The California Supreme Court opened a can of worms when it decided to permanently lower the passing score for the state bar exam, according to a retired judge.
“I don't think the California Supreme Court had the jurisdiction to change it,” said Jim Gray, a former Orange County Judge who now works as a mediator. “If you start getting into victimization, which is exactly what they're doing here, you're going to be arbitrary and you will never be satisfactory.”
Due to the impact of COVID-19, the state’s highest court announced in July that it was reducing the passing score from 1440 to 1390, as previously reported, but only for those taking the bar exam in October 2020. When asked to extend the new passing score to those who failed the bar exam as far back as 2015, the state's highest court declined.
“The government shouldn’t be in the licensing business for attorneys at all,” Gray told the Southern California Record. “What you do instead is require somebody purporting to be an attorney to be bonded.”
Courthouse News reported that after the justices declined to extend the passing score retroactively, protestors gathered on the steps of the California Supreme Court.
“We're so worried about victimization and people's feelings that we're trying to cater to victimization and people's feelings, which only results in more feelings of victimization and hurt feelings,” said Gray in an interview. “You just can't do that effectively.”
The Supreme Court then created a committee to evaluate temporary licensing.
“They're trying to make something work that is not workable,” Gray said of the state bar working group. “So, now they're trying to assuage feelings and come up with something that works but the train is off the track. Nothing that happens next will make anybody happy.”
Despite the Supreme Court’s decision against retroactively extending the lowered passing score, the state bar working group voted to apply the temporary licensing program to anyone who failed the California bar exam in the last five years but had earned the new minimum standard score of 1390.
“Just because you pass a test, doesn't mean that you're going to be a decent attorney,” said Gray. “You should be able to advertise the law school you attended and let customers decide. If you’re doing well, you'll be busy and, if you're not, you won't. It has almost nothing to do with licensing.”
The California Supreme Court has yet to approve the working group’s decision.
“I don't think that the California Supreme Court should have a say in what the working group for the state bar does unless they are violating the constitution or the laws of our state,” Gray said. “This is an administrative issue, not a legal one.”