Reply Brief — Ziegler v. Board of Bar Examiners

) | Supreme Court, U.S. ™

FILED

y MAY 6 1994

No. 93-1501 : OFFICE OF THE Click

In The

SUPREME COURT OF THE UNITED STATES

SHARON ANN ZIEGLER,

Petitioner, Pro Se,

V.

THE SUPREME COURT OF DELAWARE, et al.,

and THE BOARD OF BAR EXAMINERS OF THE

STATE OF DELAWARE, et al.,

Respondents.

October Term, 1993

On Petition For Writ of Certiorari

To The Supreme Court of Delaware

PETITIONER’S REPLY BRIEF

SHARON ANN ZIEGLER

P.O. Box 142

Magnolia, DE 19962

(302) 335-5703

Petitioner, Pro Se

May 6, 1994

TABLE OF CONTENTS

pro kt ee PPV TTTETEET REET i

TABLE OF AUTHORITIES. .........scc000- ii-iii

I. The United States Supreme Court can

assume jurisdiction over this matter despite

contrary assertions by the Delaware

Supreme Court and the Board of Bar

Examiners of the State of Delaware ........ 1

II. The United States Supreme Court

should grant certiorari in order to

determine if the non-use of a reasoned

point scoring system in grading bar

examinations, constitutes arbitrary conduct

on behalf of a state’s examining committee

in derogation of an applicant’s federal due

CE ain 00 5404656 00-0 dS~ bse 000 3

Ill. The United States Supreme Court

should grant certiorari in order to dictate a

policy enunciating what procedural

safeguards should be afforded applicants

denied a license based on their test

PE a oo ee ln Coe were teediscees 6

IV. The United States Supreme Court

should grant certiorari because Petitioner’s

due process rights were violated when

Justice Joseph T. Walsh heard her case ..... ?

TABLE OF AUTHORITIES

CASES PAGE

Aetna Life Insurance Co. v. Lavoie,

ck!) Bot: Pere 10

Chaney v. State Bar of Cal,

386 F.2d 962 (9th Cir. 1967),

cert. denied, 390 U.S. 1011

(1986) and cert. denied sub nom,

Chandler v. United States,

GR PTE A recs e cdvaveencéeues 3

Cohen v. Beneficial

Industrial Loan Corp.,

Se TEE 6.0.56 sd ecatecesvevease 2

Cox Broadcasting Corp. v. Cohn,

PERE Chia hocccccsceuvenar 2

Feldman v. State Bd. of Law Examiners,

ope Ue A) ) errr 3

In Re Murchison,

DY EE UEE ge ncd cvsceeentesees 10

In Re Pacheco,

Be ee Bee Crs BOTS) cccccccccvecsne 7

Jones v. Board of Comm'’s

of Alabama State Bar,

737 F.2d 996 (11th Cir. 1984) ........... 7, 8

Loeb v. New York State Bd.

of Law Examiners,

534 N.Y.S.2d 559

CRG EOEIED cece vcecncctvcssen 7

McGinn v. State Bar Bd.

of the State of N.D.,

Soe Wes Wee Ge CEU ISST) nc cece cvccs 5

North Dakota Pharmacy Board v.

Snyder’s Drugs Stores, Inc.,

Ge Gh Ee EE bbe errecssseeenenes 2

ll

Tumey v. Ohio,

DTCTEED cviccecevevedceeces 10

Tyler v. Vickery,

517 F.2d 1089 (Sth Cir. 1975),

cert. denied, 426 U.S. 940

EUPPEN SP OWES OCG Ces eecccecccccces 3, 7, 8

Whitfield v. Illinois Bd. of Law Examiners,

504 F.2d 474 (7th Cir. 1974) ............

STATUTES AND RULES

EE cede sccccccsccceccccerse 2

DELAWARE JUDGE’S CODE

OF JUDICIAL CONDUCT,

Vol. 16, Del. Code Ann. 777-775 ......... 10

RULES OF THE BOARD OF BAR

EXAMINERS OF THE STATE

OF DELAWARE, Vol. 16,

Del. Code Ann., 667-669 ..............4.. 6

MISCELLANEOUS

Bar Examiners’ Handbook .............0200000- 4

Klein, Comparison of Rules for Combining

Essay and MBE Scores, 52

THE BAR EXAMINER, Feb., 1983 .......... 5

Klein, Essay Grading: Fictions, Facts

and Forecasts, 54 THE BAR,

EXAMINER, August, 1985 .............. 4, 6

Moeser, Amendments to Code of Recommended

Standards for Bar Examiners, 56

THE BAR EXAMINER, May, 1987 ......... 5-6

No. 93-1501

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1993

SHARON ANN ZIEGLER,

Petitioner, Pro Se,

Vv.

THE SUPREME COURT OF DELAWARE, et al.,

and BOARD OF BAR EXAMINERS OF THE

STATE OF DELAWARE, et al.,

Respondents.

On Petition For Writ Of Certiorari

To The Supreme Court Of Delaware

PETITIONER’S REPLY BRIEF

The Respondents, the Delaware Supreme Court and

the Board of Bar Examiners of the State of Delaware

(hereinafter “"Board"), have not shown any basis for the

denial of certiorari.

I. The United States Supreme Court can assume

jurisdiction over this matter despite contrary assertions

by the Delaware Supreme Court and the Board of Bar

Examiners of the State of Delaware.

First, the Delaware Supreme Court contends that the

United States Supreme Court lacks jurisdiction because

the Delaware Supreme Court order is not final due to a

remand for further proceedings. The lower court argues

that Petitioner “fails to explain how her case fits” into one

of the Cox Broadcasting categories, Delaware Supreme

Court Opp. at 7-8.

The Delaware Supreme Court order is a final

judgment within the meaning of 28 U.S.C. sec. 1257(a)

and falls within the third category of cases delineated by

the United States Supreme Court in Cox Broadcasting

Corp. v. Cohn, 420 U.S. 469, 481 (1975). This category

involves cases that have finally decided all the federal

issues but include a remand for further proceedings.

Further review of the federal issues in these kinds of cases

is unattainable. See also, North Dakota Pharmacy Board

v. Snyder’s Drug Stores, Inc., 414 U.S. 156 (1973).

If the United States Supreme Court does not assume

jurisdiction over this matter, Petitioner's due process

rights will be irreparably lost. See, Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 546 (1949). The

Delaware Supreme Court has finally decided Petitioner’s

federal constitutional claims respecting the arbitrary,

unconstitutional grading and administration of the 1993

Delaware Bar Exam. The remand pertains solely to the

collateral matter of the tape recording. The Board

acknowledges this by maintaining that the issue for

remand “was not a ground for the Delaware Supreme

Court’s refusal of her appeal," Board Opp. at 8.

Therefore, based on legal precedent and based on all the

foregoing contentions, made by both the Petitioner and

the Board, the Delaware Supreme Court order is a final

judgment.

Second, the Board argues that this Court lacks

jurisdiction because Petitioner did not raise a valid federal

constitutional claim, Board Opp. at 2. The Board,

however, grounds this argument in the misplaced view

that Petitioner is generally challenging the use of essay

questions as unreliable because there is always an element

of subjectiveness involved in grading them. The Board

has completely misconstrued Petitioner’s allegations.

Petitioner has never alleged honest errors of judgment or

unavoidable mistake inherent in subjective grading, Board

Opp. at 3. Correctly stated, Petitioner asserted that the

grading of the 1993 Delaware bar exam was arbitrary and

in violation of her constitutional rights because the

Examiners did not utilize and consistently apply any point

scoring system in grading the exams. Therefore, the cases

cited by the Board in supzort of their arguments are

distinguishable because they do not correspond to the

actual arguments made in this case. Board Opp. at 2-3,

Tyler Vickery, 517 F.2d 1089 (Sth Cir. 1975), cert. denied,

426 U.S. 940 (1976), Whitfield v. Illinois Bd. of Law

Examiners, 504 F.2d 474 (7th Cir. 1974), Feldman v. State

Bd. of Law Examiners, 438 F.2d 699 (8th Cir. 1971) and

Chaney v. State Bar of Cal, 386 F.2d 962 (9th Cir. 1967), \

cert. denied, 390 U.S. 1011 (1968) and cert. denied sub

nom, Chandler v. United States, 440 U.S. 927 (1979).

Il. The United States Supreme Court should grant

certiorari in order to determine if the non-use of a

reasoned point scoring system in grading bar

examinations, constitutes arbitrary conduct on behalf of

a state’s examining committee in derogation of an

applicant’s federal due process rights.

The Board maintains that the procedures utilized in

the administration of the 1993 Delaware Bar Exam were

exemplary and rationally connected to Petitioner’s fitness

and capacity to practice law. The Board supports this

contention by stating that Petitioner is challenging the

general use of essay questions and that it is permissible to

use essay questions, Board Opp. at 14-16. Again, the

Board’s logic is misplaced. Petitioner is not challenging

the use of essay questions. The fact that the Board did

not utilize a reasoned point scoring system in grading the

1993 bar examinations is uncontested. William J. Wade,

Esq., Vice-Chairman of the Board, stated that a scoring

guideline is not used, Pet. at 5. Petitioner’s exam answers

mirrored the selected answers that received much higher

scores. And, the Board has never presented any evidence

that it did utilize or consistently apply a specific point

scoring formula in grading the 1993 exams.

The Board argues that an exam is not arbitrarily

graded when the same Examiner regrades multiple times,

the essay question he or she wrote and when the scores

are given in five point increments, Board Opp. 5-6. The

Board recognizes this as their only grading criteria. The

Board asserts that this procedure constitutes a sufficient

grading formula "and reduces the possibility of any

grading inconsistencies,” Board Opp. at 16-17. In contrast,

see Stephen P. Klein, Essay Grading: Fictions, Facts and

Forecasts, 54 THE BAR EXAMINER, August, 1985, at 23-

24, wherein Dr. Klein, expert as recognized by the Board,

Board Opp. at 7-8, footnote 2, discredits the Bar

Examiners’ Handbook recommendation that all answers to

a particular question should be graded by the same

reader. Klein explains that it is a misconception that one

reader is better. He states that when this method is used,

it often leads to grading practices that do not "satisfy basic

professional standards for score reliability and fairness to

applicants." Jd. at 23.

In support of their argument, the Board relies on the

case, McGinn v. State Bar Bd. of the State of N.D., 399

N.W.2d 864 (N.D. 1987). The Board’s reliance on

McGinn, however, is inapposite for three reasons. First,

the Board in McGinn utilized the equipercentile method

of combining scores. Dr. Klein has recognized any

method of combining scores as preferable than the

multiple cut-off scoring system utilized in Delaware, see

Stephen P. Klein, Comparison of Rules for Combining

Essay and MBE Scores, 52 THE BAR EXAMINER, Feb.,

1983, at 24-25, 28. Second, the North Dakota board

utilized a system of regrading certain essays whereby

different graders reviewed the original scores received.

Thus, the Court concluded that because so many different

individuals reviewed the applicant’s scores and were in

close agreement, the applicant could not establish that the

exams were arbitrarily graded. This is not the system

employed in Delaware. According to the Delaware

Board, "each member who had primary responsibility for

drafting those essay questions once again reviewed

Petitioner's answers," Board Opp. at 6-7. Therefore,

different graders did not review Petitioner's essay

questions. Last, McGinn is clearly distinguishable because

at the time of the North Dakota Supreme Court decision,

the applicant had already been admitted to the practice of

law in North Dakota.

In reading the Board’s response, it appears that the

Board does not understand the meaning of a grading

formula. In Erica Moeser’s article, Amendments to Code

of Recommended Standards for Bar Examiners, 56 THE

BAR EXAMINER, May, 1987, at 25, amendment 21

specifically states that “[b]efore an essay question is

accepted for use every point of law in the question should

be thoroughly briefed and the question should be analyzed

and approved by . . . the bar examining authority." Also,

Stephen P. Klein has stated that:

"A preliminary scoring guide for a question

should be developed before the test is

given. This helps to assure the question

really measures what it is supposed to

measure. For instance, do the persons who

review the question agree with the guide?

After the test is administered, the readers

assigned to the question should also review

the guide for appropriateness. This activity

includes reading several answers to

determine whether the question elicited the

responses that were articipated. If not, the

scoring guide should be revised in a way

that indicates how to handle common

responses." Klein, Essay Grading, at 26.

Understandably, grading essay questions is inherently

subjective, but the use of a specific Court-approved point

scoring guide is the only way to restrain arbitrary grading.

There is no system of checks and balances in Delaware.

The Delaware Supreme Court is not statutorily required

to approve of any grading formula. The Board has sole

power to grade and review the exams as well as decide

what will be tested and determine who will be admitted.

See, RULES OF THE BOARD OF BAR EXAMINERS OF THE

STATE OF DELAWARE, BR-52.4 and BR-52.6. Therefore,

the Delaware Supreme Court and the Board acted

arbitrarily when they did not utilize and consistently apply

any kind of grading guide. They violated Petitioner’s

federal constitutional rights when they deprived her of the

right to practice in a profession for which she is fully

qualified.

III. The United States Supreme Court should grant

certiorari in order to dictate a policy enunciating what

procedural safeguards should be afforded applicants

denied a license based on their test performance.

The procedures utilized by tne Delaware Supreme

Court and the Board do not satisfy procedural due process

requirements. The Board maintains that Petitioner was

granted Board reconsideration and that her grade was

raised to 64.17%, Board Opp. at 6-7. However, the Board

later contradicts itself by stating that Petitioner was

denied Board reconsideration, Board Opp. at 19.

Petitioner was informed by the Board, only, that her

petition for Board reconsideration was denied, see App.,

infra, cl. No explanation was given. Therefore, it is

Petitioner’s contention that since the Board cannot

factually determine whether she was granted Board

reconsideration, she was denied procedural due process at

the state level.

Furthermore, the Board alleges that the denial of

information sought by Petitioner and the denial of a

hearing at the state level with respect to her examination

does not violate due process. In support of their

arguments the Board cites Tyler, Whitfield, In re Pacheco,

514 P.2d 1297 (N.M. 1973) and Loeb v. New York State

Bd. of Law Examiners, 534 N.Y.S.2d 559 (N.Y. App. Div.

1988). These cases, however, are distinguishable from the

present case because Delaware has a three time

examination limitation. All the cases cited by the Board,

with the exception of Jones v. Board of Comm’s of

Alabama State Bar, 737 F.2d 996 (11th Cir. 1984),

specifically predicate their holdings i.e. denial of discovery

and the denial of a hearing, on the fact that their

jurisdictions allowed an applicant an unqualified right to

retake the examination an unlimited number of times.

Even in the Jones case, the dissent severely criticized the

majority’s ruling when it relied on the Tyler line of cases.

The dissent held that the majority deviated from binding

precedent when an applicant was denied discovery and a

hearing despite a five time exam limitation. The dissent

declared that a five time exam limitation combined with

the limited right to review violates due process, see Jones,

at 1005.

"Clearly this case should not have been

dismissed on its complaint. A finding of no

violation of due process, like any other

finding, must be based on facts developed,

argued, and analyzed. My position in this

case is simply stated and supported by all of

the law on the subject: Applicants who fail

a state’s bar examination must have either

the right to full review of their examinations

(a hearing), or have the right to unlimited

times to retake the examination,” Jones, at

1004-1005.

Moreover, the Tyler Court held that since the Georgia bar

examination is given every six months, reexamination

would provide quicker relief to "an erroneously failed

applicant" than would a hearing, Tyler, at 1104. In

Delaware, the bar exam is administered every twelve

months. Therefore, in contrast to the situation in Tyler,

reexamination in Delaware will not provide speedy relief

to an applicant graded in an arbitrary manner.

In sum, the Board denied Petitioner procedural due

process when it refused to grant Petitioner access to

pertinent information regarding her exam. The Delaware

Supreme Court denied Petitioner procedural due process

when it rejected her appeal and denied her the right to a

review.

IV. The United States Supreme Court should grant

certiorari because Petitioner’s due process rights were

violated when Justice Joseph T. Walsh heard her case.

The Delaware Supreme Court and the Board claim

that the disqualification entered by Justice Joseph T.

Walsh in this case on December 7, 1993, Pet. at a5, was

an error, Delaware Supreme Court Opp. at 3-4 and Board

Opp. at 26-27. Moreover, the Board contends that

Petitioner "cites no valid reason why Justice Walsh should

have been disqualified from considering her petition, and

in fact, no valid reason for such disqualification exists,"

Board Opp. at 27.

Despite the Board’s assertions that the disqualification

was erroneously entered, there was in fact a conflict.

Justice Walsh’s nephew, Peter J. Walsh, Jr., Esq., is a

_member of the Wilmington, Delaware law firm, Potter,

Anderson and Corroon. Two members of the Board,

James F. Burnett, Esq. and Michael D. Goldman, Esq.,

are likewise members of this same firm. The Delaware

Supreme Court and the Board never disclosed any

information regarding Justice Walsh’s conflict. Petitioner

was not able to discover the nature of the conflict before

filing her Petition because this information was strictly

within the purview of the Delaware Supreme Court and

the Board. However, before the Respondents filed their

responses, Petitioner was informed by an independent

source that Justice Walsh did have a personal conflict.

Upon request, Richard E. Fairbanks, Esq., Counsel of

Record for the Delaware Supreme Court, confirmed this

information on April 22, 1994.

Justice Joseph T. Walsh was under a statutory duty to

either withdraw or disclose the nature of his personal

conflict and obtain the parties written consent before he

decided to refuse Petitioner’s appeal. See DELAWARE

JUDGES’ CODE OF JUDICIAL CONDUCT, Canon

3C(1)(d)(ii) and 3D. Thus, since he did neither, Justice

Walsh violated the law and the Delaware Supreme Court

acted in contravention of Petitioner’s due process rights.

In In Re Murchison, 349 U.S. 133, 136 (1955), the United

States Supreme Court held that "a fair trial in a fair

tribunal is a basic requirement of due process." In Aetna

Life Insurance Co. v. Lavoie, 475 U.S. 813, 825 (1986), this

Court concluded that in order "to perform its high

function in the best way, ‘justice must satisfy the

appearance of justice.” Aetna, 475 U.S., at 825, citing

Murchison, 349 U.S., at 136. Moreover, In Turney v. Ohio,

273 U.S. 510, 523 (1927), this Court held that it is a

violation of the Fourteenth Amendment due process

clause when a person’s liberty or property is subjected "to

the judgment of a court the judge of which has a direct,

personal, substantial, pecuniary interest in reaching a

conclusion against him in his case." Therefore, it is

imperative that the United States Supreme Court assume

jurisdiction over this matter in order to preserve public

perception of judicial integrity.

CONCLUSION

For all the foregoing reasons, the petitioner for writ

of certiorari should be granted.

Respectfully submitted,

SHARON ANN ZIEGLER

P.O. Box 142

Magnolia, DE 19962

(302) 335-5703

Petitioner, Pro Se

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APPENDIX

BOARD OF BAR EXAMINERS

OF THE STATE OF DELAWARE

REPLY TO:

Josy W. Ingersoll, Esquire

Secretary, Board of Bar Examiners

P.O. Box 391

Wilmington, DE 19899-0391

(302) 571-6672

November 17, 1993

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Sharon Ann Ziegler

P.O. Box 142

Magnolia, DE 19962

Dear Ms. Ziegler:

I regret to inform you that the Board of Bar

Examiners denied your petition for reconsideration of

your grades on the July 1993 Bar Examination.

I direct your attention to Supreme Court Rule 52(f)

which governs appeal to the Court from action by the

Board.

Very truly yours,

/s/Josy W. Ingersoll

Secretary

JWI:cg

ce: Henry N. Herndon, Jr., Esquire

William J. Wade, Esquire

Donald E. Reid, Esquire

cl