Glaser v. Board of Bar Examiners, 92-16331
| Decision Date | 17 December 1993 |
| Docket Number | No. 92-16331,92-16331 |
| Citation | 17 F.3d 394 |
| Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Barry S. GLASER, Plaintiff-Appellant, v. BOARD OF BAR EXAMINERS, the Supreme Court of the State of Hawaii, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before: WALLACE, Chief Judge, GARTH ** and WIGGINS, Circuit Judges.
Appellant took the summer 1990 Hawaii bar exam. He scored 72.4% on the essay exam and 67.2% on the MBE, for a combined average of 69.8%, only 0.2% below passing. The Hawaii Supreme Court ordered him not admitted. Hawaii procedure at that time was to regrade automatically, prior to obtaining applicants' MBE scores, all essay exams with scores between 65% and 69.9%. Appellant's essays, which exceeded this range, were not regraded.
Appellant protested. He sent two letters to Hawaii, each addressed to the Hawaii Board of Bar Examiners ("Board") and the Hawaii Supreme Court. He said regrading was unfairly, unequally and prejudicially limited only to essay exams scoring between 65% and 69.9%. He requested his essays be regraded. The Court responded with a document captioned "In re Barry Stuart Glaser for Admission to the Bar of the State of Hawaii--July 1990 Bar Examination." It was entitled "Order," and stated:
Upon consideration of the petition by Barry Stuart Glaser, seeking to regrade his bar examination scores, and the Court being advised by the Board of Examiners that the bar examinations were properly graded and reviewed,
IT IS HEREBY ORDERED that the petition be denied. Defendant Chief Justice Lum signed the Order. The Board responded to a later letter from Appellant and declined to recommend regrading in light of the Hawaii Supreme Court's Order.
Appellant then filed this suit under 42 U.S.C. Sec. 1983 against the Hawaii Supreme Court, Chief Justice Lum in his official capacity, and the Board (collectively "Defendants" or "Appellees"). Appellant alleged, inter alia, that (1) the regrading policy violated due process and equal protection (a) as applied to Appellant and (b) in general and (2) the actions and practices of the Supreme Court in response to Appellant's letters deny due process. Appellant also alleged that other than allowing him to send letters, the Board denied him means of presenting his case; no formal pleading, appearance by him or his attorney, or any further hearing was allowed. Only the Board's clerk presented Appellant's views to the Board. Appellant sought money damages; equitable, injunctive, and declaratory relief; and attorneys' fees.
After Appellant took the deposition of Judge Heely, a Board member, Defendants moved to dismiss or for summary judgment, showing the following: The Hawaii Supreme Court has "ultimate authority" over legal practice in Hawaii. The Board gives the bar exam and determines qualifications. Board members who grade exams are volunteers. In 1990, regrading was done by the initial grader of each question. The essay exam was 17 questions scored 0-100. The average score was the essay exam score. On regrading, the original essay scores, whether higher or lower, were discarded. Only automatic regrading was done; requests for regrading were not granted. The National College of Bar Examiners grades the MBE.
In 1990, a Board committee reviewed the bar exam process. As a result, the Board made several changes, including to regrading. In 1991, essay exams of applicants whose averaged MBE and essay scores equalled 67.5% to 69.9% were regraded. The final essay score was the average of the original and regrade scores. In 1992, the Board adopted further changes, including elimination of all regrading.
The district court granted Defendants' motion. Because the court considered facts not in the pleadings, the ruling is best understood as a summary judgment. Fed.R.Civ.P. 12(c). The district court held that it lacked subject matter jurisdiction over Appellant's claims that Hawaii unlawfully denied him admission. As to Appellant's general claims, the district court held that the challenged procedures were constitutional. The court denied attorneys' fees. From these decisions, Appellant appeals. We review subject matter jurisdiction issues and summary judgment de novo. Reebok Int'l, Ltd. v. Marnatech Enter., 970 F.2d 552, 554 (9th Cir.1992); Jones v. Union Pac. RR., 968 F.2d 937, 940 (9th Cir.1992). When the district court ruled, Appellant had pending a motion to amend his complaint to add "Doe" defendants.
Appellant claims the district court misunderstood Appellant's position regarding his individual claims. Appellant cites Brown v. Board of Bar Exam., 623 F.2d 605 (9th Cir.1980), which said that an unsuccessful bar applicant can bring two claims: (1) a general constitutional challenge to the bar admissions policies; and (2) a claim that he was unlawfully denied admission. 623 F.2d at 609. Federal district courts have jurisdiction over (1) under 28 U.S.C. Sec. 1343. Id. A type (2) claim may be reviewed only in the U.S. Supreme Court. 623 F.2d at 609-10; see also Tofano v. Supreme Court of Nevada, 718 F.2d 313, 314 (9th Cir.1983). Appellant says he raises only a type (1) claim. Appellant asserts his complaint requests money damages because the district court ruled before Appellant could delete his individual claims.
In rebuttal, Appellees argue that dismissal of the type (2) claims was proper under District of Columbia Ct. App. v. Feldman, 460 U.S. 462 (1983), which holds the same as Brown. Appellees are correct. The district court had no jurisdiction, under Feldman and Brown, over the individual claims alleged in Appellant's complaint.
Appellees suggest that Appellant's general claims regarding regrading are moot because the state changed the regrading policy independently of Appellant and no longer regrades. Generally, "voluntary cessation of allegedly illegal conduct does not ... make the case moot." County of L.A. v. Davis, 440 U.S. 625, 631 (1979) (quotation attributions omitted). However, under Davis, such a case becomes moot if the state shows that (1) there is no reasonable expectation the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Id. Appellees also claim this case is not "capable of repetition yet evading review." See Roe v. Wade, 410 U.S. 113, 125 (1973). In response, Appellant argues only that the state should consent to a judgment if it actually will never implement this policy again.
The issue is not moot. No facts indicate that the effects of the alleged violation have been eradicated. No one has regraded Appellant's exam nor the exam of any applicant similarly situated; nor have Appellees shown that Appellant and similar persons have retaken or passed the bar since failing it. The "burden of demonstrating mootness is a heavy one." Davis, 440 U.S. at 631 (internal quotations omitted). The state has not met that burden.
Appellant claims a factual dispute exists whether a legitimate purpose supports limiting regrading of essay exams to those with scores between 65% and 69.9%. Under Schware v. Board of Bar Exam., 353 U.S. 232, 239 (1957), the government must show a rational basis. 1 Brown, 623 F.2d at 610. Appellant asserts that no rational basis is presently shown in the record. Appellant claims Judge Heely failed to explain any rational basis when asked. Taken in the light most favorable to Appellant, Appellant claims this failure is evidence there is no rational basis. Appellant also claims the rational basis asserted by the district court is contradicted by Judge Heely's deposition. The district court's opinion says regrading is meant to insure accuracy and the limitation is "cost effective." Appellant claims regrading before an applicant's MBE score is known is in fact wasteful because at that point no one knows who needs the extra points. In his reply brief, Appellant cites Boddie v. Connecticut, 401 U.S. 371 (1971), and United States Dep't of Agr. v. Moreno, 413 U.S. 528 (1973).
Under rational basis review, the regrading limitation must be upheld "if there is any conceivable basis" for it. Cash Inn of Dade, Inc. v. Metropolitan Dade Cty., 938 F.2d 1239, 1241 (11th Cir.1991); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Potts v. Honorable Justices of the Supreme Court of Hawaii, 332 F.Supp. 1392, 1397 (D.Haw.1971). Appellees assert that regrading was to "insure accuracy." Scores of 70 or above were not regraded because regrading would put them at risk of failing. Appellees cite Levanti v. Tippen, 585 F.Supp. 499, 507 (S.D.Cal.1984), in which time savings justified otherwise arbitrary cut-off points for regrading. Appellees note that regrading was of only marginal benefit; thus, no essays below a 65 average were regraded, and now none are. Appellees claim cut-off points for passing or reviewing bar exams have been upheld, at least when no MBE score is averaged in later. Tyler v. Vickery, 517 F.2d 1089, 1101-03 (5th Cir.1975), cert. denied, 426 U.S. 940 (1976); Bailey v. Board of Law Exam., 508 F.Supp. 106, 110 (W.D.Tex.1980). 2
We hold the regrading limitation has a rational basis. 3 The essays were regraded before the scores were sent off to be combined with MBE scores. Judge Heely's Deposition, ER 52, 46. This decision to regrade before sending the scores was justified by convenience and simplicity. Original grading was done all in one weekend during which graders would check into a hotel. Id. at 22-23. This procedure aimed to provide graders "some quiet time for the purpose of being able to concentrate and grade...
To continue reading
Request your trial