Application of Kimmer

• Decision Date: 17 April 2006
• Docket Number: Misc. No. 12, September Term, 2005.
• Citation: 896 A.2d 1006,392 Md. 251
• Parties: In the Matter of the APPLICATION OF Robert J. KIMMER for Admission to the Bar of Maryland.
• Court: Court of Special Appeals of Maryland

896 A.2d 1006

392 Md. 251

In the Matter of the APPLICATION OF Robert J. KIMMER for Admission to the Bar of Maryland.

Misc. No. 12, September Term, 2005.

Court of Appeals of Maryland.

April 17, 2006.

COPYRIGHT MATERIAL OMITTED

Byron L. Warnken, (Warnken, LLC), Baltimore, for appellant.

Paul D. Raschke, Asst. Atty. Gen., for appellee.

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE, (Retired, Specially assigned), JJ.

BELL, C.J.

The issue presented by the application of Robert Kimmer, the applicant, for admission to the bar of Maryland and the exceptions thereto, filed by the Board of Law Examiners, the Board, is whether a circuit court has jurisdiction¹ over bar admission matters such that, having determined that an applicant to take the bar examination is entitled, when taking the examination, to accommodation, pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. §§ 12101 et. seq., it may order the Board to provide such accommodation. The Circuit Court for Anne Arundel County, ruling on the applicant's Petition for Preliminary Injunction and/or Temporary Restraining Order, determined that the ADA applied and that the applicant was entitled to the accommodation he sought. Accordingly, it granted the applicant's request for a temporary restraining order and ordered the Board to provide "ADA accommodations," as specified.² We shall hold that authority over the bar admission process is solely within the jurisdiction of this Court.

I.

The applicant was not diagnosed with, and appears not to have sought evaluation for, a learning disability until just prior to entering law school in 2002, after he had taken the Law School Aptitude Test ("LSAT"). He had previously taken the Scholastic Aptitude Test ("SAT"), entered Emory University, completed his Bachelor's Degree at that University with a 3.7 Grade Point Average, and taken the LSAT, all without disability accommodation. His dissatisfaction with his LSAT score prompted him to obtain an evaluation to determine if he had learning disabilities.

The psychologist he consulted, Dr. Anne Wake, after testing the applicant over four days, concluded that he has a specific processing learning disability, diagnosis 315.9 in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ("DSM-IV"). On the strength of that diagnosis and consistent with Dr. Wake's recommendation, he was given accommodation, typically amounting to double time and the use of a computer,³ throughout law school, at both the University of Baltimore Law School and the George Washington University School of Law.⁴

On May 15, 2005, the applicant wrote to the Board of Law Examiners requesting ADA accommodation when he sat for the July 2005 Maryland bar examination.⁵ He included in his letter reports from his psychologist, as well as letters from both of the law schools he had attended, the latter of which indicated that he had received such accommodations throughout his law school career. The applicant specifically asked that he be given double time to complete the examination and that he be permitted to use a word processing computer in doing so. The Board, consistent with its customary practice and its Rules, see Rule 3 d. of the Rules of the Maryland State Board of Law Examiners,⁶ forwarded the reports and the letters to its expert psychologist for review. On this occasion, the material was sent to Dr. Lawrence Lewandowski,

The Board's psychologist concluded, on the documentary record,⁷ that the applicant had not demonstrated a disability covered by the ADA and, therefore, was not entitled to accommodation.⁸ He consequently recommended that the applicant not be given accommodation. Based on that recommendation, on June 20, 2005, the Board denied the applicant's request for ADA accommodation. The reasons for the decision were amplified by its subsequent letter, dated June 21, 2005, responding to a further inquiry from the applicant for a fuller explanation of its decision. In that letter, the Board advised the applicant, as it had been informed by Dr. Lewandowski, that he did not meet the criteria for either a DSM-IV diagnosis of a learning disorder or as a qualified person under the ADA, explaining that he had demonstrated above average performance in "virtually every dimension of cognitive and academic functioning" and that "[b]ecause a test score is not as high as a superior IQ score, does not mean it is a deficit or impairment."⁹ In addition, the Board invited the submission of "additional documentation," by way of "an appeal," to be filed with its Chair, within ten days.

On July 1, 2005, the applicant, through counsel, filed, by letter, Appeal of Denial of Request for Bar Exam Accommodation for Robert Kimmer,¹⁰ with the Board's Chair. Arguing that he was evaluated by a highly-credentialed expert in learning disabilities, that he has a learning disability, as demonstrated by the professional testing performed by that expert, and that his disability "substantially limits the major life activities of reading, writing ... [and] working, and [that he] has the proficiency and intellect required to practice law," the applicant concluded that he thus required and was entitled to accommodation. Moreover, the applicant asserted, professional examinations, such as bar examinations, fall under the purview of the ADA.

This "appeal," along with a supplemental letter from Dr. Wake addressing the deficiencies the Board identified in the applicant's submission seeking accommodation were referred to Dr. Lewandowski for review. Finding that nothing new had been presented, Dr. Lewandowski's recommendation did not change. Based on that assessment and the Chair's review of all documentation, the Board, on July 21, 2005,¹¹ denied the "appeal," concluding "that there is no justification for granting the accommodations requested and they are therefore denied."

On July 22, 2005, four days before the bar examination he intended to sit for was to be administered, the applicant filed, in the Circuit Court for Anne Arundel County, a Petition for Preliminary Injunction and/or Temporary Restraining Order to enjoin the State Board of Law Examiners "from denying ADA accommodations to [the applicant] on the July 2005 Maryland and multistate bar exam in the form of double time and the use of a computer on the essay exam." He argued in the petition, as he had similarly argued to the Board, that he suffers from a learning disability which substantially limits major life activities, namely reading, writing, and working, that he is thus impaired in his ability to compete with his peers on time restricted examinations, and that the failure of the Board to give him ADA accommodations as requested deprives him of his right to work in his chosen profession. Further, he urged that, because he was planning to take the July 26 and 27 bar examination, it was imperative that the Court quickly order that such accommodations be given.

Following a hearing held on the same day,¹² the trial court ordered the requested injunctive relief, namely, a temporary restraining order requiring that the applicant have the use of a computer for the essay portion of the examination and double time in which to take it and the multistate examination. It concluded that the applicant would likely be successful on the merits of the case, that the likelihood of prejudice regarding other examination takers was outweighed by the applicant's hardship, that the applicant would likely suffer irreparable harm if he was not accommodated and failed the examination, that the accommodations would be easy for the Board to make, and that public policy favored giving accommodations to those with ADA recognized disabilities.¹³

The Board fully complied with the court's order and provided the ordered accommodation for the applicant during the July 2005 examination. Subsequently, however, by letter dated August 2, 2005 long before the examination had been graded and two days before the expiration of the temporary restraining order, it informed the applicant, through counsel, that it was "maintain[ing] its position that [he] has not established that he is entitled, under the Americans with Disabilities Act, to the accommodations he received for the July 2005 Maryland bar examination." The Board also advised the applicant that, although it would grade his examination anonymously with the other examinees, it would not recommend his admission to the bar of Maryland, even if he passed the examination, "prior to an adjudication on the merits of his entitlement to accommodations for taking the Maryland bar examination."

In response, on September 29, 2005,¹⁴ the applicant filed a Motion for Declaratory Relief. Filed in the same case from which the temporary restraining order was issued, he, in effect, asked the Circuit Court to make the temporary restraining order it had issued on July 22 permanent and, further, for a ruling that the applicant be admitted to the Maryland Bar. In that regard, the applicant argued that the granting of the temporary restraining order would have been otherwise meaningless; in issuing the order, the court also must have intended that the Board recommend the applicant's admission upon his successful passing of the bar examination.

The Board timely opposed this motion. Noting that the motion was filed two months after both the expiration of the temporary restraining order and receipt of the Board's letter informing the applicant of its intention not to recommend the applicant's admission and, thus, characterizing it as "improperly seek[ing] to revive and extend the parameters of a long-expired temporary restraining order, contrary to the Rules, and to transmute it into permanent injunctive relief," the Board submitted that, "[a]s the filing is unsupported by a proper complaint, it is plainly defective and [the Circuit] Court lacks jurisdiction to act on it. It must be...