Along with merits-based written opinions in contested cases, the Rhode Island Supreme Court issues a large volume of administrative, executive and miscellaneous orders each year. They’re mostly supervisory or perfunctory orders to ensure that the judicial branch keeps humming, covering topics like the date for judicial conferences or appointing lawyers to various commissions. On September 7, 2018, the Rhode Island Supreme Court issued one of these orders on the bar exam. It’s a garden variety order except for one important detail: for the first time ever, apparently, two Rhode Island Supreme Court Justices have dissented from an order unrelated to the merits of a contested case!
The Rhode Island Supreme Court website posts all written opinions in contested cases, and it also posts all miscellaneous orders from 1999 to 2018, all executive orders from 2000 to 2018, and all administrative orders from 1999 to 2018. Executive orders are entered solely by the Chief Justice and usually set dates for suspending court calendars for special events. There doesn’t seem to be much of a difference between an administrative order and a miscellaneous order; to the extent there is one, miscellaneous orders seem to address changes to the rules that govern the courts and lawyers (such as the rules of civil procedure or ethics), while administrative orders focus on appointments to boards and commissions. Unlike the executive orders, all five justices sign the administrative and miscellaneous orders.
RICourtBlog has checked the individual orders in the online pages of miscellaneous, executive, and miscellaneous orders, and the miscellaneous order issued on September 7, 2018 is the only one in which any Justice dissented from an order not related to the merits of a case. Justices have occasionally dissented in merits-based orders that are not full-blown written opinions. For example, then-Justice Flanders dissented from denial of a petition for certiorari in 2001, as did Justice Goldberg in 1999. But, as best RICourtBlog can tell, there’s never been a dissent in a purely ministerial order covering a topic like the bar exam that’s unrelated to the merits of a case.
The topic that prompted the dispute between the Justices is the adoption of the Uniform Bar Exam in Rhode Island. Up until now, Rhode Island has kept a state-specific bar exam while other jurisdictions have moved to the Uniform Bar Exam. This made it virtually impossible to sit for the Rhode Island bar and another state at the same time. Back in my day, for example, an aspiring attorney could take the Rhode Island and Massachusetts bar exams at the same time over a three-day period. As other states adopted to the Uniform Bar Exam and Rhode Island did not, aspiring lawyers faced the choice of taking the bar exam in Rhode Island or another jurisdiction, but not both. In many cases, the applicants chose the other jurisdiction. As Dean Yelnosky of Roger Williams Law School has pointed out, the September 7, 2018, miscellaneous order addresses this problem by adopting the Uniform Bar Exam, which in turn should lead to more admissions to the Rhode Island bar.
In the miscellaneous order, all five Justices agreed that Rhode Island should adopt the Uniform Bar Exam, but only three agreed that an applicant’s bar exam scores should be retroactively transferable for the last two years. As a practical matter, the majority decision in the order means that any person who took the Uniform Bar Exam on or after February 28, 2017 can use that score to apply for the Rhode Island bar. Justices Suttell and Goldberg dissented from this part of the order on the grounds that acceptance of Uniform Bar Exam scores should be prospective from February 28, 2019 going forward. Justices Suttell and Goldberg reasoned that retroactive application was unfair to applicants who took the July 2018 Rhode Island bar exam under the understanding that the Uniform Bar Exam would be prospective starting in 2019. Justices Suttell and Goldberg were also concerned that retroactive application might lead to an immediate influx of Rhode Island bar applicants.
It is fitting that the bar exam prompted a first-ever dissent in a non-merits order. Admission to the Rhode Island bar and the practice of law are important and mildly controversial topics in Rhode Island. This can be seen in the rules for pro hac vice admission, which allow out of state attorneys not admitted to the Rhode Island bar to enter their appearances in only three cases over a five year span, and the local sponsoring attorney must have an office in Rhode Island. Supreme Court Rules, Article II, Rule 9(a). It can also be seen in some judicial decisions over the years. In a much-discussed Rhode Island federal court case, the district judge stripped pro hac vice status and sanctioned a prominent out of state attorney in favor of the well-respected Rhode Island-based Bob Mann, only to be overturned by the First Circuit. Young v. City of Providence, 404 F.3d 33 (1st Cir. 2005). Just recently, the Rhode Island Supreme Court issued orders in three cases to determine whether attorneys are always required at real estate closings. Admission numbers to the bar is also a hot topic — the number and percentage of applicants passing the bar is low in Rhode Island. If this trend continues, access to justice could become a concern.
The Rhode Island Supreme Court Justices sit on the Seventh Floor of the courthouse, perched above the other judges and the public (but not above the State Law Library – the fountain of knowledge sits above all!). Given the Supreme Court’s relative seclusion and its general tendency to issue unanimous decisions in most cases, palace intrigue can be hard to come by. That’s what makes the first dissent ever from a non-merits order intriguing. Because the disagreement is so rare and breaks from tradition, the dissent thunders from the ramparts.