224 Conn. 524 | Conn. | 1993
Lead Opinion
The principal issues in this appeal are: (1) whether the grading procedures of the Connecticut bar examining committee are arbitrary and capricious and therefore violate due process of law; and (2) whether a bar applicant who receives a failing score on the bar examination is constitutionally entitled to a judicial hearing for the purpose of regrading the applicant’s answers on the essay portion of the examination. The plaintiff, John J. Scinto, appeals from the judgment of the trial court denying his motion for summary judgment and granting the motion for summary judgment of the defendants, the Connecticut bar examining committee, and R. David Stamm, its administrative director.
The relevant facts and procedural history are as follows. In July, 1989, the plaintiff took the Connecticut bar examination and received a failing score of 262.79,
The defendants moved to dismiss the plaintiff’s petition on the grounds that the court lacked subject matter jurisdiction because: (1) the doctrine of sovereign immunity barred the plaintiffs claims; and (2) the plaintiff’s request for a declaratory judgment did not comply with Practice Book § 390 (d)
The trial court, Thim, J., subsequently denied the defendants’ motion to dismiss, ruling that the doctrine of sovereign immunity did not bar the plaintiff’s claims
Both sides moved for summary judgment. The trial court, McGrath, J., denied the plaintiff’s motion for summary judgment and granted the defendants’ motion for summary judgment. The trial court concluded that: (1) the grading procedures employed by the defendants were not arbitrary or capricious and therefore do not violate due process; (2) the plaintiff was not constitutionally entitled to a judicial hearing for the purpose of regrading his answers to the essay portion of the bar examination; and (3) the trial court lacked subject matter jurisdiction over the declaratory judgment aspect of the plaintiff’s claim because the
I
The plaintiff first claims that the trial court improperly denied his motion for summary judgment and improperly granted the defendants’ motion for summary judgment because the grading procedures of the defendants are arbitrary and capricious and therefore violate his due process rights. We disagree.
In July, 1982, after several years of consultation with nationally recognized bar examination experts, the defendants extensively revised the format of the Connecticut bar examination. As revised, the examination consists of two parts: a multiple choice portion, administered in most states and known as the Multistate Bar Examination (multistate), consisting of two hundred questions;
Grading of the essay answers is done so that the graders do not know the identity of the applicant whose answers they grade. Answers to the essay questions are graded on a scale from zero to seven. In most instances, all of the examination booklets containing the answer to one of the twelve questions are distributed among three graders.
A candidate’s multistate score is added to the candidate’s converted score
“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town
In light of the similarity of issues raised in the two motions for summary judgment, we consider the trial court’s disposition of the motions together. The plaintiff, in support of his motion for summary judgment and in opposition to the defendants’ motion for summary judgment, filed memoranda, copies of the essay examination questions and his answers, and a personal affidavit. The substance of these documents can be distilled into two particular claims: (1) that his essay answers were scored by impermissibly subjective grading standards that resulted in gross grading errors; and (2) that because he received a score that was close to a passing score, there is no substantial difference between his failing score and a passing score, and thus the defendants arbitrarily and capriciously concluded that he was not minimally competent to practice law in Connecticut.
The United States Supreme Court’s decision in Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957), established the appropriate standard by which to analyze the plaintiffs claim. “A State cannot exclude a person from the practice of law ... in a manner or for reasons that contravene the Due Process . . . Clause of the Fourteenth Amendment. . . . A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant’s fitness or capacity to practice law.” (Emphasis added.) Id.; Scott v. State Bar Examining Committee, 220 Conn. 812, 820, 601 A.2d 1021 (1992).
The trial court concluded that “[t]he plaintiff has not submitted any evidence to support his allegations that the [defendants’] procedures resulted in gross grading errors. Further, the plaintiff submits no evidence to rebut the [defendants’] affidavit.” We agree. Nowhere in his supporting documentation does the plaintiff offer anything but his own opinion and conclusions, based primarily on unsworn factual assertions—contained not
The plaintiff failed to offer evidence that setting the passing score at 264 is arbitrary or capricious. The defendants’ affidavit in support of their motion for summary judgment, moreover, stated that they arrived at the passing score only after extensive consultation with testing experts. Similarly, the plaintiff, instead of offering evidence that the defendants’ system of grading somehow does not conform to accepted and sound nationwide methods of scoring bar examinations, offered only his opinion that his answers to several of the essay questions should have received higher scores.
The defendants’ extensive affidavit meticulously described the current format of the bar examination, its procedural safeguards and its provision for multiple review of examinations falling within ten points of the passing score. The affidavit set forth a carefully crafted system that is, in fact, designed to reduce the likelihood of any capricious or idiosyncratic scoring by an individual grader. Each answer is compared to the model answer created by three graders at a calibration session, and an answer may be read up to two additional times if the answer is part of an examination whose score falls within ten points of the passing score, and if there is any disagreement as to the proper score for that answer.
According to the undisputed contention of the defendants, this system is “state of the art” and is currently in use in most states. Courts have uniformly upheld
II
The plaintiff next claims that the trial court improperly denied his motion for summary judgment and improperly granted the defendants’ motion for summary judgment because he is constitutionally entitled, as a matter of procedural due process,
Application of the Mathews test to the present case compels the conclusion that a judicial hearing to regrade the applicant’s essay answers is not constitutionally required. Admittedly, under the first prong of Mathews, an applicant has a strong interest in pursuing his chosen profession. Tyler v. Vickery, supra, 1104. An individual does not have, however, an absolute right to practice law. Schware v. Board of Bar Examiners, 353 U.S. 232, 238-39, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Jones v. Board of Commissioners of Alabama State Bar, 737 F.2d 996, 1002 (11th Cir. 1984). Whether the applicant’s interest is of sufficient weight to compel the requested relief can be determined only by analyzing the second and third prongs of Mathews. Lucero v. Ogden, 718 F.2d 355, 358-59 (10th Cir. 1983),
The applicant’s interest “militates ... in favor of a hearing only if hearings are [a] demonstrably more efficacious means of safeguarding that interest than” the other procedural protections that the defendants currently provide. Tyler v. Vickery, supra, 1104. In the present case, there is no evidence that the defendants’ grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest.
In support of his motion for summary judgment and in opposition to the defendants’ motion for summary judgment, the plaintiff did not offer any evidence that the relief he requested would reduce the likelihood of grading errors. The regrading of an answer by a Superior Court judge would not lessen the inherent subjectivity of grading the essay answers. To the contrary, the risk of arbitrary grading would be likely to increase
Furthermore, the defendants provided evidence, pursuant to their summary judgment burden, of an additional procedural safeguard to protect applicants from arbitrary grading: an unlimited right to retake the bar examination. Most courts have found that the right to retake the examination, by itself, provides adequate procedural protection to a bar applicant. See, e.g., Jones v. Board of Commissioners of Alabama State Bar, supra, 1003 (lack of judicial hearing does not violate due process because candidate may take examination up to five times); Lucero v. Ogden, supra, 358; Poats v. Givan, 651 F.2d 495, 497 (7th Cir. 1981) (right to retake examination four times); Tyler v. Vickery, supra, 1104; In re Mead, 372 Mass. 253, 256, 361 N.E.2d 403 (1977), cert. denied, 434 U.S. 858, 98 S. Ct. 182, 54 L. Ed. 2d 131 (1977). As the United States Court of Appeals for the Fifth Circuit reasoned, even if we assume, generously, that one out of every one hundred applicants who fail the bar examination would have passed but for arbitrary grading, the probability that the same applicant would be the victim of a grading error after two examinations is literally one in ten thousand.
The ultimate balance of the relevant factors compels the conclusion that a judicial hearing for the purposes of regrading the plaintiffs answers on the essay portion of the examination is not necessary to assure fundamental fairness. Consequently, pursuant to our consideration of the factors set forth in Mathews, we conclude that a bar applicant is not constitutionally entitled to such a hearing, and thus the trial court properly denied the plaintiff’s motion for summary judgment and granted summary judgment for the defendants.
The plaintiff’s final claim is that the trial court improperly denied his motion to strike the defendants’ special defense of sovereign immunity. The trial court, however, did not predicate its grant of summary judgment for the defendants on the doctrine of sovereign immunity. Consequently, the plaintiff is not aggrieved by the trial court’s denial of his motion to strike the special defense. Furthermore, the defendants have not raised on appeal the issue of sovereign immunity, either as a basis of a cross appeal, or as an alternate ground to sustain the judgment of the trial court. We need not, therefore, consider this issue.
The judgment is affirmed.
In this opinion Callahan, Santaniello and F. X. Hennessy, Js., concurred.
The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).
The defendant had failed the exam on at least two occasions prior to the July, 1989 exam. He does not contest, however, the procedures for grading his examinations on the occasions prior to the July, 1989 examination.
Practice Book § 390 provides in relevant part: “The court will not render declaratory judgments upon the complaint of any person . . . (d) unless all persons having an interest in the subject matter of the complaint are parties to the action or have reasonable notice thereof.”
The plaintiff claims that, because the defendants’ answer does not deny his allegations that he passed the February, 1990 bar examination, he was entitled to summary judgment on that claim. Although the trial court did not address this issue in its memorandum of decision on the motions for summary judgment, the plaintiff’s claim is without merit.
The plaintiff never filed an amended petition to include the February, 1990 bar examination. Consequently, when the defendants filed their answer to the plaintiff’s petition, they responded to all of the allegations contained in the petition. That petition asserted claims related to the July, 1989 examination only and, therefore, the defendants could not have answered a claim regarding the February, 1990 examination that was not included in that petition.
The plaintiff also appears to claim in his reply brief that the trial court improperly concluded that it lacked subject matter jurisdiction over the plaintiff’s declaratory judgment claim. Absent exceptional circumstances, we will not review claims raised for the first time in an appellant’s reply brief. See Adolphson v. Zoning Board of Appeals, 205 Conn. 703, 716, 535 A.2d 799 (1988); Clark v. Gibbs, 184 Conn. 410, 420, 439 A.2d 1060 (1981). An appellant’s failure to raise a claim until its reply brief does not give the appellee a proper opportunity to respond. DeLucia v. Burns, 11 Conn. App. 439, 444, 527 A.2d 1234, cert. denied, 205 Conn. 803, 531 A.2d 935 (1987). We therefore conclude that this issue is not properly before this court.
The answers to the multistate are scored by computer. The raw score equals the number of questions answered correctly out of the two hundred
The Connecticut bar examination is administered twice a year: once in February and once in July. Because the number of candidates that sit for the February examination is significantly lower than the number that sit in July, the defendants sometimes assign only two graders to a particular essay question on the February examination.
The defendants use a complex mathematical formula to convert the essay scores to the multistate scale. The formula is as follows:
SS = Xb + Sb/Sa (Rs - Xa) where
SS = Essay examination score on the multistate scale.
Xb = Average Connecticut applicant’s multistate score.
Sb = Standard deviation of Connecticut applicant’s multistate score.
Sa = Standard deviation of essay portion raw scores.
Rs = Applicant’s essay portion raw score.
Xa = Average essay portion raw score.
Although the plaintiff purports to rely on both the federal and state constitutions, he has failed to brief or analyze independently any state constitutional provision. Consequently, we limit our discussion to the relevant
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law . . . .”
The plaintiff has not claimed that the defendants committed a mathematical error in computing his total score. His claim is simply that he was entitled to a higher score on several of his answers to the essay questions.
We note that the Fifth Circuit Court of Appeals in Tyler v. Vickery, 517 F.2d 1089, 1104 (5th Cir.), reh. denied, 521 F.2d 815 (5th Cir. 1975), cert. denied, 426 U.S. 940, 96 S. Ct. 2660, 49 L. Ed. 2d 393 (1976), stated the probability that the same applicant would be the victim of a grading error after two examinations is “literally one in a million.” Although we do not profess to any particular acumen for the theory of probabilities, our research reveals that, under the assumptions applied by the Fifth Circuit, the probability of failure is one in ten thousand. See generally R. Epstein, The Theory of Gambling and Statistical Logic (Rev. Ed. 1977) pp. 12-24. We conclude, nevertheless, that a one in ten thousand chance of a grading error does not constitute, as a matter of law, an arbitrary or capricious procedure in violation of the applicant’s due process rights.
In Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976), cert. denied, 435 U.S. 968, 98 S. Ct. 1606, 56 L. Ed. 2d 59 (1978), the United States Court of Appeals for the Fourth Circuit stated that it was not persuaded that reexamination is a more effective remedy than judicial review. The court, however, did not analyze whether reexamination satisfies due process, but only concluded that “reexamination is [not] a more effective remedy than review.” Id. No court has cited this statement in Richardson with approval. Moreover, the court did not need to reach that issue, and
The plaintiff also argues that, despite the lack of a statutory or Practice Book provision providing for a right to a judicial hearing for the purpose of regrading his answers, he is nonetheless entitled to this procedure because of an “informal” state history of allowing such hearings. The plaintiff does not cite, however, nor does our research uncover, any case in which a court regraded an applicant’s answers. Although we have reviewed the defendants’ denial of a candidate’s application for admission on character grounds; see, e.g., Fairfield Bar Committee v. Esterman, 174 Conn. 548, 392 A.2d 452 (1978); In re Application of Dinan, 157 Conn. 67, 244 A.2d 608 (1968); we have not inquired into the defendants’ decision that a given applicant is not minimally competent to practice law in Connecticut. Consequently, we decline to hold that the plaintiff is entitled to a proceeding that simply does not exist, and has not existed, under our law.
Dissenting Opinion
dissenting. The defendants, the Connecticut bar examining committee and its administrative director, have neatly packaged their procedures with what they consider to be checks and balances to ensure that bar examinations are fairly graded. They fail, however, to address one aspect of due process that I consider to be of great importance—the perception of fairness. The plaintiff’s only avenue for review of his essay examination was by the same committee responsible for his original grade, albeit different examiners. Furthermore, the plaintiff was never given the opportunity to confront the examiners in order to explain his position. In short, the review of his essay examination, which is very subjective, is, in the eyes of the applicant, part and parcel of the “Good Ole Boys” club—that is, by the same persons responsible for preparing, establishing the standards for and grading the examination. I do not believe this passes constitutional muster. I conclude that due process requires another level of review.
The facts of the present case underscore why an applicant should be given a postexamination hearing by a board other than the examining committee that administered the examination. The plaintiff, a graduate of Georgetown Law School, a distinguished law school, obtained a converted score of 262.79 on the July, 1989 bar examination, which was below the passing converted score of 264.
The plaintiff claims that errors were made in the grading of his essay questions and that the grading process was “arbitrary and capricious.” In opposition to the defendants’ motion for summary judgment, the
Given the fact that essay examinations are extremely subjective, that the plaintiff’s converted score of 262.79 missed the mark by a mere one half of 1 percent, and that he was never given an opportunity to argue his position directly to the examiners who reviewed his initial score, it is understandable why he or any other person in his position would perceive that those who judged his examination were not evenhanded and that the system is not fair.
The majority, however, has a bottom line answer to this due process claim—that is, the plaintiff and others similarly situated can always retake the examination. I cannot accept this bottom line. In response to a similar argument, the Fourth Circuit Court of Appeals replied “once is enough.” (Emphasis added.) Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976) (“To our knowledge, a person is not required by any state to repeatedly demonstrate his competence to practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and, nowadays, money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that
Accordingly, I would reverse the trial court’s granting the defendants’ motion for summary judgment and remand the matter for further proceedings.
On the February, 1990 bar exam he received a score of 260.67.