Opinion
No. 2023-BA-00714
05-24-2023
IN RE: COMMITTEE ON BAR ADMISSIONS CFN-427573
Petition to file late application to sit for the July 2023 Louisiana bar exam granted. See order.
Weimer, C.J., dissents and assigns reasons.
Griffin, J., concurs in the result.
ORDER
Considering the petition for leave to take the July 2023 bar examination filed by petitioner,
IT IS ORDERED that the petition be granted insofar as petitioner seeks a waiver of the applicable application deadlines. Within ten days of the date of this order, petitioner shall be permitted to submit an application to take the July 2023 bar exam.
NEW ORLEANS, LOUISIANA, this 24th day of May, 2023.
FOR THE COURT:
/s/ ___________________________________
JUSTICE
Bar Admission Proceeding
WEIMER, C.J., dissenting.
In this matter, petitioner failed to submit his bar application prior to the deadline established in Supreme Court Rule XVII, § 4(C). That rule explicitly provides that " under no circumstances " (emphasis added) will the court grant an extension of the deadline. Yet, the majority opinion has granted petitioner's request to file a late application. Thus, I must very respectfully dissent, finding petitioner is clearly ineligible to sit for the July bar examination because he unquestionably missed the deadline. Any excuse for missing the deadline is irrelevant.
In February 2023, petitioner sat for and failed the Louisiana bar examination. Thereafter, pursuant to Supreme Court Rule XVII, § 4(C), petitioner was required to submit an application for re-examination to the Committee on Bar Admissions ("Committee") on or before May 15, 2023. However, he failed to submit the application by that date.
The Committee on Bar Admissions is a Supreme Court committee of dedicated volunteer attorneys and judges, who, with the assistance of a diligent staff, make sacrifices and work very hard to administer the bar examination.
On May 19, 2023, petitioner sought this court's permission to file a late application for re-examination. As an excuse for his delay, petitioner stated a May 17, 2023 appointment was made with the Committee to review his February examination. He cites advice from an unnamed professor at Southern University Law School, who he alleges told him his failing score from February might be changed if grading mistakes were found; otherwise, he understood he would be allowed to submit an application to take the July bar examination after the conclusion of the May 17, 2023 meeting. Petitioner contends that on May 17, 2023, he learned that his score on the February bar examination was final, that the "appointment" was strictly to review his failed examination answers, and that "the information provided by the law school professor was completely inaccurate."
Regardless, had petitioner conducted even a cursory review of the provisions of Supreme Court Rule XVII (which is available both on the Committee's website and this court's website), he would have seen this advice was clearly in error. Supreme Court Rule XVII, § 4(C) provides, in pertinent part:
An applicant applying for the examination administered in July shall on or before February 1 st submit a Bar Examination Application and payment of the applicable fees to the Committee on Bar Admissions and a request for the preparation of a character report and payment to the NCBE.
An applicant may apply for the July examination after the February 1 st deadline, provided the Bar Examination Application and Request for Preparation of a Character Report are received no later than May 15 th. Late applicants shall submit a late filing fee to the Committee in addition to all other applicable fees. Under no circumstances will the Committee process an application to take the July examination, and under no circumstances will the Court grant a petition to take the July examination, if the application is received by the Committee after May 15 th.
An applicant applying for the examination administered in February shall on or before November 1st of the year preceding the February bar exam submit a Bar Examination Application along with payment of the applicable fees to the Committee on Bar Admissions and a Request for the Preparation of a Character Report and payment to the NCBE.
An applicant may apply for the February examination after the November 1 st deadline, provided the Bar Examination Application and Request for Preparation of a Character Report are received
no later than December 15 th. Late applicants shall submit a late filing fee to the Committee in addition to all other applicable fees. Under no circumstances will the Committee process an application to take the
February examination, and under no circumstances will the Court grant a petition to take the February examination, if the application is received after December 15 th.
An applicant who is applying for re-examination in accordance with Section 8 may apply for a waiver of the foregoing provisions requiring a Request for the Preparation of a Character Report by certifying no change in circumstances on a form prescribed by the Committee; however, in no instance shall a waiver be granted more than two years after the date of the applicant's most recent Request for the Preparation of a Character Report. Furthermore, notwithstanding the other application deadlines set forth above in this Section 4(C), applications for re-examination pursuant to Section 8 will be accepted by the Committee if filed on or before December 15 for the February examination, and on or before May 15 for the July examination. Under no circumstances will the Committee process an application for re-examination, and under no circumstances will the Court grant a petition to re-take the examination, if the application for re-examination is received by the Committee after December 15 for the February examination, or after May 15 for the July examination . [ ] [Emphasis added.]
The history of the rule is noteworthy. Prior to 2002, Supreme Court Rule XVII set forth deadlines of February 1 (for the July exam) and November 1 (for the February exam). It also allowed for an exception, providing "[o]ut of time requests to sit for the bar examination shall be granted only if the applicant offers verifiable facts which indicate delays in submitting the application were caused by extraordinary circumstances beyond the applicant's control." Here, petitioner's application does not contain "verifiable facts" because the professor is not named.
Unfortunately, this exception provision was routinely invoked by applicants. In 2002, Rule XVII, § 4 was amended to its current structure. As currently amended, the rule maintained the February 1 deadline for the July examination, but allowed late applications to be filed up until May 15, with the provision that no extensions after this date would be granted. The revised rule essentially created a compromise whereby applicants could get an automatic extension of the February 1 deadline up until May 15 by paying an additional fee, but could no longer petition the court for extensions. Applications for re-examination to take the July examination, as in the instant case, were subject to a May 15 deadline, again with the condition that "[u]nder no circumstances will the Committee process an application for re-examination, and under no circumstances will the Court grant a petition to re-take the examination, if the application for re-examination is received by the Committee after ... May 15 for the July examination."
This rule was not randomly enacted, but carefully considered to avoid the very issue the court must confront in this matter and to terminate the endless parade of out-of-time requests to sit for the bar examination. Matters such as this hault the other business of the court and require the court to promptly make decisions on a fact-intensive case-by-case basis, which can result in inconsistencies. Such requests drain this court's judicial resources and impose more work on the Committee's volunteers and staff. A lack of allegiance to the rule opens the door to everyone else to ask to be an exception, which is the very reason the rule was adopted and has been applied without exception until now. The majority's ruling also indicates the rule as written has no efficacy. If so, the rule should be repealed.
According to this clear language, the deadline to apply for re-examination for the July bar examination is May 15. The rule expressly provides that "under no circumstances will the Court grant a petition to re-take the examination, if the application for re-examination is received by the Committee ... after May 15 for the July examination." Because the rule prohibits this court from granting a petition for re-examination if the application is not received by the Committee by May 15, the rule effectively eliminates any cause of action petitioner may have to request an extension and exception from the rule. It is undisputed petitioner did not satisfy the May 15 deadline. Instead, he directly petitioned this court on May 19, 2023. Although Supreme Court Rule XVII, § 12 allows an applicant to review a failing examination, there is nothing in the rule which suspends the deadlines for applying for the July bar examination pending the applicant's review of a failed examination. Supreme Court Rule XVII, § 4(C) provides an absolute deadline of May 15 to apply for the July examination, and due to the emphatic nature of the rule, there is no avenue for petitioner to pursue that allows him to sit for the July bar examination. Any excuse for missing the deadline is of no moment.
The solution to petitioner's dilemma is provided within the Supreme Court Rule he failed to consult. He could have filed timely as the rule requires, and, if his grade on the prior examination was changed, he could have requested a refund. However, rather than undertake the research, petitioner allegedly consulted an unnamed professor and received bad advice. As one who graduated from law school and seeks admission to a learned profession, relying on such advice is not a "reason" to have this court depart from a clear and unambiguous rule.
Petitioner has presented no evidence whatsoever, however I note correspondences from the Committee likely spelled out the course of action available to petitioner.
The majority opinion, which cites no reason or rational, has granted petitioner's request; however, it is notable that petitioner may have the disappointing distinction of being the lone exception to the rule. Since the adoption of the current language of Supreme Court Rule XVII, § 4(C) in 2002, this court has consistently denied 22 petitions for leave to file out-of-time applications to sit for the bar examination. See In re: Committee on Bar Admissions CFN-709604 , 21-0070 (La. 1/26/21), 309 So.3d 346 ; In re: Committee on Bar Admissions CFN-N/A , 20-0682 (La. 7/2/20), 297 So.3d 770 ; In re: Committee on Bar Admissions CFN-491313 , 19-0855 (La. 6/17/19), 277 So.3d 786 ; In re: Committee on Bar Admissions CFN-390839 , 18-0837 (La. 6/15/18), 257 So.3d 681 ; In re: Committee on Bar Admissions CFN-987050 , 17-0829 (La. 5/24/17), 221 So.3d 853 ; In re: Committee on Bar Admissions No. CFN 1418 , 15-1016 (La. 6/3/15), 171 So.3d 937 ; In re: Committee on Bar Admissions CFN-316693 , 15-1021 (La. 6/3/15), 171 So.3d 937 ; In re Committee on Bar Admissions CFN-2124 , 14-1120 (La. 6/11/14); In re Smith , 13-1386 (La. 6/19/13), 118 So.3d 403 ; In re Sanderson , 12-1206 (La. 6/13/12), 90 So.3d 1048 ; In re Shamieh , 12-1183 (La. 6/13/12), 90 So.3d 1048 ; In re Bailey , 12-1150 (La. 5/30/12), 90 So.3d 419 ; In re Castaing , 11-1069 (La. 6/1/11), 63 So.3d 1003 ; In re Lohoff , 11-0313 (La. 2/6/11), 57 So.3d 319 ; In re Carpenter , 11-0035 (La. 1/12/11), 52 So.3d 889 ; In re Magee , 10-2812 (La. 1/5/11), 53 So.3d 464 ; In re Oliver , 09-1251 (La. 6/17/09), 10 So.3d 721 ; In re Daly , 09-1234 (La. 6/17/09), 10 So.3d 721 ; In re Rogers , 09-0033 (La. 1/14/09), 998 So.2d 87 ; In re McGuire , 06-1744 (La. 7/13/06), 934 So.2d 702 ; In re Leonard , 04-1861 (La. 7/23/04), 877 So.2d 995 ; and In re Sahuc , 04-1825 (La. 7/21/04), 877 So.2d 994, all of which were denied with reference to Supreme Court Rule XVII, § 4(C). Is the system of justice, or anyone, well-served when one person is not required to follow a rule heretofore uniformly applied to all?
This court granted two petitions for leave to take the October 2020 bar examination in which the applicants could not meet the application deadline due to the extraordinary circumstances created by the COVID-19 pandemic. See In re Committee on Bar Admissions CFN-N/A , 20-1043 (La. 8/31/20), 301 So.3d 14 ; In re Committee on Bar Admissions CFN-N/A , 20-1116 (La. 9/24/20), ––– So.3d ––––, 2020 WL 5793092. In contrast, petitioner does not indicate any circumstances beyond his control affected his ability to submit an application.
Petitioner has chosen to pursue a career in which he will continuously be required to follow procedural rules and comply with strict deadlines. Yet, at this important crossroads of his career, petitioner is being granted an exemption from a rule which is clear and unambiguous and, more importantly, has been applied uniformly and consistently to others with reasons as sympathetic as his. Petitioner failed to exercise due diligence and failed to perform independent research into the rules governing examinations. Nevertheless, this matter was addressed in an expedited manner to make an exception for this petitioner that no one else has received except during the immensely extraordinary circumstances related to a worldwide pandemic.
I urge petitioner to review the language of the rule and determine for himself if, indeed, the excuse he gave is justification for him taking advantage of the exception recognized by the majority opinion. Petitioner is facing a difficult decision: does he accept being the only individual who has been found to be an exception to the rule simply because he failed to read the clear and unambiguous rule himself or does he follow the rule because the oath of an attorney requires allegiance to the law? One's career as an attorney will be replete with challenging decisions and providing advice to clients to follow the law.
There is no information regarding this individual in the record. This country prides itself on being a "nation of laws and not of men," meaning whether the individual is a person of means or influence or is impecunious or without influence, the law applies to all equally. The symbol of justice is blindfolded to demonstrate the law should be blind to irrelevant matters such as wealth or influence. What lesson is being taught by enabling only one of 23 applicants to be the exception?
A concept attributed to founding father and President John Adams, who was also an attorney.
Petitioner can chose to abide by the rule as written or chose to take advantage of a ruling that benefits only him and has never benefitted anyone else.
I pray petitioner makes the right choice.