Z.H. v. Neb. State Bar Comm'n (In re Z.H.)

• Decision Date: 10 June 2022
• Docket Number: S-21-232.
• Citation: 311 Neb. 746,975 N.W.2d 142
• Parties: IN RE Appeal of Z.H. From Request of Accommodations for February 2021 Bar Examination. Z.H., appellant, v. Nebraska State Bar Commission, appellee.
• Court: Nebraska Supreme Court

311 Neb. 746

975 N.W.2d 142

IN RE Appeal of Z.H. From Request of Accommodations for February 2021 Bar Examination.Z.H., appellant,

v.Nebraska State Bar Commission, appellee.

No. S-21-232.

Supreme Court of Nebraska.

Filed June 10, 2022

Z.H., pro se.

Douglas J. Peterson, Attorney General, and James A. Campbell, Solicitor General, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Per Curiam.

INTRODUCTION

Z.H. seeks reimbursement from the Nebraska State Bar Commission (Bar Commission) for costs and damages associated with her application for admission to the Nebraska State Bar Association. For the reasons stated herein, we conclude that we lack jurisdiction to hear the appeal and the appeal is dismissed.

BACKGROUND

Z.H. completed law school in 2000. In July 2019 and February 2020, Z.H. took the Nebraska bar examination, but did not obtain passing scores. In February 2021, Z.H. took and passed the Nebraska bar examination.

Because of a diagnosis of rheumatoid arthritis

that limits her mobility, Z.H. applied for and received accommodations of 33 percent more time to complete the bar examination and a separate room in which to take each of her examinations. For the February 2020 examination, Z.H. also received an accommodation to use an adjustable chair to help her manage the stress and pain of sitting and typing for long periods. For the July 2020 examination, Z.H. requested an accommodation to allow her to use speech recognition software to overcome her deteriorating mobility. According to Z.H., that request was denied as untimely filed. As a result of COVID-19 protocols put in place for the July 2020 examination, Z.H. was unable to take that examination or the special September 2020 examination. Z.H. deferred to the February 2021 examination, which was scheduled to be held remotely.

On January 7, 2021, the Bar Commission granted Z.H. the following testing accommodations: extra testing time of 33 percent, as well as a private single examinee room and a chair with adjustable height. The Bar Commission denied Z.H.’s request for the use of the speech recognition software after concluding the software would impact the security of the examination. The commission agreed to provide Z.H. with a scribe who would type Z.H.’s answers from Z.H.’s dictation. The accommodation required Z.H. to conduct the examination in the Bar Commission's office in Lincoln, Nebraska. On February 4, Z.H. requested a review hearing before the Bar Commission, presumably under Neb. Ct. R. § 3-123 (rev. 2020), which allows an applicant to request a hearing regarding an adverse decision of the Bar Commission.

A hearing on Z.H.’s appeal was held on February 12, 2021, at which time Z.H. represented herself. On February 13, the Bar Commission entered an order which provided Z.H. a choice of two options to assist her in taking the examination. "Option I" allowed Z.H. the following:

An additional 33% extra time to complete each of the 3 exam parts. [Z.H.] will be provided an adjustable chair. The exam will be administered in the [Bar] Commission's office located at 3806 Normal Blvd in Lincoln, Nebraska. This will be a private examinee room. A scribe, of the [Bar] Commission's choosing, will transcribe as [Z.H.] dictates for the MPT and MEE. The transcription will be projected to a big screen where [Z.H.] may edit as the content is typed. The second day of the exam will be the MBE which may be taken at a location [Z.H.] designates which may include the [Bar] Commission Office. The MBE exam will be administered -on [Z.H.’s] computer equipment as a secure ... exam.

[Z.H.] shall provide the [Bar] Commission with a negative COVID-19 test - obtained as close as possible to the exam - and she shall isolate herself as much as possible up to arriving at the [Bar] Commission office to minimize the likelihood of contracting or spreading COVID-19. A mask shall be worn by [Z.H.] throughout the time in the [Bar] Commission office when others are present. Failure to wear a mask will subject [Z.H.] to the cancellation of the exam.

"Option II" allowed Z.H. the following:

An additional 33% extra time to complete each of the 3 exam parts and an adjustable chair. The exam will be administered in the [Bar] Commission's office located at 3806 Normal Blvd in Lincoln, Nebraska. In the presence of a proctor and/or audio and video equipment that records what is said and what is typed. This will be a private examinee room. [Speech recognition] software may be used to do the transcription for the exam by dictating into a Word document and then transferring the content into the [secure exam software] question fields. The word document may not be saved. [Z.H.] must supply her own computer which has been wiped of all programs and documents with the exception of the [speech recognition software, word processing software, and secure exam software] programs. [Z.H.] must execute an affidavit prepared by the [Bar] Commission attesting to the deletion of all programs with the exception of [speech recognition software, word processing software, and secure exam software], and that the computer has been purged of all bar preparation outlines, practice essays and other related documents. [Z.H.’s] computer will be inspected upon arrival on exam day. [Z.H.] will not be allowed to take the exam if the computer is not cleared of all documents and programs other than the 3 designated programs. If [Z.H.] encounters any problems removing any applications or documents, she must inform the [Bar] Commission staff in advance of the Bar Exam. [Z.H.] will not access the internet at any time during the exam.

The second day of the exam will be the MBE which may be taken at a location [Z.H.] designates -and may include the [Bar] Commission office. The MBE exam will be administered through [Z.H.’s] computer equipment as a secure ... exam.

[Z.H.] shall provide the [Bar] Commission with a negative COVID-19 test obtained as close to the exam as possible and she shall isolate herself as much as possible up to arriving at the [Bar] Commission office to minimize the likelihood of contracting and spreading COVID-19. A mask must be worn by [Z.H.] whenever there is someone else in the room with her. Failure to wear a mask will subject the exam to cancellation.

Z.H. chose Option II and sat for the February 2021 examination. According to Z.H., prior to the examination, her computer operated normally with the software necessary to comply with the Bar Commission's order. However, during the examination, Z.H.’s laptop encountered difficulties. Ultimately, Z.H., with the assistance of a proctor, was able to complete the examination in 11 ½ hours. Z.H. averred that due to the computer difficulties, she experienced extreme mental stress, anxiety, and physical pain.

On March 15, 2021, Z.H. filed a notice of appeal with the Clerk of the Nebraska Supreme Court under Neb. Ct. R. § 3-126(A) and (B) (rev. 2020). In her notice of appeal, Z.H. requested that she have an opportunity to prove damages; that if she failed the examination, the Bar Commission be enjoined from denying the use of speech recognition software for the next examination; and that she be allowed to use speech recognition software without the interruption of other software used by the Bar Commission to monitor her test taking.

On March 17, 2021, Z.H. filed a document labeled "Amendment pursuant to Neb. Ct. R. § 6-1115(a)." Attached to the filing were three affidavits in which Z.H. reiterated the information contained within her initial notice of appeal. On that same date, Z.H. submitted a brief in support of her appeal. In that brief, Z.H. sought an unspecified award of damages and costs for the February 2021 bar examination, assumingly to be paid by the Bar Commission.

On March 31, 2021, a notice was sent to Z.H. by the Bar Commission, informing her that she had successfully passed the February 2021 bar examination.

On April 1, 2021, Z.H. filed a second amended brief requesting damages. That same day, Z.H. filed an affidavit in support of her request for damages. The affidavit set forth expenses for attorney fees and mailing costs totaling $4,825.84; travel costs, lodging costs, and software costs totaling $468.76; and unspecified general damages for violations of 29 U.S.C. § 794(a) and (b) (2018) and 42 U.S.C. §§ 12133 and 12188 (2018). Z.H.’s attorney fees were based upon her expending 63 ½ hours researching and drafting appeal documents at the rate of $75 per hour.

On May 3, 2021, Z.H. filed a third amended brief. In the third amended brief, Z.H. requested damages to include $5,906.25 in attorney fees and mailing costs and $450,000 in damages for violations of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. (2018).

After reviewing the briefs filed by Z.H., this court ordered supplemental briefing on the issue of whether this court has jurisdiction to rule upon Z.H.’s request for damages. Both Z.H. and the Bar Commission complied with our order for supplemental briefing.

ASSIGNMENTS OF ERROR

On appeal, Z.H. assigns that the Bar Commission erred in (1) discriminating against her by reason of her disability, in violation of the ADA and its regulations; (2) failing to provide Z.H. with " ‘meaningful access’ " to the February 2021 bar examination, which " ‘best ensures’ " measurement of Z.H.’s knowledge of the law rather than her inability to type with speed and accuracy under timed testing conditions, in conflict with the ADA and its regulations; (3) requiring Z.H. to test in person by reason of her disability, in conflict with the Supreme Court's remote-only testing order and in conflict with the ADA and its regulations; and (4) disregarding verification of Z.H.’s worsening disability provided by Z.H.’s qualified medical practitioners of almost 8 years and, instead, requiring " ‘further documentation’ " in the form of additional physical evaluation reports and laboratory testing reports in conflict with the...