Sander v. State Bar of Cal.

Decision Date19 December 2013
Docket NumberNo. S194951.,S194951.
Citation58 Cal.4th 300,165 Cal.Rptr.3d 250,314 P.3d 488
CourtCalifornia Supreme Court
Parties Richard SANDER et al., Plaintiffs and Appellants, v. STATE BAR OF CALIFORNIA et al., Defendants and Respondents.

Sheppard, Mullin, Richter & Hampton, James M. Chadwick, Palo Alto, Evgenia N. Fkiaras, David E. Snyder, San Francisco, and Guylyn R. Cummins, San Diego, for Plaintiff and Appellant California First Amendment Coalition.

Jane Roberta Yakowitz; Bostwick & Jassy, Gary L. Bostwick, Jean–Paul Jassy and Kevin L. Vick, Los Angeles, for Plaintiffs and Appellants Richard Sander and Joe Hicks.

Davis Wright Tremaine, Mary Duffy Carolan and John Rory Eastburg for Brentwood Press and Publishing Co., California Newspapers Partnership, Calistoga Tribune, Calaveras Enterprise, Champion Newspapers, Dailey Republic, Embarcadero Media Inc., Feather Publishing Co., Inc., Freedom Communications, Inc., Los Angeles Times Communications LLC, Malibu Times Inc., Marinscope Community Newspapers, Mission Viejo News, Inc., Random Lengths News, Sacramento Valley Mirror, Santa Maria Times, The Ark Newspaper, The Bakersfield Californian, The McClatchy Company, The Mountain Enterprise, The North County Times, The Press–Enterprise, The Viking, Valleywide Newspapers, Ventura County Reporter, ALM Media, LLC, The Associated Press, Atlantic Media, Inc., Bloomberg News, Cox Media Group, Inc., Dailey News, L.P., E.W. Scripps Company, Forbes, Inc., Gannett Co., Inc., Hearst Corporation, NBC Universal Media, LLC, Reuters America LLC, Stephens Media LLC, The Newsweek/Dailey Beast Company LLC, The New York Times Company, The Washington Post, American Society of News Editors, Association of Alternative Newsmedia, Californians Aware, The California Newspaper Publishers Association, National Freedom of Information Coalition, The National Press Photographers Association, The Radio Television Digital New Association and The Reporters Committee for Freedom of the Press as Amici Curiae on behalf of Plaintiffs and Appellants.

Law Office of Judy Alexander and Judy Alexander, Capitola, for Vikram Amar, Jane Roberta Yakowitz and Mark Grady as Amici Curiae on behalf of Plaintiffs and Appellants.

Sharon L. Browne, Meriem L. Hubbard, Sacramento, and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiffs and Appellants.

Center for Constitutional Jurisprudence, John Eastman, Anthony T. Caso, Sacramento, Karen J. Lugo and David Llewellyn, Citrus Heights, for Gerald Reynolds, Todd Gaziano, Gail Heriot, Peter Kirsanow and Ashley Taylor, Jr., as Amici Curiae on behalf of Plaintiffs and Appellants.

Joshua Koltun, San Francisco, for Doug Williams as Amicus Curiae on behalf of Plaintiffs and Appellants.

Kerr & Wagstaffe, James M. Wagstaffe, Michael John Von Loewenfeldt ; Starr Babcock, Lawrence C. Yee, San Francisco, and Rachel S. Grunberg, for Defendants and Respondents.

Snell & Wilmer, Mary–Christine Sungaila and Harsh P. Parikh, Costa Mesa, for Multicultural Bar Alliance as Amicus Curiae on behalf of Defendants and Respondents.

Reed Smith and Dennis Peter Maio, San Francisco, for The Bar Association of San Francisco as Amicus Curiae on behalf of Defendants and Respondents.

Eva Paterson, Allison S. Elgart and Fabián Rentería for Equal Justice Society as Amicus Curiae on behalf of Defendants and Respondents.

Perkins Coie, Vilma R. Palma–Solana, Los Angeles, Sunita Bali, San Francisco; Lim, Ruger & Kim, Bruce Iwasaki and Norma Nava, Los Angeles, for People of Color, Inc., as Amicus Curiae on behalf of Defendants and Respondents.

Bingham McCutchen, William F. Abrams, Redwood Shores, Patrick T. Weston and Audrey Lo, Palo Alto, for Dwight Aarons, George Acero, Daniel James Alexander II, Charlene Bellinger Honig, Nikki Brown, Peter L. Carr IV, Claudia J. Castillo, Eugene Clark–Herrera, Francisco Cortes, Kendra Fox Davis, Lisa Gilford, Marc–Tizoc Gonzalez, Rebecca Hall, Sara Jackson, Rasheda Kilpatrick, Parissh A. Knox, Andrea Luquetta, Xochitl Marquez, Letitia D. Moore, Shirin Soleman, Angela Crystelle Thomas–Taylor, Anthony J. Tolbert, Erika K. Woods and Doe 1 as Amici Curiae on behalf of Defendants and Respondents.

CANTIL–SAKAUYE, C.J.

Plaintiffs Richard Sander, Joe Hicks, and the (California) First Amendment Coalition requested that the State Bar of California (State Bar) provide them access to information contained in its bar admissions database, including applicants' bar exam scores, law schools attended, grade point averages, Law School Admissions Test scores, and race or ethnicity. Plaintiff Sander sought this information in order to conduct research on racial and ethnic disparities in bar passage rates and law school grades.

The question presented is whether any law requires disclosure of the State Bar's admissions database on bar applicants. We conclude that under the common law right of public access, there is a sufficient public interest in the information contained in the admissions database such that the State Bar is required to provide access to it if the information can be provided in a form that protects the privacy of applicants and if no countervailing interest outweighs the public's interest in disclosure. Because the trial court concluded that there was no legal basis for requiring disclosure of the admissions database, the parties did not litigate, and the trial court did not decide, whether and how the admissions database might be redacted or otherwise modified to protect applicants' privacy and whether any countervailing interests weigh in favor of nondisclosure. Consequently, the Court of Appeal will be directed to remand the case to the trial court.

I. FACTS

The State Bar is a "public corporation" of which every person licensed to practice law in the state is a member. ( Cal. Const., art. VI, § 9.) The State Bar serves "as an administrative arm of this court for the purpose of assisting in matters of admission and discipline of attorneys." ( Emslie v. State Bar (1974) 11 Cal.3d 210, 224, 113 Cal.Rptr. 175, 520 P.2d 991.) The State Bar's Committee of Bar Examiners administers the requirements for admission to the bar, including the bar examination and the assessment of applicants' moral character, and certifies to this court those applicants who satisfy the requirements.

( In re Menna (1995) 11 Cal.4th 975, 985, 47 Cal.Rptr.2d 2, 905 P.2d 944 ; Bus. & Prof.Code, §§ 6046, 6064.) This court has the sole authority to grant or deny admission to practice law, but it accords great deference to the recommendation of the State Bar. (See Preston v. State Bar (1946) 28 Cal.2d 643, 650, 171 P.2d 435 ; In re Petition of Lacey (1938) 11 Cal.2d 699, 701, 81 P.2d 935.)

The State Bar maintains an admissions database that includes information on approximately 246,000 applicants who applied to take the California bar examination from 1972 through 2007. The files in this database generally include information obtained from applicants through the admissions process—including race or ethnicity, law school attended and year of graduation, and Law School Admissions Test (LSAT) score—and information regarding the applicant's performance on the bar exam—including whether the applicant applied for, took, passed or failed the bar exam, and the applicant's scores on the bar exam. Some of the files also include the applicant's law school grade point average, but the bar stopped collecting that data about 10 years before the request at issue here was made. All information concerning a particular applicant is identified by a file number that has no relationship to the applicant's name or personal information.

Much of the information contained in the admissions database is obtained through the application process. Every applicant signs a form authorizing any educational or other institutions to release to the State Bar all records or transcripts related to the applicant that the State Bar seeks in connection with the application, including his or her law school transcripts. It also authorizes the State Bar to transmit the applicant's scores on the bar exam to his or her law school. Applicants additionally complete an "ethnic survey." The survey form states that the information regarding the applicant's ethnicity is sought "to assist in the continuing evaluation of the examination" and that it "will be treated in a confidential manner and will be used only for research purposes. It will not be retained by the Committee as part of your application."

The State Bar regularly publishes the names of those who pass the bar exam. Using the admissions database, it also prepares and publishes a number of reports regarding the California bar exam. After each bar exam, it prepares a statistical analysis of the bar exam that reports the passage rates for various categories of applicants, including type of law school attended (such as ABA accredited or unaccredited), particular law school attended, first-time takers and repeaters, ethnic group, and sex. The State Bar also has undertaken and reported numerous studies on particular topics related to the bar exam, including the discrepancy in passage rates among racial/ethnic groups and whether bar exam scores are affected by law school admissions practices related to race and ethnicity.1 These reports are available to the public. Except through its reports, the State Bar has not made the information in its database available to any other entity without the consent of applicants, with one exception. At the request of the Chief Justice, in 1990 and 1992, it provided information identifying individual applicants and their bar exam scores and law schools to the Law School Admission Council2 for a national study on the relationship between law school performance and performance on the bar exam.

In 2006, Professor Richard Sander, of the University of California, Los Angeles School of Law, proposed to collaborate with the State Bar on research regarding racial disparities in bar passage rates and law school grades. Sander's...

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