McBride v. Utah State Bar

2010 UT 60
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Ryan McBride, 	No. 20090818
Petitioner and Appellant,
v.
F I L E D
Utah State Bar,
Respondent and Appellee. 	November 2, 2010
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Original Proceedings in this Court
Attorneys: 	Ryan McBride, Provo, for petitioner
Katherine A. Fox, Salt Lake City, for respondent
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PARRISH, Justice:
INTRODUCTION
¶1 	Petitioner, Ryan McBride (“McBride”), seeks review of
the Utah State Bar’s (the “Bar”) final decision disqualifying him
from the Bar Exam (the “Exam”) for failure to upload his typed
essay exam answers within the required time frame. 	Mr. McBride’s
petition raises five issues. 	Mr. McBride claims that the Bar
acted unconstitutionally, denying him procedural due process,
substantive due process, and equal protection of the law. 	Mr.
McBride also claims that the Bar applied the incorrect rule to
his situation, and finally that the Bar examiners enforced an
unreasonable rule.
¶2 	Mr. McBride petitions this court to waive the
examination requirement and admit him to the Utah State Bar or to
compel the Bar to grade his completed essay questions and admit
him if his answers to those questions are passing. 	Mr. McBride
also requests that this court direct the Bar to correct its rule
and remedy its effect on Mr. McBride. 	We hold that the Bar’s
actions were constitutional and we deny Mr. McBride the relief he
seeks.

No. 20090818 	2
FACTUAL BACKGROUND
¶3 	The Bar administered the Exam on July 28 and 29, 2009.
The first day of the Exam consisted of an essay portion and the
second day consisted of a multiple choice portion. 	On the essay
portion, bar examinees have the option to handwrite their answers
or type them with the use of a laptop computer. 	Examinees who
used a computer during the July 2009 Exam were required to use a
computer program, SofTest, which allows examinees to upload their
essay answers to the SofTest server. 	The Bar first allowed
examinees to take their essay exams with SofTest in 2002.
Initially, examinees used floppy disks to transfer their answers.
Over time, floppy disks were replaced by use of the Internet for
uploading answers. 	In 2007, the Bar moved its testing location
and determined that it would be prohibitively expensive to
provide sufficient wireless Internet capacity for all examinees
to upload their answers at the test site. 	As a result, examinees
are responsible for locating Internet access and uploading their
answers within a specified time following the exam.
¶4 	Examinees who elect to type their essay answers with a
computer must request to do so in advance and sign an
“Acknowledgment of Participation in Laptop Program” form. 	The
acknowledgment form states, “I agree to upload my answers . . . .
I further understand that a failure to upload all of my answer
files by 10:00 p.m. on the day the written portion of the Bar
examination is administered may result in the disqualification of
my answers.” 	The Bar selected the 10:00 p.m. mountain time
deadline because technical support for SofTest is available only
until that time.
¶5 	Mr. McBride chose to use a laptop for the July 2009
Exam. 	He notified the Bar of his decision by signing the
acknowledgment form. 	Mr. McBride completed the essay portion of
his exam using his computer on July 28, 2009. 	That evening, Mr.
McBride failed to upload his answers. 	Mr. McBride left the test
site, joined his wife at a restaurant, and went home without
turning on his computer or uploading his answers.
¶6 	After arriving at the testing center for the second day
of the Exam, an exam proctor asked Mr. McBride if he had uploaded
his answers. 	Mr. McBride realized that he had not, and responded
accordingly. 	The proctor informed Mr. McBride that he would not
be allowed to take the multiple choice portion of the Exam.
¶7 	The record in this case establishes that Mr. McBride
had received seven separate notifications that the deadline to
upload Exam answers was 10:00 p.m. on July 28, 2009, and that

3 	No. 20090818
failure to upload his Exam answers could result in their
disqualification. 	The Bar gave three of these notifications to
Mr. McBride in written form prior to the Exam date. 	First, the
Bar provided a “Laptop Use Information” handout prior to computer
registration that stated, “[t]o use a laptop for the essay
examination you must . . . [a]gree to upload your answer file
(files) by the deadline. 	The deadline for uploading your answer
file is 10:00 p.m. on July 28, 2009. 	Failure to upload your
answer file can result in being disqualified and removed from the
exam.” 	Second, Mr. McBride signed the “Acknowledgment of
Participation in Laptop Program” form, in which he agreed to
upload his answers by 10:00 p.m. on the day of the written
portion of the Exam. 	Third, the Bar sent Mr. McBride a “Flexsite
Exam Information” document confirming his laptop registration.
The first page of that document advises, “[y]ou are required to
upload your answers by the deadline listed below.” 	Then, in
bold, red print, the document reads: 	“EXAM UPLOAD DEADLINE:
10:00 p.m. MST, Tuesday, July 28th. 	Failure to do so can result
in being disqualified from the exam.”
¶8 	Mr. McBride also received four other notifications of
the deadline and the consequences of the failure to meet it. 	The
Deputy General Counsel in Charge of Admissions (the “Deputy”)
read a set of instructions aloud before the start of the first
day of the Exam. 	These instructions reminded applicants that
“you are required to upload your answers by 10:00 p.m. tonight.
You should upload your answers as soon as possible after you are
excused from the exam this afternoon.” 	The instructions further
warned examinees that they should not go home or go to their
hotel room and fall asleep, as some applicants had done in the
past. 	The Deputy cautioned that those applicants were
“disqualified because they did not upload their answers by the
deadline.” 	She further stressed, “if you do not upload your
answers tonight, you will not be allowed to sit for the second
day of the exam.” 	After the Deputy read these instructions, she
gave examinees the chance to handwrite their answers if they
thought uploading their answers would be a problem.
¶9 	At the end of the first exam day, proctors read another
set of oral instructions that reminded computer examinees to
upload their answers as soon as possible, but no later than 10:00
p.m. that evening. 	The oral instructions also advised examinees
to upload their answers as early as possible so they could call
technical support if they encountered any problems. 	At the end
of these instructions, the proctors told examinees, “[y]ou will
not be allowed to sit for the second day of the exam, if our
records indicate that you have not at least attempted to download
[sic] your answers this evening.”

No. 20090818 	4
¶10 	The proctors gave another oral warning at the end of
the first day while they distributed a document entitled,
“Uploading Your Answer File Instructions.” 	The written
instructions clearly stated:
Your answer file must be uploaded by 10:00
p.m. TODAY, Tuesday, July 28th . . . . 	If
you attempt to upload your answers but are
not able to do so because of technical
problems, you will be permitted to upload
your answers after the deadline. 	If,
however, you fail to upload your answers by
the deadline and there is no record that you
attempted to do so, your answers will not be
graded and you will be dismissed from the
exam.
In summary, Mr. McBride received seven separate notices informing
him that failure to upload his answers could result in his
disqualification. 	A total of 243 examinees chose to take the
July 2009 Exam with a laptop. 	Only two failed to upload their
answers.
PROCEDURAL BACKGROUND
¶11 	On August 10, 2009, Mr. McBride filed a Request for
Review with the Bar regarding his disqualification. 	The
Admissions Committee considered Mr. McBride’s Request for Review
under rule 14-709 of the Rules Governing the Utah State Bar
(“RGB”) and denied the request on September 18, 2009. 	On
September 21, 2009, the Committee received a Supplemental Request
for Review from Mr. McBride urging the Bar to apply rule 14-715
rather than rule 14-709. 	On September 28, 2009, the Committee
revisited Mr. McBride’s request and upheld Mr. McBride’s
disqualification under rule 14-715. 	In October 2009, Mr. McBride
filed a Petition for Review in this Court. 	During the time this
case has been under advisement, Mr. McBride sat for the Exam
again, passed, and has been admitted to the Bar. 	But neither
party has filed a “suggestion of mootness” as required by rule 37
of the Utah Rules of Appellate Procedure.
STANDARD OF REVIEW
¶12 	“Under article VIII, section 4 of the Utah
Constitution, this court is empowered to govern the practice of
law in Utah, including the admission to practice.” 	In re
Arnovick, 2002 UT 71, ¶ 5, 52 P.3d 1246. 	Our review of Bar

1 In this case, we are independently aware that Mr. McBride
has been admitted to the Bar and therefore we exercise our
discretion to address the mootness issue sua sponte. 	But we
reiterate that it is the parties’ obligation to “inform the court
of any circumstances which have transpired subsequent to the
filing of the appeal . . . which render moot one or more of the
issues raised.” 	Utah R. App. P. 37; see also Salt Lake Cnty. v.
Holliday Water Co., 2010 UT 45, ¶ 21, 234 P.3d 1105 (“The burden
of persuading the court that an issue is moot lies with the party
asserting mootness.” (internal quotation marks omitted)).
5 	No. 20090818
Commissioner Board decisions is unique “[b]ecause the Board of
Bar Commissioners acts as [this court’s] agent.” 	Id. 	As such,
“[w]e may exercise judgment independent of the Bar Commission
whenever we deem it appropriate.” 	Id. 	“[W]e review the actions
of the Bar and the Bar examination process to determine if they
clearly demonstrate that the petitioners have been treated in an
unfair, unreasonable, or arbitrary manner.” 	Id. 	However, “[w]e
have generally chosen . . . to ‘indulge some deference to [the
Bar’s] findings and judgments,’ and have stated that ‘the Court
should not disturb what the Commission has done unless the
petitioner clearly demonstrates that he has been treated in an
unfair, unreasonable or arbitrary manner.’” 	Id. (emphasis added)
(quoting In re Thorne, 635 P.2d 22, 23 (Utah 1981)).
ANALYSIS
I. 	ALTHOUGH MOOT, WE ADDRESS THE ISSUES MR. MCBRIDE RAISES UNDER
THE PUBLIC INTEREST EXCEPTION TO THE MOOTNESS DOCTRINE
¶13 	Although neither party has filed a suggestion of
mootness, we exercise our discretion to address mootness sua
sponte. 1 	“Ordinarily we will not adjudicate issues when the
underlying case is moot.” 	Ellis v. Swensen, 2000 UT 101, ¶ 25,
16 P.3d 1233. 	An issue is moot “‘when the requested judicial
relief cannot affect the rights of the litigants.’” 	Id.
(quoting Burkett v. Schwendiman, 773 P.2d 42, 44 (Utah 1989)).
We will on occasion, however, exercise our discretion and address
a moot issue if we find that it “falls within the ‘public
interest exception’ to the mootness doctrine.” 	Id. 	A matter
falls within the public interest exception “when the case
presents an issue that affects the public interest, is likely to
recur, and because of the brief time that any one litigant is
affected, is capable of evading review.” 	Burkett, 773 P.2d at
44.
¶14 	The issues Mr. McBride presents are moot. 	Mr. McBride
has retaken and passed the Exam. 	Additionally, he has been

No. 20090818 	6
admitted to the Bar. 	Because any determination we make will not
affect Mr. McBride’s admittance to the Bar, his request that we
order his admittance to the Bar is moot.
¶15 	We nevertheless address the issues raised by Mr.
McBride under the public interest exception to the mootness
doctrine because they are matters of public importance that are
capable of repetition and otherwise likely to evade review.
First, because this court is constitutionally obligated to
oversee the Bar’s admissions process, the constitutionality and
reasonableness of these procedures are matters of public
importance. 	See Utah Const. art. VIII, § 4; see also Ellis, 2000
UT 101, ¶ 27 (noting that “courts frequently retain jurisdiction”
under the public interest exception in cases involving “class
actions, questions of constitutional interpretation, issues as to
the validity or construction of a statute, or the propriety of
administrative rulings.” (internal quotation marks and emphasis
omitted)). 	Second, the issues are capable of repetition every
time the Exam is administered. 	Finally, the issues are likely to
evade review. 	The Exam is offered every six months. 	Because it
is highly unlikely, if not impossible, that a claim such as this
could be litigated from start to finish in a six month period of
time, an aggrieved applicant could retake the Exam and be
admitted to the Bar before the issue could be litigated. 	We
therefore exercise our discretion to address the issues raised by
Mr. McBride.
II. 	THE BAR PROVIDED MR. MCBRIDE ADEQUATE PROCEDURAL DUE PROCESS
¶16 	We first consider Mr. McBride’s argument that the Bar
deprived him of procedural due process. 	Procedural due process
requires, “[a]t a minimum, ‘timely and adequate notice and an
opportunity to be heard in a meaningful way.’” 	In re Worthen,
926 P.2d 853, 876 (Utah 1996) (quoting Nelson v. Jacobsen, 669
P.2d 1207, 1211 (Utah 1983)). 	Despite this,
due process is not a technical concept that
can be reduced to a formula with a fixed
content unrelated to time, place, and
circumstances. 	Rather, the demands of due
process rest on the concept of basic fairness
of procedure and demand a procedure
appropriate to the case and just to the
parties involved.
Id. at 877 (internal quotation marks omitted). 	Mr. McBride’s
procedural due process claim fails because we conclude that the
Bar provided him with sufficient notice and an adequate hearing.

2 Mr. McBride argues that under Goldsmith v. United States
Board of Tax Appeals, 270 U.S. 117 (1926), the term “may”
indicates discretion and that discretion can only be exercised
“after [a] fair investigation, with such a notice, hearing and
opportunity to answer for the applicant as would constitute due
process.” 	Id. at 123. 	In Goldsmith, the United States Supreme
Court determined that Goldsmith, an individual who had been
denied a tax license based upon charges of unfitness, was
“entitled to demand from the Board the right to be heard on the
charges against him.” 	Id. 	But Goldsmith had not demanded a
hearing and the court held that “[u]ntil [Goldsmith] had sought a
hearing from the board, and been denied it, he could not appeal
to the courts for any remedy and certainly not for mandamus to
compel enrollment.” 	Id. 	Goldsmith is inapposite here because
Mr. McBride has requested and received several opportunities to
be heard.
7 	No. 20090818
A. 	The Notice Requirement Is Satisfied
¶17 	The Bar’s seven separate notices gave Mr. McBride
adequate notice of the consequences of failing to upload his
answers. 	Under the due process notice requirement, “[t]he notice
must be of such nature as reasonably to convey the required
information.” 	Mullane v. Cent. Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950); see also Worrall v. Ogden City Fire Dep’t,
616 P.2d 598, 601–02 (Utah 1980) (“Under the due process clause,
[a] plaintiff [is] entitled to have . . . essential information
imparted to him . . . .”) 	Mr. McBride claims the notices were
insufficient. 	Specifically, he argues that he should only be
held accountable for the signed “Acknowledgment of Participation
in Laptop” form and that this form indicated only that failure to
upload his answers “may” result in their disqualification, rather
than indicating that failure to upload would automatically result
in disqualification. 2 	We are not persuaded.
¶18 	The use of the permissive verb “may” meets the notice
requirement since it “reasonably . . . convey[s] the required
information.” 	Mullane, 339 U.S. at 314. 	The notices adequately
warned Mr. McBride that if he failed to upload his answers within
the designated time frame the Bar may not accept them. 	And the
Bar’s use of the term “may” was accurate because the Bar does not
penalize examinees who attempt to, but cannot successfully,
upload their answers for technical reasons. 	This procedure
accounts for fair handling of technical difficulties while still
providing notice of potential disqualification to those examinees
who make no effort to upload their answers. 	In short, the notice
needed only to inform examinees that they may be expelled from
the Exam if they failed to follow certain procedures and the

No. 20090818 	8
notices given to Mr. McBride did just that. 	The oral
instructions further clarified that an examinee who failed to
successfully upload his or her exam answers would be allowed to
sit for the second Exam day only if the examinee had attempted to
upload his or her answers but was unsuccessful due to technical
difficulties. 	We conclude that any one of the seven notices
given to Mr. McBride was sufficient to satisfy the notice prong
of procedural due process.
B. 	Mr. McBride Received an Adequate Hearing
¶19 	A pre-deprivation evidentiary hearing is not a
requirement, nor is it always the most effective decisionmaking
method. 	See Mathews v. Eldridge, 424 U.S. 319, 340 (1976) (“Only
in Goldberg has the Court held that due process requires an
evidentiary hearing prior to a temporary deprivation.”); see also
Tyler v. Vickery, 517 F.2d 1089, 1103 (5th Cir. 1975) (“While the
opportunity to be heard is generally considered a fundamental
component of due process, entitlement to a hearing does not
automatically flow from a finding that procedural due process is
applicable.”). 	Instead, the type of hearing required by due
process depends on:
First, the private interest that will be
affected by the official action; second, the
risk of an erroneous deprivation of such
interest through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the Government’s interest, including
the function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
In re Arnovick, 2002 UT 71, ¶ 16, 52 P.3d 1246 (quoting Mathews,
424 U.S. at 335).
¶20 	The United States Supreme Court has made clear that
“‘[d]ue process is flexible and calls for such procedural
protections as the particular situation demands.’” 	Mathews, 424
U.S. at 334 (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)). 	In Mathews, the Supreme Court applied three factors in
determining that due process did not require an evidentiary
hearing before terminating an individual’s disability benefits.
Id. at 339–50. 	The Court ultimately denied Mathews’ due process
claim because (1) Mathews’ private interest was low, (2) the risk
of erroneous deprivation of the interest and the probable value

9 	No. 20090818
of procedural safeguards was low, and (3) the government interest
in conserving scarce fiscal and administrative resources was
high. 	Id. 	Similarly, procedural due process has been met here
where (1) Mr. McBride’s private interest is low, (2) the risk of
erroneous deprivation and the probable value of procedural
safeguards is low, and (3) the Bar’s interest in administrative
efficiency is high.
1. 	Mr. McBride’s Private Interest Is Low
¶21 	While Mr. McBride’s interest in taking the Exam may be
great, it is not so great as to require that he be given a full
hearing prior to disqualification from the Exam. 	A bar applicant
may have an interest in taking the Exam, but an individual does
not have an absolute right to practice law. 	See Schware v. Bd.
of Bar Exam’rs, 353 U.S. 232, 238–39 (1957) (noting that while
“[a] State cannot exclude a person from the practice of law . . .
for reasons that contravene the Due Process or Equal Protection
Clause . . . [a] State can require high standards of
qualification, such as good moral character or proficiency in its
law”).
¶22 	In Arnovick, this court applied the Mathews factors in
a challenge to a Bar decision denying admission to applicants who
failed the Exam after a faulty torts question was thrown out of
the grading scale. 	In re Arnovick, 2002 UT 71, ¶¶ 2-3, 16. 	We
determined the bar applicants’ interest did not satisfy the first
Mathews factor since “the Bar’s decision [did] not permanently
deny [them] the ability to practice law in Utah; they [could]
retake the examination until they pass[ed] it.” 	Id. ¶ 16. 	The
Tenth Circuit Court of Appeals reached a similar conclusion in a
bar challenge case, holding that “[t]he interest of the
unsuccessful bar examinee pales by comparison with the interest
of the welfare recipient, or even the disability benefits
recipient who was found not to deserve a pre-termination hearing
in Mathews.” 	Lucero v. Ogden, 718 F.2d 355, 357 (10th Cir.
1983).
¶23 	Here too, Mr. McBride’s interest is not so great that
it required a full hearing prior to his disqualification from the
Exam. 	Mr. McBride was not permanently denied the ability to
practice law in Utah but could retake the Exam and follow the
Exam procedures. 	And, as was the case in Lucero, Mr. McBride’s
interest in taking the Exam pales in comparison with the
interests of a welfare recipient or a disability benefits
recipient. 	Moreover, unlike the disability benefits recipient in
Mathews, Mr. McBride has no pre-existing benefit to deny since he
did not have a professional license to lose. 	See Lander v.

No. 20090818 	10
Indus. Comm’n, 894 P.2d 552, 555 (Utah Ct. App. 1995)
(determining that an individual applying for workers’
compensation claims did not have a private interest under Mathews
since “[t]hese are not benefits to which [the plaintiff] has
already been deemed entitled, but ones he hopes to receive”).
Thus, Mr. McBride’s interest is low and did not require a full
hearing prior to his disqualification.
2. 	The Risk of Erroneous Deprivation and the Probable Value of
Procedural Safeguards Is Relatively Low
¶24 	When examining the second Mathews factor, courts have
evaluated the adequacy of the grievance procedures in determining
the presence of an erroneous deprivation. 	See In re Arnovick,
2002 UT 71, ¶ 16. 	In Arnovick, we held that the second Mathews
factor was met where “petitioners [had] received the benefit of
an extensive review process culminating in their appearance
before this court.” 	Id. 	There, the extensive review process
included: 	“(1) the filing of their complaint, (2) the review of
their complaint by the Admissions Committee . . . , (3) the
petitioners’ written response to those findings and
recommendations, (4) an oral hearing, and (5) a review and formal
findings by the Executive Committee of the Bar.” 	Id. ¶ 10. 	We
reasoned that, “[g]iven the extensive nature of this review
process, the risk of error in the Bar’s decision seems to us to
be small and the probable value of additional procedural
safeguards would be minimal.” 	Id. ¶ 16. 	In Lucero, the Tenth
Circuit similarly determined that there is a low risk of
erroneous deprivation where “there is no evidence that the
procedures are unfair, e.g. that the graders engaged in insidious
discrimination.” 	Lucero, 718 F.2d at 358.
¶25 	Here, there is a relatively low risk of erroneous
deprivation since Mr. McBride has made use of the extensive
grievance procedures available to him. 	Much like the petitioners
in Arnovick, Mr. McBride has “received the benefit of an
extensive review process culminating in [his] appearance before
this court.” 	In re Arnovick, 2002 UT 71, ¶ 16. 	This process has
included (1) his initial discussion with the proctors at the
Exam, (2) the filing of his request for review with the Bar, (3)
the review of his request by the Admissions Committee of the Bar
by a three-member panel, (4) the filing of his Supplemental
Memorandum with the Committee, (5) the Committee’s review and
supplemental decision, and finally, (6) this appeal. 	As in
Arnovick, “the risk of error in the Bar’s decision seems . . . to
be small and the probable value of additional procedural
safeguards would be minimal.” 	Id. 	Furthermore, there is no
evidence that the available procedures were unfair to Mr. McBride

11 	No. 20090818
or that the Exam proctors engaged in “insidious discrimination.”
Lucero, 718 F.2d at 358. 	The Exam proctors properly applied the
standard test-taking procedures to Mr. McBride. 	Mr. McBride was
not singled out or treated unfairly in comparison with other
examinees. 	Mr. McBride simply failed to comply with the standard
test-taking procedures.
¶26 	Moreover, the Bar’s use of the permissive verb “may” in
its computer contract demonstrates that there are already
reasonable procedures in place to prevent erroneous deprivation.
If an examinee fails to upload his or her exam because of
technical difficulties, rather than simple forgetfulness, the Bar
allows the examinee to sit for the second day of the Exam while
technicians determine if the examinee attempted to upload the
answers the night before. 	This process ensures that an examinee
who tries to follow the Exam procedures, but cannot upload his or
her answers for a technical reason, is not unfairly disqualified
from taking the second day of the Exam. 	Indeed, it would be
“curious logic to condemn the examiners for utilizing practices
designed to recognize the inherent limitations of testing and for
attempting to give the benefit of the doubt to applicants who may
have been adversely affected by those limitations.” 	Tyler, 517
F.2d at 1103.
¶27 	In sum, the risk of erroneous deprivation and the
probable value of additional safeguards is relatively low since
there is an extensive review process, no unfair treatment, and
the Bar’s current procedures help prevent erroneous deprivation.
3. 	The Bar’s Interest in Reducing Administrative Burdens Is High
¶28 	Courts have found that governmental interests,
including the fiscal and administrative burdens caused by
additional procedures, can outweigh the other Mathews factors.
See In re Arnovick, 2002 UT 71, ¶ 16 (noting that “the fiscal and
administrative costs of imposing any additional procedures on the
Bar outweigh the benefit that such procedures could provide,
especially given the ever-increasing number of Bar applicants”);
see also Lucero, 718 F.2d at 358 (holding that the requirement of
a full evidentiary hearing every time a bar applicant fails the
bar “would place an intolerable burden upon the Board” (internal
quotation marks omitted)).
¶29 	In this case, the administrative burden of providing a
pre-disqualification hearing to every examinee who failed to
abide by testing protocol would be significant. 	Even assuming
that the hearing would not have to be a formal proceeding,
waiting for technicians to determine whether answers had been

No. 20090818 	12
altered could take tremendous time, especially if more than one
student failed to abide by the testing procedures. 	The Bar’s
strong interest in the efficient administration of the Exam
outweighs Mr. McBride’s private interest and the low risk of
erroneous deprivation. 	In short, we conclude that Mr. McBride’s
procedural due process rights did not require the Bar to provide
Mr. McBride with a full hearing prior to his disqualification.
III. 	THE BAR’S PROCEDURES SATISFY SUBSTANTIVE DUE PROCESS
¶30 	Mr. McBride also raises a substantive due process
claim. 	The Due Process Clause “allows states to substantively
regulate economic rights if such regulation bears a rational
relation” to a legitimate government objective. 	In re Arnovick,
2002 UT 71, ¶ 15, 52 P.3d 1246. 	Mr. McBride relies on Schware v.
Board of Bar Examiners, 353 U.S. 232 (1957), arguing that the
Bar’s 10:00 p.m. deadline for uploading his exam answers denied
him substantive due process because it was not rationally related
to the Bar’s interest in determining his fitness or ability to
practice law. 	In so arguing, Mr. McBride misconstrues the nature
of the Bar’s interest.
¶31 	In Schware, the U.S. Supreme Court determined that the
Bar could not disqualify an applicant due to his past membership
in the Communist Party since his prior party membership had no
rational relation to the legitimate government objective in
ensuring that licensed attorneys have good moral character and
proficiency in the law. 	Id. at 246. 	But unlike Schware, Mr.
McBride was not disqualified from the Exam for a lack of fitness
or competency. 	Rather, he was disqualified because he failed to
comply with the requirements imposed by the Bar as part of its
effort to efficiently administer the Exam. 	To ensure the
efficient administration of the Exam, the Bar must establish
reasonable deadlines for receipt of bar applications, background
check completion, and the uploading of exam answers. 	It would be
intolerably burdensome to force the Bar to accept every
application, background check, and set of exam answers submitted
after the established deadlines. 	Basic procedural requirements,
including deadlines, are necessary and rationally related to the
Bar’s legitimate interest in the efficient administration of the
Exam.
¶32 	Furthermore, the Bar has a legitimate interest in
preventing cheating and in assuring there is technical support
available during the upload time frame. 	These interests are
satisfied by the 10:00 p.m. deadline since it reduces the window
for cheating and since technical support is only available until
10:00 p.m. mountain time. 	Thus, the 10:00 p.m. deadline is not

13 	No. 20090818
arbitrary but bears a rational relationship to the legitimate
objective of the Bar in administering an efficient exam. 	We
therefore conclude that Mr. McBride has not been denied
substantive due process.
IV. 	THE BAR DID NOT DENY MR. MCBRIDE EQUAL PROTECTION
¶33 	Mr. McBride next claims that the Bar denied him equal
protection when it required laptop examinees to submit their
answers after leaving the testing center, while it allowed
examinees who handwrote their exams to turn in their answers
immediately. 	Mr. McBride contends that he was tested for
“obedience” or “memory,” whereas examinees who handwrote their
answers were not. 	We are unpersuaded by Mr. McBride’s equal
protection claim. 	When no suspect class or fundamental right is
involved, “states may treat similarly situated people differently
if a reasonable basis exists for doing so.” 	In re Arnovick, 2002
UT 71, ¶ 14, 52 P.3d 1246. 	And in this case, the Bar had a
rational basis for treating laptop examinees differently from
those writing by hand.
¶34 	There are several rational reasons for treating
computer examinees differently. 	First, it is logical to require
that those handwriting their answers be required to submit them
prior to leaving the exam room. 	In fact, there is no conceivable
reason for allowing examinees to remove the “blue books”
containing examinees’ answers from the exam room. 	But there was
a legitimate reason for not requiring that examinees be required
to upload their answers before leaving. 	As the Bar notes, “[t]he
opportunity for subsequent alterations to [handwritten] bluebook
answers is extremely high, modifications are easy to accomplish,
and detection and proof of changes may be virtually impossible.”
Internet connectivity was not available at the testing center on
the wide scale that would have been necessary for so many
applicants to upload their answers at once. 	Moreover, the cost
to provide such Internet connectivity on-site would have been
extremely high. 	And the testing software utilized by the Bar
made it more difficult for examinees to change their answers
after leaving the exam. 	Thus, the Bar reasonably concluded that
the risk associated with a short delay in uploading answers was
acceptable. 	Therefore, while the requirement that examinees
upload their answers by the deadline may have been an
inconvenience to examinees, it was not a violation of equal
protection.

3 Rule 14-709(a) of the RGB states, “Notice from Bar. An
applicant whose application is denied because he or she does not
meet the qualifications for admission under this article will
receive written notice from the Bar that his or her application
has been denied, along with a statement explaining the deficiency
and reason(s) for denial.” 	Utah Sup. Ct. R. Prof’l Practice 14-
709(a).
4 Rule 14-715(b) of the RGB states,
Standard of review. 	The Board or its
designees shall only review the request of
failing applicants who claim that failure was
because of a substantial irregularity in the
administration of the examination that
resulted in manifest unfairness or because of
mathematical errors in the scoring of the
applicant’s examination. 	A substantial
irregularity in the administration of the
examination will not be a matter that will
result in questions or answers being reread,
reevaluated or regraded. 	The Board and its
designees shall not reread, reevaluate or
regrade Bar Examination answers.
Id. 14-715(b).
No. 20090818 	14
V. 	THE BAR ACTED REASONABLY IN ITS APPLICATION OF THE RULES
GOVERNING THE UTAH STATE BAR
¶35 	Mr. McBride next argues that the Bar acted in an
unfair, unreasonable, and arbitrary manner when it applied rule
14-709 of the Rules Governing the Utah State Bar (“RGB”) to his
case. 	In denying Mr. McBride’s Request for Review, the Bar
relied on rule 14-709 3 of the RGB. 	Mr. McBride contends that the
Bar should have applied rule 14-715 4 rather than rule 14-709
because, according to Mr. McBride, rule 14-709 deals with
“incomplete applications,” while rule 14-715 addresses review of
Bar Exam failure, including failure “because of a substantial
irregularity in the administration of the examination that
resulted in manifest unfairness.” 	Utah Sup. Ct. R. Prof’l
Practice 14-715(b).
¶36 	We are unpersuaded. 	While the language of rule 14-709
could be clearer, it is not limited to “incomplete applications”
as Mr. McBride argues. 	The Bar’s practice is to apply rule 14-
715 solely to applicants who take and fail the Bar Exam and to

5 In its brief, the Bar provides several examples that would
fall under rule 14-709:
For example, an applicant would be
disqualified for non-payment of initial
licensing fees which are due after passing
the Bar Exam but shortly before the
admissions ceremony. 	An applicant may also
be disqualified for failure to take and pass
the Multi-State Professional Responsibility
[Exam] for up to two years after taking and
passing the Bar Exam. 	Or, an applicant may
be disqualified for cheating or even
attempting to cheat which could be discovered
before, during, or even after the Bar Exam.
15 	No. 20090818
apply rule 14-709 to applicants who are disqualified from the
examination for reasons other than a failing score. 5
¶37 	Moreover, we have given the Bar substantial flexibility
in interpreting its rules. 	In In re Arnovick, this court noted:
Obviously, as the arm of this court, the
Bar must do its utmost to adhere to the
rules, policies, and procedures that we have
approved for their governance. 	When
deviations from these rules, policies, and
procedures occur, it is expected that the Bar
will take whatever steps are necessary to
insure that such deviations do not occur
again in future examinations. 	However, lapse
from strict compliance with the rules and
procedures, while certainly a cause for
concern on our part, does not automatically
mean that the Bar has acted in an arbitrary
or unfair manner.
2002 UT 71, ¶ 12, 52 P.3d 1246 (emphasis added). 	Given this
court’s inclination to “indulg[e] some deference to [the Bar’s]
findings and judgments,” In re Thorne, 635 P.2d 22, 23 (Utah
1981), it was not unreasonable for the Bar to have applied rule
14-709 in this case.
VI. 	THE BAR’S PROCEDURES ARE REASONABLE
¶38 	Mr. McBride also argues that the Bar’s procedures were
unreasonable. 	“[W]e review the actions of the Bar and the Bar
examination process to determine if they clearly demonstrate that

No. 20090818 	16
the petitioner[] [has] been treated in an unfair, unreasonable,
or arbitrary manner.” 	In re Arnovick, 2002 UT 71, ¶ 5, 52 P.3d
1246 (emphasis added). 	Thus, in order to prevail, Mr. McBride
must clearly demonstrate unfairness. 	See In re Randolph-Seng,
669 P.2d 400, 401 (Utah 1983) (“Relief is granted [to an
unsuccessful bar examinee] only where he can prove arbitrary or
capricious conduct on the part of the Bar Examiners or in the
administration of the examination, or show that extraordinary
circumstances of his case require his passage to prevent manifest
injustice. 	Under either posture the burden of proof is on the
petitioner.” (citation omitted)).
¶39 	In arguing that the Bar Examiners enforced an
unreasonable rule in disqualifying him from the second day of the
Exam, Mr. McBride relies on the following: 	(1) the lack of
notice, (2) the allegedly arbitrary 10:00 p.m. deadline, (3) his
disqualification without any evidence of wrongdoing, (4) the lack
of a remedy now that his answers have been disqualified, (5) the
fact that alternative methods of submitting answers were easily
feasible, (6) the allegation that the sanction imposed by the Bar
was extreme, unfair, and draconian, and (7) the fact that the
purpose of the Bar favors a more accommodating rule. 	We have
previously addressed several of these claims. 	We have concluded
that the Bar provided Mr. McBride with adequate notice by
informing him on seven separate occasions about the repercussions
of failing to upload his exam answers within the required time
frame. 	And we have also concluded that the 10:00 p.m. deadline
was rationally related to the Bar’s legitimate interest in
conducting an efficient exam.
¶40 	We find the remainder of Mr. McBride’s claims equally
unpersuasive. 	With respect to Mr. McBride’s third claim,
cheating or wrongdoing are not the only reasons for which the Bar
can disqualify an applicant from sitting for the Exam. 	For
instance, an applicant who fails to meet the deadline for a
background check or fails to submit his or her exam fees will
similarly be disqualified even though there is no evidence that
he or she engaged in wrongdoing or had any intent to cheat.
¶41 	Mr. McBride’s fourth argument, that the rule the Bar
applied to him precludes a remedy, also fails. 	Mr. McBride’s own
use of the exhaustive administrative and judicial remedies
available to him demonstrate that a remedy was, in fact,
available. 	Any applicant who believes that he or she was wrongly
disqualified from sitting for the Bar can appeal that decision
through the proper administrative channels and can ultimately
appeal to this court. 	See Utah Sup. Ct. R. Prof’l Practice 14-

17 	No. 20090818
709(b)–(c). 	Moreover, nothing precluded Mr. McBride from taking
the Exam at another date, which he did.
¶42 	Mr. McBride also argues that there were feasible
alternatives to the Bar’s requirement that examinees upload their
own exam answers, including on-site Internet access or the use of
USB drives to upload answers. 	But this “feasible alternative”
argument improperly assumes that the Bar’s methods and procedures
must not only be reasonable, but also the most convenient for
examinees. 	Merely showing that the Bar’s examination methods are
less convenient than alternative methods does not satisfy Mr.
McBride’s burden of demonstrating that he has been treated in an
unfair, unreasonable, or arbitrary manner.
¶43 	Mr. McBride’s sixth claim is that the punishment here
was draconian and disproportionate to the violation. 	But we find
nothing unreasonable about the deadline or the consequences for
failing to meet it. 	The Bar must establish various deadlines for
its applicants. 	A failure to meet any of these deadlines
necessarily precludes an individual from taking the upcoming
exam, which may cause an applicant to lose time, effort, money,
and job opportunities even though the failure to meet a deadline
may be a mere “technical violation.” 	This is not an unexpected
notion given that many procedural rules provide harsh penalties
for merely technical errors.
¶44 	Finally, Mr. McBride asserts that the purpose of the
Bar favors a more accommodating rule because “imposing an
arbitrary deadline with extreme consequences” contradicts the
purpose of “advanc[ing] the administration of justice according
to law.” 	But one of the many purposes of the Bar is to “regulate
the admission of persons seeking to practice law.” 	Utah Sup. Ct.
R. Prof’l Practice 14-202(c). 	In order to properly regulate the
admission of Bar applicants, the Bar must necessarily establish
deadlines to ensure the efficient administration of the Exam.
This often means excluding applicants who fail to meet deadlines.
In sum, Mr. McBride fails to clearly demonstrate that he was
treated in an unfair, unreasonable, or arbitrary manner.
CONCLUSION
¶45 	Although moot, we address the issues raised by Mr.
McBride under the public interest exception to the mootness
doctrine. 	We hold that Mr. McBride has not clearly shown that
the Bar denied him procedural due process, substantive due
process, or equal protection of the laws. 	Mr. McBride has been
afforded significant procedural due process, including seven
notices and an exhaustive set of hearings, culminating with an

No. 20090818 	18
appearance before this court. 	Mr. McBride’s substantive due
process claim is similarly unavailing since the Bar’s 10:00 p.m.
deadline is rationally related to the Bar’s legitimate interest
in the efficient administration of the Exam. 	Mr. McBride’s equal
protection claim fails because the Bar had a rational reason for
treating him, and other computer examinees, differently from
those examinees who handwrote their answers. 	These reasons
include preventing cheating, ensuring effective exam
administration, and keeping down costs. 	Moreover, Mr. McBride
cannot prove that the Bar acted in an unfair, unreasonable, or
arbitrary manner. 	We therefore deny Mr. McBride’s petition for
relief.
¶46 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Nehring concur with Justice Parrish’s opinion.
¶47 	Justice Wilkins did not participate herein.