Butterfield, Application of, 3584

• Citation: 581 P.2d 1109
• Decision Date: 14 July 1978
• Docket Number: No. 3584,3584
• Parties: Application of Rhonda F. BUTTERFIELD, for Admission to the Practice of Law in the State of Alaska and Membership in the Alaska Bar Association.
• Court: Supreme Court of Alaska (US)

Page 1109

581 P.2d 1109

Application of Rhonda F. BUTTERFIELD, for Admission to the

Practice of Law in the State of Alaska and

Membership in the Alaska Bar Association.

No. 3584.

Supreme Court of Alaska.

July 14, 1978.

Lloyd I. Hoppner, Rice, Hoppner & Hedland, Fairbanks, for appellant.

William W. Garrison, Alaska Bar Ass'n, Anchorage, for appellee.

Before BOOCHEVER, C. J., and RABINOWITZ and BURKE, JJ.

OPINION

BURKE, Justice.

Rhonda F. Butterfield appeals from an order of the Board of Governors of the Alaska Bar Association ("the Board") refusing to regrade the Alaska essay portion of her February, 1977, Alaska Bar Examination. The appeal was filed as a class action but no certification of the class was obtained as required by Rule 23, Alaska R.Civ.P. ¹ Therefore, our opinion is limited to consideration of the issues as to Butterfield alone.

I

Appellant's arguments are comprehensible only if one understands the grading procedures utilized by the Board, which is charged with the responsibility for administering and grading the Alaska Bar Examination. ² The Alaska Bar Examination consists of three separate parts: (1) the Multi-State Bar Examination which constitutes two-fifths of the examination; (2) California Bar Examination essay questions which make up another two-fifths of the examination; and (3) essay questions concerning Alaska law which account for the remaining one-fifth of the examination. An overall score of 70% Is required to pass the examination. Alaska Bar Rule 4, § 6.

The California portion of the examination is sent to California where the answers to each question are graded by one person. In contrast, the answers to each of the Alaska essay questions are graded, in Alaska, by two graders. If there is a significant disparity between the grades assigned to an Alaska essay, a third grader reviews the essay to resolve the difference. Pursuant to Regulation 8 of the Regulations Concerning Grading of Examinations, ³ the California essays of those receiving an overall score of 65-70% Are regraded by Alaska graders. The Board has no similar regrading procedure for the Alaska essays.

Butterfield received an overall score of 68.9% Upon the first grading of her examination. Upon the regrading of her answers to the California essay questions, as provided by Regulation 8, her overall score increased to 69.6%, still a failing score. In spite of the Board's policy not to regrade the Alaska essays, Butterfield petitioned the Board requesting that that portion of her examination also be regraded. In her petition she alleged that the Board's policy of not regrading the Alaska essays was arbitrary and an abuse of the Board's discretion. She further alleged that the Board's policy denied her due process and equal protection of the law. The Board denied her petition to regrade the Alaska essays. By this appeal, appellant seeks an order that her February, 1977, Alaska essays be regraded.

II

Butterfield contends that the Board's refusal to regrade the Alaska portions of her examination denied her due process and the equal protection of the law. Because appellant's rationale for each of these arguments is identical, the two issues will be treated together.

The question presented by appellant's equal protection argument is whether the Board's policy by which those with an overall examination score between 65 and 70 receive a regrading of their California examination questions but not of their Alaska questions, bears a fair and substantial relation to the purpose of examining applicants, when the means used and the reasons advanced therefore are closely scrutinized. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

For the due process clause to apply there must be "state action and the deprivation of an individual interest of sufficient importance to warrant constitutional protection." Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973). Butterfield argues that the pursuit of a career in law is an interest worthy of constitutional protection and that the action of the Board constitutes state action. Appellant concludes her due process argument asserting that the Board's policy of reappraising the California essays and not the Alaska essays denies her due process of law because it bears no rational connection to determining minimal competence to practice law. ⁴

In support of her position that the Board's policy satisfies neither the equal protection test of Isakson v. Rickey, supra, nor the requirements of due process, Butterfield contends that the sole reason for regrading the California essays is a sense of mistrust of the California graders. She argues that such mistrust is without support or foundation; that a vague sense of mistrust is insufficient justification for treating the California exam questions differently from the Alaska questions; and that therefore the Board's policy of regrading only the California exams is arbitrary. ⁵

Appellant concludes her argument for finding the Board's policy violative of equal protection and due process requirements by asserting that the Board's policy appears to be particularly arbitrary in light of the Board's position in Application of Kennelly, 567 P.2d 301 (Alaska 1977). In Kennelly we concluded that by contracting with California for the supply of California questions and the grading of the California essays, the Board had not violated the rule ⁶ requiring that it retain authority over testing. We agreed with the Board that it was within its discretion "to take advantage of the . . . expertise and experience available to the California bar examiners . . . ." Id. at 303. Butterfield contends that the Board's mistrust of California graders contradicts the Board's assertion of reliance on their expertise as set forth in Kennelly. She points to this alleged contradiction as support for her argument that the Board's policy is arbitrary.

We find no merit in appellant's arguments. The only support Butterfield sets forth for her argument that the regrading of the California essays is conducted out of a sense of mistrust is a quotation from the deposition of one of the Alaska graders of the bar exam. The quotation upon which appellant relies is taken out of context and reading the quotation as a whole, it is clear that appellant's interpretation is untenable. The quote in no way suggests that the Board mistrusts the California graders.

Similarly appellant's contention that the regrading procedure contradicts the Board's position in Kennelly does not survive scrutiny. As we noted in Kennelly, the Board is given broad discretion...