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Posted on Sun, Dec. 02, 2007

Supreme Court not off the hook

Calls come for investigation into changing of bar exam grades

By RICK BRUNDRETT - rbrundrett@thestate.com

Calls are increasing for an outside investigation into the state Supreme Court’s decision last month to reverse the grades of 20 people who flunked the latest bar exam — including the children of two prominent officials.

But S.C. law doesn’t allow independent investigations of complaints against the state’s highest court — prompting House Speaker Bobby Harrell to say the time might be right to consider changing that.

In interviews last week with The State, three people — a 2007 Charleston School of Law graduate who flunked the July exam, a federal attorney with S.C. ties and a legal ethics professor at one of the nation’s top law schools — called for an independent investigation into whether the Supreme Court engaged in any misconduct in connection with the exam.

At least 14 states — including Georgia and North Carolina — use substitute judicial panels to review disciplinary cases involving their respective top courts, according to the American Judicature Society’s Center for Judicial Ethics.

The Supreme Court on Nov. 2 reversed the grades of 20 people who flunked the July exam — including the daughters of state Rep. Jim Harrison, R-Richland, chairman of the House Judiciary Committee; and longtime Circuit Judge Paul Burch of Pageland.

In doing so, the court apparently violated its own rule prohibiting such grade changes after they are posted publicly.

“It’s not really about the bar exam,” said Darren McGuinness, who graduated from the Charleston School of Law in May but who flunked the July exam. “It’s about the issue and why the legal community is so afraid to pick a fight.”

McGuinness, 27, of Ocala, Fla., said he doesn’t want special treatment and plans to retake the exam in February. He is the first of the 552 people who took the July exam to speak publicly about the controversy.

Harrell told The State last week the creation of an outside judicial panel to review allegations of misconduct by the S.C. Supreme Court “might be something worth considering.”

Such a panel could be created by a new state law, the Charleston Republican said, instead of by changing the state’s constitution, which would be more complicated. Harrell said he needed to “talk with some folks to see if we really ought to pursue that.”

Harrell said no House member has approached him about an investigation of the Supreme Court.

Efforts last week to reach the S.C. Senate’s top leader — President Pro Tem Glenn McConnell, R-Charleston — were unsuccessful.

Supreme Court Chief Justice Jean Toal, who is president of a national group of state supreme court chief justices, declined to comment for this story when contacted Friday.

NO FAVORITISM?

The Supreme Court in a Nov. 19 prepared statement said it had shown no favoritism in throwing out the wills, trusts and estates essay section of the test. That action allowed Harrison’s and Burch’s daughters to pass.

Harrison and Burch earlier told The State they contacted court officials after learning their daughters had flunked the test.

“We recognize that even this detailed statement may not satisfy those who have voiced honest and thoughtful criticism of our actions,” the court said in the statement posted on its Web site.

“But we assure the public and the bar that the court’s actions were not the product of pressure, favoritism or discrimination in any form.”

The justices said the discovery of a scoring error involving one test-taker who flunked that section but who was recorded as having passed led them to reverse the grades of the other 20 who also flunked the section.

Test-takers could flunk no more than one section of the seven-section test.

In reversing the grades, the court apparently violated its own order in March banning re-grading after the scores were released by the S.C. Board of Law Examiners, which administers the test. Willful violation of a Supreme Court order is grounds for discipline, under the court’s own rules.

Erica Moeser, president of the National Conference of Bar Examiners, told The State in a recent interview she couldn’t recall a similar situation in any other state in her 13 years leading the organization.

The Supreme Court’s explanation “was helpful up to a point, but I really didn’t understand what had been done,” Moeser said. “But I operate under the assumption there are good people who make decisions that are vulnerable to being second-guessed.”

‘EVERYONE KNOWS THIS IS WRONG’

McGuinness — who flunked the exam but not the wills, trusts and estates section — said the Supreme Court “needs to have a panel or disciplinary committee review this.”

“It may seem like a small thing letting in the 20,” he said, “but to do this and to be blatant about it — to know that no one will be disciplined — that’s where the lay of the land really is.

“(The Supreme Court justices) really have complete control. Everyone knows this is wrong.”

A number of practicing S.C. attorneys have contacted The State in recent weeks expressing concerns about the Supreme Court’s handling of the matter. None has been willing to be identified publicly over fears their careers could be hurt.

But J. Christian Adams, general counsel for then-S.C. Secretary of State Jim Miles from 1993 to 1997 who now works in the U.S. Department of Justice’s election law section in Virginia, did speak on the record.

“For one thing, there are 20 lawyers who failed the bar,” said Adams, who stressed he was not speaking on behalf of the U.S. government. “There are 20 lawyers who do not have the skills to write a will.”

The bigger problem, he said, is the lack of oversight of the Supreme Court’s regulation of the profession.

“The court has no business regulating without oversight,” Adams said. “No branch of government ever should have powers that are not checked.”

Deborah Rhode, director of Stanford Law School’s Center on Ethics, said an outside review of the Supreme Court’s handling of the bar exam matter is needed. “Certainly, you’ve got the appearance of bias.”

“This is a classic illustration that you ought not to have ethical complaints against that body being resolved by that body,” said Rhode, who reviewed the Supreme Court’s statement on the issue at the request of The State.

“The problem,” she said, “is not that people are consciously acting to further their professional or personal concerns. It’s one of tunnel vision.”

OVERSEEING JUSTICES

In every state, the regulation of lawyers falls under the jurisdiction of that state’s highest court, according to the American Bar Association’s Center for Professional Responsibility.

But South Carolina, unlike at least 14 other states, doesn’t have any laws or court rules that require ethical complaints against its justices to be decided by special judicial panels, according to the American Judicature Society’s Center for Judicial Ethics.

The society is a nonpartisan organization of judges, lawyers and others that works to maintain the independence and integrity of the nation’s courts.

“Strangely, there’s been a rash of cases involving supreme court justices,” said Cynthia Gray, the center’s director, when contacted last week. “I hope it’s just a glitch.”

In the last 10 years, there were at least 17 disciplinary cases against supreme court justices nationwide, according to the center. Several of the cases involved justices who were charged with drinking and driving.

Adams, the former lawyer for then-S.C. Secretary of State Jim Miles, said a 2001 hit-and-run accident involving Chief Justice Toal illustrates why an outside review panel is needed.

Toal asked the state Office of Disciplinary Counsel — an arm of the Supreme Court — to investigate the accident in which she sideswiped an unoccupied parked car about a block from her Columbia home. Toal admitted she had been drinking before the accident, though she contended she was not drunk.

About a year later, a hearing panel of the Commission on Judicial Conduct — another branch of the Supreme Court — unanimously said Toal violated no judicial ethics rules, and there was no further action.

It was not clear whether Toal faced any disciplinary action stemming from another hit-and-run accident in March in which she didn’t immediately report backing into an unoccupied vehicle parked at Columbia Metropolitan Airport.

The S.C. Supreme Court typically has final say on any discipline involving lawyers or judges. Under court rules, Supreme Court justices under investigation are required to excuse themselves from their own cases, though there is no outside panel that can impose sanctions.

Had Toal been a justice in North Carolina, that state’s second highest court — the Court of Appeals — would have decided her punishment if sanctions were recommended in her 2001 case.

In Georgia, the state’s Judicial Qualifications Commission has the authority to impose sanctions against justices. If a justice objected to a punishment, a substitute court consisting of the commission chairperson and six immediate past chairpersons of the Council of Superior Court Judges would decide the sanction.

Reach Brundrett at (803) 771-8484.

 

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