McBride v. Utah State Bar

Decision Date02 November 2010
Docket NumberNo. 20090818.,20090818.
PartiesRyan McBRIDE, Petitioner and Appellant, v. UTAH STATE BAR, Respondent and Appellee.
CourtUtah Supreme Court

Ryan McBride, Provo, for petitioner.

Katherine A. Fox, Salt Lake City, for respondent.

PARRISH, Justice:

INTRODUCTION

¶ 1 Petitioner, Ryan McBride ("McBride"), seeks review of the Utah State Bar's (the "Bar") final decision disqualifying him from the Bar Exam (the "Exam") for failure to upload his typed essay exam answers within the required time frame. Mr. McBride's petition raises five issues. Mr. McBride claims that the Bar acted unconstitutionally, denying him procedural due process, substantive due process, and equal protection of the law. Mr. McBride also claims that the Bar applied the incorrect rule to his situation, and finally that the Bar examiners enforced an unreasonable rule.

¶ 2 Mr. McBride petitions this court to waive the examination requirement and admit him to the Utah State Bar or to compelthe Bar to grade his completed essay questions and admit him if his answers to those questions are passing. Mr. McBride also requests that this court direct the Bar to correct its rule and remedy its effect on Mr. McBride. We hold that the Bar's actions were constitutional and we deny Mr. McBride the relief he seeks.

FACTUAL BACKGROUND

¶ 3 The Bar administered the Exam on July 28 and 29, 2009. The first day of the Exam consisted of an essay portion and the second day consisted of a multiple choice portion. On the essay portion, bar examinees have the option to handwrite their answers or type them with the use of a laptop computer. Examinees who used a computer during the July 2009 Exam were required to use a computer program, SofTest, which allows examinees to upload their essay answers to the SofTest server. The Bar first allowed examinees to take their essay exams with SofTest in 2002. Initially, examinees used floppy disks to transfer their answers. Over time, floppy disks were replaced by use of the Internet for uploading answers. In 2007, the Bar moved its testing location and determined that it would be prohibitively expensive to provide sufficient wireless Internet capacity for all examinees to upload their answers at the test site. As a result, examinees are responsible for locating Internet access and uploading their answers within a specified time following the exam.

¶ 4 Examinees who elect to type their essay answers with a computer must request to do so in advance and sign an "Acknowledgment of Participation in Laptop Program" form. The acknowledgment form states, "I agree to upload my answers.... I further understand that a failure to upload all of my answer files by 10:00 p.m. on the day the written portion of the Bar examination is administered may result in the disqualification of my answers." The Bar selected the 10:00 p.m. mountain time deadline because technical support for SofTest is available only until that time.

¶ 5 Mr. McBride chose to use a laptop for the July 2009 Exam. He notified the Bar of his decision by signing the acknowledgment form. Mr. McBride completed the essay portion of his exam using his computer on July 28, 2009. That evening, Mr. McBride failed to upload his answers. Mr. McBride left the test site, joined his wife at a restaurant, and went home without turning on his computer or uploading his answers.

¶ 6 After arriving at the testing center for the second day of the Exam, an exam proctor asked Mr. McBride if he had uploaded his answers. Mr. McBride realized that he had not, and responded accordingly. The proctor informed Mr. McBride that he would not be allowed to take the multiple choice portion of the Exam.

¶ 7 The record in this case establishes that Mr. McBride had received seven separate notifications that the deadline to upload Exam answers was 10:00 p.m. on July 28, 2009, and that failure to upload his Exam answers could result in their disqualification. The Bar gave three of these notifications to Mr. McBride in written form prior to the Exam date. First, the Bar provided a "Laptop Use Information" handout prior to computer registration that stated, " [t]o use a laptop for the essay examination you must ... [a]gree to upload your answer file (files) by the deadline. The deadline for uploading your answer file is 10:00 p.m. on July 28, 2009. Failure to upload your answer file can result in being disqualified and removed from the exam." Second, Mr. McBride signed the "Acknowledgment of Participation in Laptop Program" form, in which he agreed to upload his answers by 10:00 p.m. on the day of the written portion of the Exam. Third, the Bar sent Mr. McBride a "Flexsite Exam Information" document confirming his laptop registration. The first page of that document advises, "[y]ou are required to upload your answers by the deadline listed below." Then, in bold, red print, the document reads: " EXAM UPLOAD DEADLINE: 10:00 p.m. MST, Tuesday, July 28th. Failure to do so can result in being disqualified from the exam."

¶ 8 Mr. McBride also received four other notifications of the deadline and the consequences of the failure to meet it. The Deputy General Counsel in Charge of Admissions(the "Deputy") read a set of instructions aloud before the start of the first day of the Exam. These instructions reminded applicants that "you are required to upload your answers by 10:00 p.m. tonight. You should upload your answers as soon as possible after you are excused from the exam this afternoon." The instructions further warned examinees that they should not go home or go to their hotel room and fall asleep, as some applicants had done in the past. The Deputy cautioned that those applicants were "disqualified because they did not upload their answers by the deadline." She further stressed, "if you do not upload your answers tonight, you will not be allowed to sit for the second day of the exam." After the Deputy read these instructions, she gave examinees the chance to handwrite their answers if they thought uploading their answers would be a problem.

¶ 9 At the end of the first exam day, proctors read another set of oral instructions that reminded computer examinees to upload their answers as soon as possible, but no later than 10:00 p.m. that evening. The oral instructions also advised examinees to upload their answers as early as possible so they could call technical support if they encountered any problems. At the end of these instructions, the proctors told examinees, "[y]ou will not be allowed to sit for the second day of the exam, if our records indicate that you have not at least attempted to download [ sic ] your answers this evening."

¶ 10 The proctors gave another oral warning at the end of the first day while they distributed a document entitled, "Uploading Your Answer File Instructions." The written instructions clearly stated:

Your answer file must be uploaded by 10:00 p.m. TODAY, Tuesday, July 28th .... If you attempt to upload your answers but are not able to do so because of technical problems, you will be permitted to upload your answers after the deadline. If, however, you fail to upload your answers by the deadline and there is no record that you attempted to do so, your answers will not be graded and you will be dismissed from the exam.

In summary, Mr. McBride received seven separate notices informing him that failure to upload his answers could result in his disqualification. A total of 243 examinees chose to take the July 2009 Exam with a laptop. Only two failed to upload their answers.

PROCEDURAL BACKGROUND

¶ 11 On August 10, 2009, Mr. McBride filed a Request for Review with the Bar regarding his disqualification. The Admissions Committee considered Mr. McBride's Request for Review under rule 14-709 of the Rules Governing the Utah State Bar ("RGB") and denied the request on September 18, 2009. On September 21, 2009, the Committee received a Supplemental Request for Review from Mr. McBride urging the Bar to apply rule 14-715 rather than rule 14-709. On September 28, 2009, the Committee revisited Mr. McBride's request and upheld Mr. McBride's disqualification under rule 14-715. In October 2009, Mr. McBride filed a Petition for Review in this Court. During the time this case has been under advisement, Mr. McBride sat for the Exam again, passed, and has been admitted to the Bar. But neither party has filed a "suggestion of mootness" as required by rule 37 of the Utah Rules of Appellate Procedure.

STANDARD OF REVIEW

¶ 12 "Under article VIII, section 4 of the Utah Constitution, this court is empowered to govern the practice of law in Utah, including the admission to practice." In re Arnovick, 2002 UT 71, ¶ 5, 52 P.3d 1246. Our review of Bar Commissioner Board decisions is unique "[b]ecause the Board of Bar Commissioners acts as [this court's] agent." Id. As such, "[w]e may exercise judgment independent of the Bar Commission whenever we deem it appropriate." Id. "[W]e review the actions of the Bar and the Bar examination process to determine if they clearly demonstrate that the petitioners have been treated in an unfair, unreasonable, or arbitrary manner." Id. However, "[w]e have generally chosen ... to 'indulge some deference to [the Bar's] findings and judgments,' and have stated that 'the Court should not disturb what the Commission has done unless the petitioner clearlydemonstrates that he has been treated in an unfair, unreasonable or arbitrary manner.' " Id. (emphasis added) (quoting In re Thorne, 635 P.2d 22, 23 (Utah 1981)).

ANALYSIS
I. ALTHOUGH MOOT, WE ADDRESS THE ISSUES MR. MCBRIDE RAISES UNDER THE PUBLIC INTEREST EXCEPTION TO THE MOOTNESS DOCTRINE

¶ 13 Although neither party has filed a suggestion of mootness, we exercise our discretion to address mootness sua sponte.1 "Ordinarily we will not adjudicate issues when the underlying case is moot." Ellis v. Swensen, 2000 UT 101, ¶ 25, 16 P.3d 1233. An issue is moot " 'when the requested judicial relief cannot affect the rights of the litigants.' " Id. (q...

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