Widdison, Application of, 19199

• Decision Date: 08 November 1995
• Docket Number: No. 19199,19199
• Citation: 539 N.W.2d 671
• Parties: In the Matter of the Application of Harold Kearl WIDDISON for Review of the Decision Of the Board of Bar Examiners.
• Court: South Dakota Supreme Court

Page 671

539 N.W.2d 671

In the Matter of the Application of Harold Kearl WIDDISON for Review of the Decision Of the Board of Bar Examiners.

No. 19199.

Supreme Court of South Dakota.

Argued Sept. 12, 1995.

Decided Nov. 8, 1995.

Mark Barnett, Atty. Gen., Craig M. Eichstadt, Asst. Atty. Gen., Pierre, for Board of Bar Examiners.

R. Scott Rhinehart, N. Sioux City, for applicant Widdison.

GILBERTSON, Justice.

On October 19, 1994, the South Dakota Board of Bar Examiners held a formal hearing to determine whether Harold K. Widdison had demonstrated good moral character necessary to be admitted to the practice of law in South Dakota. Widdison appeals the Board's order denying his admission to practice law in this state and denying his motion for a new hearing. We affirm.

FACTS AND PROCEDURE

Harold K. Widdison matriculated at the University of South Dakota School of Law in its summer screener program in 1991. ¹ Following successful completion of his coursework in this program, he was invited to join the class beginning that fall. During Widdison's first year of law school he was elected president of his class and joined Phi Alpha Delta, a legal fraternity. He partnered with a fellow law student, D.S., in the first-year Appellate Advocacy course. This association was to continue his second and third years of law school as the two students collaborated in study groups and note-taking in several classes.

In the fall of 1992, during Widdison's second year of law school, he wrote and submitted a casenote for law review publication. It was discovered by the editor-in-chief of the law review that Widdison had included in his article material from secondary sources which he had failed to cite. ² This was brought to the attention of the law review's faculty advisor who, following an independent investigation, agreed. ³ The faculty advisor spoke to Widdison who denied any dishonest intentions in failing to credit his source material. Although the advisor indicated to Widdison his intention to turn the matter over to the Law School Disciplinary Committee for further action, the advisor changed his mind and ultimately sent Widdison a strongly worded letter admonishing Widdison for his behavior and advising him not to get into a similar situation in the future. The faculty advisor also assigned Widdison a failing grade in the law review course with zero credit. Widdison did not object nor appeal the faculty advisor's actions.

During Widdison's third year and final semester of law school ⁴ he, along with D.S. and other second- and third-year students, enrolled in the school's Worker's Compensation course. The final examination in this course consisted of ten questions handed out in the first few weeks of the semester. The students were given the entire semester to work on completing their examination answers. The instructions regarding completion of the exam, both written in the syllabus handed out the first week of class and given orally by the professor in class on three occasions, were that students were not to consult with one another when working on the questions. ⁵ The professor reminded her students this was a final examination and was to be treated as such pursuant to the USD School of Law Honor Code, that is, students' answers to the ten questions were to be their own work and not the result of group effort. At the regular final examination administration period at the end of the semester, the Law School examination proctor informed the students which three of the ten prepared answers were to be handed in for grading and course credit.

During the grading process, the Worker's Compensation professor discovered two students' examination answers--on all three of the collected answers--were strikingly similar, almost verbatim copies of one another. She had no knowledge of the students' names at this time as all answers were handed in by examination number rather than name. At this point, the professor withheld assigning a grade to either exam until the Law School Disciplinary Committee met to discern how the answers came to be so similar and if one of the students claimed to be an innocent victim. ⁶ This action was taken following the professor's meeting with, first the Associate Dean and later, the Dean of the Law School to decide what to do about the situation. Following the Disciplinary Committee's hearing, and learning that neither student claimed to be a victim of the other, the professor assigned a failing grade to each examination with no credit given for the course.

Widdison initially had been granted a provisional diploma from the Law School during its December graduation ceremony. He applied, and sat for, the February 1994 bar examination. The Board of Bar Examiners (Board) received a dean's certificate of study signed by Dean Barry Vickrey of the Law School but with the caveat that Dean Vickrey could not attest to Widdison's good moral character. By attachments to the certificate, Vickrey explained the nature and outcome of the Worker's Compensation final examination incident. ⁷

Upon learning he did not have sufficient credit hours to graduate because of the failing grade received in the Worker's Compensation course, Widdison filed a grievance against the Worker's Compensation professor to attempt to have his grade changed so that he could meet the ninety credit hour graduation requirement. At some point, Widdison registered for a summer school course to attain the additional two hours of credit he needed to graduate. He successfully completed his summer course and was awarded a second diploma from the Law School in August 1994.

Widdison learned that he had passed the South Dakota bar examination but would not be admitted for practice until the matter of his moral character was resolved. To this end, a character and fitness hearing was held October 19, 1994 to hear evidence of Widdison's moral character as well as the circumstances surrounding the two instances of alleged misconduct involving the law review article and the final examination. In addition, the Board was concerned that Widdison had failed to disclose to the Board the existence of the law review matter on his application for admission. ⁸

The result of this hearing was the Board's order, issued December 1994, denying Widdison's admission to practice after determining Widdison had failed to demonstrate, by clear and convincing evidence, good moral character necessary for admission to the bar. Widdison moved for a new hearing based upon new evidence; an anonymous letter had been sent him claiming information surrounding the Worker's Compensation final examination incident. This motion was denied. Widdison now appeals to this court raising five issues:

1) That the Board erred in ignoring evidence that another student copied his examination answers;

2) That the Board erred in allowing testimony regarding his law review article;

3) That the Board erred in allowing Dean Vickrey to remain in the hearing room;

4) That the Board abused its discretion in denying Widdison's motion for a new hearing; and,

5) That the Board erred in condoning the actions of its expert witness, Dean Vickrey, following the hearing.

STANDARD OF REVIEW

This appeal is brought pursuant to SDCL 16-16-16. ⁹ This statute provides a request for review by this Court of the Board of Bar Examiners' decision may be made within six months of that decision. Widdison timely filed his Notice of Review May 25, 1995 and amended said notice June 1, 1995.

"The ability to receive or reject an applicant for the bar is inherently a function of the judicial system. This court has the authority to oversee all applications for admission." In re Shemonsky, 379 N.W.2d 316, 318 (S.D.1985). As long ago as 1928, we noted:

'the right to practice law' is not in any proper sense of the word a 'right' at all, but rather a matter of license and high privilege. Certainly, it is in no sense an absolute right. It is in the nature of a franchise to the enjoyment of which no one is admitted as a matter of right, but only upon proof of fitness and qualifications which must be maintained if the privilege is to continue in enjoyment.

In re Egan, 52 S.D. 394, 398, 218 N.W. 1, 2-3 (1928).

In Shemonsky we held that under 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. Shemonsky, 379 N.W.2d at 318. SDCL 16-16-16 provides this Court will "conduct such investigation as it deems necessary to a decision as to the qualifications of the applicant for admission." We interpret this statute to require that we perform a de novo review of both questions of law and fact in all bar admission cases. Nevertheless, we will carefully consider the recommendations of the Board which had the opportunity to hear live witnesses. In re Discipline of Stanton, 446 N.W.2d 33, 35 (S.D.1989).

As noted, Widdison raises five separate issues in his brief to this Court. However, Widdison has waived his argument involving testimony regarding his law review article by failing to cite supporting authority as required by SDCL 15-26A-60(6). Failure to cite supporting authority in an appellate brief violates SDCL 15-26A60(6) and waives the issue before this Court. Kostel Funeral Home v. Duke Tufty Co., 393 N.W.2d 449, 452 (S.D.1986). Widdison's waiver of this issue leaves for our consideration the issues involving evidence of another student's copying his examination, the Board's allowing Dean Vickrey to remain in the hearing room, denying Widdison's motion for a new hearing, and an issue characterized by Widdison as condoning actions taken by Dean Vickrey following conclusion of the October 1994 hearing.

ISSUE I

Whether the Board erred by failing to find that another student had copied Widdison's answers to the worker's compensation final examination?

Widdison advances this argument through a selective sifting of the facts presented...