Opposition Brief — Ziegler v. Board of Bar Examiners
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No. 93-1501 APR 20 1994
In The
Supreme Court of the United States “eile
October Term, 1993
.
SHARON ANN ZIEGLER,
Petitioner, Pro Se,
THE SUPREME COURT OF DELAWARE, et al.,
and
BOARD OF BAR EXAMINERS OF THE
STATE OF DELAWARE, et al.,
Respondents.
+
On Petition For A Writ Of Certiorari
To The Supreme Court Of Delaware
S
BRIEF OF RESPONDENTS BOARD OF BAR
EXAMINERS OF THE STATE OF DELAWARE AND
MEMBERS THEREOF IN OPPOSITION TO ——
PETITION FOR A WRIT OF CERTIORARI
+
E. N. Carpenter, II
Counsel of Record
THomaAsS A. Breck
ALLISON L. AMORISON
RICHARDS, LAYTON & FINGER
One Rodney Square
Wilmington, DE 19801
(302) 658-6541
Counsel for Respondents Board of Bar
Examiners of the State of Delaware
and the Members Thereof
April 20, 1994
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTIONS PRESENTED
1. Did the 1993 Delaware Bar Examination have a
rational relationship to Petitioner’s fitness or capacity to
practice law?
2. Do the Delaware procedures which provide a
failing bar applicant with the right to have her examina-
tion regraded three times, the right to receive the exam-
ination questions, her responses and two representative
answers to each essay question, in addition to the oppor-
tunity to petition the Board and the Delaware Supreme
Court to regrade her examination, satisfy the require-
ments of procedural due process?
3. Was Petitioner provided with procedural due
process when a three-member panel of the Delaware
Supreme Court heard her appeal from the Board of Bar
Examiners’ decision, and the disqualification of one
member of the panel had been entered erroneously,
where such error was corrected immediately upon its
discovery and the decision of the panel was unanimous?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ......ccccsccenscsvesvess i
pes FP Be Ofte 6 is SP rrrerrrrrrerryrre. Vv
PE aN Seri ebe Nh nawisscecsesdévivaseves 2
STATEMENT OF THE CASE..........0.cccccccceees 3
A. The Delaware Bar Examination.............. 3
D.. Bie TARy PROCOGS ci ccc cdccccsvdsrccasceus 4
C PRIN 0s ndkecie chs ies cides Vebsscrstie 5
Dy MPR cc civeseccscucctsnevlhasiicevtscinnas 5
E. Petitioner’s Bar Examination................. 6
Je | Rr ey ete Te TET TE TEP ETOr 8
G. The Erroneous Disqualification .............. 9
REASONS FOR DENYING THE WRIT............. 9
I.
If.
THE ORDER OF THE DELAWARE SUPREME
COURT DID NOT DENY PETITIONER’S FUN-
DAMENTAL PROPERTY OR LIBERTY
RIGHTS AND WAS NOT IN CONFLICT WITH
DECISIONS OF THIS COURT OR FEDERAL
APPEALS COURTS OR OTHER STATE
FE GARMRED ccerenabivheesetoneseces
THE GRADING STANDARDS AND
REVIEW PROCEDURES OF THE DELA-
WARE BAR EXAMINATION DID NOT
VIOLATE PETITIONER’S RIGHT TO DUE
PROCESS AND THE ORDER OF THE DEL-
AWARE SUPREME COURT UPHOLDING
THE BOARD’S DETERMINATION DENY-
ING PETITIONER’S REQUEST FOR
RECONSIDERATION DID NOT CONFLICT
WITH ANY DECISIONS OF THIS COURT
OR OF OTHER STATE SUPREME COURTS
OR FEDERAL APPEALS COURTS ........
Ill.
IV.
iii
TABLE OF CONTENTS - Continued
Page
A. DELAWARE’S GRADING STAN-
DARDS ARE NOT ARBITRARY ......
B. DELAWARE’S GRADING STANDARDS
AND REVIEW PROCEDURES ARE
BRPEMEEEE go dbvchinccaccvennésepee:
THE DELAWARE SUPREME COURT
ORDER REFUSING PETITIONER’S
REQUEST FOR DISCOVERY OF THE
GRADING FORMULA, GRADERS’ NOTES
AND OTHER APPLICANTS’ EXAMINA-
TIONS AND SCORES DID NOT DENY
PETITIONER THE RIGHT TO PRO-
CEDURAL DUE PROCESS OR CONFLICT
WITH DECISIONS OF FEDERAL APPEALS
COURTS OR STATE SUPREME COURTS..
A. THE BOARD PROVIDED PETITIONER
WITH SUFFICIENT INFORMATION
TO SATISFY THE REQUIREMENTS OF
PROCEDURAL DUE PROCESS.......
B. DELAWARE LAW PROVIDING PETI-
TIONER WITH THE OPPORTUNITY
TO RETAKE THE BAR EXAMINATION
SATISFIES THE REQUIREMENTS OF
PROCEDURAL DUE PROCESS........
PETITIONER’S SUBSTANTIAL RIGHTS
HAVE NOT BEEN AFFECTED ............
THE JUDGMENT BELOW WAS NOT
CLEARLY ERRONEOUS ..................
A. THE ISSUE OF THE DISQUALIFICA-
TION OF JUSTICE WALSH WAS NOT
scab sche ebb unanee sss enese ee
14
16
19
20
23
25
26
iv
TABLE OF CONTENTS - Continued
Page
B. THE DELAWARE SUPREME COURT
PROPERLY DETERMINED TO
UPHOLD THE BOARD’S DENIAL OF
PETITIONER’S REQUEST FOR RECON-
DERPIGENEID cc ccescsagesdvévencoeeese 27
CR IE Lowedecdcanbdsusevdvsigedacscaeuenesy 30
Vv
TABLE OF AUTHORITIES
Page
. Cases
Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th
Cir. 1983), cert. denied, 464 U.S. 1040 Pre 27
Attwell v. Nichols, 608 F.2d 228 (5th Cir. 1979), cert.
denied sub nom. Attwell v. Undercofler, 446 U.S.
Wee GPUs ancdiheesincdietesc ie wih soedeccvess 11
Baird v. State Bar of Arizona, 401 U.S. 1 0. 11
Brewer v. Wegmann, 691 F.2d 216 (Sth Cir. 1982),
cert. denied, 461 U.S. 908 (1983)................... 24
Chaney v. State Bar of California, 386 F.2d 962 (9th
Cir. 1967), cert. denied, 390 U.S. 1011 (1968) and
cert. denied sub. nom Chandler v. United States,
OP Dae Ge Pe icici ee 3, 14, 15
Dinger v. State Bar Board, 312 N.W2d 15 (N.D.
a A EPTELT LULL TE EP Re POP TEP ae ee ae: 15, 16
Feldman v. State Board of Law Examiners, 438 F.2d
GOP Gem Ge WF 6 ok tinide on dboceecdcoks..., 3, 13, 14
Fields v. Kelly, 986 F.2d 225 (8th Cir. 3990)... 98, 2
Giannini v. Real, 911 F.2d 354 (9th Cir.), cert. denied,
AO DG Tim Cs hv iio bovis back vodobkos voce, 10
Hooban v. Board of Governors of Washington State
Bar Ass’n, 539 P.2d 686 (Wash. 1975), appeal dis-
missed, 424 U.S. 902 (1976)................. 14, 15, 23
In re Pacheco, 514 P.2d 1297 (N.M. 1973).......... 11, 21
In re Peterson, 459 P.2d 703 (Alaska 1969) ....12, 22, 23
In re Petition of Sharon Ann Ziegler To Delaware Bar,
No. 438, 1993 (Del. Jan. 3, Matiousicerends passim
In re Reardon, 378 A.2d 614 (Del. 1977)............ 2,11
vi
TABLE OF AUTHORITIES - Continued
Page
Jones v. Board of Commissioners of Alabama State Bar,
737 F.2d 996 (11th Cir. 1984)...........005. 10, 11, 25
Loeb v. New York State Board of Law Examiners, 534
N.Y.S.2d 559 (N.Y. App. Div. 1988)..............5. 21
Lucero v. Ogden, 718 F.2d 355 (10th Cir. 1983), cert.
denied, 465 U.S. 1035 (1984)..........ccceeeeees 15, 24
Lupert v. California State Bar, 761 F.2d 1325 (9th
Cir.), appeal dismissed and cert. denied, 474 U.S.
DEG GIGS) ss cccccccvasviecdévdwitedededs sG¥eb oe sive 10
McGinn v. State Bar Board, 399 N.W.2d 864 (N.D.
POG iv cv cedeecesteccedddcdevegiwueerdeubasesCes 11, 18
Moody v. Simmons, 858 F.2d 137 (3d Cir. 1988), cert.
Gere, GD ae TITS GPa 8 i cate cee bateecesccecs 27
Parrish v. Board of Commissioners of Alabama State
Bar, SSS F.2G S42 CGR Cie, FETE cc cccccccccesceces 22
Poats v. Givan, 651 F.2d 495 (7th Cir. 1981)...11, 13, 25
Richardson v. McFadden, 540 F.2d 744 (4th Cir.
1976), cert. denied, 435 U.S. 968 (1978)............. 11
Schware v. Board of Bar Examiners of New Mexico,
DP Ay SE REPUTE ees kcnctéastncivesesecen<s passim
Tofano v. Supreme Court of Nevada, 718 F.2d 313 (9th
Rt DEE nin acacncuasdcsehWebsabeeenes eonteevetss 14
Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert.
Gta, GEO Ve FOO CRIN sc cen conssccisccnces passim
Whitfield v. Illinois Board of Law Examiners, 504 F.2d
re Se PRG ca chu bond ends Cee ehaea cee ts passim
Younger v. Colorado State Board of Law Examiners,
GZS FOG B72 (IGE Ce WG. occ csccccevcsscece 11, 25
vii
TABLE OF AUTHORITIES - Continued
Page
OrHer AUTHORITIES
SD. Fees Ae SR eiievnciebccchstsdavesvvcoceuncenei 3
Dal, Gates Ge. Be BR) wc ccc tcvccccvccsevesescccess 18, 27
Ps ty A NE so cnu er caddeonceccece eeuetseene 22
Board of Bar Examiners Rules, found at Volume
16, Delaware Code Annotated at 771 (Michie,
1987 Replacement Volume).................45. passim
Code of Recommended Standards for Bar Exam-
iners, Standard 24, The Bar Examiners’ Handbook
§ 5, at 75:1001 (Stuart Duhl ed., 3d ed. 1991)..... 16
No. 93-1501
°
In The
Supreme Court of the United States
October Term, 1993
+
SHARON ANN ZIEGLER,
—Petitioner, Pro Se,
THE SUPREME COURT OF DELAWARE, et al.,
and
BOARD OF BAR EXAMINERS OF THE
STATE OF DELAWARE, et al.,
Respondents.
.
On Petition For A Writ Of Certiorari
To The Supreme Court Of Delaware
.
BRIEF OF RESPONDENTS BOARD OF BAR
EXAMINERS OF THE STATE OF DELAWARE AND
MEMBERS THEREOF IN OPPOSITION TO
PETITION FOR A WRIT OF CERTIORARI
+
The Board of Bar Examiners of the State of Delaware
and the members thereof (hereinafter “Respondents” )
respectfully request that this Court deny the petition for a
writ of certiorari seeking review of the order of the Dela-
ware Supreme Court in this case. That opinion is
appended to the petition for writ of certiorari at appendix
al.
°
JURISDICTION
This Court does not have jurisdiction to hear Peti-
tioner’s claim. Admission to practice law in a state and
before its courts is primarily a matter of state concern.
Schware v. Board of Bar Examiners of N.M., 353 U.S. 232, 248
(1957) (Frankfurter, J., concurring); Whitfield v. Illinois Bd.
of Law Examiners, 504 F.2d 474, 477 (7th Cir. 1974). While
the Delaware Supreme Court recognizes that “[b]ar exam-
ination procedures are always reviewable to determine if
there has been any contravention of the Due Process or
Equal Protection Clause,” In re Reardon, 378 A.2d 614, 618
(Del. 1977) (citing Schware, 353 U.S..232 (1957)), Petitioner
does not validly raise such a claim here.
Petitioner’s argument is that her constitutional rights
were violated oy the allegedly “arbitrary grading” of the
Bar Examination essay questions because the graders
were “neither required to adhere to or consistently apply
a grading formula, nor . . . required to substantiate the
grades they [gave].” (Petition at 13). It is well settled that
the mere claim that bar examination essay questions were
graded under a subjective standard, without more, raises
no federal! constitutional claims. Tyler v. Vickery, 517 F.2d
1089, 1102 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976)
(no federal claim stated in attacking subjective grading of
1 Reference to “Petition at __” refers to specific pages in
the Petitioner’s Petition for a Writ of Certiorari filed March 18,
1994. Reference to “Appendix at a__” refers to specific pages in
the appendix to same. Reference to “Appendix at b___ refers to
specific pages to the Appendix attached hereto. Reference to
“BR-__” refers to specific rules of the Board of Bar Examiners,
found at Vol. 16, Delaware Code Ann. at 771 (Michie, 1987
Replacement Volume).
bar essay examination); Whitfield, 504 F.2d at 477 (allega-
tion that bar examination essay questions require “subjec-
tive evaluation and that the standards of grading are not
susceptible to precise definition . . . is not sufficient to
state a claim for federal relief”); Feldman v. State Bd. of
Law Examiners, 438 F.2d 699, 704 (8th Cir. 1971) (no fed-
eral question involved where attack is on honest errors of
judgment, negligence or unavoidable mistake inherent in
subjective grading of bar examination); Chaney v. State Bar
of Cal., 386 F.2d 962, 964-65 (9th Cir 1967), cert. denied, 390
U.S. 1011 (1968) and cert. denied sub nom. Chandler v.
United States, 440 U.S. 927 (1979) (no federal question or
“constitutional substance” to claim that bar examination
essay questions are based on subjective evaluation by
examiner and that discretionary grading ranges makes it
impossible to demonstrate that examiner’s grade is
wrong).
STATEMENT OF THE CASE
A. The Delaware Bar Examination
The Delaware Bar Examination (the “Bar Examina-
tion”) consists of the Multi-State Bar Examination admin-
istered by the National Conference of Bar Examiners and
twelve (12) essay questions on subjects which are set
forth in the Rules of the Board of Bar Examiners of the
State of Delaware. Br-52.4(b). An applicant is deemed to
have passed the essay section of the Bar Examination if
the applicant achieves an average score of not less than
65% on the twelve questions, providing that the applicant
must receive a grade of not less than 65% on more than
five of the questions. BR-52.4(c). In addition, every appli-
cant must pass a separate examination on The Delaware
Lawyers’ Rules of Professional Conduct (the “Profes-
sional Conduct Examination”). BR-52.5. Petitioner passed
the Professional Conduct Examination in 1992, but failed
the essay portion of the Bar Examination in 1992 and in
1993. See In re Petition of Sharon Ann Ziegler To Del. Bar,
No. 438, 1993 (Del. Jan. 3, 1994) (ORDER) (Appendix at
al). She contends that the Board of Bar Examiners’ (the
“Board”) procedures for grading the essay section of the
Bar Examination are inadequate because the Board does
not follow a grading “formula.” (Petition at 13). In fact
the procedures for the essay portion are detailed and
elaborate.
B. The Drafting Process
The process by which the essay portion of the Bar
Examination is drafted and graded is as follows: Each
essay question and a proposed answer thereto is drafted
by one individual member of the Board. Delaware Bar
Examiners’ Handbook at tab 4. Before submission to the
full Board, each draft essay question and answer thereto
is reviewed by another member of the Board. Id. Both
members make up a team which revises the question
before submitting it to the full Board for final review and
comment. Id.
In drafting the essay questions, the Board members
follow procedures which are modeled after the Bar Exam-
iners Handbook published by the National Conference of
Bar Examiners, as well as guidelines set by the Board.
C. Anonymity
The Bar Examination is administered on a strictly
anonymous basis. BR-52.6(a). Each examinee picks a
number at random, places it in a sealed envelope, which
envelope is then deposited in a safe deposit box under
the joint control of the Delaware Supreme Court and the
secretary to the Board. Id. The envelopes are not opened
by the secretary until the grades are published.
BR-52.6(b)(i). The identity of the failing examinees is not
revealed to members of the Board until after the Board
has considered and decided all petitions for regrading of
the Bar Examination. BR-52.6(b)(iii).
D. Grading
After the Bar Examination, the answer booklets for
each question are graded by the Board member who
drafted that question, with the assistance of an associate
member of the Board (who is also appointed by the
Delaware Supreme Court). Essay answers are graded
using five point increments. All preliminary results are
then submitted to the Secretary of the Board. After the
preliminary results are compiled, Board members are
asked to review again the answers of each applicant
whose average score is between 62% and 64.9% as well as
the answers of those applicants who received an average
score of at least 65% but who did not achieve a 65% or
better on at least seven of the twelve questions in the
essay section. A failing applicant is entitled to obtain
copies of his or her own answers, as well as representa-
tive passing answers, and can petition the Board for
reconsideration of the failing grade. BR-52.6(c) and 52.7.
Such reconsideration is performed anonymously.
E. Petitioner’s Bar Examination
All of the above procedures were followed with
regard to both the 1992 and 1993 Bar Examinations taken
by Petitioner. Her petition herein relates only to the 1993
Bar Examination. In the preliminary results submitted by
the Board to the Secretary for the 1993 Bar Examination
about which she complains Petitioner had achieved an
average of 62.5% on the twelve essay questions. See In re
Petition of Sharon Ann Ziegler To Del. Bar, No. 438, 1993
(Del. Jan. 3, 1994) (ORDER) (Appendix at al). Following
Board procedures, petitioner’s answers were reviewed
again by the grading board members, and as a result of
adjustments made in single point increments to certain
individual grades pursuant to that review, Petitioner
achieved an average of 63.75%. Id. at a2. All applicants to
the Delaware bar must receive at least an average score of
65.0% on the essay portion to pass the examination.
BR-52.4(c); Appendix at a2. Based on these facts, the
Board determined that Petitioner had failed the essay
portion of the Bar Examination, and notified her of the
results. Id.
Petitioner requested and received copies of her essay
answers, as well as copies of model answers to those
questions. Petitioner then petitioned the Board pursuant
to Board of Bar Examiners Rule 52.7, asking that five of _
her twelve essay answers be reviewed again. (Appendix
at b2, { 3). Each member who had primary responsibility
for drafting those essay questions once again reviewed
Petitioner’s answers, still anonymously. (Appendix at b2,
{ 4). As a result of the review, one of the five answers
received an additional five points, which raised Peti-
tioner’s average from 63.75% to 64.17%, still short of the
65.0% average required under the Rules. Id. The Board
therefore, on November 16, 1993, determined to deny the
applicant’s petition. Id.; see Ziegler (Appendix at a2).
Thus, on a strictly anonymous basis, Petitioner’s Bar
Examination answers were reviewed by the person who
had primary responsibility for drafting the questions at
least three separate times and adjustments were made to
her grades each time. Notwithstanding these efforts of
the Board, Petitioner failed the examination.
In Petitioner’s Statement of Case, she claims, without
support, that the admission process in Delaware is “the
most restrictive in the United States.” (Petition at 3).
However, she complains only about the process by which
her essay questions were graded, having had no problem
with, and having successfully completed, the rest of the
admission process. The fact is that the Delaware admis-
sion process is no more restrictive than that of many
other states; and clearly has a rational connection to
petitioner’s fitness or capacity to practice law. In any
event, that issue is not relevant to the petition.?
2 We note an article on bar exainations in the April 15, 1994
New York Times does not list Delaware among the states con-
sidered to have the most difficult bar exams. ” ‘Standards for
passing vary tremendously across states’ said Steve Klein, ... an
expert in measuring mental abilities at the Rand Corporation in
Santa Monica, California. The exams in New York, Massa-
chusetts, Connecticut and the District of Columbia are middling
ee Pane, >
ee es. eee eel”
F. The Appeal
After the Board denied Petitioner’s request for recon-
sideration of her grades, she filed an appeal with the
Delaware Supreme Court, as she had also done after
failing the Bar Examination in 1992. See Ziegler (Appendix
at a2). The Board filed its response (see Appendix at b1),
and Petitioner filed a reply. The Delaware Supreme Court
refused the appeal on the ground that Petitioner still had
a further opportunity to sit for the Bar Examination and
on the grounds that the Board had carefui.y graded her
answers, and after a second and third review raised her
average, but that she had nevertheless not achieved the
required 65.0% average on her essay examination portion.
Id. at 1-2. The court also found that Petitioner had shown
no fraud, coercion, arbitrariness or manifest unfairness
on the part of the Board. Id.
Contrary to Petitioner’s statement to this Court, the
fact that she surreptitiously taped a member of the Board
during her character and fitness interview was not a
ground for the Delaware Supreme Court’s refusal of her
appeal, although that event was noted with some concern
by the Court as possibly reflecting adversely on her char-
acter, and that issue was remanded for further consider-
ation by the Board. See Ziegler (Appendix at a2-4).
difficult, he said, while those in Maine, Arkansas, Oregon and
California are genuinely tough. Illinois and Ohio join Pennsy!]-
vania as easy marks.” page B10.
G. The Erroneous Disqualification
Petitioner notes in her petition before this Court that
Justice Joseph T. Walsh docketed a disqualification, which
was subsequently withdrawn. (Petition at 19-20). In fact,
the disqualification was erroneously entered on the
docket, and Petitioner received notice of the erroneous
entry from the Clerk of the Delaware Supreme Court. (See
Appendix at b6). Petitioner has not claimed, and the
record does not reflect, any actual basis for the disqual-
ification of Justice Walsh.
REASONS FOR DENYING THE WRIT
Assuming arguendo that Petitioner has properly
invoked this Court’s jurisdiction, the petition should be
denied because, contrary to the assertions made by Peti-
tioner, the actions of the Board and the orders below
clearly do not violate Petitioner’s constitutional rights, do
not conflict with any decision of this Court, and do not
conflict with the decisions of other state supreme courts
or federal appeals courts.
I. THE ORDER OF THE DELAWARE SUPREME
COURT DID NOT DENY PETITIONER’S FUNDA-
MENTAL PROPERTY OR LIBERTY RIGHTS AND
WAS NOT IN CONFLICT WITH DECISIONS OF
THIS COURT OR FEDERAL APPEALS COURTS OR
OTHER STATE SUPREME COURTS
In analyzing Petitioner’s claims of violations of the
due process clause of the Fifth and Fourteenth Amend-
ments, this Court will apply a rational basis review
10
unless the Petitioner can establish that the State action
has impinged upon a fundamental right or has disadvan-
taged a suspect class. Lupert v. California State Bar, 761
F.2d 1325, 1327-28 (9th Cir.), appeal dismissed and cert.
denied, 474 U.S. 916 (1985). Petitioner does not, and can-
not, assert that bar applicants constitute a suspect class.
See Giannini v. Real, 911 F.2d 354, 358 (9th Cir.), cert.
denied, 498 U.S. 1012 (1990). Rather, Petitioner claims that
she has a fundamental property and liberty right to
obtain an attorney license which is protected by the due
process clause of the Fifth and Fourteenth Amendments.
(Petition at 13). This Court, however, has never held that
the right to pursue a particular occupation is a funda-
mental right. See Jones v. Board of Comm'rs of Ala. State Bar,
737 F.2d 996, 1000 (11th Cir. 1984). To the contrary,
“[t]here is no fundamental right to practice law or to take
the bar examination.” Giannini, 911 F.2d at 358.
The “[o]verwhelming legal authority supports this
view that review of state procedures for bar admissions
and testing is guided by the rational basis standard.” Id.
In Schware v. Board of Bar Examiners of New Mexico, 353
U.S. 232 (1957), this Court held:
A State can require high standards of qualifica-
tion, such as good moral character or profi-
ciency in its law, before it admits an applicant to
the bar, but any qualification must have a ratio-
nal connection with the applicant's fitness or capac-
ity to practice law.
353 U.S. at 239 (citations omitted) (emphasis supplied).
In analyzing challenges to state procedures govern-
ing admission and testing for the bar, federal appeals
courts consistently have applied a rational basis review to
11
those claims which assert due process violations. See, e.g.,
Fields v. Kelly, 986 F.2d 225 (8th Cir. 1993); Jones v. Board of
Comm'rs of Ala. State Bar, 737 F.2d 996 (11th Cir. 1984);
Younger v. Colorado State Bd. of Law Examiners, 625 F.2d 372
(10th Cir. 1980); Poats v. Givan, 651 F.2d 495 (7th Cir.
1981); Attwell v. Nichols, 608 F.2d 228 (5th Cir. 1979), cert.
denied sub nom. Attwell v. Undercofler, 446 U.S. 955 (1980).
State supreme courts similarly have applied a rational
basis review. See, e.g., McGinn v. State Bar Bd., 399 N.W.2d
864 (N.D. 1987); In re Reardon, 378 A.2d 614, 618 (Del.
1977); In re Pacheco, 514 P.2d 1297 (N.M. 1973).
The cases cited by Petitioner (Petition at 15) do not
change this analysis. For example, Baird v. State Bar of
Arizona, 401 U.S. 1, 8 (1971) does not even address a claim
of due process violations or whether the right to practice
law is a fundamental right. Rather, this Court found that
Arizona had violated the First Amendment by refusing to
process an application for admission to the Arizona bar
based solely upon the applicant’s refusal to answer a
question as to whether she had been a member of the
Communist party. Id. at 4-5. Notably, the Baird Court
recognized Arizona's “legitimate interest in determining
whether petitioner has the qualities of character and the
professional competence requisite to the practice of law.”
Id. at 7. However, the record was “wholly barren” of any
evidence that the applicant was not morally or profes-
sionally fit to practice law. Id. at 8.
Similarly, the Fourth Circuit case cited by Petitioner,
Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976),
cert. denied, 435 U.S. 968 (1978), does not recognize a
fundamental right to practice law. Rather, the Court
Retin ee oe
12
found that the South Carolina bar examiners acted arbi-
trarily and capriciously in failing the appellants despite
their passing scores on the bar examination. Id. at 750
(citing Schware, 353 U.S. at 238-39). Because they had
rightfully passed the bar examination, appellants were
not required to retake the examination. Id. at 752. Neither
this case, nor the other cases cited by Petitioner, requires
a board of bar examiners to admit an applicant who has
not passed the bar examination.
Moreover, in In re Peterson, 459 P.2d 703, 710 (Alaska
1969), (cited in Petition at 15), the court, in referring to
the applicant’s “ultimate right” to pursue the occupation
of an attorney, quoted this Court’s statement in Schware
that it need not determine whether the practice of law is a
“right” or a “privilege” because, either way, a State can
only prevent a person from the practice of law for valid
reasons. Id. at 710 (quoting Schware, 353 U.S. at 239 n.5).
As noted above, the Schware Court held that a state need
articulate only a rational connection between its require-
ments for admission to the bar and the applicant's ability
to practice law.
Thus, the determination of the Board to deny Peti-
tioner’s request for admission to practice law in Delaware
will be upheld if it was based upon procedures and
grading standards which have a “rational connection” to
Petitioner’s fitness or capacity to practice law. See
Schware, 353 U.S. at 239. The Delaware procedures and
grading standards meet this standard. Further, the order
of the Delaware Supreme Court does not conflict with
any decision of this Court, any federal appeals court or
other state supreme court.
13
Il. THE GRADING STANDARDS AND REVIEW
PROCEDURES OF THE DELAWARE BAR EXAM-
INATION DID NOT VIOLATE PETITIONER’S
RIGHT TO DUE PROCESS AND THE ORDER OF
THE DELAWARE SUPREME COURT UPHOLDING
THE BOARD’S DETERMINATION DENYING
PETITIONER’S REQUEST FOR RECONSIDERA-
TION DID NOT CONFLICT WITH ANY DECI-
SIONS OF THIS COURT OR OF OTHER STATE
SUPREME COURTS OR FEDERAL APPEALS
COURTS
It is well settled that bar examinations are a valid
determinant of an applicant's fitness or capacity to prac-
tice law. Poats v. Givan, 651 F.2d 495 (7th Cir. 1981);
Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d 474,
476-77 (7th Cir. 1974). Moreover, the determination of
which individuals have the requisite knowledge and skill
to practice law is a matter which is properly committed to
a board of bar examiners. Poats, 651 F.2d at 497. As such,
federal appeals courts will not interfere with a determina-
tion, made by a board of bar examiners, as to which
individuals have the requisite skill and knowledge to
practice law unless there is proof that the determination
was based upon a constitutionally impermissible reason.
Feldman v. State Bd. of Law Examiners, 438 F.2d 699, 705
(8th Cir. 1971); Whitfield, 504 F.2d at 477.
Of course, the safeguards of the due process clause
are available to a failing bar applicant. Tyler v. Vickery, 517
F.2d 1089 (Sth Cir. 1975) (citing Schware, 353 U.S. at
238-39), cert. denied, 426 U.S. 940 (1976). However, in
order to establish a due process violation, Petitioner must
prove that the Board’s decision to deny her the right to
ee ae eee. ee ee Lee ee er ee oe en ek ee
14
practice law was based upon fraud, coercion, arbitrari-
ness or manifest unfairness. Hooban v. Board of Governors
of Wash. State Bar Ass’n, 539 P.2d 686, 688 (Wash. 1975)
(citing Schware, 353 U.S. 232 (1957) (Frankfurter, J., con-
curring)), appeal dismissed, 424 U.S. 902 (1976). Petitioner
alleges that the Board impermissibly denied her admis-
sion to the Delaware bar based upon arbitrary grading
standards and unfair review procedures. Petitioner’s
claim, however, is without merit and has been consis-
tently rejected by other state supreme courts and federal
appeals courts.
A. DELAWARE’S GRADING STANDARDS ARE
NOT ARBITRARY
Essay questions on a bar examination are constitu-
tionally permissible, as they bear a rational connection
with the ability of an applicant to practice law. See, e.g.,
Chaney v. State Bar of Cal., 386 F.2d 962, 964 (9th Cir. 1967),
cert. denied, 390 U.S. 1011 (1968) and cert. denied sub nom.
Chandler v. United States, 440 U.S. 927 (1979); Feldman v.
State Bd. of Law Examiners, 438 F.2d 699, 705 (8th Cir.
1971); Whitfield v. Illinois Bd. of Law Examiners, 504 F.2d
474, 477 (7th Cir. 1974). Petitioner challenges Delaware’s
use of essay questions and claims that the Board “is
vested with unfettered discretion in grading the exams”
and that the graders are not required to adhere to or
consistently apply a “grading formula.” (Petition at 13).
Petitioner’s complaint, however, goes to the very nature
of essay examinations, which have consistently been
upheld by both federal appeals courts and other state
supreme courts. For example, in Tofano v. Supreme Court of
15
Nevada, 718 F.2d 313 (9th Cir. 1983), the Ninth Circuit
held:
[S]tates may constitutionally use essay-type
questions on bar examinations even though gra-
ding is necessarily subjective because perfor-
mance on essay-type questions bears a rational
connection with the ability to practice law.
Chaney 386 F.2d at 964. The Fifth Circuit, in Tyler
v. Vickery, . . . has noted that a failure to use
model answers sr predetermined standards in
grading essay examinations does not raise an
issue of fact as to whether or not the essay
examination itself is a rational, and therefore
constitutional exercise of State power. We agree.
718 F.2d at 315. See also Lucero v. Ogden, 718 F.2d 355, 359
(10th Cir. 1983) (“[t]he fact that a bar examination
depends in large measure on subjective grading judg-
ments of examiners does not, per se, constitute an irra-
tionally administered examination.”), cert. denied, 465 U.S.
1035 (1984); Chaney, 386 F.2d at 964 (same).
Similarly, state supreme courts have consistently
upheld the validity of essay questions in bar examina-
tions, recognizing that such questions necessarily carry
some degree of subjectivity in their grading. See, e.g.,
Hooban v. Board of Governors of Wash. State Bar Ass’n, 539
P.2d 686, 689 (1975), appeal dismissed, 424 U.S. 902 (1976).
Further, the Supreme Court of North Dakota, in Dinger v.
State Bar Board, 312 N.W.2d 15, 17-18 (N.D. 1981),
addressed a claim that essay examinations were arbitrary
and capricious, constituting a denial of due process and
equal protection under the Fifth and Fourteenth Amend-
ments. Rejecting that claim, the court held that “[o}rdin-
ary reasoning and logic tells us that a certain amount of
16
subjectivity is concomitant with any essay-type examina-
tion. However, such tests are not invalid per se.” Id. at 17
(emphasis supplied).
A mere allegation that an essay-type examination
requires subjective evaluations and that the standards of
grading are not susceptible to precise definition is insuffi-
cient to state a claim for federal relief. Whitfield, 504 F.2d
at 477.
Petitioner has not shown that her Bar Examination
was graded in an arbitrary or unreasonable manner.
Rather, Petitioner argues that the Board graded her Bar
Examination in a “wholly arbitrary” manner because it
did not use a grading formula. Petitioner’s Bar Examina-
tion, however, was carefully and meticulously graded in
accordance with the standards set forth by the National
Conference of Bar Examiners.
B. DELAWARE’S GRADING STANDARDS AND
REVIEW PROCEDURES ARE EXEMPLARY
Unlike most states, Delaware is able to comply with
the preferred grading procedures of the National Confer-
ence of Bar Examiners. Due in part to the relatively small
number of examinees taking the Bar Examination each
year, Delaware employs a grading system whereby the
same member of the Board who writes each essay ques-
tion grades all answers given by bar examinees to that
particular question. See Code of Recommended Standards
for Bar Examiners, Standard 24, The Bar Examiners’ Hand-
book § 5, at 75:1001 (Stuart Duhl ed., 3d ed. 1991). (“If
practical, all answers to a particular essay question
should be graded by the same person.”). This method
as Pe dint * Ex Be
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reduces the possibility of any grading inconsistencies.
Moreover, all Bar Examinations are graded on an anony-
mous basis so that the identity of the « vplicant is not
known to the graders. See BR-52.6.
Delaware's review procedures are likewise designed
to protect the rights of all applicants. Despite Petitioner’s
complaint that she has not received an adequate review
of her Bar Examination, her essay responses have actually
been reviewed three separate times. In re Petition of
Sharon Ann Ziegler To Del. Bar, No. 438, 1993, order at 1
(Del. Jan. 3, 1994) (ORDER) (Appendix at a1). First, each
of Petitioner’s essays were graded by the Board member
responsible for writing and grading that essay. Then,
before the final grades were announced, the Bar Examina-
tions of all applicants, such as Petitioner, who narrowly
failed to receive a passing score were regraded. Peti-
tioner’s average score on the essay portion of the Bar
Examination was 62.5% after the twelve essays were first
graded, and upon regrading, Petitioner’s average score
was increased to 63.75%, which was still insufficient to
pass the Bar Examination. Petitioner was therefore noti-
fied that she failed the Bar Examination.
Upon such notification, Petitioner requested and
received a copy of the Bar Examination questions, along
with her essay answers and two representative answers
for each essay question. Petitioner correctly states that
these representative answers are among the better
answers and received scores upwards of 80-85%. After
reviewing this information, Petitioner filed a petition for
reconsideration with the Board describing at length why
her answers were entitled to a higher score in light of the
passing answers with which Petitioner was provided.
lies Sel a TE oe La at chee
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18
The Board considered Petitioner’s arguments, again
revised her grade to 64.17% but denied the petition
because Petitioner had failed to receive the 65% average
required to pass the Bar Examination. Petitioner then
exercised her right pursuant to Delaware Supreme Court
Rule 52(f) to appeal the Board’s denial of reconsideration
to the Delaware Supreme Court. Petitioner was able to
submit argument in favor of her petition to the Delaware
Supreme Court in both her notice of appeal and her reply
papers. Moreover, the Petitioner’s answers to the essay
examinations were included in her appendix before the
Delaware Supreme Court. With this information, together
with the response of the Board, before it, the court denied
Petitioner’s request for reconsideration because Peti-
tioner was unable to show fraud, coercion, arbitrariness
or manifest unfairness. Moreover, the court determined
that Petitioner’s substantial rights had not been affected
by the Board’s action in light of the fact that she had not
been denied the right to sit for the Bar Examination for a
third time. (Appendix at a2).
In McGinn v. State Bar Board, 399 N.W.2d 864 (N.D.
1987), the North Dakota Supreme Court upheld a method
of grading similar to that used in Delaware. The court
noted that despite the appellant’s claim that the examina-
tion was graded in an arbitrary and unreasonable man-
ner, the appellant’s answers to the examination were
graded multiple times. The court held that “[i]t is a
difficult burden to show that so many competent persons
who reviewed [the appellant’s answers], and were in
close agreement as to the quality of those answers, were
each arbitrary and unreasonable in their analysis.” Id. at
867. The court found that the appellant had not met this
19
burden and it was not the function of the court to regrade
the appellant’s answers to the bar examination. Id.
Similarly, it is not the function of this Court to
regrade Petitioner’s Bar Examination, particularly in light
of the review procedure provided to Petitioner by the
State of Delaware. Thus, Petitioner has not shown that
the Delaware Supreme Court’s Order upholding the
Board’s denial of the petition for reconsideration was
arbitrary or capricious, denied due process or conflicted
with any decision of this Court, federal appeals courts or
other state supreme courts. Petitioner, therefore, has
shown no basis for granting the writ of certiorari.
Ill. THE DELAWARE SUPREME COURT ORDER
REFUSING PETITIONER’S REQUEST FOK DIS-
COVERY OF THE GRADING FORMULA,
GRADERS’ NOTES AND OTHER APPLICANTS’
EXAMINATIONS AND SCORES DID NOT DENY
PETITIONER THE RIGHT TO PROCEDURAL
DUE PROCESS OR CONFLICT WITH DECI-
SIONS OF FEDERAL APPEALS COURTS OR
STATE SUPREME COURTS
Upon receipt of Petitioner’s request for information
with respect to her Bar Examination the Board provided
to Petitioner, pursuant to Board of Bar Examiners Rule
52.6(c), a copy of the questions from the 1993 Bar Exam-
ination, a copy of her responses to those questions and a
copy of two representative answers to each essay ques-
tion. Petitioner, however, was not satisfied with this
information and requested that the Board divulge further
20
information in the form of some purported “grading for-
mula”, graders’ notes and other applicants’ Bar Examina-
tions and scores. Petitioner claims that the Board’s failure
to provide her with this further information constituted a
“denial of procedural due process because Petitioner was
denied the right to any kind of review.” (Petition at 16).
She further claims that the order of the Delaware
Supreme Court denying the requested discovery conflicts
with Fifth Circuit and other state supreme court deci-
sions. (Id.). Petitioner’s claim is not tenable.
A. THE BOARD PROVIDED PETITIONER WITH
SUFFICIENT INFORMATION TO SATISFY
THE REQUIREMENTS OF PROCEDURAL
DUE PROCESS
The decisions of state supreme courts and federal
appeals courts require that a state board of bar examiners
provide some adequate means of exposing grading
errors. See, e.g., Whitfield v. Illinois Bd. of Law Examiners,
504 F.2d 474, 478 (7th Cir. 1974). Courts have recognized
two primary methods of exposing such errors: (1) Dis-
closure of the failing ‘applicant's examination answers
and model or successful answers and the opportunity to
be heard; or (2) Providing the failing applicant with an
opportunity to retake the examination. See Tyler v. Vickery,
517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940
(1976).
In the case at bar, Petitioner has been provided with
both procedural safeguards. Petitioner has been provided
with adequate information from which to expose grading
errors and an opportunity to be heard. Delaware law also
SE Reale RR COGENT ie
. Si thigh ae A Ee eee
21
allows Petitioner the opportunity to reapply for the Bar
Examination a third time, and if still unsuccessful, Peti-
tioner may seek permission from the Board to sit for the
Bar Examination a fourth time. See BR-52.8(e). Thus, Peti-
tioner cannot be heard to complain of a denial of pro-
cedural due process.
First, the information which the Board provided to
Petitioner has been found to satisfy the requirements of
due process. In In re Pacheco, 514 P.2d 1297 (N.M. 1973),
the court held that an unsuccessful candidate for the bar
is entitled to a reasonable review of the examination
questions, his answers to such questions, and a sampling
of a passing answer for each question. Id. at 1300. The
applicant, however, further requested that the board fur-
nish him with copies of sample passing and failing
answers as well as model answers for each question for
the bar examination. The court declined to order the
board to grant these additional requests and found that
such request was not reasonable. Id.
In Loeb v. New York State Board of Law Examiners, 534
N.Y.S.2d 559 (N.Y. App, Div. 1988), the petitioner chal-
lenged as a denial of due process the board’s failure to
provide her with written comments or other substantia-
tion of its decision not to revise the grade on her essay
answers. The court rejected this challenge, finding that
the board was entitled to discretion in deference to its
area of expertise and that there is a strong presumption
that the powers conferred upon an administrative agency
are exercised properly. Id. at 560. Further, the court found
that the opportunity for petitioner to review her examina-
tion answers and to compare those answers with model
answers, when combined with her right of reexamination,
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22
“amply complied with the requirements of due process
and was otherwise fair and reasonable.” Id. Thus, peti-
tioner was denied the further discovery. See also Fields v.
Kelly, 986 F.2d 225 (8th Cir. 1993) (disclosure of essay
examination, applicant’s answers and model answers was
sufficient; applicant was not entitled to discovery of ques-
tions or answers to multistate examination).
The cases relied upon by Petitioner do not conflict
with the Delaware Supreme Court decision and do not
compel a different result. Parrish v. Board of Commissioners
of Alabama State Bar, 533 F.2d 942 (Sth C+. * -76) (cited in
Petition at 17) involved a claim of racial ¢..:rimination by
the board. The appellants claimed that, in order to prove
such discrimination, they had to review examination
papers to determine whether the exaniiners graded the
responses of white applicants differently than those of
black applicants, particularly in light of the fact that all
applicants were required to file photographs with the
board, thus making it possible for board members to
identify applicants by race. Id. at 947. In this context, the
court held that, pursuant to Federal Rules of Civil Pro-
cedure 56(f), discovery should have been completed
before the district court ruled on summary judgment. Id.
at 948. Of course, the case at bar does not involve allega-
tions of racial discrimination or any other. kind of dis-
crimination, and procedurally Petitioner cannot rely upon
Rule 56(f) to compel discovery because there is no motion
for summary judgment pending.
In In re Peterson, 459 P.2d 703, 709 (Alaska 1969) (cited
in Petition at 17), the court held that procedural due
process requires an applicant to be furnished with the
examination questions, his answers, and model answers.
; aa
23
The court further held that the applicant was entitled to a
representative sampling of passing and failing answers
due to the “peculiar factual circumstances presented” by
this case, which involved a change of the minimum pass-
ing score resulting from the “flexible passing score sys-
tem” whereby the board determines the passing score
after the examination is graded. Id. at 709-710 n.20. How-
ever, the court did not hold that this information must be
disclosed in situations other than the limited set of facts
presented.
Petitioners reliance on Hooban v. Board of Governors of
Washington State Bar Association, 539 P.2d 686, 688 n.1
(Wash. 1975), appeal dismissed, 424 U.S. 902 (1976) (cited in
Petition at 17) is simply misplaced. There, the court speci-
fically held that it was not ruling upon the discovery
issue, as the parties had failed to present it.
Thus, the Board here has complied with procedural
due process by supplying Petitioner with that informa-
tion which courts have consistently upheld as satisfying
procedural due process and the Delaware Supreme Court
properly approved this decision.
B. DELAWARE LAW PROVIDING PETITIONER
WITH THE OPPORTUNITY TO RETAKE THE
BAR EXAMINATION SATISFIES THE
REQUIREMENTS OF PROCEDURAL DUE
PROCESS ;
Even if Petitioner had not been provided with suffi-
cient information, numerous decisions of both state
supreme courts and federal appeals courts have held that
a board of bar examiners can refuse to provide a hearing
ee
24
or divulge any information to a failing applicant if that
applicant is provided with an opportunity to retake the
bar examination. For example, in Whitfield v. Illinois Board
of Law Examiners, 504 F.2d 474 (7th Cir. 1974), the court
held that a failing applicant was not entitled to discovery
of his examination papers, model answers or sample
passing answers when that applicant had the right to
retake the examination. The right to reexamination satis-
fies the purpose of a hearing and review of examination
papers by exposing grading errors and thus affords the
same protection to the applicant. Id. at 478.
The safeguards of the due process clause are
of course available to a failing bar applicant. .. .
While the opportunity to be heard is gener-
ally considered a fundamental component of
due process, entitlement to a hearing does not
automatically flow from a finding that pro-
cedural due process is applicable.
Tyler v. Vickery, 517 F.2d 1089, 1103 (5th Cir. 1975),
cert. denied, 426 U.S. 940 (1976). See also Fields v. Kelly, 986
F.2d 225 (8th Cir. 1993); Lucero v. Ogden, 718 F.2d 355 (10th
Cir. 1983), cert. denied, 465 U.S. 1035 (1984); Brewer v.
Wegmann, 691 F.2d 216, 217 (Sth Cir. 1982) (“Post-exam-
ination access to the bar examination papers, and oppor-
tunity to secure review of the fairness of the grade, have
thus been held by decisions of this circuit not to be
process that is due to unsuccessful applicants.”), cert.
denied, 461 U.S. 908 (1983).
The fact that Delaware does not provide an unlimited
right to reexamination, but rather provides an applicant
with the opportunity to take the Bar Examination three,
and in some cases four, times does not change the result.
See BR-52.8. In Jones v. Board of Commissioners of Alabama
State Bar, 737 F.2d 996, 1001 (11th Cir. 1984), the court
held that the Alabama rule limiting to five the number of
times an applicant can sit for the Alabama Bar Examina-
tion does not violate the due process clause. Reexamina-
tion was nonetheless considered a highly effective
method of insuring that mechanical error or arbitrary
conduct was not responsible for a failing examination in
light of the strong likelihood that grading error would
not occur five times. See also Poats v. Givan, 651 F.2d 495
(7th Cir. 1981) (Indiana Supreme Court rule limiting to
four the number of bar examinations an applicant may
take satisfies due process); Younger v. Colorado State Bd. of
Law Examiners, 625 F.2d 372 (10th Cir. 1980). |
As the Board has provided Petitioner with access to a
hearing, representative answers and also an opportunity
to retake the Bar Examination, it has more than complied
with the mandates of procedural due process. Thus, Peti-
tioner does not have the right to seek further discovery
and both the Board and the Delaware Supreme Court
correctly so held.
IV. PETITIONER’S SUBSTANTIAL RIGHTS HAVE
NOT BEEN AFFECTED
The Board’s denial of Petitioner’s request for recon-
sideration did not affect Petitioner’s substantial rights
because Petitioner may reapply to sit for the Bar Exam- ©
ination for a third time. As set forth above (see supra pp.
24-26) courts have consistently held that the opportunity
to retake the bar examination satisfies procedural due
process. See, e.g., Jones v. Board of Comm'rs of Ala. State Bar,
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737 F.2d 996, 1001-02 (11th Cir. 1984). Because Delaware
law provides Petitioner with this opportunity, she has not
established that her substantial rights have been affected,
or that she has been denied procedural due process.
Vv. THE JUDGMENT BELOW WAS NOT CLEARLY
ERRONEOUS
Petitioner asserts that the Delaware Supreme Court
erred by: (1) allowing Justice Walsh to participate in her
case notwithstanding his alleged “disqualification”; (2)
granting motions for reconsideration of some applicants
and not for others; (3) relying upon an “erroneous” set of
facts; (4) remanding Petitioner’s case to the Board for a
character investigation; and (5) failing to investigate the
Board’s alleged misrepresentation of Delaware bar admis-
sion rates to the National Conference of Bar Examiners.
(Petition at 19-22). Despite Petitioner’s bold allegations, it
is clear that the Delaware Supreme Court properly deter-
mined to deny Petitioner’s request for reconsideration.
A. THE ISSUE OE THE DISQUALIFICATION OF
JUSTICE WALSH WAS NOT ERROR
Petitioner claims that the Delaware Supreme Court
“committed plain error” when Justice Joseph T. Walsh
participated in the consideration of her petition notwith-
standing a December 7, 1993 entry on the docket of
Petitioner’s case noting Justice Walsh’s purported dis-
qualification in the matter. (Petition at 19). However,
Petitioner cites no valid reason why Justice Walsh should
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ESTAR ee: SS ead PRO Me, OSE Fe MEE FE Sea OME Cae Nn OL OL Crepe eee ar ye EE Ag ge BRR ATR YA LA Ay ey eR AEE AE Se YOY See ner ee
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27
have been disqualified from considering her petition, and
in fact, no valid reason for such disqualification exists.
Rather, the December 7, 1993 docket entry noting
Justice Walsh’s purported disqualification was merely an
error, and Petitioner was notified of this fact upon discov-
ery of the error on January 31, 1994. (Appendix at b6-7).
Thus, as there was no reason for the disqualification, it
cannot possibly support a decision reversing the Dela-
ware Supreme Court’s Order denying Petitioner’s
request, particularly in light of the fact that the Delaware
Supreme Court’s Order was unanimous. The cases cited
by Petitioner are inapposite. See Moody v. Simmons, 858
F.2d 137 (3d Cir. 1988) (judge acted inappropriately by
continuing to sit on case despite appearance of partiality
resulting from his daughter’s employment by interested
party to the litigation), cert. denied, 489 U.S. 1078 (1989);
Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir.
1983) (in determining whether case had achieved en banc
status, court did not count judge who validly recused
himself), cert. denied, 464 U.S. 1040 (1984).
B. THE DELAWARE SUPREME COURT PROP-
ERLY DETERMINED TO UPHOLD THE
BOARD’S DENIAL OF PETITIONER’S
REQUEST FOR RECONSIDERATION
The remainder of Petitioner’s arguments are equally
untenable. First, the Delaware Supreme Court, in the
exercise of its discretion, may determine to grant some
motions for reconsideration and deny others. The Peti-
tioner’s motion was based on Delaware Supreme Court
Rule 52(f) which provides:
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28
The Court may summarily refuse a petition
which does not affect the substantial rights of
the person claimed to be aggrieved.
In this case, after reviewing the submissions of Petitioner
and that of the Board, the Delaware Supreme Court deter-
mined that Petitioner’s substantial rights were not
aggrieved. As set forth above (see supra pp. 24-26), Dela-
ware law provides Petitioner with the opportunity to
retake the Bar Examination, thus, the court’s determina-
tion that her substantial rights have not been impaired is
established. See, e.g., Whitfield v. Illinois Bd. of Law Exam-
iners, 504 F.2d 474, 478 (7th Cir. 1974). The fact that the
court may determine that other failing applicants have
had their substantial rights aggrieved does not affect the
court’s valid determination with respect to Petitioner.
Second, Petitioner alleges that the Delaware Supreme
Court erred because it relied on an erroneous set of facts
with respect to Petitioner’s covert taping of an interview
with a member of the Board. Despite Petitioner’s state-
ment to the contrary, this issue is irrelevant. Whether
Petitioner’s surreptitious taping was in person or over
the telephone has absolutely nothing to do with Peti-
tioner’s Bar Examination or the Board’s grading or
review of that Bar Examination. It relates, if at all, only to
any subsequent character assessment of Petitioner should
she determine to apply to retake the Bar Examination.
Accordingly, the taping issue is not properly before this
Court and is utterly irrelevant to this Court’s determina-
tion of whether to grant the writ.
Third, except as it relates to this Court’s jurisdiction,
the Delaware Supreme Court's remand of the case to the
Board for a character investigation of Petitioner is also
irrelevant to the issue of the Petitioner’s Bar Examination
and the Board’s determination with respect to that exam-
ination. The Board's grading of Petitioner’s Bar Examina-
tion was anonymous. Thus, there is no possibility of
prejudice against Petitioner that may result. See BR-52.6.
Finally, the Delaware Supreme Court did not err in
failing to investigate any alleged misrepresentation of
Delaware bar admission rates to the National Conference
of Bar Examiners. The record is unclear as to what statis-
tical error, if any, was made. Further, this issue is irrele-
vant to any claims that Petitioner is making in this Court,
as it was irrelevant to the claims Petitioner made in the
Delaware Supreme Court. The limited issue here is the
Petitioner’s score for the 1993 Bar Examination and the
Board’s determination with respect to that Bar Examina-
tion. Thus, the Delaware Supreme Court did not err in
failing to investigate this collateral matter.
¢
30
CONCLUSION
For the foregoing reasons, Respondents respectfully
request that the Petition for a Writ of Certiorari be
denied.
Respectfully submitted,
E. N. Carpenter, Il
Counsel of Record
THomas A. Beck
ALLISON L. AMORISON
RicHARDs, Layton & FINGER
One Rodney Square
Wilmington, DE 19801
(302) 658-6541
Counsel for Respondents Board of Bar
Examiners of the State of Delaware
and the Members Thereof
b1
APPENDIX
IN THE SUPREME COURT OF
THE STATE OF DELAWARE
In Re: Application of ) 1993
Sharon Ann Ziegler to ) Bar Examination
the Delaware Bar )
RESPONSE OF BOARD OF BAR EXAMINERS
OF THE STATE OF DELAWARE
TO NOTICE OF APPEAL
AND MOTION FOR DISCOVERY OF
SHARON ANN ZIEGLER
(Filed Dec. 15, 1993)
The Board of Bar Examiners of the State of Delaware
(the “Board”) responds to the Notice of Appeal (the
“Notice”) of Sharon Ann Ziegler (“Petitioner” or “Ms.
Ziegler”) based on the following facts and law:
Background
1. Petitioner sat as an applicant to the Bar of the
State of Delaware at the Board’s administration of the
1993 Delaware Bar Examination. This is the second time
petitioner has taken the Delaware Bar Examination. The
Bar Examination consisted of the Multistate Bar Examina-
tion (“MBE”) administered by the National Conference of
Bar Examiners and 12 essay questions as prescribed by
Board Rule (“BR”) 52.4.
2. After its administration, the Secretary of the
Board distributed the applicants’ answers to the Board
members who had primary responsibility for drafting the
essay questions. After assigning a grade to each answer,
b2
each Board member submitted the results to the Secre-
tary. Exhibit A shows that on September 24, 1993 Peti-
tioner, Applicant No. 42, had achieved an average of 62.5
on the 12 essay questions. Each Board member then
reviewed the answers of Applicant No. 42 again, and as a
result of adjustments made in single point increments
pursuant to the review, Applicant No. 42 achieved an
average of 63.75 (See Exhibit B). Based on these results,
the Board determined on October 7, 1993 that Applicant
No. 42 failed the Bar Examination. The Board notified the
applicant by certified mail of the results of the examina-
tion.
3. Subsequently, Applicant No. 42 petitioned the
Board for a review of five of her twelve answers. (See
Exhibit C). Each member who had primary responsibility
for drafting those essay questions once again reviewed
the applicant’s answers.
4. At its November 16, 1993 Board meeting, the
Board adjusted the grades on one of the five answers of
Applicant No. 42. The adjustment increased the appli-
cant’s aggregate by 5 points and raised her average from
63.75 to 64.17, which was still short of the 65.0 average
required uncer BR-52.4(c). The Board therefore deter-
mined to deny the applicant’s petition. At no time prior
to the filing of her petition to the Court was the identity
of Applicant No. 42 revealed to the members of the
Board.
The Notice Of Appeal
5. In her “Notice of Appeal” before the Court, Ms.
Ziegler fails to meet her burden of demonstrating that the
Board abused its discretion in its review of her answers to
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the essay questions of the Bar Examination. See Petition of
W.M.I., Del. Supr., 394 A.2d 207, 208 (1978). She has not
shown fraud, coercion, arbitrariness or manifest unfair-
ness by the Board in its determination concerning Ms.
Ziegler’s proficiency. Absent such factual allegations, Ms.
Ziegler’s “Notice” seeking to set aside the Board’s deter-
mination should be dismissed. See In re Reardon, Del.
Supr., 378 A.2d 614, 618 (1977). See also Petition of
DeOrsey, R.1. Supr., 312 A.2d 720 (1973) (absent “clear
unequivocal allegations of probative facts,” the Court will
not “embark on an investigation to ascertain the integrity
of the examination results”). Further, petitioner may sit
for further examination, therefore she has not shown that
the Board’s action affects her substantial rights. Del. Supr.
Ct. Rule 52(f); In re Petition of Nicholas N. Leach, Del. Supr.,
No. 197, 1986 (June 25, 1986).
6. In addition, in her petition for regrading below
(Exhibit C) the applicant stated:
I understand that great care is taken in grading
all the examinations, however, there is always
the possibility of unintentional human error.
This is why I request that the essay section to
my 1993 Delaware Bar Examination be
regraded. (Petition { 4)
Petitioner’s appeal is inconsistent, therefore, with her
petition to the Board.
7. Petitioner also has not demonstrated any viola- _
tion of the due process or equal protection clauses of the
Constitution. In order to do so, petitioner would have to
allege facts to show that the procedures adopted by the
b4
Board did not have a reasonable basis or rational connec-
tion between it and a legitimate State interest. In re Rear-
don, supra at 618-619 (“The Constitution does not require
a perfect test nor does it require perfect examiners; it
requires only a rule of rationality.”)
8. Petitioner seeks to support her appeal upon the
basis of what purport to be excerpts from her conversa-
tion with Board member Michael Rich, which was taped
by her without his knowledge or consent. Apart from the
failure of such excerpts to support her petition, the con-
duct of the petitioner as a member of the Pennsylvania
Bar was improper, and the excerpts from the taping
should not be considered. Jerome Kaplan v. Oscar S. Wyatt,
Jr., et al., Del. Ch., C.A. No. 6361, Brown, C. (January 18,
1984) citing ABA Comm. on Ethics and Professional
Responsibility, Formal Opinion 337 (1974). Mr. Rich’s
alleged statements in any event, do not support peti-
tioner’s argument as set out in paragraphs 2 and 4, supra.
9. Petitioner has not shown that the “multiple cut-
off” scoring system is arbitrary or violates her due pro-
cess or equal protection rights. The use of both the MBE
and the essay tests are rationally related to the legitimate
purpose of measuring professional competence. See In re
Petty, Del. Supr., 410 A.2d 1021, 1023-24 (1980).
10. Nor has petitioner made the necessary showing
for the grant of discovery she seeks, e.g., a prima facie
showing of impropriety by the Board. In re Petty, supra at
1024. In the absence of such a showing, an applicant is
“not entitled to explore for it among the Board’s adminis-
trative process.” Id.
b5
11. Finally, petitioner’s allegations regarding viola-
tions of Professional Conduct Rule 8.4(c) and 15-US.C.A.
§§ 1 and 2 are entirely unsupported, but in any event
need not be considered as they do not affect petitioner’s
substantial rights. Del. Supr. Ct. Rule 52(f); Petition of
W.M.I., supra.
12. Accordingly, under the foregoing circumstances
and absent any allegation of abuse of discretion by the
Board, the Motion for Discovery and Notice of Appeal
should be denied and the appeal dismissed.
Respectfully submitted,
/s/ Josy Ingersoll
Josy W. Ingersoll
Secretary, Board of Bar
Examiners
11th Floor, Rodney Square
North
P. O. Box 391
Wilmington, Delaware
19899-0391
(302) 571-6672
Dated: December 15, 1993
Re ere we Pe
b6
SUPREME COURT OF DELAWARE
MEMORANDUM
(Filed Jan. 31, 1994)
FROM: JUSTICE WALSH
TO: Margaret L. Naylor, Esquire
Clerk of the Supreme Court
RE: Application of Sharon Ann Ziegler
No. 438, 1993
DATE: January 31, 1994
On December 7, 1993, I entered a disqualification in
the above referenced matter. This notice was entered in
error. Please make the appropriate entry on the docket
and advise the parties to that effect.
/s/ J. Walsh
JIW:IIf
xc: Chief Justice Veasey
Justice Horsey
Justice Moore
Justice Holland
b7
IN THE SUPREME COURT OF THE |
STATE OF DELAWARE :
vs No.
) |
In Re: Application of ‘ SS. 1998 |
Sharon Ann Ziegler ) )
(Applicant No. 42) |
The following docket entry has been made in the above
cause.
Jan. 31. Memo dated 1/31/94 from Justice Walsh to
Clerk withdrawing his disqualification in the
above referenced matter. Parties notified.
& ee. Sharon Ann Ziegler
Josy W. Ingersol, Esquire
Henry N. Herndon, Jr., Esquire
/s/ pm
Clerk
Date: January 31, 1994
PN la et aos eo al eS ee Ee See ee ee
b8
SUPREME COURT OF DEALWARE
MARGARET L. SUPREME COURT
NAYLOR, ESQUIRE BUILDING
Clerk 55 THE GREEN
P.O. BOX 476
DOVER, DE 19903
CATHY L. HOWARD
Assistant Clerk
(302) 739-4155
February 17, 1994
William J. Wade, Esquire
Chairman
Board of Bar Examiners
200 W. 9th St., Suite 300
Wilmington, DE 19801
RE: In re Petition of Ziegler, No. 438, 1993
Dear Mr. Wade:
At the direction of the Court, I am writing to advise
the Board that Justice Walsh’s disqualification was erro-
neously entered on the docket by the Clerk’s office in the
above captioned matter. Justice Walsh was not, in fact,
disqualified in the matter. In addition, I am enclosing a
copy of a letter which was purportedly written by Ms.
Ziegler and which appeared in the January 31 — February
6 edition of the Delaware Business Review.
Very truly yours,
/s/ Margaret L. Naylor
Et Lee TT AS Oy TEI Ge) LOE, Mae TTR Re eRe OR PA tae
Enclosure(s)
ce: Henry N. Herndon, Jr., Esquire
(with copy of enclosures)
Josy W. Ingersoll, Esquire
(with copy of enclosures)
Ms. Sharon Ann Ziegler
(with copy of enclosures)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.