I'd like to provide some real world encouragement for the 45% of Michigan bar exam takers who didn't make it this time. If you were once in their situation but have gone on to success, SBM Blog will be happy to post your story, anonymously or otherwise. Send it as a comment to this post, or directly to firstname.lastname@example.org.
Today is dog day at the Supreme Court. The Justices will hear oral argument in two cases to decide whether police violated the Fourth Amendment by taking a dog trained to smell for drugs to the door of a house where they suspected that marijuana was being grown, and whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is enough to establish probable cause for the search of a vehicle. See SCOTUSblog on Florida v. Jardines, and Florida v. Harris.
Garrett Epps at The Atlantic says "Not since 1870 have American dogs faced such an important day in court:"
As every schoolchild knows, our most famous dog trial occurred on September 23 of that year, when Senator G.G. Vest defended the worth of Ol' Drum, a wandering foxhound killed by a sheepfarmer, by delivering to a Johnson County, Missouri, courtroom his famous Eulogy of the Dog: "The one absolutely unselfish friend that a man can have in this selfish world, the one that never deserts him and the one that never proves ungrateful or treacherous is his dog," Vest said. Unable to resist such eloquence, the jury found for the dog-owner.
A reader notes that the passage rate for the July bar exam is 55% -- only 529 of 967 takers passed. This is an apparent record low. Last year the rate was 76%. (See this chart for recent rates.) This result is likely to fuel an ongoing controversy about the fairness of the test and its validity as a measure of professional competency.
Note: this post has been updated to reflect more accurate percentages and history.
The answer is not as easy as one might think. The National Center for State Court's Gavel to Gavel reports:
Florida HB 963 / SB 1458 (2012) Repeals existing state law permitting arbitration Trial Resolution Judges from wearing judicial robes. House Version: Approved by full House 3/5/12. Died in Senate Judiciary Committee. Senate version: Approved by Senate Judiciary Committee 1/25/12. Died in Senate Governmental Oversight and Accountability Committee.
Maine HB 32 (2012) Repeals language prohibiting magistrates of the Family Division of District Court from wearing black robes. Signed into law by Governor 3/17/11.
Oklahoma HB 1452 (2009) Requires creation of voter information pamphlets by State Election Board prior to elections. Prohibits candidates from using pictures in which they are wearing judicial robes. Died in House Rules Committee.
Wisconsin SB 383 (2010) Restructures states municipal court system. Revises existing law that "A municipal judge shall be properly attired in a robe or other suitable clothing when officially presiding in a municipal court" to read " A municipal judge shall wear a black robe while presiding in a municipal court except when exceptional circumstances exist." Signed into law by Governor 5/18/10.
Putting aside for the moment your personal preference for packing in all settings versus keeping the Children's Reading Corner free of assault rifles, last week's Court of Appeals decision reversing the trial court's decision allowing the Capital Area District Library to keep its libraries gun-free makes for interesting reading. The majority opinion (PDF) expressed discomfort with the idea of guns in public libraries while making the case for why state statute prevails:
The library is a quasi-municipal corporation and, thus, a governmental agency subject to the principles of preemption when it attempts to regulate subject matter that is regulated by the Legislature. The Legislature, through MCL 123.1102, has expressly prohibited local government regulation of firearms and ammunition generally in cities, villages, townships, and counties, including in their libraries. Although a district library is not a local unit of government as defined by MCL 123.1101(a), legislative history, the pervasiveness of the Legislature’s regulation of firearms, and the need for exclusive, uniform state regulation of firearm possession as compared to a patchwork of inconsistent local regulations indicate that the Legislature has completely occupied the field that CADL seeks to enter. Certainly, at a time where this country has witnessed tragic and horrific mass shootings in places of public gathering, the presence of weapons in a library where people of all ages—particularly our youth—gather is alarming and an issue of great concern. However, due to field preemption, the same regulations that apply to public libraries established by one local unit of government apply to those established by two or more local units of government—leaving the matter to the state.
The majority reached that conclusion using a legislative intent analysis, including reference to legislative history, notwithstanding the text of the statute. Specifically:
[W]hile the express language of the statute fails to include a district library among its definition of local units of government, the legislative history supports a finding that the purpose of the statute would only be served by leaving it to the state to regulate firearm possession in all buildings established by local units of government, including district libraries.
But Judge Elizabeth Gleicher wrote in dissent (PDF) that the plain language of MCL 123.1101(a) "renders preemption analysis superfluous":
We may not presume that the Legislature mistakenly or inadvertently omitted district libraries or authorities from the definition of “a local unit of government.” When “statutory language is certain and unambiguous, judicial construction is neither required nor permitted, and courts must apply the statute as written.” Turner v Auto Club Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). “Courts cannot assume that the Legislature inadvertently omitted from one statute the language that it placed in another statute[.]” People v Monaco, 474 Mich 48, 58; 710 NW2d 46 (2006) (quotation marks and citation omitted). The rules governing statutory construction also forbid this Court from deducing that the Legislature “mistakenly utilized one word or phrase instead of another.” Chaney v Dep’t of Transp, 447 Mich 145, 165; 523 NW2d 762 (1994). Nor may courts “assume that the Legislature inadvertently omitted from one statute the language that it placed in another, and then, on the basis of that assumption, apply what is not there.” Peltola, 489 Mich at 185 (quotation marks and citation omitted). See also Reichert v Peoples State Bank, 265 Mich 668, 672; 252 NW 484 (1934) (“It is to be assumed that the legislature . . . had full knowledge of the provisions of [the relevant statute] and we have no right to enter the legislative field and, upon assumption of unintentional omission . . . , supply what we may think might well have been incorporated.”)
This case illustrates that when applied in a manner untethered to the text, the Llewellyn guidelines empower judges to inject their own policy preferences into the task of statutory construction. Given the clarity of the statutes here at issue, the majority’s determination that the Legislature meant to preempt the field of firearm regulation turns on judicial opinions unmoored from the actual words selected by the Legislature. Whether “[a]n exclusive, uniform state regulatory scheme for firearm possession is far more efficient for purposes of obedience and enforcement than a patchwork of local regulation,” is not our concern. Nor are the pros and cons of openly carrying weapons into a place devoted to quiet reading and study. Our only task is to apply well-established legal principles to the task of interpreting a statute. In my view, the statute is susceptible to only one interpretation, and that interpretation compels us to affirm the circuit court.
The Michigan Supreme Court has expressed strong views about statutory interpretation and the use of legislative history to determine legislative intent. It is not clear whether the decision will be appealed or whether the Court would take the appeal, but if they did, its decision could make for equally interesting reading.
Ceglia’s alleged conduct not only constitutes a massive fraud attempt, but also an attempted corruption of our legal system through the manufacture of false evidence. Dressing up a fraud as a lawsuit does not immunize you from prosecution.
The excruciating wait for the results of the bar exam ends today as the Board of Law Examiners releases the names of the successful applicants on its website after 2:00 p.m.
First, to those of you who are not on the list this time, please try to take some consolation in the fact that many successful members of the bar had to take the bar exam more than once. You graduated from law school; you can pass the bar. Accept comfort from friends and family who care about you for who you are. They know that a test is just a test, and that what counts is who you are. And don’t let anyone kid you that they had an easy time with the bar exam. It’s hard for everyone and there’s no shame or dishonor in having to take the exam more than once. You can do it.
To those of you on the list of passers, warmest congratulations. Try to hold on to the excitement and sense of promise that you are feeling today. You are entering a professional life that holds great potential for happiness and satisfaction, but neither is guaranteed by your bar card. They come only by hard work, perseverance through hard times and bad luck, and a positive attitude. I know lawyers who have achieved great professional success but along the way have lost the sense of possibility and idealism that they felt the day they learned they had passed the bar. They let themselves fall out of love with the law and the fault is theirs, not the law's.
Enough preaching -- here's some practical advice. The State Bar of Michigan is an invaluable resource for you, and a tremendous bargain. (No kidding; ask your friends in other professions, and your friends in other state bars.) Make sure that you take advantage of your membership -- not just discounts, and free services, but also involvement in sections and bar committees. And the heart of the value we offer is association with the other members of the State Bar of Michigan. You are now one of us. Welcome.
From the lawsuit filed last week in the U.S. District Court for the Northern District of Mississippi by Faulker Literary Rights, LLC against Sony Pictures Classics:
In describing his experiences, [Midnight in Paris's main character] Pender speaks the following lines ("the Infringing Quote"): "The past is not dead! Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him, too. I ran into him at a dinner party."
The Infringing quote is taken from a passage contained in the William Faulkner book "Requiem for a Nun" ("the Book"), where it reads: "The past is never dead. It's not even past." ("the Original Quote.").
Faulkner also is reputed to have said, "The aim of every artist is to arrest motion, which is life, by artificial means and hold it fixed so that a hundred years later, when a stranger looks at it, it moves again since it is life." Or something like that. "Arresting motion by artificial means for a hundred years?" Sounds a little bit like copyright.
A hundred-year old Michigan law that it seems no one can remember ever being used has been challenged in federal court by an Ypsilanti clergyman who claims that it violates his free speech. The statute, MCL §168.931(1)(e), reads:
A priest, pastor, curate, or other officer of a religious society shall not for the purpose of influencing a voter at an election, impose or threaten to impose upon the voter a penalty of excommunication, dismissal, or expulsion, or command or advise the voter, under pain of religious disapproval.
Dr. Levon Yuille, pastor of The Bible Church in Ypsilanti, Michigan filed this lawsuit (PDF) claiming that the law subjects him to prosecution:
Pursuant to his sincerely held religious beliefs, Pastor Yuille advises voters, including those voters who are members of his church, that to vote for a candidate that publicly supports abortion and gay marriage, such as President Barack Obama, is to act contrary to God’s Word, it is a grave sin, it is looked upon with religious disapproval, and it could endanger their soul and separate them from the body of Christ.
Michigan attorney general Bill Schuette has filed an answer to the lawsuit.