Wednesday, January 13, 2010

Discovery Denied In Hearing Over Bar Exam Failure

An applicant who had failed the February 2008 bar examination requested information from the North Dakota Board of Law Examiners for a hearing concerning the non-admission recommendation.  The North Dakota Supreme Court agreed with the district court that the information sought was specifically exempt from public disclosure and did not fall within any exception. The facts:

Based on the results of Lamb's February 2008 bar examination, the State Board of Bar Examiners recommended Lamb not be admitted to the Bar of North Dakota. Lamb requested a formal hearing under Admission to Practice R. 10(B) before the State Board of Law Examiners. Before the hearing, he moved for discovery requesting information about: (1) grading techniques; (2) how raw scores are converted; (3) whether the Board performs periodic assessments of its scores; (4) whether a report is available of psychometric procedures; (5) whether the Board has an ongoing assessment of its procedures; (6) what practices the Board uses in maintaining acceptable standards; (7) how the essay scoring judges are trained; (8) whether a content analysis has been conducted to measure the relationship of questions to being competent in the legal profession; and (9) security measures and related bar examination information. The Board's Hearing Panel denied his motion, but provided information regarding: (1) selection and preparation of graders; (2) grading guidelines given to graders; (3) selection of test questions; (4) how often the pass fail policy is reviewed; (5) where the conversion and scaling of scores are performed; and (6) where the Multistate Performance Test and Multistate Essay Examination questions are prepared. Lamb also emailed the secretary-treasurer of the Board and requested information under the open records laws. In response, the Board provided its annual reports for the past ten years. Lamb requested an Attorney General's opinion on whether the Board had violated the open records law. The Attorney General did not consider Lamb's request because Lamb submitted it more than thirty days after the alleged violation.

Lamb applied for a writ of mandamus to the district court. In his application, he asked the district court to compel the Board to provide "certain requested information . . . which was submitted in a formal request to the Board, and denied." He also asked the court to order the Board to provide information and documentation regarding the February 2008 bar exam procedures, including "e-mails, phone messages, letters, memoranda, notes, minutes of meetings, training materials, and all relevant documentation." After the parties submitted briefs, the district court heard oral argument. The district court issued an order denying Lamb's application for a writ. In its order, the district court noted that the Board had provided Lamb with a great deal of information including: a copy of his two personal Multistate Performance Test question and answer booklets with the drafter's point sheet and model answers for each, a copy of his personal six Multistate Essay Examination question and answer booklets and the analyses for those questions, and a copy of the North Dakota State Board of Law Examiner's Grading Guidelines. The court also stated it was unable to identify any confidentiality exceptions relevant to Lamb's case under the North Dakota Century Code, North Dakota Constitution, or North Dakota Admission to Practice Rules. Therefore, the court concluded that Lamb failed to establish he had a clear legal right to the information because he could not demonstrate the information was an exception to the confidentiality provisions of the Admission to Practice Rules or an open records exception under N.D.C.C. ยง 44-04-18.8. Lamb appeals both the memorandum decision and order denying his writ of mandamus and the order denying the motion to reconsider.

The court here concluded that mandamus relief was not available. My experience suggests that this approach to a failure can be, at best, unhelpful in securing eventual admission. (Mike Frisch)

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