In re Appeal of Z.H. , 311 Neb. 746 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/10/2022 08:05 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746In re Appeal of Z.H. From Request of Accommodations
for February 2021 Bar Examination.
Z.H., appellant, v. Nebraska State Bar
Commission, appellee.
___ N.W.2d ___
Filed June 10, 2022. No. S-21-232.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. On questions of law, an appellate court
has an obligation to reach its own independent conclusions.
3. Rules of the Supreme Court: Attorneys at Law: Appeal and Error.
The Nebraska Supreme Court considers the appeal of an applicant from
a final ruling of the Nebraska State Bar Commission de novo on the
record made at the hearing before the commission.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the appeal.
5. Rules of the Supreme Court: Attorneys at Law. The Nebraska
Supreme Court is vested with the sole power to admit persons to the
practice of law in this state and to fix qualifications for admission to the
Nebraska bar.
6. ____: ____. The Nebraska Supreme Court has delegated administra-
tive responsibility for bar admissions solely to the Nebraska State
Bar Commission.
7. Administrative Law. An administrative agency has limited power, and
its power is to be strictly construed.
Appeal from the Nebraska State Bar Commission. Appeal
dismissed.
Z.H., pro se.
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
INTRODUCTION
Z.H. seeks reimbursement from the Nebraska State Bar
Commission (Bar Commission) for costs and damages associ-
ated with her application for admission to the Nebraska State
Bar Association. For the reasons stated herein, we conclude
that we lack jurisdiction to hear the appeal and the appeal
is dismissed.
BACKGROUND
Z.H. completed law school in 2000. In July 2019 and
February 2020, Z.H. took the Nebraska bar examination, but
did not obtain passing scores. In February 2021, Z.H. took and
passed the Nebraska bar examination.
Because of a diagnosis of rheumatoid arthritis that limits
her mobility, Z.H. applied for and received accommodations
of 33 percent more time to complete the bar examination and
a separate room in which to take each of her examinations.
For the February 2020 examination, Z.H. also received an
accommodation to use an adjustable chair to help her manage
the stress and pain of sitting and typing for long periods. For
the July 2020 examination, Z.H. requested an accommodation
to allow her to use speech recognition software to overcome
her deteriorating mobility. According to Z.H., that request was
denied as untimely filed. As a result of COVID-19 protocols
put in place for the July 2020 examination, Z.H. was unable to
take that examination or the special September 2020 examina-
tion. Z.H. deferred to the February 2021 examination, which
was scheduled to be held remotely.
On January 7, 2021, the Bar Commission granted Z.H.
the following testing accommodations: extra testing time of
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 74633 percent, as well as a private single examinee room and
a chair with adjustable height. The Bar Commission denied
Z.H.’s request for the use of the speech recognition software
after concluding the software would impact the security of the
examination. The commission agreed to provide Z.H. with a
scribe who would type Z.H.’s answers from Z.H.’s dictation.
The accommodation required Z.H. to conduct the examina-
tion in the Bar Commission’s office in Lincoln, Nebraska.
On February 4, Z.H. requested a review hearing before the
Bar Commission, presumably under Neb. Ct. R. § 3-123 (rev.
2020), which allows an applicant to request a hearing regarding
an adverse decision of the Bar Commission.
A hearing on Z.H.’s appeal was held on February 12, 2021,
at which time Z.H. represented herself. On February 13, the
Bar Commission entered an order which provided Z.H. a
choice of two options to assist her in taking the examination.
“Option I” allowed Z.H. the following:
An additional 33% extra time to complete each of the 3
exam parts. [Z.H.] will be provided an adjustable chair.
The exam will be administered in the [Bar] Commission’s
office located at 3806 Normal Blvd in Lincoln, Nebraska.
This will be a private examinee room. A scribe, of the
[Bar] Commission’s choosing, will transcribe as [Z.H.]
dictates for the MPT and MEE. The transcription will be
projected to a big screen where [Z.H.] may edit as the
content is typed. The second day of the exam will be the
MBE which may be taken at a location [Z.H.] designates
which may include the [Bar] Commission Office. The
MBE exam will be administered -on [Z.H.’s] computer
equipment as a secure . . . exam.
[Z.H.] shall provide the [Bar] Commission with a
negative COVID-19 test - obtained as close as possible
to the exam - and she shall isolate herself as much as
possible up to arriving at the [Bar] Commission office
to minimize the likelihood of contracting or spreading
COVID-19. A mask shall be worn by [Z.H.] throughout
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746the time in the [Bar] Commission office when others are
present. Failure to wear a mask will subject [Z.H.] to the
cancellation of the exam.
“Option II” allowed Z.H. the following:
An additional 33% extra time to complete each of the
3 exam parts and an adjustable chair. The exam will be
administered in the [Bar] Commission’s office located
at 3806 Normal Blvd in Lincoln, Nebraska. In the pres-
ence of a proctor and/or audio and video equipment that
records what is said and what is typed. This will be a pri-
vate examinee room. [Speech recognition] software may
be used to do the transcription for the exam by dictating
into a Word document and then transferring the content
into the [secure exam software] question fields. The word
document may not be saved. [Z.H.] must supply her own
computer which has been wiped of all programs and
documents with the exception of the [speech recognition
software, word processing software, and secure exam
software] programs. [Z.H.] must execute an affidavit pre-
pared by the [Bar] Commission attesting to the deletion
of all programs with the exception of [speech recognition
software, word processing software, and secure exam
software], and that the computer has been purged of all
bar preparation outlines, practice essays and other related
documents. [Z.H.’s] computer will be inspected upon
arrival on exam day. [Z.H.] will not be allowed to take the
exam if the computer is not cleared of all documents and
programs other than the 3 designated programs. If [Z.H.]
encounters any problems removing any applications or
documents, she must inform the [Bar] Commission staff
in advance of the Bar Exam. [Z.H.] will not access the
internet at any time during the exam.
The second day of the exam will be the MBE which
may be taken at a location [Z.H.] designates -and may
include the [Bar] Commission office. The MBE exam
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746will be administered through [Z.H.’s] computer equip-
ment as a secure . . . exam.
[Z.H.] shall provide the [Bar] Commission with a
negative COVID-19 test obtained as close to the exam as
possible and she shall isolate herself as much as possible
up to arriving at the [Bar] Commission office to minimize
the likelihood of contracting and spreading COVID-19. A
mask must be worn by [Z.H.] whenever there is someone
else in the room with her. Failure to wear a mask will
subject the exam to cancellation.
Z.H. chose Option II and sat for the February 2021 examina-
tion. According to Z.H., prior to the examination, her computer
operated normally with the software necessary to comply with
the Bar Commission’s order. However, during the examination,
Z.H.’s laptop encountered difficulties. Ultimately, Z.H., with
the assistance of a proctor, was able to complete the examina-
tion in 111⁄2 hours. Z.H. averred that due to the computer dif-
ficulties, she experienced extreme mental stress, anxiety, and
physical pain.
On March 15, 2021, Z.H. filed a notice of appeal with
the Clerk of the Nebraska Supreme Court under Neb. Ct. R.
§ 3-126(A) and (B) (rev. 2020). In her notice of appeal, Z.H.
requested that she have an opportunity to prove damages; that
if she failed the examination, the Bar Commission be enjoined
from denying the use of speech recognition software for the
next examination; and that she be allowed to use speech recog-
nition software without the interruption of other software used
by the Bar Commission to monitor her test taking.
On March 17, 2021, Z.H. filed a document labeled
“Amendment pursuant to Neb. Ct. R. § 6-1115(a).” Attached
to the filing were three affidavits in which Z.H. reiterated the
information contained within her initial notice of appeal. On
that same date, Z.H. submitted a brief in support of her appeal.
In that brief, Z.H. sought an unspecified award of damages and
costs for the February 2021 bar examination, assumingly to be
paid by the Bar Commission.
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746On March 31, 2021, a notice was sent to Z.H. by the Bar
Commission, informing her that she had successfully passed
the February 2021 bar examination.
On April 1, 2021, Z.H. filed a second amended brief request-
ing damages. That same day, Z.H. filed an affidavit in support
of her request for damages. The affidavit set forth expenses for
attorney fees and mailing costs totaling $4,825.84; travel costs,
lodging costs, and software costs totaling $468.76; and unspec-
ified general damages for violations of 29 U.S.C. § 794(a)
and (b) (2018) and 42 U.S.C. §§ 12133 and 12188 (2018).
Z.H.’s attorney fees were based upon her expending 631⁄2 hours
researching and drafting appeal documents at the rate of $75
per hour.
On May 3, 2021, Z.H. filed a third amended brief. In
the third amended brief, Z.H. requested damages to include
$5,906.25 in attorney fees and mailing costs and $450,000 in
damages for violations of the Americans with Disabilities Act
of 1990 (ADA), 42 U.S.C. § 12101 et seq. (2018).
After reviewing the briefs filed by Z.H., this court ordered
supplemental briefing on the issue of whether this court has
jurisdiction to rule upon Z.H.’s request for damages. Both Z.H.
and the Bar Commission complied with our order for supple-
mental briefing.
ASSIGNMENTS OF ERROR
On appeal, Z.H. assigns that the Bar Commission erred in
(1) discriminating against her by reason of her disability, in
violation of the ADA and its regulations; (2) failing to provide
Z.H. with “‘meaningful access’” to the February 2021 bar
examination, which “‘best ensures’” measurement of Z.H.’s
knowledge of the law rather than her inability to type with
speed and accuracy under timed testing conditions, in con-
flict with the ADA and its regulations; (3) requiring Z.H.
to test in person by reason of her disability, in conflict with
the Supreme Court’s remote-only testing order and in con-
flict with the ADA and its regulations; and (4) disregarding
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746verification of Z.H.’s worsening disability provided by Z.H.’s
qualified medical practitioners of almost 8 years and, instead,
requiring “‘further documentation’” in the form of additional
physical evaluation reports and laboratory testing reports in
conflict with the ADA regulations.
STANDARD OF REVIEW
[1,2] A jurisdictional question that does not involve a factual
dispute is determined by an appellate court as a matter of law. 1
On questions of law, an appellate court has an obligation to
reach its own independent conclusions. 2
[3] The Nebraska Supreme Court considers the appeal of an
applicant from a final ruling of the Bar Commission de novo
on the record made at the hearing before the commission. 3
ANALYSIS
Z.H. claims that she was discriminated against, in that she
was required to take the bar examination in Lincoln while other
applicants took the examination remotely. Z.H. also claims
that she was subject to additional scrutiny and unfair treat-
ment while seeking accommodations and while taking the bar
examination. As a result, Z.H. claims this treatment violated
her rights pursuant to the ADA; the Rehabilitation Act of 1973,
29 U.S.C. § 701 et seq. (2018 and Supp. II 2020); and the Due
Process and Equal Protection Clauses of the U.S. Constitution.
Z.H. claims she is entitled to reimbursement for hotel costs and
other expenses incurred while taking the bar examination in
Lincoln and for attorney fees. Z.H. seeks punitive damages and
a declaration that her rights were violated.
Under Neb. Ct. R. § 3-115(A) (rev. 2020), it is the policy
of the Bar Commission to administer the bar examination
1
In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).
2
Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623
N.W.2d 308 (2001).
3
In re Application of Collins, 288 Neb. 519, 849 N.W.2d 131 (2014).
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746in a manner that does not discriminate on the basis of dis-
ability. Under § 3-115(K), the Bar Commission will grant
a request and provide special testing accommodations to an
applicant if it finds all of the following: “(1) the applicant
has a disability and is otherwise eligible to take the bar
examination; (2) the special testing accommodations are nec-
essary to ameliorate the impact of the applicant’s disability;
and (3) the special testing accommodations are reasonable
accommodations.”
Section 3-115(B)(3) defines a “reasonable accommodation”
as follows:
[A]n adjustment or modification of the standard testing
conditions that ameliorates the impact of the applicant’s
disability without doing any of the following:
(a) Fundamentally altering the nature of the exami-
nation or the [Bar] Commission’s ability to determine
through the bar examination whether the applicant pos-
sesses the essential skills, level of achievement, and apti-
tudes that are among the essential eligibility requirements
set forth in § 3-112, that the Nebraska Supreme Court and
the [Bar] Commission have determined are required for
admission to the practice of law in Nebraska;
(b) Imposing an undue burden on the [Bar] Commission;
(c) Compromising the security of the examination; or
(d) Compromising the integrity, the reliability, or the
validity of the examination.
Section 3-115(L) states: “The [Bar] Commission will have
sole discretion to determine what special testing accommoda-
tions are reasonable accommodations. The [Bar] Commission
may provide accommodations different than those requested
by the applicant if the [Bar] Commission determines that
the accommodations provided will effectively ameliorate the
impact of the applicant’s disability.”
Under § 3-126(A), an applicant is entitled to appeal to
the Supreme Court from an adverse decision of the Bar
Commission in accordance with § 3-123. Under § 3-126(C),
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746the Supreme Court may appoint a master to hear arguments
of the applicant and the Bar Commission, make findings, and
report them to the court with a recommended disposition.
Section 3-126(D) states that if no hearing before a master is
held, the court shall consider the matter de novo on the record
made at the hearing before the Bar Commission.
We have defined an “adverse decision” as “a denial by
the Bar Commission of a request for special testing accom­
modation.” 4 In a previous case, we assumed, without decid-
ing, that a request for accommodations can be effectively
denied if an applicant’s request is substantially granted by the
Bar Commission but the Bar Commission places additional
conditions on the accommodations that the applicant claims
are unacceptable. 5
[4] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the appeal. 6 Only one other case has come
before us on the issue of the denial of accommodations and the
award of damages in conjunction with the bar examination. 7
In In re Appeal of Stoller, 8 Asher L. Stoller, an applicant
for admission to the Nebraska State Bar Association, appealed
the denial of reimbursement from the Bar Commission for
costs and damages he allegedly incurred as a result of his
application for admission. Stoller had sought double time to
complete his examination due to his dyslexia. In considering
his request for accommodation, the Bar Commission required
Stoller to undergo an evaluation by an expert selected by the
Bar Commission. The examination was to be completed at
Stoller’s expense. Stoller then sought reimbursement for the
4
Neb. Ct. R. § 3-101(B)(2) (rev. 2020).
5
In re Appeal of Stoller, 261 Neb. 150, 622 N.W.2d 878 (2001).
6
In re Estate of Larson, 308 Neb. 240, 953 N.W.2d 535 (2021).
7
See In re Appeal of Stoller, supra note 5.
8
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746cost of the examination and attorney fees. Stoller’s requests
were denied, and Stoller appealed.
On appeal, we appointed a special master to preside over
a hearing into Stoller’s claims. Though we ultimately dis-
missed the appeal as untimely filed, we held that “an applicant
to the bar who is denied an accommodation for a disability,
or who claims that an accommodation offered by the Bar
Commission is unsatisfactory, may appeal that determination
. . . despite not failing or being denied permission to take the
bar examination.” 9
In the instant matter, Z.H.’s claims are similar to those
raised by Stoller. However, in In re Appeal of Stoller, we did
not reach the issue of whether we could award damages in an
appeal from the Bar Commission.
The Bar Commission contends that since Z.H.’s request
for accommodations was granted, it was not an adverse deci-
sion from which she could appeal. The Bar Commission also
contends that there is nothing in this court’s rules authorizing
appeals from denials of requests for special testing accom-
modations which permits an applicant to recover damages or
to raise a statutory or constitutional claim for damages. The
Bar Commission further contends that there is nothing in this
court’s rules governing requests for special testing accommo-
dations which permits the Bar Commission to award damages
to the applicant.
For purposes of this appeal, we again assume without decid-
ing that a request for accommodations can be effectively
denied within the meaning of § 3-126(A) if an applicant’s
request is substantially granted by the Bar Commission but the
Bar Commission places additional conditions on the accommo-
dations that the applicant claims are unacceptable.
[5,6] In turning to the issue of damages, we note that the
Nebraska Supreme Court is vested with the sole power to
9
Id. at 156, 622 N.W.2d at 884.
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746admit persons to the practice of law in this state and to fix
qualifications for admission to the Nebraska bar. 10 In turn, we
have delegated administrative responsibility for bar admissions
solely to the Bar Commission. 11 We have also established
specific rules and processes which set forth how the Bar
Commission is to carry out its duties and responsibilities. 12
[7] Our rules do not establish a process for an applicant to
seek costs which the applicant may have incurred in taking the
bar examination. Further, our rules do not authorize the Bar
Commission to award costs incurred by applicants when taking
the bar examination. We have held that “[a]n administrative
agency . . . has limited power, and its power is to be strictly
construed.” 13 As such, the Bar Commission is without authority
to award damages or costs to Z.H. and failure to do so cannot
be error.
Z.H. counters that we have jurisdiction to award her dam-
ages and the other relief she seeks under our original jurisdic-
tion as set forth in article V, § 2, of the Nebraska Constitution.
However, this case is not an original action, but, rather,
an appeal challenging the Bar Commission’s order grant-
ing Z.H.’s request for special testing accommodations. The
prior proceedings before the Bar Commission are set out in
the transcript, including the order on appeal setting forth the
accommodations. The case is docketed in this court as an
appeal. There is no application for a writ to issue from the
Supreme Court, which would be the practice if this were an
original case, and nowhere except in the argument is there
any pretense of invoking the original jurisdictional powers
10
In re Application of McDonnell, 299 Neb. 289, 908 N.W.2d 32 (2018). See
Neb. Const. art. II, § 1, and art. V, §§ 1 and 25.
11
See Neb. Ct. R. § 3-102 (rev. 2020).
12
Neb. Ct. R. § 3-101 et seq (rev. 2020).
13
Governor’s Policy Research Office v. KN Energy, 264 Neb. 924, 932, 652
N.W.2d 865, 872 (2002).
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IN RE APPEAL OF Z.H.
Cite as 311 Neb. 746of this court. There is no question but that this action invokes
the appellate jurisdiction of this court, as distinguished from
its original jurisdiction. 14 As such, we too lack jurisdiction to
award Z.H. the relief she seeks.
Our lack of jurisdiction to award Z.H. costs, damages, and
other relief does not mean that Z.H. is without legal recourse to
seek redress from the harms she has alleged. Our ruling merely
means that she must seek her relief in another venue.
CONCLUSION
The remedies Z.H. seeks from the Bar Commission and
the Supreme Court are not authorized by statute or court
rule. Consequently, this court lacks jurisdiction to address her
claims. We therefore dismiss Z.H.’s appeal.
Appeal dismissed.
14
See State v. Amsberry, 104 Neb. 273, 178 N.W. 822 (1920).