Facts
On 6 May 2017 the complainant sat the written part of the bar examination of the Canton of Graubünden for the third time. By letter of 24 May 2017, the Supervisory Commission for Lawyers (Supervisory Commission) informed her that she had not achieved the required grade and was not admitted to the oral examination.
On 26 May 2017 the complainant requested reconsideration, seeking admission to the oral part or, alternatively, a repeat of the written examination. She also requested a written statement of reasons with an indication of legal remedies, and the delivery of the model solution and the anonymised solutions of the admitted candidates. By decision of 7 July 2017, the Supervisory Commission declined to consider the request for reconsideration regarding admission, granted the request for a written statement of reasons and an indication of legal remedies, and dismissed the remaining requests.
By judgment of 3 October 2017, the Administrative Court of the Canton of Graubünden dismissed the appeal insofar as it was admissible. It declined to consider the appeal against the examination decision because the challenge was untimely.
By judgment 2C_1004/2017 of 29 May 2018, the Federal Supreme Court upheld the complaint filed against this decision insofar as it was admissible, set aside the lower court's judgment declining to consider the appeal, and remitted the matter for a new decision. Subsequently, by judgment of 22 January 2019, the Administrative Court dismissed the complainant's appeal.
By subsidiary constitutional complaint of 27 February 2019, the complainant requested that this judgment be set aside and that she be admitted to the oral part of the bar examination or, alternatively, that she be granted the certificate of capacity as a lawyer. As a procedural request, she demanded the anonymised publication of the solutions of the candidates admitted to the oral part and of the solutions to the same examination rated 3.0. The Administrative Court requested dismissal, and the Supervisory Commission waived its right to submit a response.
The subject matter of the dispute concerned inspection of other candidates' examination papers, violation of the right to a fair procedure and the right to be heard (reasoning, recording, allocation of points), and whether the substantive assessment of the examination performance was arbitrary.
Considerations
Admissibility: The decision concerns the result of an examination, so an ordinary appeal in public law matters is excluded under Art. 83 lit. t FSCA, and the subsidiary constitutional complaint under Art. 113 et seq. FSCA was properly filed. The complainant has standing to appeal under Art. 115 FSCA; candidates have a legally protected interest in the correct assessment of their performance, which entitles them to raise an arbitrariness complaint. The submission was made in the proper form and within the time limit.
Limited scope of review: Under Art. 116 FSCA, only constitutional rights may be invoked, subject to a qualified duty to raise complaints. When assessing examination performances, the Federal Supreme Court reviews only for arbitrariness, exercises considerable restraint, and intervenes only where considerations are extraneous to the matter or obviously untenable, even where it might be technically capable of a more extensive review. Where a matter has been remitted, the remittal decision and the Federal Supreme Court are bound by it. The request for the certificate of capacity as a lawyer goes beyond the subject matter of the first proceedings and cannot be admitted.
Inspection of files: The right of inspection under Art. 29 para. 2 Cst. generally does not extend to the work of other candidates. Inspection may only be granted where there are concrete indications or grounds for suspicion of unequal treatment. The mere suspicion that trainees or cantonal employees were disadvantaged, or of a hidden numerus clausus, is insufficient. The figures (three of ten candidates admitted) are not meaningful without further evidence; the lower court was entitled to refer, as a court-notorious fact, to earlier failures of known candidate groups. The anonymous marking by five experts, with the attribution of papers disclosed only after the grade was fixed, ensures equal treatment. Inspection was therefore correctly refused, and there is no reason for disclosure.
Fairness and right to be heard: The complainant did not substantiate how the fair procedure was violated; a subjective impression of bias is insufficient. Reliance on the knowledge of members of the authority is permissible under cantonal law (Art. 12 para. 1 VRG/GR); an impermissible reliance on court-notorious facts has not been demonstrated. The duty to give reasons under Art. 29 para. 2 Cst. is satisfied if the candidate is briefly informed, orally or in writing, which solutions were expected and why the answers were insufficient. The complainant received the model solution, the anonymised grade overview, the minutes of the decision and the decision of 7 July 2017, was able to make submissions and could file an appeal. Minutes without the wording are sufficient, since there is no obligation to keep verbatim records and the assessment by several experts objectifies the evaluation of performance. The absence of an allocation of points, a marking scheme or a grading scale does not, in the present case, violate the minimum guarantees, since the failure was explained in writing and five experts marked the papers.
Substantive assessment (arbitrariness): The task consisted of three parts: a legal assessment with procedural risks, notes on the procedure and a proposal by opposing counsel regarding the arbitral tribunal, and the drafting of complete written submissions. The Supervisory Commission based the insufficient result…