Staley v. State Bar , 17 Cal. 2d 119 ( 1941 )

EDMONDS, J.

Upon the application of the petitioner, who failed to pass the bar examination held in 1939, this court issued an alternative writ of mandate requiring the Committee of Bar Examiners and The State Bar to show cause why he should not be admitted to practice law in this state. He charges that although he passed the examination with a higher grade than 70 per cent, the board “arbitrarily and capriciously” reduced this to below a passing mark and refused to certify his name for admission to the bar.

In support of his charge against the committee, the petitioner alleges that he “successfully completed the law course” of the University of Michigan in 1914, and also “successfully completed” a post graduate course in legal instruction at Southwestern University, Los Angeles. He also states, generally, that he has the legal learning and ability of the average candidate who successfully passes the bar examination of the State of California. More specifically, he alleges that he has been a commissioned officer in the armed forces of the United States and studied and passed the subject of military law, and that he has practiced before the Industrial Accident Commission with great success.

In a supplemental petition, the petitioner has set out in full the questions asked of him, the answers given, and the grade assigned to each. These grades amount, in the aggregate, to 940 points as against the 1820 required to pass. In criticism of such marking, there is presented a certificate of Charles E. MeGinniss that he has read the petitioner’s papers and has assigned to his answers a total of 2,121 grade points, which is above the passing grade. Mr. MeGinniss states that he is a member of the California bar, that he has been a law editor and professor of law, and that in his opinion the petitioner “is educationally qualified to practice law in the State of California and elsewhere. ’’

By their return, the respondents deny that the petitioner’s answers were arbitrarily or capriciously graded. It specifically alleges that his answers to the questions asked of him were carefully, fully and completely read and graded by highly skilled readers who were chosen for their ability to do this work, and it sets forth in detail the methods under which the examination taken by the petitioner was carried on. It also alleges that the records of the committee show that the petitioner has taken eight examinations since the year 1926, and has passed none of them although each examination was determined on its own merits. It also denies that the petitioner successfully completed the regular academic course of law at the University of Michigan, asserting that although the petitioner was at one time a student there, he did not pass a sufficient number of subjects to entitle him to a degree.

The allegations of the petitioner amount to nothing more than a general statement that his answers entitle him to a passing grade notwithstanding the grade given his papers by the Committee of Bar Examiners. He makes no charge of fraud, imposition or coercion, and does not assert that he was denied a fair opportunity to take the examination.

Such a petition falls far short of the requirements laid down by this court in a proceeding to review the examinations given by the committee in 1933. At that time it restated the rule which had been adopted in a previous consideration of the question as follows: “The attitude of this court is that if any dissatisfied applicant can show that he was denied passage of the state bar examinations through fraud, imposition, or coercion, or that in any other manner he was prevented from a fair opportunity to take the examinations, this court will be willing to listen to his complaint. Inability to pass the examinations, which are successfully passed by other applicants, will, of course, not be inquired into by the court. Also, as you have no doubt found out, one’s general qualifications are not to be substituted for the requisite knowledge of law which one must possess in order to be admitted into the legal profession. ’ ’ (In re Admission to Practice Law, 1 Cal. (2d) 61, 64 [33 Pac. (2d) 829]. See, also, Salot v. State Bar, 3 Cal. (2d) 615 [45 Pac. (2d) 203]; Spears v. State Bar, 211 Cal. 183, 191 [294 Pac. 697, 72 A. L. R. 923].)

The burden is on the petitioner to show wherein the determination of the board was incorrect or unfair, and this court will not assume from the statement concerning his general qualifications that it was impossible for him to receive the grades given by the Committee of Bar Examiners.

The alternative writ of mandate is discharged and a peremptory writ denied.

Gibson, C. J., Traynor, J., and Spence, J., pro tem., concurred.