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In re Application of Hartmann11/10/2005
Original action. Application denied.
Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
David V. Hartmann appeals from a decision of the Nebraska State Bar Commission (Commission), denying his application to take the July 2004 bar examination, based upon its determination that Hartmann does not meet the character and fitness requirements for admission. We sustain the Commission's recommendation that Hartmann not be allowed to sit for the Nebraska bar examination.
BACKGROUND
Hartmann, whose date of birth is August 22, 1961, obtained his law degree in May 2002 and initially applied to take the July 2002 bar examination. In his application, Hartmann disclosed his complete criminal history, which included a 1977 charge of reckless driving, a 1992 charge of driving under the influence that was later reduced to reckless driving, a 2001 charge of improper passing that was subsequently dropped, and a 2002 charge of third degree sexual assault. The latter charge was based on allegations made by K.H.V., Hartmann's niece who was then 15 years old. The charge was pending in Seward County at the time of Hartmann's application. On or about May 13, 2002, the Commission received an anonymous letter from a "concerned citizen" informing it of the sexual assault charge. On June 25, the Commission notified Hartmann that it would permit him to sit for the July 2002 examination but was withholding approval of his application on character and fitness grounds until further investigation could be completed. Hartmann did not pass the July 2002 examination, and thus the character and fitness issues became moot.
Hartmann then applied to sit for the February 2003 bar examination. In this application, he explained that the sexual assault charge had been dismissed in Seward County but had been refiled and was then pending in Lancaster County. This charge was eventually amended to third degree assault. Hartmann was convicted on his plea of no contest and paid a $1,000 fine as ordered. Hartmann also notified the Commission of a November 2002 charge of driving under the influence (DUI) and his conviction on a reduced charge of willful reckless driving which resulted in a fine and a term of probation that Hartmann had completed.
Hartmann was unable to sit for the February 2003 bar examination because his Army National Guard unit was mobilized into active federal service. He subsequently filed an application to take the July 2004 bar examination. This application completely and accurately informed the Commission of all his prior criminal history. By letter dated May 24, 2004, the Commission notified Hartmann that it was refusing him permission to take the examination "on the grounds that lack the necessary character and fitness for admission." The Commission advised Hartmann of his appeal rights under Neb. Ct. R. for Adm. of Attys. 10 (rev. 2000). Hartmann requested a hearing before the Commission, which was held on October 5 and 26, 2004. Prior to the hearing, the Commission specified that it had denied Hartmann's application based on his 1992 and 2002 DUI charges, which were reduced to reckless driving and willful reckless driving, respectively; his conviction on the third degree assault charge; and allegations that he had committed offenses involving minors.
K.H.V. was married in June 2004 and resides in another state. She provided written statements to the Commission and testified at the hearing about the incident which led to Hartmann's charge of third degree sexual assault, later amended to third degree assault for "threaten another in a menacing manner." See Neb. Rev. Stat. § 28-310(1)(a) (Reissue 1995). According t
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