Sullivan v. Alaska Bar Association , 1976 Alas. LEXIS 388 ( 1976 )

ERWIN, Justice.

The Alaska Bar Association has filed a petition for rehearing in this matter. They contend that this court overlooked or misconceived material facts in ordering that Harvey Sullivan be permitted to take the Alaska Bar Examination administered in February, 1976.

Upon graduation from law school in July, 1975, Sullivan, a life-long resident of Alaska, sat for the July Bar examination which was given in Anchorage. While awaiting the examination results, Sullivan received orders from the Department of the Army instructing him to report for active duty in the Corps of Engineers. The orders provided for temporary duty from October 18, 1975, to January 30, 1976, at Fort Belvoir, Virginia. In addition, Sullivan was ordered to report for his initial assignment at Fort Leonard Wood, Missouri, by February 17, 1976. Sullivan departed from Alaska for active duty in mid-October, shortly after learning that he had failed the July Bar examination.

Upon arriving at Fort Belvoir, Sullivan contacted the military personnel center and spoke with the captain in charge of his assignments. When Sullivan expressed his desire to return to Alaska to sit for the February Bar examination, the captain recommended against it, stating that it would be preferable to have him proceed to Fort Leonard Wood as originally ordered. Nevertheless, Sullivan continued his attempts to obtain the military’s approval by writing the Secretary of the Army and by enlisting the aid of a member of Alaska’s congressional delegation. When this was unavailing, Sullivan did not submit an application for the February Bar examination.

Upon completing his course of instruction at Fort Belvoir, Sullivan returned to Anchorage on February 3, 1976, to secure certain items of personal property. While in Anchorage, Sullivan contacted the Adjutant General’s office at Fort Richardson in an attempt to gain approval to sit for the Bar examination to be administered in the last week in February. On the morning of February 4, tentative approval to take the examination was given by the Brigade Commander at Fort Leonard Wood.

With this approval, Sullivan approached the Executive Director of the Alaska Bar Association, Mary La Follette, and inquired whether he would be allowed to take the examination scheduled three weeks hence. Ms. La Follette informed Sullivan that the deadline for late applications had passed and that as a consequence, he would not be allowed to sit for the examination. Sullivan then contacted Keith Brown, President of the Board of Governors of the Alaska Bar Association. Mr. Brown explained that the board was also forced to adhere to the Alaska Bar Rules.

On February 5, Sullivan filed a petition in this court for expedited review of the decision rendered by the Bar Association with respect to his application. On February 6, this court conducted a hearing with Justices Erwin and Burke presiding; also in attendance was Ms. La Follette, speaking on behalf of the Alaska Bar Association, and petitioner Sullivan.

At the hearing Sullivan informed the court that if he did not receive permission to sit for the examination, he would have to leave the next day in order to report to Fort Leonard Wood by February 17, since his original orders were binding unless he was allowed to take the test. The Alaska Bar Association argued that the applicable rule, Alaska Bar Rule .I^),¹ established January 15, 1976, as the last date for filing an application for the February examination, and further, that the Board of Governors had no discretion to relax the rule regardless of the circumstances. The Bar Association therefore concluded that Sullivan would not be allowed to take the examination.

Later that afternoon this court (Chief Justice Boochever not participating) ordered that Sullivan be allowed to take the examination despite the fact that he failed to comply with Rule 3(3) of the Alaska Bar Rules, because of the extraordinary circumstances involved in the case.

The Alaska Bar Association thereafter filed a petition for rehearing which was denied. This opinion explains the basis for our decision.

The Bar Association submits that review by this court was premature in that Sullivan did not comply with certain administrative procedures, which they allege are a prerequisite to this court’s jurisdiction. Specifically, they argue that before this court could rule on Sullivan’s petition, he was required to complete the following steps: one, file an application with the Bar Association; two, upon denial of the application for failure to comply with the filing deadline, he was obligated to appeal to the Board of Governors; and three, after the Board denied the appeal, he was required to adhere to the procedural rules of this court as set forth in Part IV of the Appellate Rules.²

It is well established that the final power and authority to determine standards for admission to the practice of law in Alaska reside in this Court.³ The Bar Association, which was created by the State Legislature, acts as an administrative arm of the judiciary for the admission of lawyers to practice law before the courts of the State of Alaska.⁴ As we have noted in the past:

While this court ultimately reserves the authority to determine whether or not an applicant should be admitted to the bar, considerable administrative responsibility has been delegated to the Alaska Bar Association.⁵

Thus, the relationship between the Supreme Court and the Bar Association is a delicate one.⁶

To prevent a dislocation of the respective functions of the Bar Association and this court, we are generally unwilling to intercede in Bar admission cases until the applicant has exhausted his administrative remedies.⁷ Thus, we require, if possible, that the petitioner comply with the procedural steps spelled out in the Alaska Bar Rules before this court reviews the case. Our deference to the procedures spelled out in the Bar Rules does not have a jurisdictional foundation, however, since this court has the inherent power to intercede at any time in admission matters.

It is our opinion, then, that the normal procedures may be relaxed when, taking into account the balance necessary to the relationship we have previously identified, we determine the interests of justice require it. We are therefore unable to adopt the position advanced by the Bar Association that an applicant must comply with certain administrative procedures before we have jurisdiction to review the case.

In reaching this decision we are not unmindful of the fact that if the Bar Association is to function effectively on a day-to-day basis, this court must demand that an applicant comply with the appropriate Bar Rules prior to our review in all but the most extreme circumstances.

In the instant case, Sullivan was led to believe by the United States Army that he would be unable to sit for the February examination. On February 4, approximately three weeks before the examination, he was informed that he could remain in Anchorage until the test was administered. Sullivan was also instructed that if he was not going to take the examination he was to report to Fort Leonard Wood forthwith, as originally ordered. It was apparent, then, that if he was not allowed to sit for the examination, he would have to leave Anchorage the next day to reach his destination by car on February 17th. With this in mind, Sullivan immediately contacted the Executive Director of the Bar Association and the President of the Board of Governors. Both parties explained that they had no discretion to relax the rules and thus Sullivan would be unable to sit for the upcoming examination.

The next day, February 5, Sullivan filed a petition with this court seeking expedited review of the Bar Association’s decision with respect to his application. At that point we had the option of waiving the procedural irregularities that existed, or requiring Sullivan to adhere to the normal procedures spelled out in the Bar Rules. The court chose to waive the Bar Rules and hear Sullivan’s petition. We think it evident that had this court required strict compliance with normal procedures, the relief Sullivan was seeking would have been forfeited simply because of the passage of time.

We are therefore of the opinion that our waiver of the administrative procedures and our prompt consideration of Sullivan’s petition were justified under the circumstances.

The Bar Association submits that due process standards were offended when we granted Sullivan’s petition after a brief oral hearing. They contend that under normal procedures they would have had an opportunity to present evidence and cross-examine Sullivan before a decision was rendered.

In the past this court has demonstrated an unwillingness to become a trial tribunal in Bar admission cases. We have consistently delegated factual determinations to the Bar Association and Board of Governors.⁸ In the instant case, however, there were no factual determinations to be made.⁹ Simply stated, Sullivan admitted that he had failed to comply with certain admission procedures; the Bar Association and Board of Governors took the position that they were unable to relax the Bar Rules. It is our view that there was no need for the Bar Association to present evidence or cross-examine Sullivan. The questions presented to this court were legal, not factual. Thus, while we would agree that the procedures utilized in this case were somewhat unorthodox, we do not find that they offend due process standards.

The Bar Association additionally argues that in ordering that Sullivan be allowed to take the examination, this court failed to consider the precedent established in Application of Walsh, Alaska, file number 2261. Walsh submitted an application to take the Alaska Bar examination on May 2, 1974, one day after the filing deadline. He claimed that because of financial considerations, demands from work and school, and the death of a close relative, he failed to submit the application on time. The Board of Governors denied his application, and he thereupon filed an application to write the examination with this court. There is some question whether the action brought by Walsh was filed as an appeal, an original application, or a petition for review. Nevertheless, the court treated the matter as a petition for review and denied it.

Although Walsh’s application was filed only a day after the deadline, whereas Sullivan’s was more than two weeks late, we do not consider that to be the determinative factor.¹⁰

There are three basic reasons why the Bar Association needs approximately six weeks to process a Bar application. First, they must conduct an investigation of the applicant’s character; second, they must assure that the applicant will be a resident of the state thirty days prior to the examination ; third, they need to know how many people will be sitting for the examination so they can obtain the appropriate number of tests from New Jersey and California¹¹

In view of the fact that Sullivan was born in Alaska and had previously taken the exam, only the latter reason could be considered pertinent in determining the effect of his late application. The same may not be said of Walsh, who was not a resident of Alaska and had never taken the examination before.

Also, Sullivan, unlike Walsh, was under the impression that he would not be allowed to take the examination until after the filing deadline had passed because of his commitment with the United States government. Finally, Walsh was not prevented from taking the next examination which was scheduled six months hence. Sullivan, on the other hand, may have been prevented from taking the examination for an unforeseeable length of time because his obligation to the Army inhibited his ability to return to Alaska at will.

We do not consider our decision to allow Sullivan to sit for the examination to be a radical departure from our previous decisions in the area of Bar admissions. In the future we shall continue to defer to the administrative expertise of the Bar Association and Board of Governors with respect to admission procedures except in cases where a majority of the court is convinced that the interests of justice compel us to intercede.

Our previous decision remains unmodified.

BOOCHEVER, C. J., not participating.

1 . Alaska Bar Rule 3(3) provides:

An application shall be filed not later than May 1 for the July bar examination and not later than December 1 for the February bar examination. In the event that an application is filed late an additional late filing fee of $25 shall be paid if filed not later than fourteen days after the last day for filing a timely application, and a late filing fee of $100 shall be paid if filed thereafter; provided, however, no application shall be accepted for late filing unless such application is filed at the office of the Alaska Bar Association not later than June 15 for the July bar examination and January 15 for the February bar examination. An untimely application shall be considered an application for the next following examination unless withdrawn by the applicant.

2 . The discussion which follows need not be concerned with the third step referred to by the Bar Association. Alaska Bar Rule 8 provides :

To the extent practicable the procedure governing an appeal by an applicant for admission to the practice of law from a decision of the Board of Governors, shall be governed by the rules of practice in civil matters set forth in Part IV, Alaska [Appellate Rules].

Part IV of the Appellate Rules covers the procedure to be followed in civil casp brought to this court, such as the time and manner for taking an appeal, the preparation of the record on appeal, matters relating to the preparation and filing of briefs and motions, the procedure for requesting oral argument, and other related matters. Although Sullivan did not comply with the applicable appellate rules, it is clear that we had the power to dispense with the rules under Rule 46, which provides:

These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by this court when a strict adherence to them will work surprise or injustice.

3 .See Application of Houston, 378 P.2d 644 (Alaska 1963) ; Application of Brewer, 430 P.2d 150 (Alaska 1967); Application of Steel-man, 448 P.2d 817 (Alaska 1969) ; Application of Peterson, 459 P.2d 703 (Alaska 1969) ; Application of Stephenson, 511 P.2d 136 (Alaska 1973).

4 . Under AS 44.62.010-650, it is subject to the Administrative Procedure Act.

5 . Application of Peterson, 499 P.2d 304, 306 (Alaska 1972).

6 . This court welcomes proposals from the Bar Association spelling out their perception of the relationship between that body and the Supreme Court.

7 . One principle of administrative law is that a party seeking review by the court must first exhaust his remedies within the administrative agency. See 3 Davis, Administrative Daw Treatise, § 20.01, at 56 (1972).

8 . See Application of Peterson, 459 P.2d 703 (Alaska 1969) ; Application of Houston, 378 P.2d 644 (Alaska 1963) ; Application of Steelman, 448 P.2d 817 (Alaska 1969). But see, Application of Stephenson, 511 P.2d 136 (Alaska 1973).

9 . If the Bar Association had alleged that there were questions of fact in dispute, we would have remanded the case to the Board of Governors and ordered an expedited hearing.

10 . Furthermore, I am in agreement with Justice Burke’s concurrence to the effect that Application of Walsh was erroneously decided.

11 .The Alaska Bar examination is a three-day test consisting of three separate sections. On the first day the examinee answers eight essay questions which have been drafted by the California Bar Examiners and sent to Alaska. The next test day consists of two hundred objective questions, covering six areas of the law. This part of the examination is written by the National Conference of Bar Examiners in New Jersey and administered in a majority of jurisdictions. The final day of testing is made up of four essay questions dealing with Alaska law and is produced by members of the State Bar.