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March 23, 1982

David FRUCHTMAN, etc., Plaintiff,

The opinion of the court was delivered by: MOTLEY

This action has its genesis in an event all too familiar to practitioners in this Court: the New York State Bar Examination (hereinafter referred to as Bar Exam). Plaintiff, David Fruchtman, alleges that the grading of Essay Question #5 in the February, 1981 Bar Exam was arbitrary and irrational, in violation of his rights under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution. Plaintiff also contends that the review procedures afforded to a failing applicant who challenges his grade are constitutionally deficient. Plaintiff names as defendants in this action the New York State Board of Law Examiners (the Board), the members thereof, the Executive Secretary and the New York State Court of Appeals in its capacity as enforcer of the rules governing admission to practice.

Plaintiff has moved for a preliminary injunction enjoining defendants from denying him admission to the bar and requiring defendants to admit him to practice based on his February, 1981 Bar Exam results. He also seeks to prosecute this proceeding as a class action in order that others, similarly situated, will be admitted to practice. Also pending before this court are defendants' motion to dismiss the complaint and plaintiff's motion for summary judgment.

 This court has heard extensive oral argument on the pending motions and has carefully considered the exhaustive briefs submitted in this case. Plaintiff's brief, the court notes, treated thoroughly and carefully the very difficult issues presented in this case. The issue most hotly contested by the parties is whether plaintiff has raised a substantial federal question in his complaint. The court will assume, for purposes of this opinion, that if a dissatisfied applicant can show that he was denied passage of the Bar Exam by reason of arbitrary and irrational conduct by the Board of Law Examiners, he has stated a substantial federal question. Cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 (1957); Louis v. Supreme Court of Nevada, 490 F. Supp. 1174 (D.C.Nev.1980). Similarly, this court will assume that a constitutionally infirm process of review may be challenged in the federal courts as violative of procedural due process rights. Whether or not the court should in fact exercise its jurisdiction is, however, an entirely different matter. After careful deliberation, this court has decided that a determination of plaintiff's constitutional challenges is premature and that the court will abstain from exercising jurisdiction at this time. Accordingly, plaintiff's complaint is dismissed for reasons of comity, discussed more fully below. This dismissal is explicitly without prejudice to plaintiff's right to return to a federal forum at some later date, should his effort to obtain relief in the state system prove ineffective.

 The facts underlying the instant action are not in dispute. Plaintiff took and failed the February, 1981, New York State Bar Examination. He received a total weighted scale score of 658, two weighted points below the total weighted score required to pass the exam. Had plaintiff received one additional point on any one essay question, he would have achieved the cut-off mark necessary to pass the exam.

 Pursuant to the Board's procedures, plaintiff traveled to Albany to review his answers and compare them with the Board's model answers. It was at that time that he discovered that the model answer for Essay Question # 5 contained "erroneous statutory references and analysis" (Fruchtman Aff. P 11). Specifically, plaintiff learned that the model answer to this "Wills" question stated that the after-born child's share was one-half of the net estate remaining after giving the widow $ 2,000. Plaintiff's answer stated, and a 1978 amendment to the governing statute provided, that the correct amount was $ 4,000 rather than $ 2,000. Defendants concede this error in the model answer but argue that it was a minor detail in the question which in no way figured in the grading of the answer to this question (Karger Aff. P 26).

 Plaintiff also claims that he discovered an error in the model answer relating to the extent of the marital deduction available to the estate on the Federal Estate Tax Return. Defendants adamantly deny that the model answer in this respect was incorrect. As stated earlier, because the court has decided to abstain here, this dispute need not be resolved.

 After discovering these alleged errors, pursuant to the Board's procedures, plaintiff prepared a written application for review by the Board setting forth the specific objections just discussed (Exh. B attached to Fruchtman Aff.). By letter dated October 14, 1981, the Board informed plaintiff that it had considered the points raised in his appeal and had found no reason to change the grade initially assigned (Exh. D attached to Fruchtman Aff.). The Board, however, did not set forth its reason for declining to change plaintiff's grade on Essay Question # 5.

 Thereafter, plaintiff filed an appeal to the New York State Court of Appeals requesting the court to assume jurisdiction and, in effect, overrule the Board. After an exchange of correspondence between counsel for plaintiff and the Clerk of the Court of Appeals, the Court of Appeals (through the Clerk) notified plaintiff that it had no authority to waive plaintiff's certification by the Board. Stressing that it was acting administratively rather than judicially, the Court, through the Clerk, went on to state:

Any application for certification by the Board, notwithstanding Mr. Fruchtman's failure in the examination, based on the narrow margin of such failure, should be addressed to the Board.

 (Letter of December 18, 1981, attached to Fruchtman Aff.).

 Plaintiff, notwithstanding the Court of Appeals's suggestion to re-raise the certification issue with the Board, decided not to go back to the Board and, instead, filed the instant action. When questioned by this court as to why plaintiff took this course of action, counsel for plaintiff stated that he felt it would have been "futile" to go back to the Board given that it had initially denied plaintiff's appeal.

 This court, on the facts before it, will not assume that the Court of Appeals directed plaintiff to engage in a futile and meaningless endeavor. When the Court of Appeals directed plaintiff to present the certification issue to the Board, it obviously knew that plaintiff's initial appeal to the Board had been unsuccessful. Nonetheless, it suggested that plaintiff try once more to obtain certification from the Board. Had plaintiff done so without success, he could have then brought an Article 78 proceeding in the State Supreme Court challenging both the Board's action as arbitrary and capricious and the alleged infirmity of the review procedure afforded to him. Because this avenue with its attendant state court appeal procedure is still open to plaintiff, this court feels it most appropriate to allow the state courts the first opportunity to decide the questions plaintiff raises here.

 The court cannot agree with plaintiff that an Article 78 proceeding would be a meaningless exercise. In Davidson v. New York State Board of Law Examiners, 86 Misc.2d 744, 382 N.Y.S.2d 418 (Sup.Ct. Albany County 1976), a failing applicant brought such a proceeding to direct the Board to certify that he had passed the Bar Exam. The court held that bar exam grades are not reviewable in the absence of any showing of arbitrariness, capriciousness or abuse of discretion by the Board. Here, unlike in Davidson, such an allegation, based on an admitted error in the model answer to Essay # 5, is made. Plaintiff, therefore, has a colorable claim to raise in the state courts. See also Matter of Sodha v. State Law Examiners, 105 Misc.2d 159, 431 N.Y.S.2d 885 (Sup.Ct. Albany County 1980) (court cannot substitute its judgment for that of the Board, unless there is a showing that the Board exercised its discretion unfairly or capriciously).

 Moreover, plaintiff's decision not to pursue the matter further with the Board, contrary to the direction of the Court of Appeals, and to present his claims instead in federal court, raises sensitive problems of federal-state comity. In this regard, the Second Circuit has recently observed that "federal courts have abstained in numerous areas where state regulation involved matters of substantial state concern and where state policies were carried out in a statutorily established regulatory program by state officials." Levy v. Lewis, 635 F.2d 960, 963 (2d Cir. 1980). See also Alabama Public Service Commission v. Southern Railway, 341 U.S. 341, 71 S. Ct. 762, 95 L. Ed. 1002 (1957) (state regulation of intrastate railroads); Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098, 87 ...

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