Lucero v. Ogden, 82-1817

• Decision Date: 04 October 1983
• Docket Number: No. 82-1817,82-1817
• Citation: 718 F.2d 355
• Parties: Eduardo M. LUCERO, Plaintiff-Appellant, v. Allen OGDEN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 355

718 F.2d 355

Eduardo M. LUCERO, Plaintiff-Appellant, v. Allen OGDEN, et al., Defendants-Appellees.

No. 82-1817.

United States Court of Appeals Tenth Circuit.

Oct. 4, 1983.

Paul A. Baca, Denver, Colo., for plaintiff-appellant.

Robert S. Treece, Denver, Colo. (Evan M. Zuckerman of Hall & Evans, Denver, Colo., and Howard Kenison, Asst. Atty. Gen., Denver, Colo., with her on brief) of Hall & Evans, Denver, Colo., for defendants-appellees.

Before BARRETT and LOGAN, Circuit Judges, and BOHANON, Senior Judge, United States District Judge for the Northern, Eastern and Western Districts of Oklahoma, sitting by designation.

BARRETT, Circuit Judge.

The issue for our resolution is whether the due process clause of the Fourteenth Amendment is satisfied by Rule 217 of the Colorado Rules of Civil Procedure which precludes review of the decision of the Colorado State Board of Law Examiners that an applicant has failed the bar examination but which permits an unsuccessful applicant the absolute right to retake the bar examination an unlimited number of times. The district court held that Colorado's Rule 217 does satisfy the state's obligation to provide procedural due process to plaintiff-appellant, Eduardo Lucero, and granted defendants'-appellees' motion to dismiss without costs. We affirm.

Lucero filed this action seeking damages, declaratory and injunctive relief pursuant to 42 U.S.C. Sec. 1983. The district court's jurisdiction vested under 28 U.S.C. Sec. 1343 inasmuch as Lucero's challenge was directed at the validity of Rule 217. In Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977), we held that even though a federal district court is without jurisdiction to review a frustrated bar applicant's challenge to the state's denial of his particular admission by virtue of his examination failure, the court may nevertheless exercise "jurisdiction in relation to review of alleged federal constitutional due process or equal protection deprivations in the state's adoption and/or administration of general rules and regulations governing admission." 550 F.2d at p. 599. See also Younger v. Colorado State Board of Law Examiners, 625 F.2d 372 (10th Cir.1980); Gately v. Sutton, 310 F.2d 107 (10th Cir.1962).

Colo.R.Civ.P. 217 became effective July 1, 1981. It provides, inter alia, that the decision of the Colorado Board of Law Examiners (Board) that an applicant has passed or failed the bar examination is final; subject, however, to an unsuccessful applicant's right to inspect his answers to the essay portion of the examination, but that no review of the results may be pursued. The rule further provides that an unsuccessful applicant has an absolute right to retake the bar examination for an unlimited number of times. Lucero has taken and failed the Colorado bar examination four times.

Notwithstanding our decision in Younger v. Colorado State Board of Law Examiners, supra, that former Rule 214, which precluded applicants in Class C from taking the bar examination following two failing efforts, without special permission of the Colorado Supreme Court, was not invalid under the due process and equal protection clauses of the Fourteenth Amendment, Rule 214 was repealed and reenacted as Colo.R.Civ.P. 217. Following the enactment of Rule 217, Lucero took the bar examination in July, 1981. After notification of his failure, Lucero requested of appellee James Klein, Executive Director of the Board, that he be afforded the opportunity to inspect his essay questions, grades and score sheets for the 1981 bar examination.

Examination of the computer printout of Lucero's essay results indicated that he had passed only 13 of the 20 essay questions. A passing grade required 14 successful answers. It was ascertained that the computer printout did not include Lucero's grade in response to essay question 20. Further analysis by Mr. Klein disclosed that by computer error Lucero's overall score was not altered because he had failed to obtain a passing grade to essay question 20. Of the seven essay answers found to be failing answers, one was considered to be a "marginal" failure. Because Rule 217 precludes review of failing scores and permits only routine inspection, Lucero requested the opportunity to challenge his one "marginal" failing answer and the six answers deemed by the Board to be failing scores. The Board denied him such review and this suit followed.

The district court, in a well-reasoned memorandum opinion and order, stated, inter alia:

Except for the Fourth Circuit, every court which has confronted this issue has held squarely against plaintiff's position. Tyler v. Vickery, 517 F.2d 1089 (5th Cir.1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976); Poats v. Givan, 651 F.2d 495 (7th Cir.1981); Davidson v. State of Georgia, 622 F.2d 895 (5th Cir.1980); Sutton v. Lionel, 585 F.2d 400 (9th Cir.1978); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir.1974); Bailey v. Board of Law Examiners, 508 F.Supp. 106 (W.D.Tex.1980); Singleton v. Louisiana State Bar Association, 413 F.Supp. 1092 (E.D.La.1976).

Not surprisingly, plaintiff relies on that Fourth Circuit decision, Richardson v. McFadden, 540 F.2d 744 (4th Cir.1976), on rehearing en banc, 563 F.2d 1130 (4th Cir.1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978); but that decision is far from a square holding in favor of plaintiff's position. In Richardson, the court of appeals upheld the district court's decision to abstain from deciding the procedural due process issue until the South Carolina Supreme Court construed the state statute and determined what review, if any, it provided for unsuccessful examinees. In dictum, the court noted:

It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges was perceived to be too great. We are not persuaded.

Id., 540 F.2d at 752 (footnotes omitted). The court did not discuss whether reexamination satisfies procedural due process, but only whether reexamination "is a more effective remedy than review." On that issue, the court was "not persuaded" by decisions of other courts.

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The interest of the unsuccessful bar examinee pales by comparison with the interest of the welfare recipient, or even the disability benefits recipient who was found not to deserve a pre-termination hearing in Mathews. [Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) ]. The unsuccessful examinee is not by definition too poor to support himself or too disabled to obtain employment; until he passes the bar exam he is unqualified to practice law in Colorado, but he is able to seek other employment or continue employment as a law clerk until "review" of his grade occurs through the taking of a subsequent exam. Although this will result in inconvenience, and added expense and time the deprivation to the examinee is not enormous. This is not to say that the interest of the examinee in the practice of law is not significant; indeed, it is the significance of that interest which entitles the unsuccessful examinee to due process in the first place.

The second factor articulated in Mathews is "the fairness and reliability of the existing ... procedures, and the probable value, if any, of additional procedural safeguards." Id., 424 U.S. at 343, 96 S.Ct. at 907. Here there is no evidence that the procedures are unfair, e.g. that the graders engaged in insidious discrimination. Nor is there evidence of the unreliability of the current grading procedures or of the current review process (reexamination) in revealing errors. Reexamination effectively reveals grading errors caused by mechanical error or by arbitrary conduct. It is unlikely that the same error will occur more than once with respect to the same examinee. Defendants have not entered any affidavits which support the efficiency of reexamination as a method of review, but other courts have found the process effective. Tyler v. Vickery, 517 F.2d at 1104 ("Even making the generous assumption that one out of every hundred applicants who take the examination fail when they should have passed due to arbitrary grading, the probability that the same individual would be the victim of error after two examinations is literally one in a million."); Comment, Review of Failing Bar Examinations: Does Re-Examination Satisfy Due Process? 52 Bos.U.L.Rev. 286, 300-301 (1972) ("But, assuming that mistakes in examination grading are rare, the likelihood of the same examinee being the victim of mistake again is extremely low and by the third time borders on the impossible."), quoted in, Singleton v. Louisiana State Bar Association, 413 F.Supp. at 1100, n. 17.

Although the plaintiff asks for "an adversary hearing, an unbiased judge or hearing examiner, the opportunity to argue the facts and cross examine the other party, and the right to present evidence," Plaintiff's Brief in Opposition to ...