We are going to venture into Kansas for our next commentary. A brief in State v. King, No. 14-111786-A, 2015 WL 274723 (Ct. App. Kan.), is only the most recent entry in discussions of frustration of purpose that leave me, well, frustrated. Perhaps it’s because the doctrine often gets cursory coverage, if any at all, in the typical law school curriculum—albeit not for my students.
In any case, State v. King, No. 14-111786-A, 2015 WL 274723 (Ct. App. Kan.), involves a plea bargain gone wrong. As detailed in the appellant’s complaint, a plea agreement was entered-into concerning alleged crimes, in which the State agreed to recommend some form of probation. When it came time for sentencing, the defendant/appellant alleges, the defendant was not present, having, it is claimed, been detained in another jurisdiction on newly-filed charges.
More after the break …
We do not often delve into issues of criminal law, but they sometimes are applicable, e.g.:
Although plea bargaining is a matter of criminal jurisprudence, a plea bargain itself is contractual in nature and “subject to contract-law standards.” United States v. Arnett, —— F.2d ——, —— (9th Cir., Nov. 26, 1979).
U.S. v. Krasn, 614 F.2d 1229 (9th Cir. 1980). There are some caveats, given the context:
[A]lthough contract principles are useful in analyzing plea agreements, plea agreements are unique because they are ultimately governed by Constitutional principles not implicated by ordinary civil contracts. Therefore, the parallel between plea agreements and ordinary contracts is not always perfect.
U.S. v. Lewis, 694 F. Supp. 1513 (D. Kan. 1997), quoting:
Plea agreements are like contracts; however, they are not contracts, and therefore contract doctrines do not always apply to them.
U.S. v. Olesen, 920 F.2d 538 (8th Cir. 1990). See also U.S. v. Newbert, 504 F.3d 180 (1st Cir. 2007).
The defendant’s brief reports the State requested a prison sentence, and defendant was sentenced to a prison term. The defendant seeks specific enforcement of the plea agreement.
As a threshold issue, one would need to determine whether an undertaking, contract-like, had been formed. It could be there was an offer by the government that could be accepted only the appellant’s appearing and entering a guilty plea at the appointed time.
That’s an interesting question. But I want to discuss the misapplication in the brief of the principle of frustration of purpose. The appellant seems to conceptualize the arrangement as akin to an executory bilateral arrangement, so, we will take that to be so, and illustrate why the frustration of purpose doctrine is irrelevant.
Claim of Frustration of Purpose
The appellant’s brief derails in attempting to style the issue as one of frustration of purpose:
“[A]plication of fundamental contract principles is generally the best means to fair enforcement of a plea agreement, as long as courts remain mindful that the constitutional implications of the plea bargaining process may require a different analysis in some circumstances.” State v. Urista, 296 Kan. 576, 583, 293 P.3d 738 (2013) (quoting State v. Copes, 290 Kan. 209, 217, 224 P.3d 571 ). Under contract law, plea agreements contain implied covenants of good faith and fair dealing. Urista, 296 Kan. at 583 (citing Estate of Draper v. Bank of America, 288 Kan. 510, Syl. ¶ 13, 205 P.3d 698 ).
The frustration of purpose doctrine can release a party from its contractual obligations under the follow circumstances:
Where, after a contract is made, a party’s principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary.
State v. Boley, 279 Kan. 989, 993-94, 113 P.3d 248 (2005) (quoting Restatement [Second] of Contracts § 265 ). The Kansas Supreme Court has relied on the following steps to determine whether the frustration of purpose doctrine applies to a plea agreement: (1) whether the frustrated purpose was ‘so completely the basis of the contract that… without it the transaction would make little sense[;]” (2) whether “the frustration was not ‘so severe’ that it is fairly regarded as within the risks assumed under the contract[;]” and (3) whether the “non-occurrence of the frustrating event must have been a basic assumption on which the contract was made.” Boley, 279 Kan. at 995, 997 *5 (citing and quoting Restatement [Second] of Contracts § 265, comment a).
Background—Other Courts Applying Frustration of Purpose in Plea Deals
One may wonder how an examination of the enforceability of a plea agreement might detour (or is it a frolic?) into principles of frustration of purpose. Perhaps some background:
The defendant’s brief references State v. Boley, 113 P.3d 248 (Kan. 2005), which summarizes prior Federal authority, United States v. Bunner, 134 F.3d 1000 (1th Cir. 1998), as follows:
In Bunner, the defendant pled guilty to using a firearm during the commission of a drug trafficking offense, see 18 U.S.C. § 924(c) (2000), as part of a plea bargain where the government agreed to dismiss the remaining charges. Three years later, the United States Supreme Court ruled that the defendant’s conduct no longer constituted a violation of 18 U.S.C. § 924(c). After the defendant successfully challenged his sentence and his sentence was vacated, the government moved to reinstate the previously dismissed charges.
The Tenth Circuit Court of Appeals held that a defendant’s successful post-plea challenge to his sentence did not repudiate his plea agreement; however, it did frustrate the government’s purpose in entering into the plea agreement. Therefore, under the frustration of purpose doctrine, the government could choose to be discharged from its obligations under the plea agreement and reinstate the previously dismissed charges. 134 F.3d at 1005.
What’s Frustration of Purpose About?
The principle of frustration of purpose addresses circumstances where an obligor seeks to be discharged because the value of the obligee’s performance is substantially diminished. The Restatement (Second) of Contracts § 265 cogently describes the principle’s scope as “when a change in circumstances makes one party’s performance virtually worthless to the other, frustrating his purpose in making the contract”.
That’s what’s claimed in summary of Bunner. The defendant’s plea agreement was no longer as valuable to the government, because the change in legal landscape resulted in the defendant’s plea not being as valuable as contemplated.
No Frustration Here
Understanding what frustration of purpose is about, one can readily see that the principle has nothing to do with the case at hand. The defendant/appellant is asserting frustration of purpose. For such a principle to be applicable, it requires the party asserting the principle no longer ascribes the same value to the other’s performance. That’s not the case here. The defendant/appellant is not claiming the value of a recommendation for probation is of diminished value. So, the arrangements have nothing to do with frustration of purpose. The defendant’s claim, rather, is:
The State’s duty to recommend probation was not affected by the defendant’s absence.
The brief does not provide the reader confidence as to the full scope of the contractual promises made. So, we are either discussing an express condition or a constructive condition of exchange. That is, the issue is whether an express or constructive condition to the State’s duty to recommend probation was present and not fulfilled—whether the State’s duty to perform was conditioned on the defendant appearing and, if so, whether the condition was excused.
Conditions of Exchange
Black-letter law would be that, if there is an express condition, it must be completely fulfilled. On the other hand, if the condition is a constructive condition of exchange, only substantial performance is required. To put it another way, if there is a constructive condition of exchange, the question is whether the defendant’s absence was a material breach.
Bias Against Express Condition. Because we do not have the full understanding, it is difficult to assess fully whether there was an express condition. But, even if the language appears to give rise to an express condition, a court may well not construe the language as giving rise to a condition. Because finding there is an express condition can give rise to a forfeiture, there is quite a bit of authority holding that language literally creating a condition does not create a condition.
Consider, for example, R&L Acoustics v. Liberty Mutual Ins. Co., 2001 Conn. Super. LEXIS 2854 (Sup. Ct. Conn. 2001). R&L Acoustics was the subcontractor on a job; HRH/Atlas Construction, Inc., was the prime contractor. The contract provided, “The Contractor shall have no liability or responsibility for any amount due or claimed to be due to Subcontractor except to the extent Contractor actually receives funds from Owner specifically designated for disbursement to the Subcontractor as receipt of such funds from the Owner are specifically made a condition precedent to the Contractor’s obligation to make payments to Subcontractor hereunder.”
To make sure you do not miss it, note the language of the contract expressly identifies receipt of payment from the owner as a “condition precedent”. Is it, in the court’s view, a condition precedent? No.
Satisfaction. If there is an express condition, there does not seem to be a wealth of authority addressing whether a party’s incarceration would excuse strict fulfillment of an express condition. Corbin on Contracts § 76.11 cites Hughes v. Wamsutta Mills, 93 Mass. (11 Allen) 201 (1865). Hughes involves a case where, according to the headnote, an employment contract provided an employee “was to give two weeks’ notice before leaving, or not claim any wages due”. The termination, unaccompanied by two weeks’ notice, arose from the employee’s incarceration. The Corbin treatise notes:
It might be supposed from this that a promisor would not be discharged when the failure to perform personal service is caused by the promisor’s arrest and conviction for a crime. After all, the event creating the impossibility was caused by the promisor’s own conduct. In one case, however, an employee was relieved from a forfeiture of all wages, as provided in the agreement, when his leaving without notice was caused by his arrest and conviction. In addition, arrest and inability to get bail, followed by a verdict of not guilty, might well be held to operate as a discharge of the obligation to perform contract duties during the period of detainment.
So, it’s not necessarily a loser for the defendant, even if there is an express provision addressing the matter.
If there is only an implied condition, the issue would be whether the defendant’s delay operated as a material breach. Understanding that time ordinarily is not of the essence, one would suppose not, though a greater factual development might provide otherwise.