In re Jeffrey G. Oden, 202 A.3d 252

Jeffrey G. Oden (applicant) sought permission to sit for the February 2018 Vermont UBE; he had previously failed the Maryland bar exam six times and later passed it in 2014.
The Vermont Board of Bar Examiners denied his request under V.R.A.B. 9(b)(4), which provides that an applicant who has failed the bar examination four times will not be permitted to sit for the UBE in Vermont.
The Rule allows a waiver of the four-attempt limit upon a strong showing of substantial improvement and good cause; Board Notes state the Board cannot permit a sixth attempt, but those Notes are advisory.
Applicant argued the term “bar examination” is ambiguous and applies only to the UBE (so prior non-UBE failures shouldn’t count) and that the four-attempt limit violates due process.
The Board argued the plain language covers any bar examination and defended the rule as rationally related to protecting the public by assuring competence.
The Vermont Supreme Court reviewed de novo (plenary authority over admission rules), affirmed the Board’s denial, construed the rule to cover any state bar exam failures, upheld rational-basis legitimacy, and held the Board may waive the limit even after five or more failures because the Notes are advisory only.

Issue	Oden's Argument	Board's Argument	Held
Does “bar examination” in V.R.A.B. 9(b)(4) mean only the UBE or any state bar exam?	Term is ambiguous and refers only to the UBE; Maryland non-UBE exams shouldn’t count.	Plain language refers to bar examinations generally; no textual limit to UBE.	The rule covers any state bar examination failures; not limited to the UBE.
Does the four-attempt limit violate due process?	Limit lacks rational connection to fitness to practice law.	Limitation is rationally connected to protecting the public and ensuring competence.	Rule is rationally related to State’s interest; due-process upheld.
Can the Board waive the four-attempt limit after five or more failures?	(Argued by applicant/raised) Board should be able to grant waiver regardless of number of prior failures.	Board Notes assert they cannot permit a sixth sitting, but Notes are advisory.	The Board has waiver authority regardless of number of failures; the Board Notes’ sixth-attempt prohibition is advisory and not controlling.
Standard of review over Board’s decision	(Implicit) Applicant sought deference to Board’s Rules interpretation.	Court has plenary authority to construe admission rules despite usual deference.	Court reviews rule interpretation and Board’s action with plenary authority; affirms Board here.

Schware v. Bd. of Bar Exam’rs, 353 U.S. 232 (1957) (due-process standard: qualifications must have rational connection to fitness to practice law)
Widschwenter v. Bd. of Bar Exam’rs, 151 Vt. 218, 559 A.2d 674 (Vt. 1989) (Board is an arm of the Court but Court not bound by Board decisions)
Younger v. Colo. State Bd. of Law Exam’rs, 625 F.2d 372 (10th Cir. 1980) (upheld limitation on attempts as having rational connection to fitness)
Sarazin v. Vt. Bd. of Bar Exam’rs, 161 Vt. 364, 639 A.2d 71 (Vt. 1994) (Court may decide rule-construction issues in interests of judicial economy)