Application of Kimmer

BELL, C.J. The issue presented by the application of Robert Kimmer, the applicant, for admission to the bar of Maryland and the exceptions thereto, filed by the Board of Law Examiners, the Board, is whether a circuit court has jurisdiction 1 over bar ²⁵⁵ admission matters such that, having determined that an applicant to take the bar examination is entitled, when taking the examination, to accommodation, pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C.A. §§ 12101 et ser/., it may order the Board to provide such accommodation. The Circuit Court for Anne Arundel County, ruling on the applicant’s Petition for Preliminary Injunction and/or Temporary Restraining Order, determined that the ADA applied and that the applicant was entitled to the accommodation he sought. Accordingly, it granted the applicant’s request for a temporary restraining order and ordered the Board to provide “ADA accommodations,” as specified. 2 We shall hold that ²⁵⁶ authority over the bar admission process is solely within the jurisdiction of this Court. I. The applicant was not diagnosed with, and appears not to have sought evaluation for, a learning disability until just prior to entering law school in 2002, after he had taken the Law School Aptitude Test (“LSAT”).

He had previously taken the Scholastic Aptitude Test (“SAT”), entered Emory University, completed his Bachelor’s Degree at that University with a 3.7 Grade Point Average, and taken the LSAT, all without disability accommodation. His dissatisfaction with his LSAT score prompted him to obtain an evaluation to determine if he had learning disabilities. The psychologist he consulted, Dr. Anne Wake, after testing the applicant over four days, concluded that he has a specific processing learning disability, diagnosis 315.9 in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (“DSM-IV”). On the strength of that diagnosis and consistent with Dr. Wake’s recommendation, he was given accommodation, typically amounting to double time and the use of a computer, 3 throughout law school, at both the University of Baltimore Law School and the George Washington University School of Law. 4 ²⁵⁷ On May 15, 2005, the applicant wrote to the Board of Law Examiners requesting ADA accommodation when he sat for the July 2005 Maryland bar examination. 5 He included in his letter reports from his psychologist, as well as letters from both of the law schools he had attended, the latter of which indicated that he had received such accommodations throughout his law school career.

The applicant specifically asked that he be given double time to complete the examination and that he be permitted to use a word processing computer in doing so. The Board, consistent with its customary practice and its Rules, see Rule 3 d. of the Rules of the Maryland State Board of Law Examiners, 6 forwarded the reports and the letters to its expert psychologist for review. On this occasion, the material was sent to Dr. Lawrence Lewandowski, The Board’s psychologist concluded, on the documentary record, 7 that the applicant had not demonstrated a disability ²⁵⁸ covered by the ADA and, therefore, was not entitled to accommodation. 8 He consequently recommended that the applicant not be given accommodation. Based on that recommendation, on June 20, 2005, the Board denied the applicant’s request for ADA accommodation.

The reasons for the decision were amplified by its subsequent letter, dated June 21, 2005, responding to a further inquiry from the applicant for a fuller explanation of its decision. In that letter, the Board advised the applicant, as it had been informed by Dr. Lewandowski, that he did not meet the criteria for either a DSM-IV diagnosis of a learning disorder or as a qualified person under the ADA, explaining that he had demonstrated above average performance in “virtually every dimension of cognitive and academic functioning” and that “[b]ecause a test score is not as high as a superior IQ score, does not mean it is a deficit or impairment.” 9 In addition, the Board invited the submission of “additional documentation,” by way of “an appeal,” to be filed with its Chair, within ten days. ²⁵⁹ On July 1, 2005, the applicant, through counsel, filed, by letter, Appeal of Denial of Request for Bar Exam Accommodation for Robert Kimmer, 10 with the Board’s Chair. Arguing that he was evaluated by a highly-eredentialed expert in learning disabilities, that he has a learning disability, as demonstrated by the professional testing performed by that expert, and that his disability “substantially limits the major life activities of reading, writing ... [and] working, and [that he] has the proficiency and intellect required to practice law,” the applicant concluded that he thus required and was entitled to accommodation. Moreover, the applicant asserted, professional examinations, such as bar examinations, fall under the purview of the ADA.

This “appeal,” along with a supplemental letter from Dr. Wake addressing the deficiencies the Board identified in the applicant’s submission seeking accommodation, were referred to Dr. Lewandowski for review. Finding that nothing new had been presented, Dr. Lewandowski’s recommendation did not change. Based on that assessment and the Chair’s review of all documentation, the Board, on July 21, 2005, 11 denied the “appeal,” concluding “that there is no justification for granting the accommodations requested and they are therefore denied.” On July 22, 2005, four days before the bar examination he intended to sit for was to be administered, the applicant filed, in the Circuit Court for Anne Arundel County, a Petition far ²⁶⁰ Preliminary Injunction and/or Temporary Restraining Order to enjoin the State Board of Law Examiners “from denying ADA accommodations to [the applicant] on the July 2005 Maryland and multistate bar exam in the form of double time and the use of a computer on the essay exam.” He argued in the petition, as he had similarly argued to the Board, that he suffers from a learning disability which substantially limits major life activities, namely reading, writing, and working, that he is thus impaired in his ability to compete with his peers on time restricted examinations, and that the failure of the Board to give him ADA accommodations as requested deprives him of his right to work in his chosen profession. Further, he urged that, because he was planning to take the July 26 and 27 bar examination, it was imperative that the Court quickly order that such accommodations be given.

Following a hearing held on the same day, 12 the trial court ordered the requested injunctive relief, namely, a temporary restraining order requiring that the applicant have the use of a computer for the essay portion of the examination and double time in which to take it and the multistate examination. It concluded that the applicant would likely be successful on the merits of the case, that the likelihood of prejudice regarding other examination takers was outweighed by the applicant’s hardship, that the applicant would likely suffer irreparable harm if he was not accommodated and failed the examination, that the accommodations would be easy for the Board to make, and that public policy favored giving accommodations to those with ADA recognized disabilities. 13 ²⁶¹ The Board fully complied with the court’s order and provided the ordered accommodation for the applicant during the July 2005 examination. Subsequently, however, by letter dated August 2, 2005, long before the examination had been graded and two days before the expiration of the temporary restraining order, it informed the applicant, through counsel, that it was “maintaining] its position that [he] has not established that he is entitled, under the Americans with Disabilities Act, to the accommodations he received for the July 2005 Maryland bar examination.” The Board also advised the applicant that, although it would grade his examination anonymously with the other examinees, it would not recommend his admission to the bar of Maryland, even if he passed the examination, “prior to an adjudication on the merits of his entitlement to accommodations for taking the Maryland bar examination.” In response, on September 29, 2005, 14 the applicant filed a Motion for Declaratory Relief. Filed in the same case from which the temporary restraining order was issued, he, in effect, asked the Circuit Court to make the temporary restraining order it had issued on July 22 permanent and, further, for a ruling that the applicant be admitted to the Maryland Bar.

In that regard, the applicant argued that the granting of the temporary restraining order would have been otherwise meaningless; in issuing the order, the court also ²⁶² must have intended that the Board recommend the applicant’s admission upon his successful passing of the bar examination. The Board timely opposed this motion. Noting that the motion was filed two months after both the expiration of the temporary restraining order and receipt of the Board’s letter informing the applicant of its intention not to recommend the applicant’s admission and, thus, characterizing it as “improperly seeking] to revive and extend the parameters of a long-expired temporary restraining order, contrary to the Rules, and to transmute it into permanent injunctive relief,” the Board submitted that, “[a]s the filing is unsupported by a proper complaint, it is plainly defective and [the Circuit] Court lacks jurisdiction to act on it. It must be stricken.” On November 4, 2005, as required by Rule 10(a) of the Rules Governing Admission to the Bar of Maryland, 15 the Board of Law Examiners reported the results of the July 2005 bar examination to the Court of Appeals, along with its recommendations for admission.

The applicant was listed as having passed the examination. On the same date, pursuant to Rule 10(b), 16 this Court passed an order setting December ²⁶³ 5, 2005 as the date on which, in the absence of the filing of exceptions to any applicant, the Board’s recommendation would be ratified, and, pursuant to Rule 10(c), 17 the Board filed its exceptions to the applicant’s admission. Thereafter, by letter to the Court, dated November 17, 2005, the Board asked the Court to set the matter of its exception to the admission of the applicant in for a hearing, pursuant to Rule 10(c). It perceived the “discrete issue before the Court [to be] whether [the applicant] is entitled to admission when he has not sought, nor obtained, an adjudication on the merits of his ADA claim.” Accordingly, the Board offered in support of its request that “[t]he qualification of an applicant for admission to the Bar is a matter which rests peculiarly within the jurisdiction of this Court.” On December 2, 2005, this Court ordered that any proceedings in the Circuit Court for Anne Arundel County regarding the applicant’s bar examination and admission be stayed, and scheduled the case for a hearing on the Board’s exceptions and on the issue of the Circuit Court’s jurisdiction over bar admission matters.

II

The regulation of the practice of law, including the regulation of the admissions to the bar, long has been, see Act ²⁶⁴ of April, 1715, ch. 48, §§ 12, 13 (Maxcy ed., vol. 1, p. 132 (1811)), 18 and is now, a judicial function. Post v. Bregman 349 Md. 142, 162-63 , 707 A.2d 806, 816 (1998); Attorney General v. Waldron, 289 Md. 683, 692 , 426 A.2d 929, 935 (1981); Maryland State Bar Ass’n v. Boone, 255 Md. 420 , 258 A.2d 438 (1969); Pub. Service Comm’n of Maryland v. Hahn Transportation, 253 Md. 571, 583 , 253 A.2d 845, 852 (1969) (“Under our constitutional system of separation of powers, the determination of what constitutes the practice of law and the regulation of the practice and of its practitioners is, and essentially and appropriately should be a function of the judicial branch of the government.”). This point was made most forcefully and completely in Waldron , where we explained: “Cognizant of the constitutionally imposed responsibility with respect to the administration of justice in this State, this Court has heretofore recognized and held that the regulation of the practice of law, the admittance of new members to the bar, and the discipline of attorneys who fail to conform to the established standards governing their professional conduct are essentially judicial in nature and, accordingly, are encompassed in the constitutional grant of judicial authority to the courts of this State....

Thus, in [Public Serv. Comm’n v.] Hahn [Transp., Inc.], 253 Md. [571,] 583, 253 A.2d [845,] 852 [1969], Chief Judge Hammond stated for this Court that ‘(u)nder our constitutional system of separation of powers, the determination of what consti ²⁶⁵ tutes the practice of law and the regulation of the practice and of its practitioners is, and essentially and appropriately should be, a function of the judicial branch of government.’ A short time later, this Court determined, inter alia, that the following words of the Supreme Judicial Court of Massachusetts are ‘highly persuasive’: “It is a necessary implication from the exclusive jurisdiction of the judicial department of control of membership in the bar that the judicial department is not restricted in the (manner) of review in such proceedings to methods prescribed by statute. If this were not true the judicial department would be restricted by legislative action in the performance of its duties with respect to membership in the bar of which it has ‘exclusive cognizance.’ ” (Maryland State Bar Ass’n v. Boone, 255 Md. at 431 , 258 A.2d at 443 .) “The principle that the admission of attorneys to the bar as well as their supervision once admitted are by nature functions and concerns of the judicial branch of government is far from a novel concept. The history of the courts in the formative years of this nation, and indeed, the history of our ancestral English courts support the conclusion that this uniquely judicial responsibility is of ancient vintage.

Even though the doctrine of separation of powers is not an integral part of the British system of government and is one whose fruition occurred on the western shores of the Atlantic, the English courts common law, chancery, admiralty and ecclesiastical have always exclusively admitted attorneys, solicitors and proctors to practice before them. Insofar as the other class of English legal practitioners is concerned, barristers traditionally were regulated by the educational societies known as the Inns of Court, which, in turn, generally are thought to have submitted to the control of judges as visitors to those bodies. All of this oversight and supervision of the English practitioners was accomplished independent of any authorization or predomination by any other department of government. See State v. Cannon, 206 Wis. 589 [374], 240 N.W. 441, 445-48 (1932), and In re Day, 181 ²⁶⁶ Ill. 73, 54 N.E. 646 , 648-50 (1899), and citations therein, for discussions of the history of the admission and regulation of lawyers in England.

See also Note, Admission to the Bar and the Separation of Powers, 7 Utah L.Rev. 82, 82-86 (1960). Similarly, there are early statements in opinions of courts of this country that declare the admission to practice to be an exercise of judicial power. See, e. g., Ex parte Garland, 71 U.S. (4 Wall.) 333 , 18 L.Ed. 366 (1867); Ex parte Secombe, 60 U.S. (19 How.) 9 , 15 L.Ed. 565 (1857); In re Mosness, 39 Wis. 509 , 20 Am.Rep. 55 , 56-57 (1876). See also 1 E. Thornton, Attorneys at Law §§ 756-61 (1914).

As has been recognized by a distinguished scholar of these matters: “It is undoubtedly true that the power to admit one to practice as an attorney at law is a judicial function. It is a power inherent in the court, which is to be exercised by a sound judicial discretion.... Early in the national jurisprudence it was held that the power to admit and remove was the exclusive province of a federal court. And this ruling has been consistently maintained.

Where a state constitution lodges the judicial power exclusively in the courts, as a coordinate department of government, (as does Maryland’s by Art. IV, § 1,) the legislature will not be permitted to encroach upon the judicial powers by assuming to make admission to the bar a legislative function. (Id., § 28, p. 31-32.)” “Moreover, in more recent decades, various courts from many of our sister jurisdictions have pronounced that such authority, and the power generally to regulate matters regarding the profession and its practitioners, are reposed inherently in the judiciary.... “The statements of this and other courts announcing the obligation of the judicial branch of government to monitor and manage its own house are not hollow proclamations of power, for the placement of this responsibility with the judiciary represents a recognition of this special, and to a degree, unique relationship that has evolved over the years between the legal profession and the tribunals of justice it ²⁶⁷ selves. In this country, it is a well known maxim that attorneys function as officers of the courts, and, as such, are a necessary and important adjunct to the administration of justice. This truism necessarily derives, in our view, from the very theory of the structure of our system of justice.” 289 Md. at 692-695 , 426 A.2d at 935-936 (and cases therein cited).

To be sure, the judicial power of admitting attorneys to the practice of law was exercised, between 1715 and 1898, by both the county courts and this Court—initially by the county courts exclusively, William H. Adkins, II, What Doth the Board Require of Thee?, 28 Md. L.Rev. 103, 104 (1968); see State v. Johnston, 2 H. & McH. 160 , 1786 WL 52 , 2-3 (General Court, 1786) (refusing to grant certiorari to review the action of a lower court in admitting to practice one who had been a Tory), 19 and, later, concurrently with this Court. Adkins, 28 Md. L.Rev. at 104. The current procedures for admitting attorneys have their genesis in Ch. 139, 1898 Md. Laws, the enactment of which placed in this Court exclusive jurisdiction over admissions. 20 Chapter 139 provided: ²⁶⁸ “All applications for admission to the bar in this State shall be made by petition to the Court of Appeals. A State Board of Law Examiners is hereby created to consist of three members of the bar of at least ten years’ standing, who shall be appointed by the Court of Appeals, and shall hold office for the term of three years....

All applications for admission to the bar shall be referred by the Court of Appeals to the State Board of Law Examiners, who shall examine the applicant, touching his qualifications for admission to the bar. The said board shall report their proceedings in the examination of applicants to the Court of Appeals with any recommendations said board may desire to make. If the Court of Appeals shall then find the applicant to be qualified to discharge the duties of an attorney, and to ²⁶⁹ be of good moral character and worthy to be admitted, they shall pass an order admitting him to practice in all the courts of the State.” Therefore, it has been clear, since 1898, that the Court of Appeals has had exclusive jurisdiction over the regulation of, and admission to, the practice of law. See Bastian v. Watkins, 230 Md. 325, 329 , 187 A.2d 304, 306 (1963) (“[I]n 1898, following a definite trend toward uniformity that apparently began as early as 1831, the Court of Appeals of Maryland was vested with exclusive power to admit applicants to practice law.”); Maryland State Bar Ass’n v. Boone, 255 Md. 420, 430 , 258 A.2d 438, 443 (1969) (“Since the passage of Ch. 139 of the Laws of 1898 ... the Court of Appeals in the exercise of its inherent and fundamental judicial powers has supervised, regulated and controlled the admission of lawyers.”); Application of Allan S., 282 Md. 683, 689 , 387 A.2d 271, 275 (1978) (“Upon this Court falls the primary and ultimate responsibility for regulating the practice of law and the conduct and admission of attorneys in this State.”); In the Matter of the Application of William H. Hyland, 339 Md. 521, 534 , 663 A.2d 1309, 1315 (1995).

It follows that the Circuit Court for Anne Arundel County simply had no jurisdiction over any aspect of the applicant’s bar admission, including the circumstances surrounding his bar examination.

III

Despite the foregoing and its clarity on the question of this Court’s exclusive jurisdiction, the applicant nevertheless argues, on this appeal: “Although the Court’s order could only have meant that the Board (1) administer the bar exam, (2) anonymously grade the bar exam, and (3) if Mr. Kimmer passed the anonymously graded bar exam, report the results to this Court in the same manner that it would for any other successful candidate, the Board refused to report the favorable results ²⁷⁰ unless Mr. Kimmer obtained another court order, [21] in a separate hearing on the merits, ruling that he was entitled to ADA accommodations, even though, under the Circuit Court’s order, Mr. Kimmer’s July 2005 exam, as administered, would forever be his only July 2005 exam.” Notwithstanding the implications of this argument, the applicant denies that he has sought, or is seeking, “to have the trial court direct his admission to the bar.” Rather, he says, he merely used appropriate legal process to obtain “valid enforcement of his federal ADA rights,” i.e. injunctive relief. Moreover, he asserts that, because the ADA preempts state and local law to the contrary, it “controls” even in cases of bar licensure, which the applicant concedes is an issue for this Court. Further, the applicant notes, and emphasizes, that state courts, and consequently Maryland circuit courts, have concurrent jurisdiction with the federal judiciary over ADA claims. The applicant thus concludes: “Merely because Mr. Kimmer’s ADA issue arises in the context of the bar exam does not place it outside the statutory jurisdiction of the Circuit Court.

No one would suggest that an applicant for a CPA exam or a medical board certification would litigate the denial of ADA accommodations before accountant or medical licensure bodies, simply because they, like this Court, ultimately control the licensure process of their profession.” [22] ²⁷¹ Notwithstanding the applicant’s protestations to the contrary, the thrust of his argument is that the trial court’s preliminary ruling is dispositive, and not only of the ADA accommodation question, but also of the Board’s obligation not simply to report the applicant’s favorable results but, as it would do in the case of a person taking the examination without accommodation, to recommend his admission to the bar. That is necessarily the case when the effect of other actions that must be taken subsequent to the court’s temporary ruling necessarily must be informed by, and conform to, what the court must have meant when it made the ruling, whether or not the issue driving the ruling was contested. The implications of adopting that argument in this context are clear; at least with regard to applicants to the bar who claim to have disabilities covered by the ADA, the circuit courts will have concurrent jurisdiction with this Court with regard to their bar admission. While the regulation of the practice of law, including the admission to the bar, was at one time a shared responsibility between the county courts and the General Court and then, later, between the county courts and this Court, that no longer is the case.

We decline to retreat to that earlier time. Sidestepping the historical basis of this Court’s exclusive jurisdiction over bar admission matters, the applicant attempts to argue that concurrent jurisdiction between this Court and the circuit courts is necessary in instances where ²⁷² immediate relief, which, presumably, only the circuit courts are equipped to grant, is required. Of course, he believes his case is one of these instances; his reasoning is that, because he submitted his request for accommodations to the Board well within the Board’s own deadline, and because he followed each action by the Board with speedy action of his own, the fact that he still had an unfavorable outcome four days before the bar examination for which he planned to sit required that, to obtain the ADA accommodations he sought, he had to seek immediate injunctive relief through the Circuit Court. The premise on which this argument proceeds is faulty.

Neither this applicant nor any other has the right to take a particular bar examination at a particular time, nor to be admitted to the bar at any particular time. That the Board of Law Examiners took longer than the applicant would have liked to render its final decision does not mean that it acted unreasonably or placed the applicant in a situation which could be remedied only by obtaining injunctive relief from the Circuit Court. With respect to the July bar examination, the applicant had two choices: he could have taken the examination unaccommodated, or he could have postponed taking the examination to pursue, through the administrative process, the accommodation to which he believed he was entitled. To be sure, the applicant, without accommodation, may have failed the bar examination had he taken it, or he may have had to delay taking the examination.

That, however, is irrelevant to our analysis and to the procedures prescribed by this Court in bar admission matters. There simply is no such immediate need present in bar admission matters such that circuit court jurisdiction is required. Further, that our own jurisdictional rules require the applicant to bring his bar admission-related ADA claim to the Board and this Court rather than to any other state court does not contradict the ADA and its preemption provisions, contrary to the applicant’s arguments. The applicant is correct in that cases arising under the ADA may be heard in either federal or state courts, Yellow Freight System, Inc. v. Donnel ²⁷³ ly, 494 U.S. 820, 823 , 110 S.Ct. 1566, 1568 , 108 L.Ed.2d 834, 839 (1990); R.A. Ponte Architects v. Investors’ Alert, Inc., 382 Md. 689, 715 , 857 A.2d 1, 16 (2004); 28 U.S.C. § 1331 (2006), and rules which would outrightly prohibit such claims, or their adjudication, are preempted.

Pacific Gas & Electric Co. v. State Energy Resources Conser. & Dev. Comm’n, 461 U.S. 190, 203-204 , 103 S.Ct. 1713, 1722 , 75 L.Ed.2d 752, 765 (1983). The ADA does not mandate specific state court procedures by which a plaintiff must be heard, however. Ware v. Wyoming Board of Law Examiners, 973 F.Supp. 1339, 1353 (D.Wy.1997) (“The ADA does not completely preempt or displace a state’s procedure for licensing attorneys, rather ‘the ADA merely prohibits states from discriminating on the basis of disability.’ ”).

Federal preemption of state laws occurs only to the extent to which there is a conflict between the state court procedure and the ADA. Pacific Gas and Electric Co. v. State Energy Resources Conser. & Dev. Comm’n, 461 U.S. 190, 203-204 , 103 S.Ct. 1713, 1722 , 75 L.Ed.2d 752, 765 (1983). Therefore, that our rules require the applicant to present his ADA accommodation entitlement claim to the Board of Law Examiners for determination, with the ultimate resolution being entrusted to this Court, and not to any other state court, does not violate the ADA.

The applicant’s opportunity to be heard, albeit through procedures which differ from those that govern ADA claims which do not arise in the bar admission context, is nevertheless preserved. It should be noted that similar conclusions have been reached by other courts. In Varad v. Barshak, 261 F.Supp.2d 47 (D.Mass.2003), plaintiff/applicant orally requested ADA accommodations during the bar examination from a member of the Massachusetts Board of Bar Examiners (“BBE”), but did not make that request in writing or within seventy-five days prior to the bar examination, as the BBE required. Id. at 55 .

Because she had failed to follow the processes dictated by the BBE, and, thus, failed to exhaust her remedies under the BBE, the Massachusetts Supreme Judicial Court refused to hear the case, to intervene, or to grant her accommodations. Id. at 52 . The applicant sought relief from the United States ²⁷⁴ District Court for the District of Massachusetts. That court similarly denied the applicant’s request, on summary judgment, because, despite having received notice of the procedures necessary to obtain accommodations, the applicant had failed to comply with them.

Id. at 55 . Thus, it was determined, if only implicitly, that the Massachusetts Board of Bar Examiners’ rules and procedures for obtaining ADA accommodations did not violate the ADA or deny the applicant her right to be heard. As our historical analysis and jurisprudence make clear, this Court, since 1898, is the only court with jurisdiction over bar admission matters. None of the applicant’s arguments to the contrary has merit.

The Circuit Court simply had no jurisdiction to order the injunctive relief in this case. Accordingly, the Board’s exceptions are sustained. IV Neither Title 10 of the Maryland Code, Business Occupations and Professions Article nor the Rules Governing Admission to the Bar of Maryland [Rules] specifically addresses procedures to be followed in a situation such as the applicant’s, where an applicant seeks further review of the Board of Law Examiner’s decision to deny him ADA accommodations for the bar examination. There are, however, Rules that are pertinent and,