Faber denies injunction of man wanting aid on bar exam

CHARLESTON – Five days before the West Virginia state bar examination, U. S. District Judge David Faber denied an injunction that would have given prospective lawyer Shannon Kelly twice as much time as other test takers.

Faber ruled July 24 that the West Virginia Board of Law Examiners would suffer harm if he granted the injunction.

"If plaintiff is given the relief requested when the Board has determined such an accommodation is unnecessary, any harm to other applicants and the examination process itself cannot be undone," Faber wrote.

Evidence did not establish that a request for double time was reasonable, he wrote.

The examiners had granted Kelly time and a half in a separate room with questions in 18 point type, on account of a learning disability.

They granted the same accommodations last summer and he failed the exam.

Kelly sued them on July 21, asserting a right to due process under the U. S. Constitution and a right to double time under the Americans with Disabilities Act.

Faber set an emergency hearing so he could reach a decision before the exam started.

John Hedges of Byrne Hedges and Lyons in Morgantown jumped to the defense of the Board of Law Examiners.

He argued that Kelly recently passed a similar test with no accommodation except 18 point type.

"If he does not pass, once this court weighs the evidence and reviews the law fully, the petitioner can sit for the February 2009 examination under the accommodations determined by the final ruling," Hedges wrote.

"This case is only two or three days old, and much more factual and legal development is needed," he wrote.

Kelly's lawyers, Edward McDevitt and Kristin Shaffer of Bowles Rice McDavid Graff and Love in Charleston, responded that, "This statement is both misleading and untrue."

They argued that the board had five days notice of the complaint and more than seven months since Kelly requested additional time.

Faber didn't need much time to reach a decision.

"The court does not believe that plaintiff has shown a sufficient likelihood he will suffer irreparable harm if the injunction is denied," he wrote.

"Furthermore, while it would certainly be undesirable to have to retake the exam in February 2009 should plaintiff fail the July 2008 exam, the fact that he can take it again cuts against the notion that any harm he will suffer is irreparable," he wrote.

"Likewise," he added in a footnote, "the court cannot conclude that plaintiff is likely to succeed on the merits of his due process claims because it is uncertain that he possesses the due process rights he claims were violated."