SEWELL v. COMMITTEE OF BAR EXAMINERS STATE BAR OF CALIFORNIA (1984)

Petitioner Kevin C. Sewell was an unsuccessful applicant at the February 1983 bar examination.   By petition for writ of mandate filed with the Supreme Court on September 22, 1983, petitioner sought discovery of additional information regarding the scoring of his examination and requested the Supreme Court to admit him to the State Bar of California.   By order of the Supreme Court filed December 19, 1983, the petition was transferred to this court, with directions to issue an alternative writ of mandate requiring the Bar Examiners (hereafter examiners) to provide petitioner with the grading information he seeks or show cause why they have not done so.   The alternative writ was issued on December 27, 1983, and the examiners have since elected to show cause why they need not comply with petitioner's request.

Petitioner received notification that he had not passed the bar examination on May 21, 1983.   He also received a scorecard itemizing the scores he received on the various sections of the examination.   The February 1983 bar examination consisted of nine essay questions, as well as the Multistate Bar Examination (hereafter MBE), a series of multiple choice questions.   Petitioner's scorecard included a single score for the MBE, as well as one score for each essay.

Since 1978 the examiners' system for grading the bar examination has been in four phases.   In phase one, the applicant's score on the MBE is added to his or her score on three randomly selected essays.   If the total score is greater than 666 points (74%) the applicant is automatically passed.   All examinations failing to meet that standard are placed into phase two.   In phase two, the rest of the essays are read, and all of the scores are totaled.   If the score is 1065 or greater, the applicant passes.   If the score is less than 1010, a failing grade is issued.   However, if the score is between 1010 and 1065, the applicant is placed into phase three, where another panel of readers reads all of the essays and scores them.   These essay scores are averaged with the scores received in phases one and two, and are added together with the MBE score.   In this phase, 1050 points is passing, and 1029 points or less is a failure.   Those whose examinations again fall in between are passed into phase four.   At this time each examination is reviewed by a member of the Board of Reappraisers, who determines whether the examination, taken as a whole, deserves a passing grade.

Those applicants who do not pass the examination are provided with a scorecard itemizing the applicant's scores on the various sections of the exam.   However, the applicant is not given the preliminary unaveraged essay scores, but instead only the final averaged scores for each essay.   Petitioner requests that this court issue a peremptory writ of mandate requiring the examiners to inform petitioner of his preliminary unaveraged scores.   In opposition, the examiners submit that Business and Professions Code section 6065 ¹ does not require them to comply with petitioner's request due to their past practice of not so informing each unsuccessful candidate and because of the burden of so complying.

Section 6065, in effect since 1931, provides that any unsuccessful applicant for admission to the practice of law “has the right to inspect the grading of the papers whether the record thereof is marked upon the examination or otherwise.”   Petitioner contends that he should be able to inspect the entire grading process, while the examiners submit that divulgence of the final averaged scores is enough.

Under section 6047, the examiners “may adopt such reasonable rules and regulations as may be necessary or advisable for the purpose of making effective the qualifications prescribed in Article 4” which contains section 6065.   They point out that since 1978 they have provided unsuccessful applicants with only the final averaged scores instead of the preliminary unaveraged scores.   This practice, according to the examiners, should be given deference by this court.  (Rivera v. City of Fresno (1971) 6 Cal.3d 132, 140, 98 Cal.Rptr. 281, 490 P.2d 793.)   The examiners also contend that discovery of the information sought by petitioner would lead to undue hardship.   However, the examiners have not made a showing meriting a refusal to grant the peremptory writ.

The examiners contend that if a peremptory writ were to be issued, they would be forced to change their computer programs relating to the scorecards each unsuccessful applicant is sent, presumably because they believe that their office would be instantly flooded with so many similar requests that they would be forced to adopt a system-wide change.   Such a change, according to the examiners, would cost between $10,000 and $25,000 and would raise the cost of each applicant's filing fee by $2.00.   However, it would certainly not cost $10,000 to retrieve the entire set of scores on petitioner's exam.   This information is permanently placed in a computer, and the examiners presumably can retrieve it at a moment's notice.   Additionally, the examiners need not necessarily adopt a major change in their operations if the peremptory writ is granted.   They have not shown that large numbers of unsuccessful applicants consistently challenge their examination results.   If only a few applicants ever challenge their results, no program change need be made.   The inevitability of floods of angry applicants demanding to see their entire set of scores is speculative at best and should not be determinative here.

 Here petitioner is seeking to discover evidence relevant to his claim of fraud, imposition or coercion still pending before the Supreme Court.   And since in essence petitioner is seeking to discover documentary evidence from the examiners, an analogy should be made in this case to Code of Civil Procedure section 2031, providing that in the event a party wishes documentary evidence from another, that party must show that the documents sought to be discovered are “relevant to the subject matter of the action, or are reasonably calculated to discover admissible evidence ․”  Though petitioner has not proceeded under Code of Civil Procedure section 2031 the provisions of the section are available to him.   That this rule should apply in this case is also dictated by the fact that petitioner is saddled with the burden of showing the examiners' impropriety before the Supreme Court.   (Salot v. State Bar (1935) 3 Cal.2d 615, 617, 45 P.2d 203.)   In order to have the opportunity to meet this burden, an unsuccessful applicant should have relatively unrestrained access to relevant evidence.  (Application of Peterson (Alaska 1969) 459 P.2d 703, 711.)

 Here, if there was an error made in averaging the preliminary unaveraged essay scores, the evidence which petitioner seeks would be highly relevant to his pending claim of fraud.   The examiners contend that this evidence is not relevant because the preliminary unaveraged scores are not a true representation of an applicant's score on any particular essay.   By averaging the scores on two independent readings, according to the examiners, a true appraisal of the merit of the essay may be made.   While this contention is not disputed by petitioner, there remains the possibility that the preliminary unaveraged scores may not have been properly averaged together.   Therefore, the preliminary unaveraged scores are relevant to petitioner's claim and the examiners have not made a compelling showing of resulting burden.

Let a peremptory writ of mandate issue commanding respondent Committee of Bar Examiners of the State Bar of California to permit petitioner to inspect the documents relative to the grading of his examination.

FOOTNOTES

1.   Unless otherwise indicated, all future statutory references will be to the Business and Professions Code.

CALDECOTT, Presiding Justice.

PANELLI and POCHÉ, JJ., concur.