Home Criminal Defense California Supreme Court Refuses To Apply New Cut Score Retroactively

California Supreme Court Refuses To Apply New Cut Score Retroactively


Pictured: California Supreme Court responding to petitions from regulation college deans.

California put out its final order relating to the brand new bar examination regime and it’s largely what we highly anticipated. An on-line examination on October 5-6 and a forever lowered passing rating from 1440 to 1390. Given how the online exams around the country are going, possibly we’re leaping the gun to call this the “final order.” Let’s simply say that is what they anticipate to be the ultimate order earlier than the September 30 emergency order asking candidates to only submit dioramas of the very fact sample in Palsgraf for analysis.

One factor that’s not within the order is a dedication to use the brand new 1390 rating retroactively as multiple law school deans and applicants requested. In a separate letter from Executive Officer of the Court Jorge Navarrete to the state bar, the supreme courtroom defined that it was not honoring the request as a result of “With one exception, the court is unaware of any jurisdiction in the past decade that has lowered the exam passing score and applied that decision retroactively.”

True… but it surely’s the one applicable change within the final decade. Montana lowered its reduce rating just a few years in the past and made it retroactive to a few years. The solely different reduce rating modifications which can be dancing about are COVID-specific short-term modifications — like North Carolina dropping the score by two for the July administration — that replicate the expectation of decrease scores throughout a pandemic moderately than a brand new philosophy on grading. However, California isn’t making a brief change, it’s doing what Montana did and executing a go-forward declaration. To escape this wrinkle, Navarrete’s article claims the Montana transfer was designed to offset an earlier reduce rating improve, whereas California hasn’t modified its reduce rating in years.

Yet, the very fact of the matter is that seeking to different states was the weakest argument raised in favor of retroactivity and the powers-that-be have taken this flimsy protect and turned it right into a sword. None of those experiences in different states are controlling and these circumstances come up so not often that precedent is about as a helpful as haruspicy. The Montana analogy was so tangential that I didn’t even point out it my earlier overview of the motions looking for retroactivity.

I assume the lesson right here is to not give courts shaky arguments they will grasp a call on.

Because the courtroom’s letter solely affords a fast apart distinguishing the Montana scenario whereas ignoring the higher arguments: (1) that individuals who took the check in February have a current sufficient rating to dispel any query of competency and (2) that California accepts scores for FIVE YEARS in the established order so if a 1450 grade in 2016 is taken into account a 1450 in 2020 why wouldn’t a 1390 in 2016 be counted as a 1390 in 2020? California may take the place that scores are solely contemporary till the subsequent administration of the examination, however they don’t. That respect for the sturdiness of a rating’s measure of an applicant ought to reduce each methods.

Honestly, I used to be opposed to the thought of retroactivity earlier than studying these petitions. I used to be sympathetic to the trigger however thought, for higher or worse, strains must be drawn someplace and the burden could be excessive to persuade me {that a} rating achieved below a unique regime ought to depend with out opening the executive trouble floodgates. But after I pressured myself to provide you with responses to the arguments raised I noticed there weren’t good responses available. They already explicitly settle for stale scores — I simply couldn’t discuss away why it wouldn’t apply universally. Not solely do I think the state supreme courtroom by no means bothered to grapple with this argument, the truth that they went out of their strategy to keep away from mentioning the concern all however confirms it.

Questioning a supreme courtroom’s licensing coverage is seemingly like asking a robotic to outline love as a result of smoke simply begins popping out of their ears whereas they wildly repeat “Montana is different!”

That the courtroom mentions NEITHER of those higher arguments raised within the petitions ought to hassle everybody, particularly because it’s indicative of the adjudicative laziness that’s impacted several state supreme courts around the country. Sound reasoning doesn’t take a vacation simply because the query is throughout the management of the judicial department. All anybody’s asking is for the courtroom to have the fundamental sense of labor ethic to deal with the precise arguments on the page as an alternative of sending the Clerk of the Court out to put in writing a glib dismissal in a letter to the state bar.

But assuming the bar examination is completely different is best than contemplating the choice — that these supreme courts routinely lack a disciplined approach to adjudicating the issues earlier than them.

California Supreme Court Issues Order Finalizing Lower Passing Score for Future Bar Exam Takers [California Courts]

Earlier: Deans And Bar Applicants Ask California To Apply New Lower Cut Score Retroactively

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any suggestions, questions, or feedback. Follow him on Twitter in case you’re occupied with regulation, politics, and a wholesome dose of faculty sports activities information. Joe additionally serves as a Managing Director at RPN Executive Search.


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