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Posted on Sat, Jan. 26, 2008

Bar Exam Controversy | Toal says fairness drove decision

Chief justice says effort to do the right thing led to passing 20 who had flunked

By RICK BRUNDRETT - rbrundrett@thestate.com

CHARLESTON — The state’s top judge shed some new light Friday on the high court’s controversial decision to allow 20 people who flunked the July bar exam to pass — including the children of two prominent officials.

Supreme Court Chief Justice Jean Toal said the court was faced with three “pretty unpalatable choices” — one of which almost certainly would have brought a lawsuit the court wanted to avoid.

“You might have made this decision differently,” Toal told about 300 attorneys and guests at the S.C. Bar’s annual convention. “But one thing of which you can be absolutely sure is this: Your Supreme Court made this decision with the sole motivation of trying to be fair.

“We are people of decency and honor, and we must have the ability to make decisions without fear or favor. Judicial independence is the bedrock of our profession.”

Toal’s remarks during her annual State of the Judiciary speech to the convention were her first public statements on the bar exam issue outside of three joint, prepared statements the five-member court issued in November.

She said after her speech that she will address the issue again in her annual remarks to state lawmakers next month but doesn’t plan any more speeches on the topic.

S.C. Bar president Lanny Lambert of Columbia and immediate past president Brad Waring of Charleston backed Toal after her speech.

“She put the issue to bed,” Lambert said. “This is not an issue anymore; it was never an issue from the very beginning.

“We all believed that the integrity of the process was never compromised,” Waring said. “We were always convinced they never knew the names of any of the individuals.”

The Supreme Court on Nov. 2 threw out the results of the wills, trusts and estates section of the seven-section bar exam, resulting in grade changes for the 20 people who flunked the exam.

They included the daughters of S.C. House Judiciary Committee chairman Jim Harrison, R-Richland, and longtime Circuit Judge Paul Burch of Pageland.

Harrison and Burch told The State newspaper they contacted court officials after learning their daughters flunked, though Harrison has said repeatedly he wasn’t trying to get special treatment for his daughter.

At least six of the 20, including Harrison’s and Burch’s daughters, had worked as law clerks for sitting circuit judges, a State newspaper review found.

Eight of the 20 were from the first graduating class of the Charleston School of Law; two were USC School of Law graduates, school officials there said.

The justices, in one of their November joint statements, denied showing any favoritism. In her speech Friday, Toal said only the Supreme Court’s clerk of court knew the names of the examinees. She gave this account of what happened:

• About a week after the scores were initially released publicly, an examiner “to his horror” discovered he inadvertently had transposed the results of several examinees who had taken the wills, trusts and estates section.

• He immediately contacted the clerk of the Supreme Court, which administers the test through its Board of Law Examiners.

• The Supreme Court’s clerk of court then determined that one examinee also had flunked another section, which meant that person failed the entire test but was certified incorrectly as having passed it.

• Toal convened the Supreme Court the next day to address the problem, facing three “pretty unpalatable choices”: Do nothing; revoke the test certification of the examinee who was incorrectly recorded as having passed it; or throw out the wills, trusts and estate section for everyone, which is what the court decided to do.

“We certainly didn’t think we could just sweep it under the rug and not do anything,” Toal told reporters Friday. “So, as we saw it, we had only one other choice, which was to disregard the section.

“We were dealt a hand that gave us three very difficult choices, none of which were perfect solutions.”

Toal said not doing anything would have caused “equal protection” problems for other examinees who had flunked the wills, trusts and estates section.

Reversing the grades of only the examinee who was incorrectly recorded as passing the test would have “invited a lawsuit from that examinee — big time,” she said, since the results had been certified already.

Toal said, though, she didn’t believe throwing out the wills, trusts and estates section after the overall test grades were initially released violated her court’s March order banning re-grading of tests.

She said during her speech that on another occasion while she has been on the court, a section of another bar exam had to be tossed, though she couldn’t recall specifics afterward.

Reach Brundrett at (803) 771-8484.

 

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