Lucero v. Ogden, No. 82-1817

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore BARRETT and LOGAN, Circuit Judges, and BOHANON; BARRETT
Citation718 F.2d 355
PartiesEduardo M. LUCERO, Plaintiff-Appellant, v. Allen OGDEN, et al., Defendants-Appellees.
Docket NumberNo. 82-1817
Decision Date04 October 1983

Page 355

718 F.2d 355
Eduardo M. LUCERO, Plaintiff-Appellant,
v.
Allen OGDEN, et al., Defendants-Appellees.
No. 82-1817.
United States Court of Appeals,
Tenth Circuit.
Oct. 4, 1983.

Page 356

Paul A. Baca, Denver, Colo., for plaintiff-appellant.

Robert S. Treece, Denver, Colo. (Evan M. Zuckerman of Hall & Evans, Denver, Colo., and Howard Kenison, Asst. Atty. Gen., Denver, Colo., with her on brief) of Hall & Evans, Denver, Colo., for defendants-appellees.

Before BARRETT and LOGAN, Circuit Judges, and BOHANON, Senior Judge, United States District Judge for the Northern, Eastern and Western Districts of Oklahoma, sitting by designation.

BARRETT, Circuit Judge.

The issue for our resolution is whether the due process clause of the Fourteenth Amendment is satisfied by Rule 217 of the Colorado Rules of Civil Procedure which precludes review of the decision of the Colorado State Board of Law Examiners that an applicant has failed the bar examination but which permits an unsuccessful applicant the absolute right to retake the bar examination an unlimited number of times. The district court held that Colorado's Rule 217 does satisfy the state's obligation to provide procedural due process to plaintiff-appellant, Eduardo Lucero, and granted defendants'-appellees' motion to dismiss without costs. We affirm.

Lucero filed this action seeking damages, declaratory and injunctive relief pursuant to 42 U.S.C. Sec. 1983. The district court's jurisdiction vested under 28 U.S.C. Sec. 1343 inasmuch as Lucero's challenge was directed at the validity of Rule 217. In Doe v. Pringle, 550 F.2d 596 (10th Cir.1976), cert. denied, 431 U.S. 916, 97 S.Ct. 2179, 53 L.Ed.2d 227 (1977), we held that even though a federal district court is without jurisdiction to review a frustrated bar applicant's challenge to the state's denial of his particular admission by virtue of his examination failure, the court may nevertheless exercise "jurisdiction in relation to review of alleged federal constitutional due process or equal protection deprivations in the state's adoption and/or administration of general rules and regulations governing admission." 550 F.2d at p. 599. See also Younger v. Colorado State Board of Law Examiners, 625 F.2d 372 (10th Cir.1980); Gately v. Sutton, 310 F.2d 107 (10th Cir.1962).

Colo.R.Civ.P. 217 became effective July 1, 1981. It provides, inter alia, that the decision of the Colorado Board of Law Examiners (Board) that an applicant has passed or failed the bar examination is final; subject, however, to an unsuccessful applicant's right to inspect his answers to the essay portion of the examination, but that no review of the results may be pursued. The rule further provides that an unsuccessful applicant has an absolute right to retake the bar examination for an unlimited number of times. Lucero has taken and failed the Colorado bar examination four times.

Notwithstanding our decision in Younger v. Colorado State Board of Law Examiners, supra, that former Rule 214, which precluded applicants in Class C from taking the bar

Page 357

examination following two failing efforts, without special permission of the Colorado Supreme Court, was not invalid under the due process and equal protection clauses of the Fourteenth Amendment, Rule 214 was repealed and reenacted as Colo.R.Civ.P. 217. Following the enactment of Rule 217, Lucero took the bar examination in July, 1981. After notification of his failure, Lucero requested of appellee James Klein, Executive Director of the Board, that he be afforded the opportunity to inspect his essay questions, grades and score sheets for the 1981 bar examination.

Examination of the computer printout of Lucero's essay results indicated that he had passed only 13 of the 20 essay questions. A passing grade required 14 successful answers. It was ascertained that the computer printout did not include Lucero's grade in response to essay question 20. Further analysis by Mr. Klein disclosed that by computer error Lucero's overall score was not altered because he had failed to obtain a passing grade to essay question 20. Of the seven essay answers found to be failing answers, one was considered to be a "marginal" failure. Because Rule 217 precludes review of failing scores and permits only routine inspection, Lucero requested the opportunity to challenge his one "marginal" failing answer and the six answers deemed by the Board to be failing scores. The Board denied him such review and this suit followed.

The district court, in a well-reasoned memorandum opinion and order, stated, inter alia:

Except for the Fourth Circuit, every court which has confronted this issue has held squarely against plaintiff's position. Tyler v. Vickery, 517 F.2d 1089 (5th Cir.1975), cert. denied, 426 U.S. 940, 96 S.Ct. 2660, 49 L.Ed.2d 393 (1976); Poats v. Givan, 651 F.2d 495 (7th Cir.1981); Davidson v. State of Georgia, 622 F.2d 895 (5th Cir.1980); Sutton v. Lionel, 585 F.2d 400 (9th Cir.1978); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir.1974); Bailey v. Board of Law Examiners, 508...

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16 practice notes
  • Practice and procedure: Patent and trademark cases rules of practice; representation of others before Patent and Trademark Office,
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...for a regrade. The applicant is afforded due process by permitting him or her to sit for the examination again. See Lucero v. Ogden, 718 F.2d 355 (10th Cir. 1983), cert. denied, 465 U.S. 1035, 79 L. Ed. 2d 706, 104 S.Ct. 1308 (1984) (``Courts have consistently refrained from entering the ar......
  • Part II
    • United States
    • Federal Register December 12, 2003
    • December 12, 2003
    ...for a regrade. The applicant is afforded due process by permitting him or her to sit for the examination again. See Lucero v. Ogden, 718 F.2d 355 (10th Cir. 1983), cert. denied, 465 U.S. 1035, 79 L. Ed. 2d 706, 104 S.Ct. 1308 (1984) (``Courts have consistently refrained from entering the ar......
  • Pascarella v. Swift Transp. Co., Inc., Civil No. 09-1921 (JBS/JS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 14, 2009
    ...and a hearing) are inapposite. Both Jones v. Bd. of Com'rs of Alabama State Bar, 737 F.2d 996 (11th Cir. 1984) and Lucero v. Ogden, 718 F.2d 355 (10th Cir.1983) involve applicants to the legal bar who were denied admission after failing the admissions test. The Bell decision provides due pr......
  • Scinto v. Stamm, No. 14538
    • United States
    • Supreme Court of Connecticut
    • February 9, 1993
    ...weight to compel the requested relief can be determined only by analyzing the second and third prongs of Mathews. Lucero v. Ogden, 718 F.2d 355, 358-59 (10th Cir.1983), [224 Conn. 536] cert. denied, 465 U.S. 1035, 104 S.Ct. 1308, 79 L.Ed.2d 706 The applicant's interest "militates ... in fav......
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12 cases
  • Pascarella v. Swift Transp. Co., Inc., Civil No. 09-1921 (JBS/JS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • July 14, 2009
    ...and a hearing) are inapposite. Both Jones v. Bd. of Com'rs of Alabama State Bar, 737 F.2d 996 (11th Cir. 1984) and Lucero v. Ogden, 718 F.2d 355 (10th Cir.1983) involve applicants to the legal bar who were denied admission after failing the admissions test. The Bell decision provides due pr......
  • Scinto v. Stamm, No. 14538
    • United States
    • Supreme Court of Connecticut
    • February 9, 1993
    ...weight to compel the requested relief can be determined only by analyzing the second and third prongs of Mathews. Lucero v. Ogden, 718 F.2d 355, 358-59 (10th Cir.1983), [224 Conn. 536] cert. denied, 465 U.S. 1035, 104 S.Ct. 1308, 79 L.Ed.2d 706 The applicant's interest "militates ... in fav......
  • Jones v. Board of Com'rs of Alabama State Bar, No. 83-7004
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • July 30, 1984
    ...1400, 1405, 31 L.Ed.2d 768 (1972). Under substantive due process analysis, rational basis review also is appropriate. Lucero v. Ogden, 718 F.2d 355, 359 (10th Cir.1983); Poats, supra, at 497; Younger, supra, at 376. "A state can require high standards of qualification, such as good moral ch......
  • Caranchini v. Mo. Bd. of Law Exam'rs, WD 77178
    • United States
    • Court of Appeal of Missouri (US)
    • November 12, 2014
    ...grading is “a matter of subjective evaluation by the examiner which could never be proved in error by the applicant.” Lucero v. Ogden, 718 F.2d 355, 359 (10th Cir.1983). Under constitutional review of the Board's decision, it would be improper to micromanage the Board to the extent of re-sc......
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