conclusion for each issue or sub-issue, but be sure to draw a conclusion even for closer questions. Do not provide citations. The conclusion should be limited to one paragraph, and in some cases involving just one short issue, the conclusion might not be necessary at all.^

Structure for A Working Draft

1. Caption

2. Question Presented

3. Brief Answer

4. Facts

(list legally significant facts and important background facts)

5. Discussion

- Thesis / introductory paragraph

(list cases that set out general framework for analyzing issue)

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- Identify subissues, using headings

(under each subissue write out the CRRACC formula in a vertical column):

C (briefly state your conclusion to the subissue)

R (list cases that are most useful in analyzing the subissue)

R (begin in-depth explanation of these cases: holding-facts-reasoning)

A (list facts of the case that are most relevant to analyzing the subissue)

C (address and resolve likely counterarguments)

C (restate conclusion for the subissue)

6. Conclusion (answer the question as a whole)

Sample Memo

TO: Gaby Duane

FROM: Clark Thomas

RE: Loman's Fashions - Breach of contract claim (advertising circular)

DATE: April 26, 2002

QUESTION PRESENTED 1

Under New York law, 2 did 3 Loman's Fashions' description of a designer leather coat in an advertising circular constitute an offer 4 to sell the coat which became a binding contract when the text of the advertisement indicated that the coats were a "manufacturer's closeout" and that the early shopper would be rewarded, and when a shopper signified her intent to purchase the coat according to the advertised terms? 5

SHORT ANSWER 6

No. 7 Where, as here, the text of the advertisement merely stated that the sale was a "manufacturer's closeout" and that the "early" shopper would "catch the savings," the advertisement was not an offer to sell the coat which could be converted into a binding contract by conduct signifying an acceptance of the advertised terms.

FACTS 8

Loman's Fashions, a retailer of women's and men's outerwear, distributed a circular in November advertising a manufacturer's closeout of designer women's leather coats for $59.99, coats that regularly sold for $300.00. The ad announced that the store would open at 7 a.m. on Friday, November 30, and stated that the "early bird catches the savings!" After about fifteen minutes, all the advertised coats had been sold. At 7:30 a.m., a shopper inquired about the coats and was told that there were none left, but she complained that Loman's was obligated to sell her a comparably valued designer leather coat at the advertised price. The store manager declined, and the shopper filed a complaint in Small Claims Court, 9 alleging that Loman's had breached a contract by failing to sell the advertised leather coats at the advertised price. 10

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Loman's president, Willi Loman, stated that the store occasionally gives rain checks when it is possible to replenish supplies of an item that Loman's can purchase at a discount. In this case, the manufacturer had discontinued the line of coats and Loman's was not prepared to sell other, designer leather coats at such a drastic markdown. Loman expressed concern 11 that, if the shopper's interpretation were to hold, Loman's would have to reconsider its marketing strategies; she had assumed that the advertised terms applied while supplies lasted. She asks whether Loman's would have any contractual obligation under these circumstances. 12

DISCUSSION

13 Loman's Fashions has been sued by a shopper for a breach of contract for its failure to sell a designer leather coat that had been advertised for sale at a substantially marked-down price. Loman's contends that the advertisement was intended to apply while supplies of the item lasted, and that is it not obligated to sell the shopper a comparably valued coat at the advertised price. The issue in this case is whether a retailer's advertisement will be considered to be an offer that may be turned into a binding contract by a shopper who signifies an intention to purchase the items described in the advertisement. A court would likely conclude that the shopper did not state a cause of action for breach of contract because the advertisement did not constitute an offer which, upon acceptance, could be turned into a contract but rather and invitation to negotiate.

14 In New York, the rule is well settled that an advertisement is merely an invitation to enter into negotiations, and is not an offer that may be turned into a contract by a person who communicates an intention to purchase the advertised item. Geismar v. Abraham & Strauss, 439 N.Y.S.2d 1005 (Dist. Ct. Suffolk Co. 1981); Lovett v. Frederick Loeser & Co., 207 N.Y.S.753 (Manhattan Mun. Ct. 1924); Schenectady Stove Co. v. Holbrook, 101 N.Y. 45 (1885); People v. Gimbel Bros., Inc., 115

N.Y.S.2d 857 (Manhattan Ct. Spec. Sess. 1952). The only general test is the inquiry whether the facts show that some performance was promised in positive terms in return for something requested. Lovett, 207 N.Y.S.2d at 755. However, a purchaser may not make a valid contract by mere acceptance of a "proposition." Schenectady Stove Co., 101 N.Y. at 48. Nor does the purchaser have the right to select an item which the seller does not have in stock or is not willing to sell at a reduced price. Lovett, 207 N.Y.S. at 757. 15

16 An offer to contract must be complete and definite in its material terms; a general advertisement that merely lists items for sale is at best an invitation to negotiate unless it promises to sell an item in return for something requested. In Schenectady Stove Co., for example, the plaintiff delivered to defendant a catalogue of prices containing a statement of terms of sale, but the catalogue did not state the amount of goods which plaintiff was willing to sell on those terms. Under these circumstances, the Court of Appeals held that no contract was ever made between the parties with respect to an order that defendant submitted because the plaintiff had not made an offer that was complete and definite in all material terms. Hence, it was not possible for the defendant to make a valid contract by mere acceptance of a "proposition." 101 N.Y. at 48. Similarly, in Lovett, a department store advertised that it would sell, deliver, and install certain "wellknown standard makes of radio receivers at 25 per cent. to 50 per cent. reduction" from advertised list prices. The plaintiff had demanded a particular model of radio that was not listed in the ad, and the defendant had declined to sell it at the reduced price. 207 N.Y.S. at 754. The court held that an advertisement by a department store was not an offer but an invitation to all persons that the advertiser was ready to receive offers for the goods upon the stated terms, reasoning that such a general advertisement was distinguishable from an offer of a reward or other payment in return for some requested performance. Id. at 755-56. The court further held that, even assuming the plaintiff's "acceptance" turned the offer into a contract, the purchaser did not have the right to select the item which the defendant did not have in stock or was not willing to sell at a reduced price. Id. at 756-57.

17 Loman's advertisement did not contain a promise to sell the leather coats in exchange for some requested act or promise. By its terms, the advertisement announced that it had a stock of coats to sell, and described the coats as a manufacturer's closeout selling at a substantially reduced price. 18 Nor did the ad give the public an option to choose any comparably priced leather coat if the advertised coats were no longer available. As the court noted in Lovett, 19 a prospective purchaser does not have the right to select items that the retailer does not have in stock or is not willing to sell at a reduced price. Lovett, 207 N.Y.S. at 757.

20 The claimant here might argue that the advertisement did not contain limiting language, for example, that the coats were for sale while supplies lasted 21 . However, the ad indicated that the store, opening for business on the day of the sale at 7 a.m., was catering to early morning shoppers. By announcing that "the early bird catches the savings," the ad could fairly be read to mean that the supplies were not unlimited. 22

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CONCLUSION 23

On these facts, the court will probably 24 find that the claimant has failed to state a cause of action for breach of contract because the ad did not constitute an offer but merely an invitation to negotiate.

1) The question presented states the question(s) the memo is to address: how does the relevant law apply to the key facts of the research problem? The question should be sufficiently narrow and should be objective.

2) Generally, include the name of the jurisdiction involved, e.g., New York, the Second Circuit, etc.

3) The Question Presented is usually one sentence. It often begins: "Whether...." or "Does...." Here, the writer has chosen "did." Although questions are usually framed so that they can be answered yes or no (or probably yes or probably no), sometimes they cannot (such as "Under New York law, has a retailer made a binding offer when...?").

4) The author of this memo has been careful not to use language that assumes the answer to the legal question it raises. Here, since the question presented is designed to highlight whether the facts indicate that a formal contract offer has been made, you would not use the term "offer" in framing the question, i.e., you would not write "Did an advertising circular describing merchandise constitute an offer when it offered the merchandise for sale starting at a designated date and time?" because that formulation of the question assumes a legal conclusion -- that the conduct at issue meets the requirements of an offer. Rather, reserve your legal conclusions (here, whether or not the advertisement constituted a formal offer) for the short answer section.

5) Here, note how the writer has constructed the question in this memo to alert the reader to the following facts: description of merchandise in an advertising circular, statement in circular that item is a "manufacturer’s closeout," statement in circu lar indicating that the early shopper will be rewarded.

Although the "question presented" section is short, it must (i) provide a concise reference to the legal claim and relevant doctrine and (ii) incorporate the most legally significant facts of your case. A complete and well-balanced question presented is incisive — it immediately gets to the heart of the legal question — and it orients the reader to the factual context.

You may not be sure which facts are most legally significant when you first start writing the memo. Your thinking may become clearer and better organized as the writing proceeds. You would ascertain which facts are legally significant by referring to the factual criteria (based on elements or factors) in the legal authority relevant to the question — e.g., statutes or case law. For this reason, many people do not write the final version of the question presented (or the short answer) until they have almost completed the "discussion" section of the memo.

6) The short answer contains a clear answer to the question (i.e., a prediction) and an explanation of that answer. The balanced description of law and fact that you provide in the question presented should be mirrored in the short answer.

The short answer serves two functions: (i) it provides hurried readers with an accessible, bottom-line prediction as well as the core of the relevant law and facts; and (ii) it provides the more thorough readers with an outline or digest of your subsequent discussion section. The short answer should function as a roadmap to help readers feel oriented when they move on to the discussion.

7) Begin the short answer with your conclusion: yes, no, probably yes, etc., if the question can be answered that way. Then give

a brief (usually no more than four or five sentences long) self-contained explanation of the reasons for your conclusion, applying the rule to the facts of your case. As a general rule, include no citations.

8) The facts section contains all the factual premises upon which your subsequent legal analysis is based. Certainly, all the facts cited in the application section (The "A" in IRAC or CRRACC) of your discussion should be presented as part of the story told in the facts section.

Bear in mind that the busy law-trained reader will value conciseness in this section, so try to present only those facts that are legally significant or that are necessary to make the problem clear. At the same time, bear in mind that the office memo should

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be a stand-alone document that can fully inform any colleague in your law office who may read it; therefore, the facts section should always contain a full and coherent recitation of the relevant facts, whether or not the principal reader of the memo already knows them (unless, of course, you were instructed to do otherwise).

9) It is helpful to the reader to present the facts according to some organizational scheme. In this memo, the writer has addressed the heart of the incident — the advertisement, the sale of the coats, the arrival of the unhappy shopper — in chronological order in the first paragraph; a second paragraph collects relevant background information about the client.

In your own memo, you can recount the facts completely chronologically, you can put the most important incidents or facts first, or you can cluster the facts into discrete topics if the facts are complex and if this is the easiest way to understand them. Choose the organizational scheme that you think will make the facts most clear and memorable to the reader.

10) In your fact section, be sure to specify what legal claims are being considered or are being brought, and be sure to describe any legal proceedings that have already taken place.

11) Identify your client and briefly describe your client’s goal or problem.

12) Since memo writing is predictive writing, you should try to maintain an objective and impartial tone as you recount the facts. This is not to say that you should omit facts that have an emotional impact. Rather, the facts section of an office memo should not be written in a tone that conveys a preference for a particular theory of the case, that implicitly advocates for one side in the dispute, or that telegraphs any of the legal conclusions to be drawn in the discussion section. Since you are not advocating for any side, you ought not color or characterize the facts as you would if you were writing a brief. Also, do not comment upon the facts in the facts section or discuss how the law will apply to them.

13) The umbrella section of the discussion introduces or prefaces your first section of in-depth legal analysis; for example, it restates the key facts and issue presented, and introduces the overarching legal rule. Note how the writer alerts the reader to the key point of the doctrine, that general advertisements are treated in law as invitations to negotiate, not offers.

14) The rule statement synthesizes key elements of the cases relevant to the issue in your case into a general statement of the rule. To produce an accurate and well-crafted rule statement, you must have a good understanding of the existing legal authority on which your rule statement is based.

15) Note how the writer pulls together key cases that comprise the rule, then identifies the standard of inquiry by which courts apply the rule.

16) If the rule statement serves as the thesis sentence for a longer discussion about a legal rule that has developed over time in

a series of cases, the rule proof serves as your explanation and elaboration of that thesis sentence.

Note as you read this section how the writer fleshes out the facts, holding, and reasoning of the Schenectady Stove Co. and Lovett cases, focusing on facts that are similar to the Loman case.

17) A good application section weaves the cases into your facts. Language from the cases should be prominent and woven into your discussion of these facts. In the rule proof you discuss cases to support the rule statement. In the application section, you might draw analogies or contrasts between the cases discussed in the rule proof and your facts as a way to reach your conclusion.

18) Note how the writer focuses on the specifics of the language of the advertisement.

19) Note how the writer draws a direct comparison to similar facts in the Lovett case.

20) The use of a counterargument is a good way to convey that the existing legal authority is not clear, unequivocal, or unified when applied to facts like yours. It may be the case that you cannot predict with certainty the outcome of your case, given your facts.

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21) Note here how the writer points to the absence of limiting language in the advertisement to support an argument that a shopper would be led to believe that appearing at the appointed time was sufficient to qualify for the reduced-price item.

22) In a longer, more complex discussion, include here a short statement of your position on the question or issue explored in

a given IRAC (or CRRACC) unit -- your conclusion for that unit.

23) The overall conclusion contains a summary of the main points of your analysis. In your application section you may have struggled with areas of uncertainty in the legal doctrine and/or competing policy rationales. You may have also grappled with a seemingly contradictory assortment of facts: some seem to fit into the requirements of the rule; others suggest that the rule is not satisfied. You may have weighed arguments against counterarguments. After you have done all this, you must take a position and make a statement about how the court will apply the law. Given the more fully fleshed out short answer, the writer here has opted for a brief restatement of the ultimate conclusion.

24) As a legal writer, it helps to have an assortment of qualifiers to acknowledge how certain or uncertain you are of the actual judicial outcome. Your conclusion can convey that you are completely confident the court will rule as you predict or that, given the state of the legal authority, the outcome is really a toss-up and could go either way. Or you can convey any level of confidence in between. Keep in mind that the reader will be judging your credibility as a legal thinker based on (among other things) the congruity of your tone with the data at hand.

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Advanced Sample Memo First Draft

To: Paula Berg, Supervising Attorney

From: Associate Attorney

Date: September 13, 2007

Re: Mr. Daniels' ADA claim challenging the conditions of his confinement.

QUESTION PRESENTED

Whether Mr. Daniels can argue that his current conditions of civil confinement at the jail ward of Maricopa County Medical Center amount to violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. Section 12101 et seq. (2000) based on establishing a prima facie case of discrimination?1

BRIEF ANSWER

Mr. Daniels will be able to make out a prima facie case of ADA discrimination if he can overcome two hurdles.2Mr. Daniels must successfully argue that he is an otherwise qualified individual and withstand the challenge by the defendants that he is a direct threat and therefore not qualified under the meaning of the ADA.3Secondly, he must argue that civilly incarcerated persons housed in a jail ward of hospital should be entitled to at least the same benefits and services as the criminally incarcerated and then establish what those benefits are vis-á-vis his own conditions of confinement.4

FACTS

In July 2006, Robert Daniels was civil committed by an Arizona civil court on the recommendation of Maricopa County, Arizona officials to the jail ward of Maricopa County Medical Center ("Center"), Comp. ¶ ¶ 1, 21. He suffers from a drug resistant strain of tuberculosis ("TB") most likely acquired during incarceration in a Russian jail and was determined to require quarantine Comp. ¶ ¶ 1, 18. Mr. Daniels filed a complaint in May of 2007 with the District Court of Arizona challenging the conditions of his confinement pursuant to federal and state equal protection, due process, and statutory law. The named defendants are: Maricopa County, Robert England, James Kennedy, Marciella P. Moffitt, M.D., and Sheriff Joe Arpaio. Comp. ¶ ¶ 6, 8-11.

The Center has been used in the past to house civilly confined persons under quarantine despite allegations that it was known that the treatment, specifically the punitive conditions of confinement, were the same for both those criminally incarcerated seeking medical treatment and those civilly committed due to illness. Comp. ¶ 24. Sheriff Arpaio, specifically, stated that he would not differentiate between an inmate and person with a contagious disease; he would treat them in the same manner and they would be housed under the same conditions. Comp. ¶ 25.

Mr. Daniels is not challenging his isolation/civil confinement but the conditions of confinement, which seem to be punitive in nature and do not seem related to either his medical treatment or ensuring the general health of the jail ward of the Center. Comp. ¶ 28. Mr. Daniels' drug resistant form of TB is a serious medical condition. Comp. ¶ 55. Despite the conditions of his confinement, the medical reality is that he is probably better off under some type of medical isolation than he would have been had he not been confined.5He was committed, in part, because he failed to comply with the standard guidelines for a person with his strain of TB, i.e., not wearing a facemask in public places. This conduct will likely be raised by the defendants as the district court weighs his ADA claim.6

There are a few facts that are unknown to the plaintiff, and perhaps to the defendants as well, that could have a bearing on the strategy of the case even if they do not bear directly on the question of how likely will it be that Mr. Daniels will be successful in his ADA claim7. It is unclear at this point whether Mr. Daniels' condition has improved since being incarcerated. If his health has not improved than the question may be whether the conditions of his confinement contributed to any deterioration in his health.8

It is also unclear, but quite possible based on these factual allegations, whether some of the conditions alleged in the complaint, such as Mr. Daniels being subjected to unreasonable searches and handling by jail guards, could have exposed other people in the Center community to TB, i.e., guards, hospital/ward staff, and especially the jail inmates in the ward. A jail is a particularly risky setting in which to have a person with this serious a type of TB precisely because the inmate population can

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be high-risk, i.e., those with HIV, hepatitis, and other immune system-attacking conditions. Beyond asking whether the legal rights afforded to the inmates under both the ADA and Eighth Amendment are being violated,9there is an argument that by placing Mr. Daniels in this setting the Maricopa County officials actually created or allowed a greater public health risk to exist than if they had committed Mr. Daniels to a more traditional hospital ward.10

DISCUSSION

I. The Legal Framework of Title II of the Americans with Disabilities Act. 11

The Americans with Disabilities Act ("ADA"), 42 U.S.C. §12101 et seq., is a remedial statute designed to eradicate the long history of discrimination against disabled individuals. 42 U.S.C. § 12101—12213(2000) (Supplement IV 2000). Title II of the ADA provides broad protection from discrimination by public entities i against disabled persons on the basis of their disabilities. Scott v. Garcia, 370 F.Supp.2d 1056, 1073 (S.D. Cal. 2005). Section 12132 states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (2000).12 The discriminatory isolation and institutionalization of disabled persons was one of the practices that Congress identified for eradication by passing the ADA. Id. ("Congress finds that …(2) historically, society has tended to isolate and segregate individuals with disabilities …such forms of discrimination against individuals with disabilities continue to be a serious an d pervasive social problem [and] (3) discr imination … persists in such critical areas as … institutionalization, … and access to public services[.]")

To succeed on a claim of discrimination under Title II of the ADA, the plaintiff must prove that he was: (1) an individual with a disability (2) and otherwise qualified to participate in or receive the benefit of the public entity's services, programs, or activities; (3) either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) that such exclusion, denial of benefits, or discrimination was by reason of the his disability." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (per curiam), cert denied, 538 U.S. 921(2003).

The plaintiff can argue that denial of a public benefit is discriminatory under the ADA because it is discriminatory on its face, amounts to intentional discrimination, and constitutes disparate treatment of disabled persons. The plaintiff will have to meet the required elements for a Title II ADA claim, and overcome the state's affirmative defenses of fundamental hardship and undue burden.13

II. Establishing the elements of a Title II ADA claim.

It is very likely that Mr. Daniels will be able to allege that some of the conditions of his confinement, such as having the lights on 24 hours a day, not having access to a shower or outdoors for long periods of time, being deprived of any contact with family members and outside events, are violations of Title II of the ADA. Based on the factual allegations raised in the complaint, he should have little difficulty in establishing the first and last elements — that his TB is a disability covered by the ADA and that he was intentionally discriminated against because he has TB. The two biggest challenges to the plaintiff here will be (1) meeting the second element by ensuring that he is an otherwise qualified individual, which means showing that he is not a direct threat and (2) meeting the third element and providing sufficient legal reasoning as to why as a civilly confined person he is entitled to at least the same baseline protection as those who are criminally incarcerated.14

A. Mr. Daniels will successfully establish the first element; his drug resistant strain of TB is an ADA protected disability.

The ADA uses a three-prong test to define "disability." 42 U.S.C. § 12102(2). A disability is defined as "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. Federal regulations identify TB, specifically, as a physical impairment that substantially limits one or more major life function. 28 C.F.R. § 35.104(1)(ii) (2006) ("The phrase physical or mental im pairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as … HIV disease (whether symptomatic or asymptomatic), tuberculosis …").

Mr. Daniels will be able to establish that his drug resistant strain of TB is a disability within the meaning of the ADA.15In

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addition to the enumeration of TB as a disability under federal regulations, Mr. Daniels meets the disability definition under subsection one. Breathing is an enumerated major life activity, 28 C.F.R. 35.104(2) ("The phrase major life activities means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."), and TB typically attacks the respiratory system. As a result of the TB, Mr. Daniels is unable to breathe properly, which has substantially limited a major life activity. Comp. ¶ ¶ 55-57. Additionally, the severity of his particular TB has necessitated substantial medical treatment, thereby creating a vast record of his impairment. Lastly, his civil confinement and isolation indicate that the state of Arizona and its agents regard him as having such impairment.16

B. Mr. Daniels should be able to establish the second element; because he is only challenging the conditions of his confinement a court is likely to determine that he is an otherwise qualified individual.17

Since Mr. Daniels is challenging the conditions of his confinement and not the confinement itself, a court is likely to determine that he does not pose a direct threat such that he would not be an otherwise qualified individual within the meaning of Title II of the ADA. However, because the Ninth Circuit seems to include "direct threat" as part of the plaintiff's burden, Mr. Daniels should prepare to address this as part of the presentation of his case and not wait to debunk a defense put forth by the state.

An otherwise qualified individual is one "who, with or without reasonable modifications, meets the essential eligibility requirements to receive public service or participate in a public program." 42 U.S.C. § 12131(2); see also Thompson v. Davis, 295 F.3d at 896 (concluding that since the plaintiffs were "statutorily eligible for parole" they were "otherwise qualified for the public benefit they seek, consideration for parole").18Additionally, the plaintiff will have to establish as part of being "qualified" that he does "not pose a direct threat to the health or safety of others …" 42 U.S.C. § 12111(3), the so-called "direct threat" standard. Something is a "direct threat" when there is a "significant risk to the health or safety of others that cannot be eliminated by a modification of polices, practices, or procedures or by the provision of auxiliary aids or services." 42 U.S.C. § 12182(b)(3); see also Bragdon v. Abbott, 524 U.S. 624, 649 (1998) (stating of the direct threat exception, "[b]ecause few, if any, activities in life are risk free ... the ADA do[es] not ask whether a risk exists, but whether it is significant"). Some jurisdictions analyze "direct threat" solely as an affirmative defense. However, for ADA claims involving communicable diseases such as the one here, the Ninth Circuit seems to adjudicate on the premise that the plaintiff bears the burden of establishing that he poses not a direct threat, and as such remains "otherwise qualified." McGary v. City of Portland, 386 F.3d 1259 (9th Cir. 2004).

The Ninth Circuit applies the test for "direct threat" laid out by the United States Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987). The factors indicative of direct threat are: "(a) nature of the risk (how the disease is transmitted), (b) duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm." Id. at 288. On remand the district court applied these factors and concluded that the plaintiff/schoolteacher "posed no threat of communicating [her latent] tuberculosis to the schoolchildren she was teaching." Arline, 692 F. Supp. 1286, 1291-92 (M.D. Fla. 1988).19

As part of the analysis, due deference is given to the judgments of public health officials, as long as those determinations are based on the latest medical and scientific knowledge available. Arline, 480 U.S. at 287. However, because of the long-standing stigmatization of contagious diseases generally, and of TB specifically ii, each determination of whether an individual is a significant risk must be an individualized, fact-specific inquiry. Id. at 287. The level of risk needed to satisfy the Arline standard is one that is not remote, speculative, theoretical, Bragdon, 524 U.S. at 649, or even "elevated." City of Newark v. J.S., 279 N.J. Super. 178, 198, 652 A.2d 265, 275, (Law Div. 1993), citing H.R. Rep. No. 101-485(III), at 46 (1990), reprinted in 1990

U.S.C.C.A.N. 445, 469 (Title I of ADA) ("The plaintiff is not required to prove that he or she poses no risk"). A person's past conduct can also be used as evidence of future conduct. The disability, itself, may be considered in this evaluation, but it may not be the reason for a categorical denial of the benefit. Anderson v. Schwartz, 2006 WL 2472210 (N.D. Cal. 2006),20 interpreting Thompson, 295 F.3d at 898, n4 ("Thompson therefore does not preclude the consideration of evidence on [sic] an inmate's disability but, in fact recognizes its validity … [an individual's] 'disability that leads one to a propensity to commit crime may certainly be relevant in assessing whether that individual is qualified for parole.'").

Here, it is probable that the issue of direct threat will need to be confronted from the outset.21The state defendants will most certainly point to his past behavior of avoiding his medication and appearing in public places without protective face masks as indicative of future threatening conduct and the public health risk he continues to pose. The defendants are also likely to argue

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that given the threat of TB, they are unable to provide a "reasonable modification" such that he would be an otherwise qualified individual within the statutory definition. Although this argument would be used at this juncture to defeat Mr. Daniel's claim, it is discussed fully on p. 21 as part of the overall legal theory of failure to provide a reasonable modification.

To successfully establish that he is an otherwise qualified individual, Mr. Daniels must stress that is not arguing for a release from his civil confinement, but merely a change of confinement conditions.22He must convincingly argue that an individualized "direct threat" assessment, based on the Arline factors, should be conducted with respect to the risks associated with changing or altering those conditions. Clearly, some of the conditions of confinement alleged in the complaint would require a more detailed assessment of direct threat or risk, i.e., outside exposure since TB is an airborne condition, shackled hands in the event that he attempted to remove a face mask, and solitary confinement and no ability to interact if he was in fact so contagious that he could not be among others. Comp. ¶ ¶ 28(ii-iv), 28 (xiv-xv), 28 xviii. However, many of the conditions seem to have very little connection to the risk or threat created by his contagious TB, i.e., his exposure to lights for 24 hours a day in his room, no external view outside because of the frosted windows, and interception, opening and reading of mail. Comp. ¶ ¶ 28(v-vii), 28(xvi).

Mr. Daniels must continually stress that the "direct threat" to be evaluated is one of changed circumstances and conditions. Any argument that seems to indicate a release from his confinement will likely open the door for the state to argue that his past conduct was reckless and posed a grave danger to the public health. This could ultimately bar him from establishing that he is an otherwise qualified individual and disqualify him from ADA protection under Title II.23

C. Mr. Daniels should be able to establish the third element; that certain conditions of confinement are benefits within the meaning of Title II of the ADA.

Before establishing that he was denied a public benefit or opportunity to participate in a public program or service because of disability-based discrimination, the Title II plaintiff needs to establish that the benefit desired, here certain conditions of confinement, actually fall within the ADA meaning of public benefit. Mr. Daniels will have to try to argue that the intent of the ADA, the applicable Ninth Circuit cases, and persuasive cases in other jurisdictions allow for a ruling that persons civilly committed to jail ward treatment facilities are entitled to at least the same conditions of confinement and benefits as criminally incarcerated persons. Once he has established this ruling then he should be able to argue that he is entitled to certain changes in the conditions of his confinements based on past adjudications in which prisoners and inmates have successfully argued for these benefits.24

1. 25Arguing that civilly committed persons with disabilities are entitled to at least the same baseline conditions of confinement as criminally incarcerated persons for purposes of the ADA.

Generally, what constitutes an ADA covered public benefit, participation in a program, or service can be broadly defined. Lee v. City of Los Angeles, 250 F.3d at 691 (noting that "the ADA's broad language brings within its scope 'anything a public entity does' … [and] includes programs or services provided at jails, prisons, and any other "'custodial or correctional institution") 28 C.F.R. Pt. 35, App. A, preamble to ADA regulations). Pursuant to the Rehabilitation Act of 1973 (which only applies to public entities receiving federal funds and may not apply to these specific defendants)26, conditions of confinement are arguably benefits provided by public entities receiving federal funds. 28 C.F.R. 42.540(j) ("Benefit includes provision of services, financial aid or disposition (i.e., treatment, handling, decision, sentencing, confinement, or other prescription of conduct)."). If under the Rehabilitation Act of 1973, conditions of confinement are benefits to which a disabled individual is entitled to, then it is arguable that they would also apply under Title II of the ADA. 28 C.F.R. 35.103(a). Rule of interpretation. ("Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.")27

Within the Ninth Circuit, the rule is clear that programs, benefits, and accommodations provided at correctional facilities to criminally incarcerated disabled persons fall within the meaning of the ADA. Lee, 250 F.3d at 691. Similarly, civil detainees not yet civilly committed are entitled to bring claims under the ADA, even though they are not criminally detained and covered by the Eighth Amendment. Id. But the law is not as clear on what the benefits and guarantees are to the person who is civilly confined.

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Although unclear, the Ninth Circuit has given some indication that at minimum the rights and entitlements for the civilly confined and criminally incarcerated should be the same. See Jones v. Blanas, 393 F.3d 918, 934 (9th Cir. 2004); Hydrick v. Hunter, 2007 U.S. App. Lexis 20729, 22-23 (9th Cir. 2005) ("We acknowledge at the outset that it is not always clearly established how much more expansive the rights of civilly detained persons are than those of criminally detained persons.") (emphasis added). There also exists a "presumption of punitive conditions" when a civil detainee is subject to conditions that are either the same or more restrictive than the conditions under which pretrial criminal detainees are confined, or more restrictive than those he would face if he were actually civilly confined. Jones, 393 F.3d at 934. This presumption is rebuttable based on a showing that there was a legitimate, non-punitive purpose justifying the particular condition. Id. (applying the presumption based on its findings that the conditions of confinement of the civil detainee/plaintiff were "far more restrictive conditions than those afforded to the general jail population"); and Id. at 935 ("The significant limitations on, or total denials of, recreational activities, exercise, phone calls, visitation privileges, out-of-cell time, access to religious services, and access to the law library, indicate that in numerous respects confinement in T-Sep was substantially more restrictive than confinement in the Main Jail.").28

In at least one case, albeit in dicta, the Ninth Circuit implied that persons civilly committed because of a contagious disease would retain protection afforded by the ADA. Thompson, 295 F.3d at 896-897. In Thompson, the Ninth Circuit reversed a district court ruling that a parole board decision would not be a benefit within the framework of the ADA. Id. at 896-97. The district court reasoned that the ADA did not extend to the "substantive decision making process" within the prison context. Id. 896-897. The Ninth Circuit sharply disagreed with that reasoning and stated that there was "no basis for concluding that Title II of the ADA contains such a broad exception[,]" and that "[a]lthough the power to fashion and enforce criminal laws is reserved primarily to the States, many functions traditionally reserved to the states are subject to the ADA, including quarantine laws and, significantly, prison administration." Id., citing Armstrong v. Wilson, 124 F.3d 1019, 1024-25 (9th

Cir.1997).

One state court opinion that has discussed conditions of confinement with respect to persons involuntarily committed because of TB offers some illumination as to what conditions such a person could expect. City of Newark J.S., 279 N.J. Super. at 205, A.2d.at 278. In City of Newark v. J.S., the issue was the constitutionality of the commitment process. The court reviewed the individual's past conduct, which like that of Mr. Daniels involved non-compliance with medical advice, avoiding his TB medication, and appearing in public places, such as the pediatrics ward of hospitals, without a facemask. Id. at 185-86, A.2d.at 268-69. The Superior Court of New Jersey upheld the involuntary commitment based on the "significant future risk" that the individual posed. Id. at 204, A.2d at 278-79 . However, Judge Goldman also added in dicta that the rights of civilly committed persons with TB shall be protected and honored with respect to the conditions of confinement "to the extent feasible and practical." Id. at 205, A.2d.at 278 (allowing that "the provisions regarding the opportunities to see visitors must be accomplished according to established hospital procedures for infection control. His right to outdoor activities may have to be curtailed if he refuses to wear his mask. The hospital may not have safe and suitable facilities for extended visits with persons of the opposite sex[,]" and notably adding "I will not interfere with medical judgment, but I will remain available on short notice to resolve any disputes").29

2.30Overview of what conditions of confinement are afforded to criminally incarcerated persons.31

A few of the conditions of confinement that Mr. Daniels has alleged are violations of the ADA, are benefits to which criminally incarcerated persons are entitled either through protections under the Eighth Amendment or the First Amendment. 32Importing the reasoning that civilly committed persons with disabilities are entitled to at least the same benefits and services as criminally incarcerated ones, then Mr. Daniels can establish that the conditions outlined below are benefits or services to which he is entitled and cannot be excluded on the basis of his disability.

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the Eighth Amendment include:

?"No showers for the first nine months of his quarantine;" Comp. 28(viii). The state must provide criminally confined persons with the means to maintain their personal hygiene, which includes the right to regular showers. Rhodes v.

Chapman, 452 U.S. 337, 355 (1981): Toussaint v. McCarthy, 597 F.Supp.1388, 14111 (N.D. Cal. 1984), aff'd in part and vacated in part, 801 F.2d 1080 (9th Cir. 1986).

?"No exercise or walking outside of [his] room;" Comp. 28(x), and "Exposure to the outside for fresh air only once in nine months;" Comp. 28(ii); "No external view outside due to the frosted glass windows and metal bars;" Comp.

28(vii). The state must also provide prisoners incarcerated in long-term, segregated conditions with regular outdoor

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exercise unless precluded by "circumstances, or disciplinary needs." Spain v. Procunier, 600 F.2d 189, 199 (9th Cir.

1979) (Kennedy, J.) ("There is substantial agreement among the cases in this area that some form of regular outdoor exercise is extremely important to the psychological and physical well being of the inmates."); Keenan v. Hall, 83 F.3d 1083, 1089-90 (9th Cir. 1996) (finding plaintiff claim of lack of exercise survived summary judgment motion based on defendant's admission that he restricted Keenan's exercise to "8' by 21' by 16' space with a roof, three concrete walls, and a fourth wall of perforated steel admitting sunlight through only the top third"). However, the amount and

conditions by which a person has access to outdoor activity can be determined or curtailed based on the individuals own behavior or misconduct. LeMaire v. Maass, 12 F.3d 1444, 1458 (9th Cir. 1993). This could undermine Mr.

Daniels allegations that he should be allowed outside "without shackles to his hands and feet." Comp. 28(ii).

?"Lights remain on 24 hours a day;" Comp. 28(v). Adequate lighting is a "fundamental" attribute of "adequate shelter[.]" Keenan v. Hall, 83 F.3d at 1090. The practice of "constant illumination" is "unconstitutional" and does not comport with any "legitimate penological justification" that requires inmates to suffer through that type of "physical and psychological harm[.]" Id. at 1090-91 (concluding that the plaintiff's claim that the practice of shining large,

florescent lights directly in front of his cell 24 hours a day such that he could not tell if it was day or night was a

disputed issue of material fact sufficient to survive summary judgment).33

Benefits or services that would be covered under the ADA as guaranteed to criminally detained persons pursuant to the First Amendment include:

?"No phone calls;" Comp. 28(ix). Inmates have a right to access to a telephone subject to reasonable security limitations. Id. at 1092.

?Denial of ability to attend church services even by electronic means. Comp. 28(xi). The right to free exercise of religion is not absolute and may be "necessarily limited by the fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to maintain prison security." Sanders v. Ryan, 484 F. Supp. 2d 1028, 1036 (D.

Ariz. 2007), quoting O'Lone v. Shabazz, 482 U.S. 342 (1987). The inmate must show the defendant "substantially

burdened the practice of his religion[.]" Sanders, 484 F. at 1036. To show substantial burden, the interference with the free exercise of religious practice or conduct has to be "more than an inconvenience" and cannot be sporadic, "an

isolated incident or short-term occurrence[.]" Id. at 1037. In determining whether there is a violation of the

Establishment Clause, the Ninth Circuit will consider the following the factors: "1) Whether the regulation has a

logical connection with a legitimate government interest; 2) Whether alternative means of exercising the right at issue were available; and 3) The impact accommodating the right would have on prison resources." Tremayne v. Crow,

2007 U.S. Dist. LEXIS 57121, 13-14 (D. Wash. 2007), citing Freeman v. Arpaio, 125 F.3d 732, 736 (9th Cir. 1997).

Significantly, a prisoner may exercise his religious practice or access religious content through electronic means if

amendable with correctional policy. Sanders, 484 F. Supp. 2d 1028 (holding that a correctional policy that limits the number of audio recordings of Baptist sermons an inmate can possess in his cell was not a substantial burden since the inmate was only burdened by number and not access).34

However, there are some conditions alleged in Mr. Daniels' complaint that have been adjudicated and found not to be benefits to which a prisoner is entitled. An incarcerated person has no constitutional right to access to a particular person or visitor. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 461 (1989). Similarly, there is no constitutional right to watch television. But see Sanders, 484 F. Supp. 2d at 1039 (holding that although a prisoner has "no constitutional right to watch television[,]" one can "infer discriminatory animus" in violation of the ADA when the Arizona Department of Corrections failed to provide a hearing impaired prisoner with "bi-aural headphones" for the television that he was authorized to use in his cell. In Sanders, the district court ultimately ruled that under the "Constitutional Prong"iii35there had been no violation of a constitutional right. The court dismissed the inmate's argument that "t.v.7 [sic] was a window to the freeworld through which information flowed to him." Id. Similarly, unreasonable seizures, at least with respect to civilly confined sexual predators do not fall in the category of conditions of confinement. Johannes v. Alameda County Sheriff's Dep't, 2006 U.S. Dist. LEXIS 63378, 30 (D. Cal. 2006) (ruling that searches are not treated in the same manner as "other conditions of confinement" and recognized "that institutional security concerns need not be ignored for SVPs").36

D. Mr. Daniels should be able to establish the fourth element; that he was deliberately excluded from public benefits and intentionally discriminated against because of his TB.

Having established that the conditions of confinement that he has requested are benefits and programs to which he is otherwise qualified, Mr. Daniels will have to show that the exclusion or denial of these benefits was by reason of his disability/TB and therefore discriminatory. Mr. Daniels should be able to show that he was intentionally discriminated against and deliberately excluded from benefits based on his disability.

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legal memo

A plaintiff bringing a Title II ADA claim can meet the fourth element by showing intentional discrimination to exclude him from the public benefit or service to which he was entitled. Intentional discrimination is shown in one of two ways; either by proving disparate treatment to the disabled person from a facially discriminatory policy, or, as an alternative, showing a disparate effect from a facially neutral policy or action. Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) ("Section 12132 of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity … we conclude Congress intended to prohibit two different phenomena … outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.").

Despite this language in Crowder, federal courts have increasingly demanded that plaintiff's show disparate treatment from facially discriminatory policies to establish intentional discrimination. Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003)iv. Within the Ninth Circuit, this is especially true where monetary damages are concerned. Scott, 370 F.Supp.2d at 1075, citing Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (holding that a plaintiff must prove intentional discrimination to recover compensatory, monetary damages under Title II of the ADA). Disparate impact has, as a practical matter, been relegated to challenges to the reasonableness of the modification in the program or lack of meaningful access to a program or benefit. See McGary, 386 F.3d at 1265-66 (stating that "the district court appears to have misconstrued McGary's claim as either a 'disparate treatment' or a 'disparate impact' claim, rather than a 'reasonable accommodation' claim"); but see Crowder, 81 F.3d at 1483 (concluding that Congress intended the ADA to apply to "at least some so-called disparate impact cases of discrimination," caused by facially neutral policies that "may work to effectuate discrimination against disabled persons").

1. Satisfying exclusion by arguing intention discrimination. 37

Intentional discrimination is shown by meeting a deliberate indifference standard. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). To meet the deliberate indifference standard, a plaintiff must show that (1) there was knowledge on the part of the defendant that harm to a federally protected right was substantially likely, and that (2) the defendant failed to act on that likelihood. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The first element of knowledge can be satisfied by showing that the defendant had notice that an accommodation was required. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The second element of failure to act is satisfied if the plaintiff can establish that the defendant's failure was the result of "conduct that is more than negligent, and involves an element of deliberateness." Scott, 370 F.Supp.2d at 1075 quoting Duvall, 260 F.3d at 1139 (noting that "a public entity does not 'act' by proffering just any accommodation: it must consider the particular individual's need when conducting its investigation into what accommodation are reasonable").

Mr. Daniels has alleged sufficient factual allegations establishing intentional discrimination that if accepted as true and not challenged by differing factual evidence would suffice to survive a dismissal or summary judgment motion.38Mr. Daniels has alleged that the defendant have used the jail ward of the hospital in the past for long-term quarantines of civilly committed persons with disabilities. Comp. ¶ ¶ 23, 25. He also alleged that the defendants knew that he was not criminally incarcerated, and that he was likely an otherwise, qualified disabled person within the meaning of the ADA. Comp. ¶ ¶ 20, 24, 54-57. This would satisfy the knowledge requirement, since through their past conduct they were afforded notice that harm to a federally protected right was substantially likely.

Mr. Daniels also alleged the defendants knew that persons housed in the jail ward were treated in the same manner as inmates, Comp.¶ 26, and that Defendant Arpaio publicly stated that he would treat any person housed in the jail ward in the same manner as all jail inmates even when civilly confined. Comp. ¶ 27. Finally, Mr. Daniels included specific allegations that indicate that conditions of confinement were punitive in nature, Comp. ¶ 27, that did not comport with either ensuring his medical treatment or ensuring the containment of a public health risk. Specifically, Mr. Daniels alleged that the defendants were aware of a need to develop a quarantine area that did not subject civilly committed disabled persons to harsh and punitive conditions. Comp. ¶ 35. Taken together, these facts should be sufficient to establish the deliberateness of the defendants' conduct and meet the second element. Having met both elements of the deliberate indifference standard, Mr. Daniels should be able to successfully meet the last element that his exclusion from the public benefits and services was the result of intentional discrimination.

2. Satisfying discrimination by arguing that defendants failed to provide meaningful access to benefits and services or make a reasonable accommodation.39

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legal memo

While not as strategically desirable as policies that are discriminatory on their face, facially neutral policies can "violate the ADA when such policies unduly burden disabled persons, even when such policies are consistently enforced." McGary, 386 F.3d at 1265 (rejecting the state's argument that it did not discriminate "by reason of' plaintiff's disability because non-disabled residents were subject to the same ordinance). In Crowder, the Ninth Circuit held that although Hawaii's quarantine of dogs applied equally to all persons entering the state, the enforcement of the quarantine unduly burdened visually disabled persons "in a manner different and greater than", Crowder, 81 F.3d at 1484; see also McGary, 386 F.3d at 1265 (adding disproportionate burden as a third characterization of how a facially neutral policy can violate the ADA).

Facially neutral policies can amount to discrimination in violation of the ADA when there is a failure to make a reasonable accommodation, Crowder, 81 F.3d 1480, or a denial of "meaningful access." Scott, 370 F.Supp.2d at 1075.40

The distinction between lack of "meaningful access" and failure to make a reasonable accommodation is as a practical matter indistinguishable. The Ninth Circuit interpreted the U.S. Supreme Court's holding in Alexander v. Choate, 469 U.S. 287, 83 L. Ed. 2d 661, 105 S. Ct. 712 (1985) "that judicial review over each and every instance of disparate impact discrimination would be overly burdensome [a nd] … Rather than attempt to classify a type of discrimination as either 'deliberate' or 'disparate impact,' the Court determined it more useful to assess whether disabled persons were denied "meaningful access" to state-provided services." Crowder, 81 F.3d 1480, citing 41Choate, 469 U.S. at 302.

42In Scott v. Garcia, an inmate brought an ADA challenge alleging discrimination when prison officials and policy failed to allow him additional time to consume his meals in the prison cafeteria. Scott, 370 F.Supp.2d at 1059-60. Having established that his gastrointestinal disease was a disability and that he was otherwise qualified individual entitled to the benefit of food, the Ninth Circuit determined that the policy and the correction officials had denied the inmate "meaningful access" to the "prison food service." Id. at 1075. The existing policy which did not allow him to follow medical advice and eat food small frequent meals and avoid certain foods altogether was deemed a denial of meaningful access. Id.

What constitutes a reasonable modification or accommodation under the ADA is a fact-specific inquiry of the reasonableness of the modification given the circumstances of the disabled individual by applying the Arline risk factors: (1) the nature of the risk (how the disease is transmitted); (2) duration of the risk (how long is the carrier infectious), (3) the severity of the risk (what is the potential harm to third parties) and (4) the probabilities the disease will be transmitted and will cause varying degrees of harm. Crowder, 81 F.3d at 1483; see also McGary, 386 F.3d at 1270 (holding that a plaintiff had alleged sufficient factual allegations of failure to provide a reasonable accommodation when the city refused to grant him an variance to clean up his property until the meningitis brought on by AIDS allowed him to leave the hospital).

When challenging a violation of Title II of the ADA for failure to make a reasonable modification, defendants can raise the affirmative defenses of fundamental alteration or undue hardship. 43Bullock v. Gomez, 929 F. Supp. 1299 (D. Cal. 1996) citing 28 C.F.R. Pt. 35, App. A at 466 (1995). ("Title II requires a public entity to make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens."). Public entities are required to "to make reasonable modifications … unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28

C.F.R. § 35.130(b)(7) (2004); Townsend v. Quasim, 328 F.3d 511, 516-17 (9th Cir. 2003). Financial and resource limitations can be used to show fundamental alteration, Olmstead v. L.C., 527 U.S. at 587, but "budgetary constraints alone are insufficient to establish a fundamental alteration defense." Pa. Prot. & Advocacy, Inc. v. Pa. Dep't of Pub. Welfare, 402 F.3d 374, 380 (3d Cir. 2005); Townsend, 328 F.3d at 520 (focusing instead on whether extra expense would, in fact, compel cutbacks in services to other beneficiary recipients).

Here, certain conditions of confinement such as the solitary confinement, wearing handcuffs when outside lest he remove any facemask, and freely moving about for reasons other than seeking medical treatment would be heavily scrutinized to see if the current policy comports with the Crowder reasonableness standard. Others, such as the frosted window not allowing him to see outside, no showers, no means whatsoever of interacting with the world seem as if they would fail under this reasonableness test. Mr. Daniels should be prepared to have the court apply the Arline factors to each condition of confinement to determine whether they comport with the standard.44

Strategically, this could come down to a "numbers game" where the defendants raise arguments such as the cost of washing down the shower after every one of Mr. Daniels' use, or the cost of maintaining protective equipment for escorts and handlers. However, it appears that after Crowder, the state cannot rely on purely financial and budgetary arguments. Mr. Daniels has a very good chance of effecting some practical changes in his conditions, should he go back to the jail ward at the Center, by

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