In re Henry

• Citation: 2013 S.D. 93,841 N.W.2d 471
• Decision Date: 18 December 2013
• Docket Number: No. 26659.,26659.
• Parties: In re Application of Jacob Benjamin HENRY.
• Court: Supreme Court of South Dakota

841 N.W.2d 471

2013 S.D. 93

In re Application of Jacob Benjamin HENRY.

No. 26659.

Supreme Court of South Dakota.

Considered on Briefs Nov. 4, 2013.

Decided Dec. 18, 2013.

Jacob B. Henry, Iowa City, Iowa, pro se applicant and appellant.

Marty J. Jackley, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, South Dakota, attorneys for appellee Board of Bar Examiners.

GILBERTSON, Chief Justice.

[¶ 1.] On December 4, 2012, the South Dakota Board of Bar Examiners (the Board) conducted a formal hearing to determine whether Jacob Henry (Henry) possessed the good moral character necessary for admission to practice law in South Dakota. The Board recommended that Henry be denied admission to practice law in the state. Pursuant to SDCL 16–16–16, Henry seeks our review of the Board's decision.

Facts and Procedural History

[¶ 2.] Henry began attending the University of South Dakota School of Law in September 2007. Henry testified that during his second year of law school, he visited the University of South Dakota Student Counseling Center (the SCC) with his girlfriend to resolve some relationship issues.¹ After his initial meeting, Henry had an individual counseling session at the SCC on March 17, 2009. He reported having auditory, visual, and tactile overstimulation, which affected his relationships, schoolwork, and employment. He also reported experiencing some anxiety and a period of five months in which he had experienced auditory hallucinations.

[¶ 3.] On March 24, 2009, Henry again visited the SCC. He reported that he had experienced racing thoughts followed by a great deal of energy and then a period of feeling down. Because of these reports, Henry took the Mini International Neuropsychiatric Interview (MINI). The interview indicated that he “met criteria for both Major Depressive Episode and Manic Episode, making a diagnosis of Bipolar Disorder most likely.” Henry was diagnosed with Bipolar II Disorder on March 30, 2009.

[¶ 4.] On April 7, 2009, Henry visited the Sanford Vermillion Clinic to address his level of depression and anxiety. He was prescribed Symbyax, an antidepressant mood stabilizer. On April 14, Henry informed his counselor at the SCC that he was taking Symbyax. Two weeks later, however, Henry reported to his SCC counselor that he had stopped taking Symbyax “due to financial constraints.” He also reported that he was depressed, and since he had stopped taking medication, his mood fluctuated frequently. However, at his hearing before the Board, Henry testified that it was actually the “horrific” side effects of the medication rather than “financial constraints” that caused him to discontinue taking the medication.

[¶ 5.] Henry completed his second year of law school in May 2009. That summer he had an internship in Sioux City but continued to live in Vermillion. For most of the summer, Henry discontinued counseling because he had not had “any episodes” and he was no longer affected “in any way and didn't really see the point in wasting the counselor's time.”

[¶ 6.] Henry returned to the SCC on August 11, 2009. He testified that he informed the SCC that his prescribed medication “seemed to be ‘stabilizing’ as he had not been as fatigued.” ² This was Henry's last counseling session of record while at the University of South Dakota.³

[¶ 7.] On the evening of February 7, 2010, during his third year of law school, Henry was in downtown Vermillion. Henry testified that after consuming two alcoholic drinks, he drove home. He was stopped by law enforcement and arrested for driving under the influence. He had a BAC of .09 and subsequently pleaded guilty to the reduced charge of reckless driving in March 2010 and paid a fine. Shortly thereafter, on April 5, 2010, Henry was drinking with some friends at a house in Vermillion when he received a call from a friend requesting a ride home from downtown Vermillion. Henry testified that the friend feared for her safety, so he decided to give her a ride home. After picking up his friend, Henry was stopped by law enforcement on the drive home. Because he had a BAC of .104, Henry was arrested and charged with driving under the influence. Henry pleaded guilty to the DUI on June 1, 2010, paid a fine, and lost his license for thirty days.

[¶ 8.] Henry graduated from the University of South Dakota School of Law in May 2010. Prior to his graduation, Henry had applied to take the July 2010 Iowa bar examination. In light of his arrests, the Iowa Board of Bar Examiners (Iowa Board) requested that Henry complete a Substance Use and Need for Treatment evaluation. The evaluation determined that “Henry does not meet the criteria for a substance related disorder and there is no indications of substance use interfering with his ability to practice law.” Nevertheless, the Iowa Board did not allow Henry to sit for the July exam because the two arrests were too recent to allow for his admission to the Iowa bar.

[¶ 9.] The Iowa Board also requested that Henry undergo a psychological evaluation. Henry returned to the SCC to receive the evaluation in June 2010. The evaluation indicated that Henry exhibited low levels of anxiety. It also indicated that Henry “does not presently meet criteria for any psychological disorders.” It stated that his “Bipolar II disorder is considered to be in full remission as it seems that he has not experienced either a depressed or hypomanic episode in approximately 1 year.” The evaluation concluded, “There is no evidence to suggest any impairment in [Henry]'s ability to practice law in the state of Iowa due to problems in his psychological functioning.”

[¶ 10.] Henry subsequently applied to take the February 2011 Iowa bar exam. This time the Iowa Board allowed him to sit for the exam. Henry received a passing score on the February exam and was admitted to practice law in Iowa in April 2011.

[¶ 11.] Following his admission to the Iowa bar, Henry sought admission to the South Dakota bar. Henry took the South Dakota bar examination in July 2012. Although he received a passing score on the exam, the Board determined that Henry's application did not meet Henry's burden to prove by clear and convincing evidence that he possessed the good moral character necessary for admission to the South Dakota bar. As a result, the Board scheduled a hearing on the matter for December 4, 2012.

[¶ 12.] Shortly after taking the South Dakota bar exam, Henry went to the University of Iowa Hospitals and Clinic (the UIHC) in August 2012. Henry testified that he had just acquired health insurance through his employer and wanted to follow up on his bipolar disorder. At the time of the visit, Henry was experiencing some depression. Additionally, he indicated that he had one episode of low mood about once a year with each episode lasting about two weeks. Henry also thought he might have a milder form of mania exhibited by racing thoughts and excessive energy. The UIHC evaluation concluded that Henry had clear manic/hypomanic symptoms in his lifetime, but it was “less likely for him to have bipolar disorder.” Dr. Thisayakron at the UIHC recommended that Henry try medication and counseling. He also prescribed Sertraline for anxiety and low mood. Henry was expected to follow up in five to six weeks; however, Henry did not follow up with the UIHC. Henry testified that he discontinued taking Sertraline due to “severe side-effects.” He also indicated that he “clearly ... did not have bipolar disorder or any disorder affecting [his] quality of life or [his] abilities.” Thus, he “decided it was not worth the money to continue.”

[¶ 13.] Henry appeared before the Board on December 4, 2012.⁴ After meeting with Henry, the Board concluded that Henry did not meet his burden to establish his good moral character by clear and convincing evidence. In reaching its conclusion, the Board noted that Henry did not appear to be forthright in his presentation to the Board. The Board believed that Henry withheld some of his mental health records. It also expressed concern at Henry's decisions to discontinue recommended treatments without consulting the prescribing physician. The Board also noted periods of Henry's life that were affected by his mental health condition. Additionally, the Board believed that Henry showed disrespect to its members. Finally, the Board stated that Henry's DUIs evidenced poor judgment and a lack of maturity. The Board concluded that when viewed in totality, the unanswered questions about the status of Henry's mental health combined with his lack of good judgment, lack of candor, and unreliability demonstrated that he failed to meet his burden to establish his good moral character under SDCL 16–16–2.2.

[¶ 14.] Henry seeks review of the Board's decision to this Court. Henry argues that the Board violated Title II of the Americans with Disabilities Act by denying him the ability to practice law in South Dakota due to his disability.

Standard of Review

[¶ 15.] Henry seeks review of the Board's decision under SDCL 16–16–16. SDCL 16–16–16 allows an applicant who is aggrieved by a decision of the Board to request that this Court review his or her application. We have noted, “The ability to receive or reject an applicant for the bar is inherently a function of the judicial system. This [C]ourt has the authority to oversee all applications for admission.” In re Widdison, 539 N.W.2d 671, 675 (S.D.1995) (quoting In re Shemonsky, 379 N.W.2d 316, 318 (S.D.1985)). “[U]nder SDCL 16–16–16, this Court is the final arbiter of the decisions of the Board of Bar Examiners, and as such, we can accept or reject the Board's conclusion.” Id. (citing Shemonsky, 379 N.W.2d at 318). “[W]e perform a de novo review of both questions of law and fact in all bar admission cases.” Id. But, “we will carefully consider the recommendations of the Board which had the opportunity to hear live witnesses.” Id. (citing In re Discipline of Stanton, 446 N.W.2d 33, 35 (S.D.1989)).

[¶ 16.] Addi...