Witzke v. Idaho State Bar

647 F.Supp.3d 943

Brooks M. WITZKE, Plaintiff, v. IDAHO STATE BAR, Robert A. Berry,individually and in his official capacity as a Deputy Attorney General for the State of Idaho,Lawrence G. Wasden, individually and in his official capacity as the Attorney General for the State of Idaho,Kristin L. Bjorkman, individually and in her officialcapacity as the President of the Idaho State Bar Board of Commissioners,Joseph N. Pirtle, individually and in his official capacity as the Idaho State Bar Counsel,Mitchell W. Brown, individually and in his official capacity as the District Court Judge for the Counties of Caribou,Bear Lake, Franklin, and Bannock, Counties With the Sixth Judicial District of the State of Idaho,the County of Caribou, Idaho, the County of Franklin, Idaho,the County of Bear Lake, Idaho, Defendants.

Case No. 1:22-cv-00478-REP

United States District Court, D. Idaho

Signed December 23, 2022

Brooks M. Witzke, Lawman LLC, Lava Hot Springs, ID, for Plaintiff.

Joseph M. Aldridge, Keegan Charles August Hahn, Scanlan Griffiths Aldridge Nickels, Boise, ID, for Defendants Idaho State Bar, Board of Commissioners of the, DAG Robert A. Berry, AG Lawrence G. Wasden, Kristin L. Bjorkman, Bar Counsel

Joseph N. Pirtle, Judge Mitchell W. Brown.

Blake G. Hall, Sam L. Angell, Hall Angell & Associates, LLP, Idaho Falls, ID, for Defendants Caribou County Idaho, Idaho Franklin County, Bear Lake County.

MEMORANDUM DECISION AND ORDER RE:

PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (Dkt. 3)

PLAINTIFF'S MOTION IN LIMINE (Dkt. 44)

Raymond E. Patricco, Chief United States Magistrate Judge

Pending before the Court is Plaintiff's Motion for Preliminary Injunction and Expedited Hearing as soon as Practicable (Dkt. 3) (the "PI Motion") and Plaintiff's Motion in Limine to Prohibit Oral Testimony at the Preliminary Injunction Hearing and Motion to Declare Certain Facts Conclusively Established (Dkt. 44) (the "Motion in Limine"). All parties have consented to the exercise of jurisdiction by a United States Magistrate Judge. (Dkt. 32). For the reasons stated below, the PI Motion is denied on the merits and the Motion in Limine is denied as moot.

I. BACKGROUND¹

A. The Bar Application Process

This matter concerns the various procedural steps a bar applicant must take before receiving a final decision on the merits of their application. As such, the following context is helpful to understanding the PI Motion and Plaintiff's requested relief.

The Idaho State Bar ("ISB") administers the Idaho Bar Examination (the "bar exam") in February and July each year. I.B.C.R.² 203(b). To sit for the February bar exam, applications must be submitted by October 1, and late applications are accepted until November 15 with the payment of an additional fee. I.B.C.R. 203(b), (c)(2)(A). Similarly, to sit for the July bar exam, an application must be submitted by March 1, but late applications (with a fee) are accepted until April 15. I.B.C.R. 203(b).

Applicants must provide information relating to their character and fitness to practice law, and when their responses to questions on the bar application implicate eligibility criteria relating to character and fitness, their applications may be referred to the Character and Fitness Committee of the ISB ("CF Committee"). Pirtle Dec., Ex. C ¶¶ 2-3, 7-8 (Dkt. 41-1); see I.B.C.R. 208(b) ("The Board [of Bar Commissioners] may refer any Application to the CF Committee[.]"). The CF Committee has the authority to require, upon reasonable notice, an applicant to appear for a Character and Fitness Examination ("Rule 208 examination"). I.B.C.R. 208(c). Further, the CF Committee has the authority to "approve or recommend denial or conditional admission of an Applicant" by majority vote. I.B.C.R. 209(f).

If the CF Committee recommends denying an application, the ISB Board of Commissioners (the "Board") may then vote to (i) approve the application, (ii) deny or modify the application, (iii) recommend conditional admission, or (iv) order further investigation. I.B.C.R. 215(a). Following notice of an order of the Board denying their application, the applicant may then request a show cause hearing by filing a written petition with the executive director of the ISB within twenty-one days. I.B.C.R. 215(d). A show cause hearing "shall be scheduled at a time convenient to the Applicant and the Board" and the Board must issue a decision within fourteen days of receipt of the hearing transcript. I.B.C.R. 215(f)(1), (g).

Finally, if the Board decides to deny an application following a show cause hearing, an applicant may then file a petition for review with the Idaho Supreme Court within twenty-one days of receiving notice of the adverse decision. I.B.C.R. 216(a), (d). The Board has fourteen days to respond to this petition. I.B.C.R. 216(f). The Idaho Supreme Court then reviews the Board's decision under an arbitrary and capricious standard of review. I.B.C.R. 216(b). There is no requirement that the Supreme Court issue a decision within a specified amount of time following the filing of a petition for review.

Considering the above, an applicant flagged for character and fitness review may face the following procedural steps before receiving a final decision on their application: (i) referral to the CF Committee to conduct a Rule 208 examination, (ii) a vote and recommendation from the CF Committee to deny the application, (iii) review of the CF Committee's recommendation by the Board and a written order denying the application, (iv) requesting and participating in a show cause hearing, (v) issuance of a written decision by the Board within fourteen days of the show cause hearing, and (vi) filing a petition for review before the Idaho Supreme Court. The only step in this process with a definitive deadline for the Board is the requirement that the Board issue a written decision within fourteen days of the show cause hearing.

B. Plaintiff's Application

Plaintiff filed his bar application on April 11, 2022, to sit for the July 2022 Idaho Bar Examination. Compl. ¶ 22 (Dkt. 1). On June 17, 2022, the Idaho State Bar ("ISB") sent Plaintiff a letter, notifying him that his application had been deferred from the July 2022 bar exam to the February 2023 bar exam. Compl., Ex. 3 (Dkt. 1-12). Further, the ISB informed Plaintiff that his application had been deferred because the CF Committee had voted to have Plaintiff appear for a Rule 208 examination, and the deferral was needed "to allow sufficient time to schedule and complete the examination, prepare the transcript from the examination, and allow the CF Committee sufficient time to evaluate the information." Compl., Ex. 4 (Dkt. 1-12).

Shortly thereafter, Plaintiff filed a lawsuit in this Court as well as an emergency motion for a Temporary Restraining Order and Preliminary Injunction. See Witzke v. Wilde, et al., 4:22-cv-253-REP.³ Plaintiff requested similar relief to what he has requested here, generally speaking, an order from this Court directing Defendants to expedite the process described above so that he may have a final decision on his application prior to the July 2022 bar exam. See Id. Dkt. 2. At that time, Plaintiff's principal allegation of injury was that deferring his application to the February 2023 bar exam would result in him being unable to transfer his passing Multistate Bar Examination ("MBE") score from another jurisdiction.⁴ Id.

On July 1, 2022, the Court held a hearing on Plaintiff's motion for a temporary restraining order. Injunctive relief was not necessary, however, because the case was voluntarily dismissed after the Parties reached an agreement that allowed Plaintiff to retain his passing MBE score for the February 2023 bar exam. Namely, Defendants agreed not to oppose Plaintiff's motion to the Idaho Supreme Court to extend the thirty-seven-month deadline for the transferability of his MBE score. The expectation was that Defendants would process Plaintiff's application prior to the February bar exam, so that Plaintiff could either sit for the February bar and make use of his passing MBE score, or appeal an adverse decision of the Board to the Idaho Supreme Court prior to the expiration of MBE score.

Plaintiff's application remained pending and the CF Committee scheduled a Rule 208 examination for August 22, 2022. Pirtle Dec. ¶ 8 (Dkt. 41-1). The Rule 208 examination took close to a full day, and the CF Committee received the hearing transcript on September 6, 2022. Id. ¶ 10. Starting September 13, 2022, the ISB began reaching out to CF Committee members (the Committee is composed of volunteers) for their availability to meet and vote on Plaintiff's application. Id. ¶ 11. The CF Committee met on October 13, 2022, and voted to recommend denial of Plaintiff's application. Id. ¶ 12. The CF Committee proceeded to draft its written findings of fact, conclusions of law, and recommendation. Id. ¶ 14. This written recommendation was submitted for Board review on December 5, 2022. Id. ¶ 15. The Board then considered the recommendation and voted to deny Plaintiff's application at its regularly-scheduled December 9, 2022, meeting. Id. ¶ 17. The Board has yet to issue a written decision denying Plaintiff's application, but the Court understands that a decision is imminent.

Between October 13 and November 9, 2022, Plaintiff engaged in multiple communications with Defendants expressing his concerns that his application would not be processed in time for the February bar exam and his belief that due process required a final decision on his application before that time. See Compl., Exs. 7, 9-12, 15 (Dkt. 1-12). Then, on November 19, 2022, Plaintiff filed this lawsuit and corresponding PI Motion seeking this Court to (i) order Defendants⁵ to issue a prompt decision on his bar application and (ii) order Defendants to schedule a show cause hearing within fourteen days of any order denying his application. Compl. (Dkt. 1), PI Mot. (Dkt. 3).

Following Defendants' appearances and consents, ...