Ball v. Board of Bar Examiners (2007-297)
2008 VT 49
[Filed 11-Apr-2008]
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SUPREME COURT
DOCKET NO. 2007-297
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NOVEMBER TERM, 2007
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Steve Ball
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APPEALED FROM:
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v.
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Board of Bar Examiners
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Board of Bar Examiners
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In the above-entitled
cause, the Clerk will enter:
¶ 1.
Applicant Steve Ball appeals from a decision of the Vermont Board of Bar
Examiners denying him credit for a law office clerkship due to his untimely
filing of notice. We affirm.
¶ 2.
In summer 2005, applicant, then a Vermont
Law School
student, duly notified the Board of his commencement of a law clerkship in the
office of a Vermont
attorney and was credited with two months of clerkship toward the three month
requirement for admission. See V.R.A.B. 6(i)(1). From late August through early December 2006,
applicant pursued a clerkship in the office of Judge Rita Flynn Villa but
failed to notify the Board of commencement of the clerkship until April
2007. On April 24, 2007, the Board denied applicant’s request for credit
for his clerkship with Judge Villa, citing his failure to file the commencement
form within thirty days of the beginning the clerkship as required by the
Vermont Rules of Admission to the Bar, and further noting that he had not shown
good cause for an extension of time.
¶ 3.
Applicant replied to the Board on May 11, 2007, attempting to provide
the Board with more information to help it “reach a favorable
conclusion.” In the letter, applicant explained that his failure to file
a timely notice of commencement was a result of his being “busy with school,
[his] internship, finding a spring internship in the Boston area, renting [his] house in Vermont, and planning a move.” On May
29, the Board received a notice of commencement of clerkship form applicant for
a second clerkship with Judge Villa that began on May 2. At the time,
applicant was residing in Massachusetts,
and therefore, he submitted the notice with the phrase “in my office” stricken
from the “Certificate of Judge or Attorney.” The Board responded on June
12, 2007, provisionally denying applicant’s request to waive the requirement
that the clerkship take place in the office of a judge or attorney and asking
applicant to submit a “specific proposal detailing where [applicant] will be
during the clerkship, what [he] will be doing, and how often and in what manner
Judge Villa will be supervising.” Shortly thereafter, applicant filed
this appeal.
¶ 4.
On appeal, applicant argues that the Board abused its discretion by
denying him clerkship credit under Rule 8 and thereby prohibiting him from
gaining admission to the Vermont
bar. Alternatively, he contends that the notice requirement of Rule 8
violates the Due Process Clause of the Fourteenth Amendment to the United
States Constitution. Finally, he argues that Rule 6, which provides that
law clerkships must be completed “in the office” of an attorney or judge
“practicing in this state,” violates the Privileges and Immunities Clause of
the Federal Constitution.
¶ 5.
Applicant’s first claim, that the Board abused its discretion in
rejecting his late notice of commencement of clerkship with Judge Villa, is
unsupported by the record. Under Rule 8, applicants are required to
notify the Board of commencement of a clerkship within thirty days of the start
of the law office clerkship. “In the event that the [applicant] changes
to the office of another judge or attorney,” he is required to file notice with
the Board within thirty days of the change. V.R.A.B.
8(a). “[F]ailure to file a timely
certificate may result in the withholding of credit. Id. Applicant does not dispute
that he filed notice of commencement of his second clerkship several months
after the thirty-day deadline. Nevertheless, he argues that he has
completed five months of law office clerkship—exceeding the three-month
requirement for admission under Rule 6(i)—and thus,
has demonstrated “minimal professional competence necessary to engage in the
practice of law.” V.R.A.B. 5. As such, he
claims that the Board acted arbitrarily in denying him credit and thereby
abused its discretion.
¶ 6.
The Board has broad discretion in enforcing the rules of admission, and
we will not set aside its decision unless there is a “strong showing of abuse
of discretion, arbitrary action, fraud, corruption or oppression” on its
part. In re Monaghan, 122 Vt.
199, 205, 167 A.2d 81, 86 (1961). Here, applicant filed notice several
months after he had completed his clerkship with Judge Villa, and initially
failed to provide any explanation for the untimely notice. The Board
considered the evidence before it—the late notice form and a letter requesting
that the Board overlook its procedural rules for applicant’s benefit—and
determined that applicant had failed to demonstrate good cause for the untimely
filing. Cf. Widschwenter v. Bd. of
Bar Exam’rs, 151 Vt. 218, 219, 559 A.2d 674, 676
(1989) (remanding case where it was unclear from the record whether “the Board
considered and decided if [the applicant] had demonstrated good cause for
failure to file the required certificate”). In his second letter to the
Board, applicant attempted to justify his late filing as a result of his busy
law school and personal schedule. The Board had discretion to determine
whether applicant had good cause to file his notice after the deadline, and it
was not unreasonable for it to conclude that the commonplace responsibilities
of a law student do not amount to good cause for failure to abide by the rules
of admission. See In re Lund, 2004
VT 55, ¶ 5, 177 Vt.
465, 857 A.2d 279 (mem.) (ignorance of rules or inattention to detail typically does
not amount to excusable neglect). The Board exercised its discretion
appropriately, and thus applicant’s first claim of error fails.
¶ 7.
Applicant’s second claim, that the notice requirement of Rule 8(a)
violates the Due Process Clause, is likewise unavailing. Specifically,
applicant relies on Schware v. Board of Bar
Examiners of New Mexico, 353 U.S. 232 (1957), to support his argument that
the Board acted arbitrarily when it denied him admission despite his
demonstrated competence and thereby deprived him of his due process
rights. Applicant’s reliance on Schware
is misplaced. In Schware, the Board of
Bar Examiners of New Mexico denied the applicant the right to sit for the bar
examination, finding that his membership in the Communist Party and arrests for
union-related activities over fifteen years earlier rendered him a person of
bad moral character. Id. at
238. The United States Supreme Court reversed, holding that there
was no rational connection between the applicant’s former political
affiliations and uncharged arrests and his fitness to practice law, and that
the Board therefore had acted arbitrarily. Id. at 246-47. In contrast, the Board here has in no way
foreclosed applicant from admission to the Vermont bar or acted arbitrarily in its
decision to deny applicant credit for his second clerkship. Rather, the
Board simply enforced the rules entrusted to its discretion, and if and when
applicant fulfills both the procedural and substantive requirements of the
rules, he will presumably be eligible for admission. Applicant’s due
process claim is without merit.
¶ 8.
Finally, applicant fails to present a viable constitutional claim under
the Privileges and Immunities Clause. He argues that Rule 6 is
unconstitutional because it creates a “de facto residency requirement,”
which discriminates against out-of-state applicants. In response to our
holding in Sarazin v. Vermont Board of Bar
Examiners, however, the provision in Rule 6(i)(1) now requires only that the mandatory law clerkship be
undertaken in the office of a judge or attorney “practicing in this state.” 161
Vt. 364, 367-68, 639 A.2d 71, 72-73 (1994)
(overruling Board’s interpretation of Rule 6 as requiring applicants to
complete clerkship in Vermont).
Thus, applicant is free to arrange a clerkship with a Vermont attorney whose office is located
outside of the state, in closer proximity to applicant. Because Rule 6
treats residents and nonresidents equally with respect to the law office
clerkship, applicant’s claim under the Privileges and Immunities Clause fails.
Affirmed.
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BY THE COURT:
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John A. Dooley, Associate
Justice
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Denise R. Johnson,
Associate Justice
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Marilyn S. Skoglund, Associate Justice
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Brian L. Burgess, Associate
Justice
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Note: Chief Justice Reiber sat for
oral argument but did not participate in this decision.