Justices give initial OK to unlimited bar exams

Listen to this article

After failing the Wisconsin bar exam five times, former Waukesha County Sheriff Arnold A. Moncada Jr. is asking the State Supreme Court to allow him and others to take the test as many times as they wish.

The Supreme Court has tentatively approved a petition that would change the rules and allow law school graduates from outside the state to take the exam an unlimited number of times. The court’s 5-2 decision came during its Nov. 7 administrative conference and despite objections raised by Board of Bar Examiners Director John Kosobucki.

Although the court gave initial approval to one portion of Moncada’s petition, it denied two other elements – an automatic right to appeal when an applicant fails but is within a few points of passing, and retroactive application of the revised rules.

… Try, Try Again

Moncada spent a quarter century in law enforcement before attending Thomas Cooley Law School in Lansing, Mich., and graduating in January 2003. He had planned to practice law with his son, an attorney who had graduated from the University of Wisconsin Law School.

However, his son died in April 2003. In his petition to the court, Moncada cited his grief as contributing to four of his five unsuccessful attempts to pass the bar.

During a Nov. 7 public hearing, Moncada said his petition was not a challenge to the diploma privilege; however, he did say it was a way to “level the playing field” for those who attended law school outside of Wisconsin.

Moncada observed that 31 states have no limitations on the number of times applicants can take bar exams. He also noted that other licensed professions in Wisconsin, such as pharmacists and chiropractors, do not limit the number of times applicants can take boards.

“I think this is fair, just and reasonable,” he told the court.

The current rule, SCR 40.04(5), limits applicants to taking the exam three times unless they receive special permission from the BBE. In Moncada’s case, the board allowed him to take the exam two additional times.

Protect the Public

Kosobucki noted that the board’s general guideline is to only allow one additional attempt to pass. He told the court that the BBE opposed the petition, noting that the exam was designed for protect the public by requiring applicants to demonstrate minimal competence.

“We believe we should err on the side of caution, protecting the public if that minimal competence has not been demonstrated,” Kosobucki said.

Applicants who have repeatedly failed to demonstrate that competence should not be allowed unlimited opportunities to take the exam until they finally get it right or get lucky, he said.

Kosobucki also noted that the BBE is in the process of developing its own rules revisions, which will come to the Supreme Court next year. However, the justices decided not to delay action on Moncada’s request until the BBE brings its proposal.

Justice N. Patrick Crooks moved to allow unlimited testing; however, he did not want to establish a right of appeal. Crooks said he was impressed that Moncada had stuck with it and indicated that most applicants would not take the exam over and over. He alluded to the arbitrary nature of limiting exams to three, four or five times.

“I was impressed that 31 states have no limit,” Crooks said.

Justice Ann Walsh Bradley and several other members of the court said they wanted to know the reasoning of those states for allowing unlimited attempts to pass the bar exam.

Justice Annette Kingsland Ziegler indicated she was impressed by Moncada’s presentation, but asked her colleagues if the court would be considering this request if someone else had brought it forward.

With a 5-2 vote, the justices gave their tentative approval and asked Supreme Court Commissioner Julie A. Rich to draft rules that would eliminate limitations on the number of times applicants could take the exam. However, they also asked her to find the rationale other states had given for eliminating limits those limits and to present that information with the proposed rules changes.

Justices Ziegler and Patience Drake Roggensack indicated they would have tabled the issue.

No timetable has been set for final approval.