Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lamb v. State Board of Law Examiners

January 12, 2010

TIMOTHY C. LAMB, PETITIONER AND APPELLANT
v.
STATE BOARD OF LAW EXAMINERS, STATE OF NORTH DAKOTA, RESPONDENT AND APPELLEE



Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Lawrence E. Jahnke, Judge.

The opinion of the court was delivered by: Maring, Justice.

AFFIRMED.

[¶1] Timothy C. Lamb appeals from the district court's orders denying his motion to reconsider and his application for a writ of mandamus to require the State Board of Law Examiners to provide information about the February 2008 bar examination procedures. We affirm, concluding the district court did not abuse its discretion because Lamb does not have a clear legal right to the requested information.

I.

[¶2] 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.

[¶3] 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. § 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.

II.

[¶4] Section 32-34-01, N.D.C.C., which governs a writ of mandamus, provides: "The writ of mandamus may be issued by the supreme and district courts to any inferior tribunal, corporation, board, or person to compel the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station...." It is within a district court's sound discretion whether to issue a writ of mandamus. Eichhorn v. Waldo Twp. Bd. of Supervisors, 2006 ND 214, ¶ 20, 723 N.W.2d 112. We will reverse a district court's decision concerning a writ of mandamus as an abuse of discretion only when it acts arbitrarily, capriciously, unreasonably, or if it misapplies or misinterprets the law. Kenmare Educ. Assn. v. Kenmare Pub. Sch. Dist. #28, 2006 ND 136, ¶ 9, 717 N.W.2d 603. A writ of mandamus requires both a clear legal right to performance of the particular acts sought to be compelled by the writ and that no other plain, speedy, and adequate remedy in the ordinary course of law exists. Wutzke v. Hoberg, 2004 ND 42, ¶ 3, 675 N.W.2d 179.

III.

[¶5] On appeal, Lamb argues the district court misapplied the law because Admission to Practice R. 13 is either "subordinate" to N.D.C.C. § 44-04-18 or unconstitutional under N.D. Const. art. XI, § 6. Lamb argues that the Supreme Court does not have the power to promulgate rules that conflict with N.D.C.C. § 44-04-18 and N.D. Const. art. XI, § 6. Therefore, he contends he has established a clear, legal right necessary to grant a writ of mandamus because the records he seeks should be available to the public. We hold that Lamb has not established a clear legal right to a writ of mandamus.

N.D. Const. art. XI, § 6 provides:

Unless otherwise provided by law, all records of public or governmental bodies, boards, bureaus, commissions, or agencies of the state or any political subdivision of the state, or organizations or agencies supported in whole or in part by public funds, or expending public funds, shall be public records, open and accessible for inspection during reasonable office hours.

A similar provision is codified at N.D.C.C. § 44-04-18(1): "Except as otherwise specifically provided by law, all records of a public entity are public records, open and accessible for inspection during reasonable office hours." Lamb argues that both N.D. Const. art. XI, § 6 and N.D.C.C. § 44-04-18 apply to all of the records of the Board of Law Examiners.

[¶6] We conclude that Admission to Practice R. 13 is neither subordinate to N.D.C.C. § 44-04-18 nor unconstitutional under N.D. Const. art. XI, § 6. Lamb asserts that the language "unless otherwise provided by law" means that only the Legislative Assembly can enact a law to exempt records from public inspection. Therefore, he asserts the Board's records are open to the public absent a statutory provision making the records confidential.

[¶7] Article XI, § 26 of the North Dakota Constitution provides, "The legislative, executive, and judicial branches are co-equal branches of government." This Court has recognized that "the creation of the three branches of government by our constitution operates as an apportionment of the different classes of power whereby there is an implied exclusion of each branch from the exercise of the functions of the others." State v. Hanson, 558 N.W.2d 611, 614 (N.D. 1996). We have also previously recognized, "[t]he term `by law' is not limited to statute, but includes rules adopted by the Supreme Court pursuant to the court's authority contained in Section 3, Article VI, North Dakota Constitution." Dickinson Newspapers, Inc. v. Jorgensen, 338 N.W.2d 72, 75 (N.D. 1983). Under N.D. Const. art. VI, § 3, this Court has the constitutional authority to promulgate rules regarding the admission of attorneys to practice law in North Dakota:

The supreme court shall have authority to promulgate rules of procedure, including appellate procedure, to be followed by all the courts of this state; and, unless otherwise provided by law, to promulgate rules and regulations for the admission to practice, conduct, disciplining, and disbarrment of attorneys at law.

[ΒΆ8] We do not consider the words "unless otherwise provided by law" ambiguous. We note our interpretation is consistent with the history of the legislative resolution proposing the constitutional amendment. The language "unless otherwise provided by law" was not originally included as part of the proposed constitution submitted as part of the 1972 constitutional convention. The language originated in an interim study on unifying the State's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.