The state Supreme Court recently decided to let this year’s graduates from American Bar Association accredited law schools opt to skip the bar exam and start practicing law in Washington state. The court temporarily modified its admission-to-practice rules because of disruption from COVID-19, and perhaps because of the Black Lives Matter demonstrations and their impact on students.
There had been discussion among the law deans, the Washington State Bar Association and the court regarding when and how to hold a safe bar exam. The justices first decided to reject requests for a “diploma privilege” to practice without the exam, but then reversed course to adopt an action that might be viewed as potentially endangering consumers of legal services.
For years some have contended the bar exam is a bad gauge of an individual’s training to be a lawyer. But without a substitute mechanism in place, there is a risk that a few underqualified individuals will be licensed to represent clients. Regardless of the pros and cons, the court acted without publishing a draft rule and without an expedited comment period. It then deliberated and made up its mind in a way that does not allow the public to fully understand each justice’s reasons for supporting or opposing the action.
Washington’s Supreme Court operates in two completely different modes. When it decides appeals in specific cases, it functions in its judicial mode: considering briefs and oral arguments, retiring to a closed deliberation, and eventually issuing one or more opinions where justices provide detailed reasons for their decisions. The justices on our Supreme Court are very smart, thoughtful, and excellent writers. When they decide cases they often don’t agree, yet we know where they stand from those opinions.
But most people don’t know about the state Supreme Court’s other mode as the governing body of our court system, collectively making huge choices about the judiciary and the State Bar, and adopting rules governing court procedures, admission to practice, lawyer ethics and much more. When the Supreme Court operates in this governing role, it’s a nine-member “legislature” or “council” for the judicial branch and the bar. When it writes rules, it acts like an executive agency or commission. Except for one important difference. Most legislative sessions are in the open so the public can hear debates and understand their representatives’ thinking. City council and commission meetings have to be open except in special circumstances. And rule-making bodies like the Washington Utilities and Transportation Commission must publish proposed rules for comment, take written and oral testimony, and then publicly deliberate on those proposals.
Our elected representatives are expected to make policy in full public view, and administrative rule making is also done in the sunshine.
But when the Washington Supreme Court moves outside its judicial role and acts in a policymaking “quasi-legislative” capacity, or when it acts as an administrative rule-making body, it operates in relative secrecy. The court usually does publish proposed rules, but when the justices legislate, they stick to their judicial habits and deliberate in secret. So, we don’t usually know which justice voted which way, and we’re often left in the dark about their individual reasoning.
Three examples highlight why this makes a difference.
One is the court’s recent decision to admit possibly hundreds of new lawyers to practice without taking a bar exam — it’s up to each new law graduate who previously registered for the exam. The court initially focused on how to hold safe exams, but then the justices changed course with very little warning. We don’t know whether the justices considered following Wisconsin’s model of requiring a minimum grade point average for admission without bar exam passage. We don’t know if they discussed whether foreign lawyers receiving an advanced master’s degree at our law schools should be accorded the same “diploma privilege.” We won’t know, because the court’s members discussed the issue in a closed session.
Earlier this month, the court surprised many in the legal community when it issued a letter stating it would terminate Washington’s Limited License Legal Technicians program that allows non-lawyers to perform some legal tasks in family law after special training. The justices had actively discussed the issue with the state Bar Association’s board and with some other interested parties. Yet there was no formal rule-making process, there were no public hearings before the court as a legislative body, and the public could not readily learn about each judge’s reasoning. This decision could substantially affect the public’s access to low-cost legal services.
Back in 2012, the state Supreme Court adopted a rule setting maximum caseloads for public defenders. This decision wasn’t made in the context of a lawsuit by criminal defendants — it was a policy action through court rule. The court’s reasons were very legitimate, because public defenders were and are overloaded. But this was an example of the court functioning in a quasi-legislative capacity, making decisions with broad financial impacts. The justices deliberated on those new rules in private.
When our Supreme Court acts in a quasi-legislative or regulatory role — outside its judicial mode — it owes the public the same transparent process and accountability we demand from state and local legislators and from regulatory bodies. Not only does the public deserve this, but openness will provide a more considered process and decisions that consider a wider range of views from interested parties and the public.