In re Butterfield

581 P.2d 1109, 1978 Alas. LEXIS 532
CourtAlaska Supreme Court
DecidedJuly 14, 1978
DocketNo. 3584
StatusPublished
Cited by3 cases

This text of 581 P.2d 1109 (In re Butterfield) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Butterfield, 581 P.2d 1109, 1978 Alas. LEXIS 532 (Ala. 1978).

Opinion

OPINION

BURKE, Justice.

Rhonda F. Butterfield appeals from an order of the Board of Governors of the Alaska Bar Association (“the Board”) refusing to regrade the Alaska essay portion of her February, 1977, Alaska Bar Examination. The appeal was filed as a class action but no certification of the class was obtained as required by Rule 23, Alaska R.Civ.P.1 Therefore, our opinion is limited to consideration of the issues as to Butter-field alone.

I

Appellant’s arguments are comprehensible only if one understands the grading procedures utilized by the Board, which is charged with the responsibility for administering and grading the Alaska Bar Examination.2 The Alaska Bar Examination eon-[1110]*1110sists of three separate parts: (1) the Multi-State Bar Examination which constitutes two-fifths of the examination; (2) California Bar Examination essay questions which make up another two-fifths of the examination; and (3) essay questions concerning Alaska law which account for the remaining one-fifth of the examination. An overall score of 70% is required to pass the examination. Alaska Bar Rule 4, § 6.

The California portion of the examination is sent to California where the answers to each question are graded by one person. In contrast, the answers to each of the Alaska essay questions are graded, in Alaska, by two graders. If there is a significant disparity between the grades assigned to an Alaska essay, a third grader reviews the essay to resolve the difference. Pursuant to Regulation 8 of the Regulations Concerning Grading of Examinations,3 the California essays of those receiving an overall score of 65-70% are regraded by Alaska graders. The Board has no similar regrading procedure for the Alaska essays.

Butterfield received an overall score of 68.9% upon the first grading of her examination. Upon the regrading of her answers to the California essay questions, as provided by Regulation 8, her overall score increased to 69.6%, still a failing score. In spite of the Board’s policy not to regrade the Alaska essays, Butterfield petitioned the Board requesting that that portion of her examination also be regraded. In her petition she alleged that the Board’s policy of not regrading the Alaska essays was arbitrary and an abuse of the Board’s discretion. She further alleged that the Board’s policy denied her due process and equal protection of the law. The Board denied her petition to regrade the Alaska essays. By this appeal, appellant seeks an order that her February, 1977, Alaska essays be regraded.

II

Butterfield contends that the Board’s refusal to regrade the Alaska portions of her examination denied her due process and the equal protection of the law. Because appellant’s rationale for each of these arguments is identical, the two issues will be treated together.

The question presented by appellant’s equal protection argument is whether the Board’s policy by which those with an overall examination score between 65 and 70 receive a regrading of their California examination questions but not of their Alaska questions, bears a fair and substantial relation to the purpose of examining applicants, when the means used and the reasons advanced therefore are closely scrutinized. Isakson v. Rickey, 550 P.2d 359 (Alaska 1976).

For the due process clause to apply there must be “state action and the deprivation of an individual interest of sufficient importance to warrant constitutional protection.” Nichols v. Eckert, 504 P.2d 1359, 1362 (Alaska 1973). Butterfield argues that the pursuit of a career in law is an interest worthy of constitutional protection and that the action of the Board constitutes state action. Appellant concludes her due process argument asserting that the Board’s policy of reappraising the California essays and not the Alaska essays denies her due process of law because it bears no rational connection [1111]*1111to determining minimal competence to practice law.4

In support of her position that the Board’s policy satisfies neither the equal protection test of Isakson v. Rickey, supra, nor the requirements of due process, But-terfield contends that the sole reason for regrading the California essays is a sense of mistrust of the California graders. She argues that such mistrust is without support or foundation; that a vague sense of mistrust is insufficient justification for treating the California exam questions differently from the Alaska questions; and that therefore the Board’s policy of regrading only the California exams is arbitrary.5

Appellant concludes her argument for finding the Board’s policy violative of equal protection and due process requirements by asserting that the Board’s policy appears to be particularly arbitrary in light of the Board’s position in Application of Kennelly, 567 P.2d 301 (Alaska 1977). In Kennelly we concluded that by contracting with California for the supply of California questions and the grading of the California essays, the Board had not violated the rule 6 requiring that it retain authority over testing. We agreed with the Board that it was within its discretion “to take advantage of the . expertise and experience available to the California bar examiners . . .” Id. at 303. Butterfield contends that the Board’s mistrust of California graders contradicts the Board’s assertion of reliance on their expertise as set forth in Kennelly. She points to this alleged contradiction as support for her argument that the Board’s policy is arbitrary.

We find no merit in appellant’s arguments. The only support Butterfield sets forth for her argument that the regrading of the California essays is conducted out of a sense of mistrust is a quotation from the deposition of one of the Alaska graders of the bar exam. The quotation upon which appellant relies is taken out of context and reading the quotation as a whole, it is clear that appellant’s interpretation is untenable. The quote in no way suggests that the Board mistrusts the California graders.

Similarly appellant’s contention that the regrading procedure contradicts the Board’s position in Kennelly does not survive scrutiny. As we noted in Kennelly, the Board is given broad discretion to conduct and grade the bar examination. The Board does not regrade all of the California essays. It regrades only those of applicants receiving an initial overall score of 65-70%. Appellant has not challenged that classification nor does she suggest that the members within that group are treated differently. The Board continues to rely on the expertise of the California graders for the grading of those exams with scores of less than 65% and more than 70%.

We think it entirely reasonable for the Board to have a reappraisal policy of the California essays for those candidates on the borderline of passing in light of the fact that without reappraisal, the California essays would be graded by only one grader. This double-check ensures that a single California grader does not assess a candidate’s essays too harshly.

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DeLisio v. Alaska Superior Court
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Bluebook (online)
581 P.2d 1109, 1978 Alas. LEXIS 532, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-butterfield-alaska-1978.