In re Grundstein

• Decision Date: 13 November 2020
• Docket Number: No. 2020-122,2020-122
• Citation: 2020 VT 102
• Court: Vermont Supreme Court
• Parties: In re Robert Grundstein

2020 VT 102

In re Robert Grundstein

No. 2020-122

Supreme Court of Vermont

September Term, 2020

November 13, 2020

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

Original Jurisdiction

Board of Bar Examiners

Keith J. Kasper, Chair

Robert Grundstein, Pro Se, Morrisville, Petitioner-Appellant.

Thomas J. Donovan, Jr., Attorney General, Montpelier, and Andrew R. Strauss, Licensing Counsel/Special Assistant Attorney General, Burlington for Respondent-Appellee.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. EATON, J. Robert Grundstein appeals from the Board of Bar Examiners' determination that he failed to establish his eligibility for admission to the Vermont bar in connection with his 2019 application for admission by examination. He argues that, for numerous reasons, the Board erred in evaluating his application pursuant to the Rules of Admission to the Bar of the Vermont Supreme Court in effect at the time his application was submitted. We conclude that the Board correctly applied the Rules and affirm.

¶ 2. The relevant factual and procedural history is as follows. Applicant graduated from law school in 1985. In February 2016, he achieved a passing score on the Vermont bar examination on his third attempt. However, applicant was not admitted to the bar at that time because the Character and Fitness Committee concluded that he failed to meet his burden of demonstrating a good moral character, a determination we upheld on appeal. In re Grundstein, 2018 VT 10, ¶¶ 1, 47, 206 Vt. 575, 183 A.3d 574. As a result, the rules precluded applicant from reapplying for admission during the two following years. See id. ¶ 48; V.R.A.B. 19 (providing that applicant "denied a certification of Good Moral Character and Fitness is not eligible to apply for admission to the Bar for a period of 2 years after the denial"). In response to an inquiry from applicant, Licensing Counsel took the position that this time period began to run on the date we affirmed the Committee's recommendation in Grundstein.

¶ 3. The February 2016 examination applicant sat for was the last administration prior to this Court's adoption of the Uniform Bar Examination (UBE), which was given in Vermont for the first time in July 2016. Subsequent to the adoption of the UBE, the rules provided that a bar applicant could demonstrate Minimum Professional Competence in one of three ways: by attaining a score of 270 or higher on the UBE administered in Vermont provided the exam was taken within five years of law school graduation, see V.R.A.B. 9(b)(1), (3); by transferring a score of 270 or higher on the UBE administered in another jurisdiction, see V.R.A.B. 13(b); or upon a showing that the applicant is licensed in another jurisdiction, has been actively engaged in the practice of law for at least five of the preceding ten years, and has not received a score of less than 270 on the UBE in any jurisdiction within the last five years, see V.R.A.B. 14, 15. In July of 2018, applicant took the UBE in Washington, D.C., and received a score of 266. He was not admitted to the bar of that jurisdiction.

¶ 4. Applicant submitted the instant application for admission to the Vermont bar by examination in September 2019, offering his 2016 non-UBE score to satisfy the burden of showing Minimum Professional Competence. The Board concluded that applicant failed to establish his eligibility for admission under any of the three avenues of admission provided by the Vermont Rules of Admission to the Bar. The Board explained that applicant was not eligible for admission by examination because his 2016 Vermont score is not a UBE score. And applicant had received that score more than five years after his 1985 law-school graduation, a further disqualification.Applicant was not eligible for admission by transferred UBE score because his 2018 score from Washington, D.C., was below 270. Finally, the Board noted, applicant was ineligible for admission without examination because he was neither admitted in at least one United States jurisdiction, nor had he been actively engaged in the practice of law for at least five of the preceding ten years. Moreover, his score of less than 270 on the UBE within the past five years foreclosed this option. Applicant brought the instant appeal.

¶ 5. Because the issues in this appeal go to the enforceability of the Rules and this Court's ability to hear issues not preserved before the Board, a brief description of the legal landscape is a necessary precursor to our analysis. The Vermont Constitution vests this Court with broad regulatory authority concerning the admission of attorneys to the state bar. Vt. Const. ch. II, § 30; see also In re Connor, 2006 VT 131, ¶ 6, 181 Vt. 555, 917 A.2d 442 (mem.). In an exercise of that authority, we established the Rules of Admission to the Bar of the Vermont Supreme Court, the Board of Bar Examiners, and the Character and Fitness Committee. In re Oden, 2018 VT 118, ¶¶ 3-4, 208 Vt. 642, 202 A.3d 252; see also V.R.A.B. 1. The Board is tasked with determining, in the first instance, whether each applicant to the Bar has discharged the burden of establishing Minimum Professional Competence via one of the three paths to admission set forth in the Rules. Oden, 2018 VT 118, ¶ 4; V.R.A.B. 1.

¶ 6. This constitutional framework informs our standard of review. Although on appeal we give careful consideration to the Board's findings and conclusions, we are not bound by them. In re Birt, 2020 VT 55, ¶ 6, ___ Vt. ___, 237 A.3d 1263 (explaining although we afford Board "broad discretion" in enforcing Rules, generally setting aside decisions only upon "strong showing of abuse of . . . discretion, fraud, corruption, arbitrary action, or oppression," our review is "nondeferential"). Rather, "[w]e have plenary authority to review the Board's decisions because the Vermont Constitution gives this Court the unique responsibility to regulate the practice of law within this state." Oden, 2018 VT 118, ¶ 7 (quotation and alterations omitted).

¶ 7. Before addressing applicant's argument, we must also take up Licensing Counsel's suggestion that bar applicants representing themselves on appeal from a Board decision should "be held to the standard of a competent licensed attorney." We decline to hold bar applicants to the standard of a profession to which they have yet to be admitted. Like other pro se parties, then, such litigants will receive some leeway in the evaluation of their arguments, although they are nonetheless bound to observe the rules of procedure. Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219, 19 A.3d 112.

¶ 8. With these considerations in mind, we turn to the issues at hand. We recently explained in Birt that, absent an express provision to the contrary, an application for bar admission is considered under the rules in place at the time the application was submitted.¹ Birt, 2020 VT 55, ¶ 10. Applicant does not seriously contest that, when he submitted the application at issue in 2019, admission by examination was only available to those who obtained a score of 270 on the UBE, and not pursuant to a passing score on any other examination. V.R.A.B. 9(b)(3); Oden, 2018 VT 118, ¶ 9 (holding that where rules "use the term 'UBE,' " they do so to the exclusion of "bar examinations generally"). Instead, applicant argues that the 2019 rules are not properly applied to his application for the following reasons: (1) because applicant did not find evidence that the Rules and their amendments were submitted to the Legislative Rules Committee, the Rules are unenforceable; (2) the instant application is not a new application but a continuation of his 2015 application subject to the 2015 rules; (3) applicant's character and fitness should have been evaluated prior to his professional competency; (4) his 2016 examination suffices to demonstrate his competence; (5) the principals of laches, lenity, and estoppel require that the 2015 rules applyto his application; (6) he has a vested property right in his 2016 bar score and the change to the rule constitutes a "taking" prohibited by the Fifth Amendment to the United States Constitution; (7) Rule 9(b)(1) violates the Equal Protection clause because it impinges upon a fundamental right, and; (8) Rule 9(b)(1) violates the Privileges and Immunities Clause. We address each argument in turn.

¶ 9. We first reject the contention that the Rules are without force because applicant found no record that they were either sent to the Legislative Committee on Judicial Rules or reviewed by that Committee. The basis of his argument is 12 V.S.A. § 3(e), which provides that "[r]ules or amendments thereto promulgated by the Supreme Court . . . shall be submitted to the Legislative Committee on Judicial Rules at least 60 days prior to their effective date." We interpret unambiguous statutory provisions like this one with reference to the plain meaning of the words the Legislature chose. Doyle v. City of Burlington Police Dep't, 2019 VT 66, ¶ 5, ___ Vt. ___, 219 A.3d 326. Section 3(e) imposes no requirement that the Court create a public record of such submission, let alone invalidity of the rules as a consequence for the failure to do so.² Had it wished, the Legislature could have utilized the same language it used in § 3(c), requiring the Committee on Judicial Rules "give public notice" of any public hearing on a Court rule. Daniels v. Vt. Ctr. for Crime Victims Servs., 173 Vt. 521, 523, 790 A.2d 376, 379 (2001) (mem.) ("Where the Legislature has demonstrated that it knows how to provide explicitly for the requested action, we are reluctant to imply...