Caranchini v. Mo. Bd. of Law Exam'rs
| Decision Date | 12 November 2014 |
| Docket Number | WD 77178 |
| Citation | 447 S.W.3d 768 |
| Parties | Gwendolyn Gill Caranchini, Appellant, v. Missouri Board of Law Examiners, Respondent. |
| Court | Missouri Court of Appeals |
Gwen G. Caranchini, Kansas City, MO, Appellant, pro se.
Chris Koster, Attorney General, Edwin R. Frownfelter, Assistant Attorney General, Kansas City, MO, Attorneys for Respondent.
Before Division Three: Karen King Mitchell, Presiding Judge, and Thomas H. Newton and Gary D. Witt, Judges
Following her disbarment, Gwendolyn Caranchini was provided the opportunity for reinstatement of her license to practice law, a condition of which was that she pass the Missouri Bar Examination. Having failed to pass the Missouri Bar Examination on multiple occasions, Caranchini filed suit against the Missouri Board of Law Examiners (Board) in the Circuit Court of Jackson County, purportedly under section 536.1501 and Article V, section 18 of the Missouri Constitution, seeking both a review of the procedures used to score the essay portion of the July 2013 examination and their application to her essay answers, and a finding that she should have received a passing score on that portion of the examination. The Jackson County Circuit Court dismissed Caranchini's suit on the ground that Missouri law does not provide for judicial review of bar examination scores. Finding no error, we affirm.
Caranchini was admitted to the Missouri Bar in 1978 and practiced for nearly 20 years before being disbarred. She described her practice as involving defense of error and omission insurance claims for five years and employment litigation for the remainder of the period of her licensure. Caranchini was disbarred in 1997 as a result of sanction orders entered in four cases from 1989 to 1992. She has continued to represent clients before tribunals in which no Missouri Bar license is required.
Attempting to regain entry to the Bar, Caranchini took and failed the bar examination on four occasions from 2011 to 2013. Her failure was due primarily to low scores on the essay portion of the exam.
Caranchini filed a petition in the Jackson County Circuit Court, captioned as a “PETITION FOR JUDICIAL REVIEW, DECLARATORY JUDGMENT AND/OR MANDAMUS UNDER THE MISSOURI ADMINISTRATIVE PROCEDURE ACT (536.150 R.S.MO )....” Although the caption and the opening paragraph of the petition purported to rely on section 536.150, the body of the petition cited to Article V, section 18 of the Missouri Constitution, claiming that it gave Caranchini the right to judicial review of the Board's scoring of her bar examination answers. She claimed that, in scoring her examination, the Board acted arbitrarily, capriciously, and unreasonably, and abused its discretion. She asked that the trial court re-score her examination.
In its Judgment and Order of Dismissal, the circuit court noted Caranchini's position that, at law, there exists no method or procedure for review of bar examination results. The court agreed that, as written, Missouri law does not provide for judicial review of bar examination scores. Noting that it was bound by the law as written, the court dismissed Caranchini's petition without prejudice. Caranchini appeals.
The standard of review for the grant of a motion to dismiss is de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). In her point on appeal, Caranchini argues that the trial court erred in dismissing her petition because the Missouri Constitution requires that she have the opportunity for judicial review of decisions related to passage of the bar examination.3 She appears to claim that the Board acted arbitrarily, capriciously, and unreasonably, and that it abused its discretion, in both developing its methodology for scoring examination essays and applying that methodology to the scoring of her essays, as well as in refusing to provide review and re-scoring of her examination.
Caranchini argues that the trial court erred in dismissing her petition because Article V, section 18 provides her a right to judicial review of both the Board's methodology of scoring bar examinations and the Board's application of that methodology to the scoring of her examination.4 Article V, section 18 provides:
All final decisions, findings, rules and orders on any administrative officer or body existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights, shall be subject to direct review by the courts as provided by law; and such review shall include the determination whether the same are authorized by law, and in cases in which a hearing is required by law, whether the same are supported by competent and substantial evidence upon the whole record. Unless otherwise provided by law, administrative decisions, findings, rules and orders subject to review under this section or which are otherwise subject to direct judicial review, shall be reviewed in such manner and by such court as the supreme court by rule shall direct and the court so designated shall, in addition to its other jurisdiction, have jurisdiction to hear and determine any such review proceeding.
Caranchini provides no explanation as to how a claim challenging the Board's method of scoring examinations, generally, or the scoring of her answers, specifically, falls within the purview of this constitutional provision. Nevertheless, we review her claim of a right to judicial review under Article V, section 18, and find that it fails for multiple reasons.
As a preliminary matter, there is a Missouri Supreme Court rule and companion regulation that expressly prohibit the exact relief Caranchini seeks: re-grading or re-scoring and appeal or review of bar examination scores. Missouri Supreme Court Rule 8 provides rules governing admission to the Missouri Bar. Rule 8.015 creates the Board of Bar Examiners, and Rule 8.02(a)(4) grants the Board the authority to promulgate regulations, which then have “the same force and effect as any other portion of Rule 8.”6 Regulation 6, addressing the bar examination, provides: Rule 8.08, reg. 6.
Caranchini did not mention Regulation 6 in her petition to the trial court. Although she does mention the Regulation in her point relied on, describing it as the basis for the trial court's judgment granting the Board's motion to dismiss,7 she does not address or challenge the validity of Regulation 6 in the argument portion of her brief. “Arguments raised in the points relied on portion of an appellate brief that are not supported in the argument portion of the brief are deemed abandoned and preserve nothing for appellate review.” State v. Nunley, 341 S.W.3d 611, 623 (Mo. banc 2011). For the first time in her reply brief, Caranchini argues that Regulation 6 is unconstitutional in that it violates Article V, section 18 by foreclosing judicial review. “We will not address issues raised for the first time in a reply brief.” Salvation Army, Kansas v. Bank of Am., 435 S.W.3d 661, 670 (Mo.App.W.D.2014).8
While we question whether Caranchini can properly raise her claims in the absence of a direct challenge to the constitutionality of Regulation 6, we need not decide that issue, as her claims fail on the merits.9 As explained in detail infra, Article V, section 18 does not provide for judicial review of the Board's scoring of bar examinations.
Article V, section 18 sets out four discrete requirements that must be met in order to invoke the right to judicial review provided therein. As a threshold matter, to invoke Article V, section 18's right to judicial review, a party must allege that the challenged action was not “authorized by law,” or in cases in which a hearing is required by law, the same was not “supported by competent and substantial evidence upon the whole record.” If such a challenge is made, the party claiming the right of judicial review under Article V, section 18 must also demonstrate that the action challenged: (1) was undertaken by an “administrative officer or body under constitution or by law”; (2) was judicial or quasi-judicial in nature; and (3) affected private rights.
Caranchini's claims fail to meet several of the criteria required by Article V, section 18. She does not claim that the Board acted unlawfully in either administering the bar examination or refusing to re-score or re-grade her examination. Further, the Board10 is not an administrative body, and the actions of the Board in scoring the bar examination are neither judicial nor quasi-judicial. Therefore, judicial review is simply not available under this constitutional provision.
Article V, section 18 establishes “the minimum standard ... for review in any case decided on a hearing before an administrative officer or body.” Wood v. Wagner Elec. Corp., 355 Mo. 670, 197 S.W.2d 647, 649 (1946). “[T]he constitutional provision for judicial review is self-enforcing and requires no legislation to make it effective.” Union Elec. Co. v. Kirkpatrick, 678 S.W.2d 402, 409 (Mo. banc 1984).11 Article V, section 18 provides for judicial review of claims that decisions of administrative bodies are: (1) unlawful; or (2) in cases in which a hearing is required by law, are not supported by competent and substantial evidence on the whole record.
Therefore, if the Board's scoring of the bar examination and its refusal to either re-score or re-grade the examination were subject to judicial review under Article V, section 18, such review would include “the...
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