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Glaser v. Board of Bar Examiners

filed*fn*: February 11, 1994.

BARRY S. GLASER, PLAINTIFF-APPELLANT,
v.
BOARD OF BAR EXAMINERS, THE SUPREME COURT OF THE STATE OF HAWAII, ET AL., DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-91-00506-ACK. Alan C. Kay, District Judge, Presiding

Before: Wallace, Chief Judge, Garth*fn* and Wiggins, Circuit Judges

MEMORANDUM

FACTS

Appellant took the summer 1990 Hawaii bar exam. He scored 72.4% on the essay exam and 67.2% on the MBE, for a combined average of 69.8%, only 0.2% below passing. The Hawaii Supreme Court ordered him not admitted. Hawaii procedure at that time was to regrade automatically, prior to obtaining applicants' MBE scores, all essay exams with scores between 65% and 69.9%. Appellant's essays, which exceeded this range, were not regraded.

Appellant protested. He sent two letters to Hawaii, each addressed to the Hawaii Board of Bar Examiners ("Board") and the Hawaii Supreme Court. He said regrading was unfairly, unequally and prejudicially limited only to essay exams scoring between 65% and 69.9%. He requested his essays be regraded. The Court responded with a document captioned "In re Barry Stuart Glaser for Admission to the Bar of the State of Hawaii -- July 1990 Bar Examination." It was entitled "Order," and stated:

Upon consideration of the petition by Barry Stuart Glaser, seeking to regrade his bar examination scores, and the Court being advised by the Board of Examiners that the bar examinations were properly graded and reviewed,

IT IS HEREBY ORDERED that the petition be denied.

Defendant Chief Justice Lum signed the Order. The Board responded to a later letter from Appellant and declined to recommend regrading in light of the Hawaii Supreme Court's Order.

Appellant then filed this suit under 42 U.S.C. § 1983 against the Hawaii Supreme Court, Chief Justice Lum in his official capacity, and the Board (collectively "Defendants" or "Appellees"). Appellant alleged, inter alia, that (1) the regrading policy violated due process and equal protection (a) as applied to Appellant and (b) in general and (2) the actions and practices of the Supreme Court in response to Appellant's letters deny due process. Appellant also alleged that other than allowing him to send letters, the Board denied him means of presenting his case; no formal pleading, appearance by him or his attorney, or any further hearing was allowed. Only the Board's clerk presented Appellant's views to the Board. Appellant sought money damages; equitable, injunctive, and declaratory relief; and attorneys' fees.

After Appellant took the deposition of Judge Heely, a Board member, Defendants moved to dismiss or for summary judgment, showing the following: The Hawaii Supreme Court has "ultimate authority" over legal practice in Hawaii. The Board gives the bar exam and determines qualifications. Board members who grade exams are volunteers. In 1990, regrading was done by the initial grader of each question. The essay exam was 17 questions scored 0-100. The average score was the essay exam score. On regrading, the original essay scores, whether higher or lower, were discarded. Only automatic regrading was done; requests for regrading were not granted. The National College of Bar Examiners grades the MBE.

In 1990, a Board committee reviewed the bar exam process. As a result, the Board made several changes, including to regrading. In 1991, essay exams of applicants whose averaged MBE and essay scores equalled 67.5% to 69.9% were regraded. The final essay score was the average of the original and regrade scores. In 1992, the Board adopted further changes, including elimination of all regrading.

The district court granted Defendants' motion. Because the court considered facts not in the pleadings, the ruling is best understood as a summary judgment. Fed. R. Civ. P. 12(c). The district court held that it lacked subject matter jurisdiction over Appellant's claims that Hawaii unlawfully denied him admission. As to Appellant's general claims, the district court held that the challenged procedures were constitutional. The court denied attorneys' fees. From these decisions, Appellant appeals. We review subject matter jurisdiction issues and summary judgment de novo. Reebok Int'l, Ltd. v. Marnatech Enter., 970 F.2d 552, 554 (9th Cir. 1992); Jones v. Union Pac. RR., 968 F.2d 937, 940 (9th Cir. 1992). When the district court ruled, Appellant had pending a motion to amend his complaint to add "Doe" defendants.

ANALYSIS

I. Individualized ...


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