Ware v. Wyoming Bd. of Law Examiners

• Decision Date: 05 August 1997
• Docket Number: No. 96-CV-299-J.,96-CV-299-J.
• Citation: 973 F.Supp. 1339
• Parties: Corine WARE, Plaintiff, v. WYOMING BOARD OF LAW EXAMINERS, Defendant.
• Court: U.S. District Court — District of Wyoming

973 F.Supp. 1339

Corine WARE, Plaintiff, v. WYOMING BOARD OF LAW EXAMINERS, Defendant.

No. 96-CV-299-J.

United States District Court, D. Wyoming.

August 5, 1997.

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Corine Ware, Cheyenne, WY, pro se.

Elizabeth Zerge, Herschler, Freudenthal, Salzburg, Bonds & Zerga, Cheyenne, WY, for defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S COUNTER-MOTION FOR SUMMARY JUDGMENT

ALAN B. JOHNSON, Chief Judge.

This case is before the court on defendant's Motion for Summary Judgment and on plaintiff's Counter Motion for Summary Judgment. The court has considered the entire file and is fully advised.

INTRODUCTION

Plaintiff Corine Ware suffers from multiple sclerosis (MS) and applied to take the Wyoming State Bar exam. She alleges that defendant Wyoming Board of Law Examiners (the Board) violated the Americans With Disabilities Act (ADA) by refusing to provide her reasonable accommodation that would allow her to take the Wyoming State Bar Exam. She also alleges that the Board's actions have discriminated against her on the basis of race and disability in violation of the Privileges and Immunities Clause and the Due Process Clause of the United States Constitution.

The Board contends that it has provided all reasonable accommodations recommended by plaintiff's treating physician. The Board contends that it treated plaintiff fairly and did not discriminate against her on the basis of disability, race or residence.

Defendant moved for summary judgment. Plaintiff, who is proceeding pro se, opposed the motion by filing a Counter Motion for Summary Judgment.

STANDARD FOR SUMMARY JUDGMENT

Summary judgment will be granted if "the pleadings, depositions, ... and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "A `material' fact is one `that might affect the outcome of the suit under the governing law.'" Farthing v. City of Shawnee, 39 F.3d 1131 (10th Cir.1994) quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). And "a `genuine' issue is one where `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. The court views the evidence in the light most favorable to the nonmoving party. Thomas v. Wichita CocaCola Bottling Co., 968 F.2d 1022, 1024 (10th Cir.), cert. denied, 506 U.S. 1013, 113 S.Ct. 635, 121 L.Ed.2d 566 (1992). "The moving party bears the initial burden of showing that there is an absence of any issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). "If the moving party meets this burden, the non-moving party then has the burden to come forward with specific facts showing that there is a genuine issue for trial as to elements essential to the non-moving party's case." Martin v. Nannie and the Newborns, Inc., 3 F.3d 1410, 1414 (10th Cir.1993). "To sustain this burden, the non-moving party cannot rest on the mere allegations in the pleadings." Id. citing Fed.R.Civ.P. 56(e) and Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

The mere fact that both parties have filed motions for summary judgment does not constitute proper grounds for a decision that no genuine issues of material fact exist, but "the court must rule on each party's motion on an individual and separate basis, determining, in each case, whether a judgment may be entered in accordance with the Rule 56 standard." 10A Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure, § 2720, at 23 (1983).

UNDISPUTED FACTS

Plaintiff is a resident of Wyoming and a graduate of the University of Utah College of Law. In 1995, Ms. Ware took the Utah State Bar examination with accommodations granted by the Utah State Bar. She passed a portion of the Utah State Bar exam but failed the Multistate portion of the exam. Ms. Ware then moved to Wyoming.

Defendant Wyoming Board of Law Examiners is a governmental entity of the State of Wyoming, and serves as an arm of the Wyoming Supreme Court. Its duties include the drafting, administration and grading of the two-day Wyoming State Bar Licencing Exam. It is also charged the duty of receiving, reviewing and investigating applications for admission to the Wyoming State Bar, for the purpose of recommending or withholding recommendations for admissions to the Wyoming Supreme Court. Wyo. Rules & Procedures Governing Admission to Practice of Law (W.R.G.A.P.L.). The expenses of the Board are paid out of the state treasury, Wyo. Stat. § 33-5-103 (1977), and the Board submits an annual budget to the State Legislature for appropriation (Lewis Affidavit¹ ¶ 2.) The Wyoming Supreme Court selects the licenced Wyoming attorneys as Board members and they serve three year terms. Wyo. Stat. § 33-5-101. The Board functions on behalf of the Wyoming Supreme Court in matters pertaining to the admission to the Wyoming State Bar. Wyo. Stat. § 33-5-101. R. Wyo. S.Ct. 5. The Wyoming Supreme Court maintains ultimate authority to determine matters governing admission of attorneys to the Wyoming State Bar but delegates powers to the Board to act on its behalf. R.W.S.Ct. 5. The Wyoming Supreme Court has given the Board specific authority to act on its behalf in matters governing accommodations for disabled bar applicants. W.R.G.A.P.L. 212.

As part of its duties, the Board is required to determine pursuant to W.R.G.A.P.L. 212, whether or not to grant special accommodations in testing to applicants who claim disability.

On December 28, 1995, Ms. Ware applied to the Wyoming State Bar for testing and admission pursuant to the bar exam scheduled for July 30 and 31, 1996. She stated in writing that she was disabled and wanted the following accommodations in the testing procedure.

1. Time and a half to complete each session of Wyoming portion of the bar exam with:

a. A large print test booklet.

b. A separate room to take the test.

c. One bathroom break d. A legally trained Scribe or person with experience being a Scribe for law students/bar examinees.

e. The Scribe must be able to type on a computer and spell check and be able to keep up with the applicant.

2. Time and a half to complete each session of the multi-state bar exam with:

a. A separate room to take the test.

b. One bathroom break.

c. Someone to record the answers on the computer sheet.

(Lewis, Ex. 1).

In her application, Ms. Ware explained that multiple sclerosis had seriously impaired the fine motor skills in both hands. She explained she was ambulatory but not without periods of severe difficulty. In support of her requests for accommodations, she supplied a letter from her law school's Associate Dean for Student Affairs. Id. The Associate Dean's letter stated that because of Ms. Ware's requests for accommodations at the Utah Law School and her documented disability she had been permitted to use a computer, and was allotted time and a half on college of law essay exams. On multiple choice exams where computer sheets were utilized the University of Utah Law School permitted plaintiff to circle the appropriate answer on the actual exam, rather than the computer sheet. Id.

Plaintiff's application to take the Wyoming Bar Exam did not comply with the two Wyoming attorney certification requirements of R.W.S. Ct. 5. She asked for waiver of this provision because she did not personally know any Wyoming attorneys. (Lewis, Ex. 14).

Plaintiff's application also did not include a passing score on the Multistate Professional Responsibility Examination. Plaintiff now says that she received a passing score, Pl's Ex. G, but the National Conference of Bar Examiners sent the wrong score, a failing score to the Wyoming State Bar. Id.

The Board also found that plaintiff's application and the Conference Bar Examiners' character report raised factual issues which would require submission of further information. (Lewis, ¶ 14) These issues include credit matters, misdemeanor criminal charges and plaintiff's having been banned from an Air Force Base. Id. The Board usually raises issues relating to the character and fitness reports of applicants just prior to or just after the bar exam. (Lewis, ¶ 13) Every applicant who has similar issues raised by their application is questioned further by the Board. Id. ¶ 15. The Board has not inquired further into these matters because its members did not know if Ms. Ware was going to continue to seek admission to the Wyoming Bar.

In April of 1996, Mr. Lewis, on behalf of the Board, requested that plaintiff comply with then existing W.R.G.A.P.L. 212(c) and supply medical documentation certifying her impairment and the need for accommodations. (Lewis, Ex. 2).

On April 8, 1996, Mr. Lewis sent Ms. Ware a letter advising her that W.R.G.A.P.L. 212 was under revision and that the Board had determined that any costs associated with any special accommodation of her condition would be covered by the Board once her disability had been properly certified. (Lewis, Ex. 2) On May 13, 1996, Mr. Lewis sent Ms. Ware a letter advising her that she would be governed by the substantive provisions of the 1992 version of W.R.G.A.P.L., 212 and not the 1996 version. (Lewis, Exs. 4 and 6).

On April 22, 1996, Mr. Lewis received a letter from Ms. Ware's treating physician, Dr. Daniel Johnson of Cheyenne, Wyoming. (Lewis Ex. 3). Dr. Johnson verified that he was plaintiff's treating physician and that she suffered from multiple sclerosis. Dr. Johnson stated that because of Ms. Ware's condition she would not be able to write a test in a normal fashion and that it would be appropriate for her to have a large print test. He stated she would also need a bathroom break during the test. He affirmed that she would need to dictate her answers rather than write them and he supported her...