Update (20): November 12, 2010. On November 5th Judge Payne ordered dismissal of the case on the grounds that the unwritten policy of nondisclosure and policy of finality are being challenged with respect to my own exam. This is untrue and was made clear at the discovery conference after repeated questioning that my intent is to stop the enforcement of these policies because they are no longer defensible given the less-than-perfect transition to computer-based testing. The relief I have requested makes this crystal clear: "That this Court take the necessary steps to protect the rights of all future applicants to the Virginia Bar by declaring Policy of Nondisclosure and Policy of Finality unconstitutional." There is no bar to also asking for individual relief as well. Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 518.
In case this is a matter of simple misunderstanding by Judge Payne, I have prepared a Rule 59(e) Motion to Alter Judgment. I reiterate the fact that my "purpose in bringing this case is, above all else even including individual relief to [myself], to stop the Board of Bar Examiners from enforcing Policy of Nondisclosure and Policy of Finality for all subsequent bar examinations."
Accompanying this motion is the following written declaration by myself (reprinted below). In this declaration I state specific facts, including new information that Assistant AG Catherine Hill provided that confirms that applicants require hands-on technical assistance and even system reboots "at every exam."
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
v. Civil Action No. 3:10-cv-550-REP
W. SCOTT STREET, III, Secretary
of the Virginia Board of Bar Examiners,
DECLARATION OF JONATHAN BOLLS
1. My name is Jonathan Bolls. I am the plaintiff in this case. I make this declaration based on my personal knowledge.
2. On October 20, 2010 Judge Robert Payne met with myself and Assistant Attorney General Catherine Hill in a pre-trial conference held in chambers. Also in attendance was the judge's assistant.
3. At this conference the judge asked me if I was willing to swear in open court to the software mishap that I experienced at the bar examination and that this occurred in other cases as well. I said that I would.
4. When asked what evidence I could use to prove this case I said that my expert has informed me that the technicians at the exam are required according to the best practices to keep Engineers' Notes of everything they observe. A record of hands-on assistance for each computer I said would necessarily be included.
5. I have provided regular notices to the registered agent of Extegrity, Inc. for each stage of this case and a request that the essays and other evidence be preserved.
6. When pressed whether symptoms similar to what I described have been known to exist, "including the reboot," Catherine Hill responded that, in fact, they do at every exam.
7. When asked how many other states have policies allowing disclosure of test essays, I responded that there are 42 states plus the District of Columbia that have policies of disclosure.
8. When asked repeatedly whether it is my intent to challenge the policies of nondisclosure and finality, I stated that I am above all else challenging these policies, which I perceive to be no longer defensible given the less-than-perfect transition to computer-based testing.
9. At the conclusion of the meeting, as the four of us were walking out of the judge's office, I reminded Judge Payne and the others that the technical issues involved were all explained in the expert's report filed with the court. Judge Payne responded that he did not care about the expert report.
I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed in Springfield, VA on this 11th day of November, 2010.
Update (19): October 11, 2010. The Attorney General, representing Secretary Scott Street, filed both their motion to dismiss and an answer on September 29th. In his answer, Mr. Street states that he lacks sufficient knowledge as to my experiences with the Extegrity technicians and their software on July 29, 2008. Had there been the sensible policy in place that technicians record the applicant ID numbers of all examinees who required hands-on technical assistance then he would not now be able to claim lack of sufficient knowledge. Secondly, Mr. Street admits that (i) other states have experienced recent problems with their bar exam software; (ii) there exists in Virginia an unwritten policy of nondisclosure of essays that has been applied uniformly since 1972 when he started; and (iii) the proportion of applicants taking the Virginia Bar Exam is 83% and rising. The court has called for a Rule 26(f) discovery conference to be held in-person in Richmond on October 20th. Meanwhile, my response to the motion to dismiss is due October 19th.
Update (18): September 3, 2010. On September 1st the court sua sponte (of its own volition) ordered the preservation of "all documents, either electronic or physical form, pertinent to the dispute raised." The order further stated that this decision may be revisited if the defendant shows cause why it should be amended.
Update (17): August 31, 2010. The case was filed on August 5th with the U.S. District Court for the Eastern District of Virginia Richmond Division (also known throughout the country as the "Rocket Docket"). It is a public document; the case number is 3:10cv550. Enclosed with the complaint is an expert witness declaration by Stephen Castell, PhD who is from the UK and has kindly agreed to submit his report on my behalf in a pro bono capacity. His extensive experience in both English and American cases appears in the introduction of his declaration reprinted below. Following Dr. Castell's report is the complaint/prayer for relief, reprinted below. The thrust of the complaint is simple: a right exists to petition the Virginia Supreme Court in cases of "manifest unfairness." The Virginia Supreme Court and its bar examination board have systematically squelched this right by enacting a policy of nondisclosure and a policy of finality once the results are posted. An applicant with a legitimate complaint could therefore not in good faith petition the state's highest court because the subject of proof has been withheld (also the court is not willing to compel their release). The fact that most applicants now rely on this software in taking the exam as well as the near uniform transition to more open and transparent policies nationwide make these policies no longer tenable in Virginia. Therefore, the apparent software crash experienced by myself and others in July 2008 clearly constitute the kind of "manifest unfairness" that makes further procedural protections necessary. These two state policies therefore create an unconstitutional interference with an applicant's right to due process of law guaranteed by the Federal Constitution.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
SECRETARY OF THE
BOARD OF BAR EXAMINERS,
DECLARATION OF STEPHEN CASTELL, PhD
1. I am chairman of Castell Consulting, my own computer, telecommunications and digital media professional management and expert consulting company based in
2. For the reasons set forth below, it is my opinion that (i) comparing Mr. Bolls’ encrypted file against the one graded does not in any way address the matter at hand, and (ii) when a software glitch is encountered by an applicant, and should a dispute arise, the technically sound and reasonable way for the matter to be resolved is for there to be a policy in place for applicants to obtain their essays.
BACKGROUND AND QUALIFICATIONS
3. I received my Bachelor of Science, First Class, in Mathematics, Physics, and Psychology in 1968 from the
4. From 1971 – 1973 I worked as an applied mathematician for British Aluminium Company, the
5. My clients have included both government and private entities, such as Her Majesty’s Treasury, European Space Agency, London Ambulance Service, United Arab Shipping Company, Motorola, Citibank, etc.
6. I developed the techniques of Forensic Systems Analysis for software litigation disputes, which is achieving a growing recognition internationally for its thoroughness and fairness to both parties. See Par. 14.
7. My past projects include, among many others, work for the following solicitors/attorneys:
• Simmons & Simmons, Claim No. HT-05-366 (expert examination of the functional and performance deficiencies in the software supplied to a major city metals trader);
• Lax O’Sullivan Scott, in re a Canadian Arbitration (testifying expert in a CAN $10M+ dispute over a systems contract project failure, between a leading banking group’s Lending Division and one of the world’s principal software and systems suppliers in the financial and banking solutions and applications sector);
• Wragge & Co., resolution by mediation of an IT Systems Dispute (testifying expert for a leading international publicly-quoted software, systems and IT services company as Defendant in a systems design and implementation contractual dispute);
• Hiscox Insurers, Part 20 Defendant in leading 2003-2004 English High Court case, for tens of millions of pounds, of Cable & Wireless v. IBM (expert on behalf of Compass Consulting in regard to allegations of faults with a Benchmarking Exercise performed within the major IT Outsourcing Agreement made between this international telecommunications operator and global IT solutions and services supplier);
• BT Wholesale, British Telecommunications plc., Claim No. HQ 0101509. English High Court, Queen’s Bench Division (testifying expert at trial on operating software and assessment of the validity of telecom CLI data generated operationally via the many complex BT CSS billing and other software and systems);
• Irwin Mitchell, Claim No. HC04C00702, English High Court Chancery Division (testifying expert for individual Defendant where I carried out technical investigations and gave evidence in court concerning software for a telecom reseller’s switch system and the inferences to be drawn from, and evidential reliability of, data stored in the switch);
• Addleshaw Goddard, Claim No. HT00/000305, English High Court (five-person Castell Consulting team provided expert report and real-time system function and performance test in the largest computer software and outsourcing contract action ever to come to trial in the English High Court: Airtours v. Electronic Data Systems Ltd);
• Minter Ellison (expert investigator for In re Variation No. 19, of
• Simmons & Simmons (Investigating expert for an international financial institution defending allegations of software copying on the part of one of the bank’s programmers. The disputed software consisted of several hundred thousand lines of code written in C and C++. My expert team provided a preliminary report on the key questions of what code, if any, was (near) identical; if so, how much, and where; could this have been copied and/or was there some other technical explanation. Settlement reached shortly after production of my Expert Report).
All of these projects involved analyzing the performance and fitness for purpose of software systems/models. In addition:
• As external independent advisor for Harvard Securities plc between 1978 – 1983 I assisted in launching the professional Over-the-Counter (OTC) share market in the
8. I have recently been retained as expert in a case involving the failed Transportation Card Project of the New South Wales Government’s Metropolitan Transport Plan, a $A270m claim that is currently before the Sydney Supreme Court in
9. I am a Medalist, IT Consultant of the Year, in the 2004 Professional Awards of the British Computer Society.
10. In addition to work for clients, and instructing lawyers, I have served as an Arbitrator in an ICC Arbitral Tribunal and as a CEDR-trained Mediator.
11. I am regularly involved in bringing my expertise to the legal community with regard to questions of information and communications technology. I serve as a Committee Member of the British Computer Society’s Law Specialist Group (LSG) where my focus centers on computer law and evidentiary issues, and IT professional development. I have served as a Correspondent Panel Member for the Computer Law and Security Report. I am also a member of the Expert Witness Institute (MEWI).
12. My curriculum vitae is attached as Exhibit A.
13. In addition to qualifying as an expert witness in cases for the English High Court and other courts, I have qualified in American federal district court as well:
Civil Action No. 1:05-cv-0264 (2005 ff.)
Jones Day (
United States District Court, District of Colorado
Civil Action No. 01-WY-2201-AJ (BNB)
Morrison & Foerster (
14. My recent publications include the following:
• Paper: “Forensic Systems Analysis: A Methodology for Assessment and Avoidance of IT Disasters and Disputes” (March 8, 2006) published as a Cutter Consortium Executive Report, Vol. 3, No. 2, in their Enterprise Risk Management & Governance Advisory Service series. See http://www.cutter.com/offers/forensicsystems.html
• Author and Presenter of “Avoiding IT Disasters – the Expert Way” Course, first held in Nice, France, March 2005.
• Numerous letters published in e.g. The Times and Financial Times on business, finance, technology, communications, science and law topics.
• Many papers presented at International Conferences on information services, software, data broadcasting, satellite business services, digital television, computer evidence, venture capital, enterprise management, litigation and ADR. I was chair of the
PROJECT BACKGROUND AND SCOPE OF WORK
15. I have prepared this opinion in
16. Mr. Bolls has asked me to consider and provide my independent expert opinion on Paragraphs 34, 32, and 29 of his complaint before this court. He has explained his case to me and I am in possession of his affidavit dated
17. The thrust of Paragraph 34 of the complaint is that when a software malfunction happens the board does not provide a remedy or solution. Before I address the observations Mr. Bolls made concerning the July 2008 Virginia Bar Exam, I must first speak to the laptop program itself. I have not myself directly examined or operated this program. However, I have learned that applicants who take the exam on laptop are provided with Exam4, a software program with a storing feature that saves and encrypts the essay responses. I understand that compatibility checks are completed at the time the software is installed onto the applicant’s laptop, weeks before the exam. Applicants are encouraged to take practice exams to ensure functionality is operating satisfactorily and familiarize themselves with the software.
18. I will now turn to the particulars of Mr. Bolls’ affidavit, which I am told will become page 9a and 10a of the appendix. Of all ten paragraphs, Part 3 concerns me most. Clearly something went wrong with the software while Mr. Bolls’ essays were being saved. The fact that others experienced similar problems at the same time suggests a systemic problem (referring to Part 9). Technicians were called to his laptop twice, in both morning and afternoon sessions of the test, for apparently the same reason and during the same sequence of saving instructions. I understand that the process of saving the essays consists largely of two steps: first, saving the essays onto the laptop in the form of an encrypted file; and then, second, saving the essays onto a USB stick for submission to the graders. Part 5 of the affidavit suggests that the seven or eight steps which comprise the bulk of the instruction sequence fall under the first step. In my view this is a reasonable deduction because, as Mr. Bolls states “… the last remaining two or three steps are very straightforward and consisted of inserting the USB drive into the laptop and clicking on the icon that says ‘Save to USB Drive’”. I conclude that the USB stick was not involved until after the problems Mr. Bolls experienced. By design therefore the USB simply replicates the data that is already saved on the applicant’s laptop.
19. This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.
20. To the extent that the board seeks to “review the version on his computer against the one graded,” this can only merely confirm that the file was written by Mr. Bolls using the Exam4 software. In no way does this pose a remedy to, or even a sensible investigation of, any potential corruption problem caused by the Exam4 software itself, or through other (temporary or permanent) system fault, for which Mr. Bolls could not have been responsible.
21. In order to determine whether or not data was in fact lost, corrupted or altered in some fashion, a thorough forensic analysis would be required. In my experience, such an analysis is likely to be complex and prohibitively costly. It would and should include examining not just the executable code (whether encrypted or not) but the full source code, together with all documentation and logs relating to the conception, build, testing, sale, deployment, and maintenance, of the Exam4 software. There would also need to be disclosure of all relevant computer material such as navigation/file mapping material, which may indicate what data is missing or corrupted. This should all be provided unencrypted/able, so that it may be openly inspected. Any statements that the technicians at the exam made in their Engineer’s Notebooks would be helpful. For these reasons Mr. Bolls was in my opinion correct in cautiously refraining from sending his encrypted file to the board. This is especially so since there was a dispute with the very entity that purports to undertake the comparison without that entity including him or an independent third party expert in the comparison exercise. In my experience I would expect that any well-respected law firm would have advised him to do the same.
22. The questions of whether data was in fact corrupted or lost, on the one hand, or may have been corrupted or lost, on the other, are in my view two separate questions. Even in the absence of forensic analysis, certain conclusions can be drawn given Mr. Bolls’ observations. Referring to Part 3 of the affidavit, Mr. Bolls essentially describes an Extegrity technician’s unsuccessful attempt to operate Extegrity’s software before he told Mr. Bolls to reboot as a last resort. The reboot entailed shutting the computer down completely, which occurred “midway” through the instruction sequence. The need for a reboot in such circumstances is in my view a very real cause for concern.
- I understand that similar symptoms were observed just one year prior in the New York Bar Exam in July of 2007, where data loss was documented. On
July 26, 2007, in Joel Stashenko’s article in the New York Law Journal, Software Snafus Upset Test Takers During First Day of State Bar Exam, it was reported that “test takers who typed the essays on the state bar examination into their laptop computers this week experienced problems saving and uploading the files for transfer to graders”. New York
24. I note that Mr. Bolls, and numerous others, also had problems saving the files for transfer to graders. The word “uploading” however would be inapplicable for the
25. However, what appears to me to be identical between the two exams is how the essay responses were saved on USB stick. Again, the New York Law Journal reports, “People using laptops were also required to use a USB Key on their computers to store copies of the essays as a backup. Proctors collected those keys…”. I understand that New York’s electronic uploading mechanism, that provided a means to “go back and retrieve” lost material, could only pertain to the electronic submission component that Virginia’s system does not have (I refer to Eric Zeni’s blog discussed below). But I note that even that feature did not work for the 47 New York applicants whose essays still could not be recovered (and I refer to the press release accompanying the results of the New York July 2007 exam which will be appendix 23a and 24a). Presumably, these 47 applicants in
26. The personal account of Eric Zeni regarding
- In my view, this provides a good example to demonstrate the important role the applicant plays in obtaining the essays. Any forensic analysis would have been a needless waste of time and expense for Mr. Zeni. Likewise for Mr. Bolls – forcing the applicant to take expensive steps simply to identify whether a malignant software malfunction, or other (temporary or permanent) system fault, existed, even before any decision is made on what to do in the event that data is found corrupted or missing, is technically unsound and strikes me as wholly unreasonable and unfair. Clearly the state of
addresses such concerns by having a policy by which Mr. Zeni was able to obtain his essays. In hindsight, in my view the New York Board of Law Examiners made the correct decision in changing its initial position in being “adamant there was no appeal” because Mr. Zeni, and probably a number of others, were proven to be right in their concerns. After all, accuracy and fairness are surely the overriding objectives. New York
28. Furthermore, Mr. Bolls has informed me that
29. The data collected by Mr. Bolls on the other state agency boards demonstrates in any event a marked increase in reliance on software technology in administering the bar exam. Speaking to Paragraph 32 of Mr. Bolls’ complaint I refer to the chart listing the states and corresponding proportions of applicants now taking the exam on software that is installed on their laptops for the purpose of administering the test (which I am told will be Appendix 20a). A majority of states offer a laptop program. Of these, the overwhelming majority have over 50% of bar examinees now taking the test on laptop (and well over half, for a number of them). In my view and experience this is an unusually high level of trust to place in a system that is still, as I understand it, in its nascent stage. The move towards computer-based testing is a major transition, as was identified and discussed at the 10th CAA International Computer Assisted Assessment Conference,
31. In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: Mr. Bolls may be said to be a ‘textbook case’. It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered.
32. I am informed that applicants have a legal right to petition the Virginia Supreme Court, which has the power to reverse the board’s assessments. I turn now to Mr. Bolls’ chart showing the various state boards’ policies (Appendix 19a) which places
33. Since Exam4 has no automatic uploading capability, there is no safeguard or alternative avenue to retrieve lost or corrupted information. Once again,
34. Furthermore, the announcement at the July 29, 2008 Virginia bar exam raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site. I refer to Mr. Bolls’ affidavit, Part 2: “During the afternoon session of the essay/short answer portion, an announcement was made by microphone that there were approximately 24 students who had answers that were misplaced in the system from the morning session”. In my opinion this raises some significant questions. Who made the announcement? How did he or she know that a) answers had been “misplaced”; b) this “misplacement” had affected a certain number of students? What exactly was this person looking at or being given (by a human? By a system, perhaps in real-time? By phone/test? Or how?) to be able to make this announcement with confidence? On what was this person relying? Can whatever it was be reproduced/re-run for inspection and testing? Were the “misplaced” questions ever found again? If so: How? When? Where? What was done about that? Have the causes been determined, with confidence? Was it human error, system malfunction, a combination…? Or what? What has been done, by whom, when, about understanding exactly what went wrong, and ensuring it cannot happen again? To begin to arrive at answers to these significant questions, inspection of any/all pertinent documentation would be necessary. This could be obviated if applicants could simply obtain their essays.
35. I am therefore concerned and surprised that the board has not allowed Mr. Bolls to obtain his essays to determine if what was graded was exactly what he wrote. It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions. At the same time, he vehemently disputes the accuracy of the essay assessment. I am also informed that Mr. Bolls has taken and passed the bar exam in the District of Columbia on the first try, handwritten not typed, on the essay part alone, and has not taken any other bar exams.
36. It is my opinion that the board’s offer to compare Mr. Bolls’ encrypted file against the one graded does not in any way address the matter at hand. That is to say, an exact match between the two does not inform the board or the Supreme Court of Virginia that there was no data corruption in this instance. It merely confirms that the work is that of Mr. Bolls, without providing any illumination as to whether or not the work itself had been corrupted. The only way that I can see that this can be reasonably resolved is for there to be a policy in place for applicants to obtain their essays.
37. Mr. Bolls’ observations bear remarkable similarities to the software mishap in
38. Like Mr. Zeni, applicants such as Mr. Bolls would and in my view should then have the opportunity to identify places where portions of the essays went missing or were corrupted in some way. If, as is my view, there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays, then, if such portions were thereby identified, it seems to me that there would then be an obvious and sensible remedy, viz, to employ the alternative grading methodology developed by the National Conference of Bar Examiners.
SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 17th DAY OF JULY, 2010.
Stephen Castell, PhD
Opinion of the Supreme Court of Virginia (Aug. 11, 2009).............1a
Denial of Petition for Rehearing, Supreme Court of Virginia (Sep. 23, 2009)…………………........2a
Order of the Circuit Court of Fairfax County
(March 16, 2009)...................3a-4a
Petition for Rehearing before Supreme Court of Virginia…..............................5a-8a
Affidavit on Software Malfunction…………..........9a-10a
Bar Examination Results……………….........12a
Initial Request to the Board
(Oct. 21, 2008)............……13a
Response on Policy of Finality (Oct. 30, 2008)………........14a
Respondent’s Request for Encrypted File
(Nov. 3, 2008).....................15a
Response to Respondent’s Request (Nov. 4, 2008)………....….16a
Final Denial of Petitioner’s Requests and Reference to
Policy of Nondisclosure
(Nov. 7, 2008)….........……17a
Response to Final Denial……………………..18a
Chart, Transparency of States’ Law Examiner Offices……..…...19a
Chart, Percentages of Applicants Taking State Bar
Examinations on Laptop……………………20a
Virginia Code: Powers, Rules, and Regulations of the Board……………….........21a
Virginia Code: Preservation of Examination Papers…………................21a
Virginia Code: Discretion of Professional Testing
Boards in Releasing Test Papers…………………….21a
Agreement to Preserve Essay Responses and Short Answers….........................22a
Press Release, New York Board of Law Examiners (Nov. 15, 2007)………………………23a-24a
New York Personal Injury Law Blog, Eric Turkewitz, Esq., The Turkewitz Law Firm, New York, NY…………………..25a-29a
New York Law Journal. “Software Snafus Upset Test
(July 26, 2007)…….....30a-32a
Denial of Certiorari, Supreme Court of the United States
(February 22, 2010)……...33a
Petitioner’s Letter to Respondent (April 7, 2009)……….......34a
Board’s Signature Confirmation Receipt of April 7, 2009 Letter. U.S. Postal Service……………………35a
Petitioner’s Letter to Respondent (March 22, 2010)…………36a
Delivery Confirmation Receipt of March 22, 2010 Letter. U.S. Postal Service………………........37a
Email from Eric Zeni to Petitioner Confirming what are Now Paragraphs 29 and 50 of this Complaint (May 11, 2010)..38a
IslandPacket.com. “Court’s Actions Bring on Call for More Oversight.” (December 11, 2007)……………………….39a-40a
Exam4 Setup Instructions for the Exam (July 29, 2008)….....41a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
W. SCOTT STREET III,
SECRETARY OF THE VIRGINIA
BOARD OF BAR EXAMINERS,
The petitioner, Jonathan Bolls, complaining of the Respondent, avers:
1. Petitioner is a citizen of the United States and a resident of the Commonwealth of Virginia where he resides in the City of Springfield, Fairfax County, Virginia. The Virginia Board of Bar Examiners (hereinafter referred to as “Board”) is an agency of the Supreme Court of Virginia based in Richmond, VA whose authority is defined in Va. Code §54.1-3922. The Board is an administrative agency with both judicial and delegated legislative powers.
JURISDICTION AND VENUE
2. The complaint arises as a result of policies set forth and followed by Respondent in regards to an examination administered on July 29, 2008 within the City of Roanoke, VA and subsequent refusal to perform his duty because of those policies within the City of Richmond, VA.
3. The complaint is grounded in the due process clause of the Fourteenth Amendment of the Federal Constitution on the principle that “a state may not deny a person a license to practice law in a manner that contravenes the due process clause.” Schware v. Board of Bar Examiners of New Mexico, 353 U.S. 232, 238-239 (1957).
4. The complaint represents a constitutional challenge to certain of the Board’s general rules and regulations, which is reviewable by this court. See per curiam opinion in Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977) (“Before turning to the factual basis of their claims, we stress that our function is not just to determine if the bar examiners made a mistake in one or more individual cases, it is to determine if there has been a denial of due process or of equal protection.”). For challenges to administration of state bar examination agency rules in federal court, see also Keenan v. Board of Law Examiners of North Carolina, 317 F. Supp. 1350 (E.D.N.C. 1970); Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975); Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (D Mont. 1974), aff’d 419 U.S. 955, 92 S. Ct. 216 (1974); Brown v. Supreme Court of Virginia, 359 F. Supp. 549 (E.D. Va. 1973), aff’d 414 U.S. 1034, 94 S. Ct. 533 (1974).
5. Jurisdiction is found in the appropriate district court where the Board’s procedures are called into question because they represent a “non-judicial proceeding.” Rogers v. Sup. Ct. of Va., 772 F.2d 900 (4th Cir. 1985). That court stated: “We do not agree with the district court’s characterization of Rogers’ petition as an appeal. Because the Virginia Supreme Court has the ultimate responsibility for determining admission to the Virginia bar, Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4 (E.D. Va.), aff’d, 598 F.2d 1345 (4th Cir. 1979), we think that, when that court reviews or declines to review a decision of the bar examiners as to an individual examinee’s status, the court is acting as an administrative agency, rather than as a court of appeals. Therefore we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the board make out a viable claim.”
6. Jurisdiction exists because Petitioner is not challenging a state court’s disposition of an individual case. Petitioner’s case has yet to be heard because the subject of proof has been unfairly withheld. The personal circumstances merely furnish concreteness to an action attacking general rules as facially unconstitutional. Brown v. Supreme Court of Virginia, 359 F. Supp. 549 (1973); Keenan v. Bd. of Law Examiners of North Carolina, 317 F. Supp. 1350 (1970); Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975); Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974), aff’d 419 U.S. 955. See also Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4 (E.D. Va. 1978) (“federal courts do exercise jurisdiction over many constitutional claims which attack the state’s power to license attorneys involving challenges to either the rule making authority or administration of the rules”).
7. The circuits and state supreme courts that have addressed the issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant review. Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967); Feldman v. State Bd. of Bar Examiners, 438 F.2d 699, 704 (8th Cir. 1971); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974); Poats v. Givan, 651 F.2d 495 (7th Cir. 1981). See also Applicant No. 26 v. Bd. of Bar Examiners of Delaware, 780 A.2d 252 (Del. 2001); In re Thorne, 635 P.2d 22,23 (Utah 1981); Petition of Pacheco, 85 N.M. 600, 514 P.2d 1297 (1973); In re Monaghan, 126 Vt. 193, 225 A.2d 387 (1967); Staley v. State Bar of California, 17 Cal. 2d 119, 121, 109 P.2d 667 (1941); Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (“treated unfairly or unjustly”); Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (Alaska 1969)(“other serious grounds or circumstances”); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993)(“evidence that grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest”).
8. Petitioner took the July 2008 Virginia Bar Examination in Roanoke and was one of a number of applicants who experienced an apparent crash in the Board’s software system during the saving stage of the examination. He was subsequently informed that his performance was found to be unsatisfactory. Based on his experience at the examination and the facts set forth below, Petitioner acting pro-se brought a mandamus action before the Fairfax Circuit Court on December 5, 2008 to compel discovery of the essays and short answers. The Board was represented at the hearing by an attorney from the Virginia Attorney General’s office. The case was taken under advisement while both sides filed supplemental briefs on the applicability of the Virginia Administrative Process Act. Both sides concluded that, as an agency of the Supreme Court of Virginia, the Board was exempt from that Act. Three months later the motion was denied for lack of jurisdiction and Petitioner was directed to bring his action to the Supreme Court of Virginia pursuant to its inherent supervisory authority over the bar examination. See order, App. 3a-4a. Because of the basic requirement to plead with the kind of particularity to make a cognizable claim, Petitioner, rather than simply “appealing” his grade, instead applied for a mandamus to obtain the necessary evidence, i.e the essays and short answers that are preserved by law. On August 11, 2009 the Supreme Court of Virginia dismissed the case. See opinion, App. 1a. His petition for rehearing was denied without comment, setting forth no alternative roadmap for Petitioner to protect his rights. App. 2a. Petitioner then filed a mandamus and certiorari petition with the Supreme Court of the United States, which was docketed on December 23, 2009. Certiorari was denied on February 22, 2010. App. 33a. Respondent and Board have agreed to preserve the essays and short answers while this litigation continues (App. 22a) and were informed on March 22, 2010 of the pending action in federal district court (App. 36a-37a).
FACTUAL BASIS FOR RELIEF
9. On July 29, 2008 Petitioner was one of a significant number of applicants who experienced an apparent crash in the Board’s software system while the essays were being saved onto his laptop. Ex. G, App. 9a-10a (Petitioner’s affidavit detailing his experience at the examination). See also Declaration of Stephen Castell, PhD.
10. After receiving the results, Petitioner immediately recognized a wide discrepancy between his performance and his essay/short answer score. See Ex. F, App. 13a (Petitioner’s letter of October 21, 2008 to the Board).
11. Petitioner’s score on the Multistate Bar Examination (MBE), a lesser weighted multiple choice test, was approximately what Petitioner expected and was never in question. It is good enough to be waived into other jurisdictions, including Washington D.C. App. 12a (bar examination results, October 16, 2008).
12. Respondent’s reply to Petitioner’s concerns articulated a policy of finality: “After the results are released, there is no appeal or re-evaluation process…” App. 14a, Respondent’s letter to Petitioner of October 21, 2008. After Petitioner’s subsequent requests to obtain copies of his essay answers, Respondent again wrote Petitioner on October 30th underscoring that the results are final. App. 14a.
13. Respondent relies on an internal and apparently unwritten policy of nondisclosure (hereinafter referred to as “Policy of Nondisclosure”) to justify not releasing the essays. App. 17a ¶1. After repeated requests by Petitioner to obtain the essays Respondent finally responded in his letter of November 7, 2008 stating: “This will confirm that no copies of answers are provided to any applicant.” App. 17a. That this policy exists and was the principal reason for the lack of cooperation in this instance is further compounded by Petitioner’s phone conversation with Respondent on April 6, 2009, several months following the oral argument in the Fairfax Circuit Court. In that conversation Petitioner specifically requested any rules of the Supreme Court of Virginia that preclude an applicant from obtaining the essays. Respondent said that he did not recall any but the Board has followed a policy since 1973 that no applicant can obtain their essays, which policy he recalled sending to Petitioner. Afterwards, Petitioner sent a letter requesting that if this policy was reduced to writing that it be sent to him. No written policy was sent. App. 34a-35a (Petitioner’s follow-up letter to Respondent of April 7, 2009 and accompanying signature confirmation of receipt).
14. Respondent relies on an internal and apparently unwritten policy of finality (hereinafter referred to as “Policy of Finality”) to justify his lack of cooperation. Respondent’s letter to Petitioner of October 30, 2008 states as follows: “The results are final.” App. 14a. That this rule exists and was applied in this case is again underscored by Petitioner’s phone conversation with Respondent on April 6, 2009. In that conversation Respondent informed Petitioner that the results are final once posted electronically (which occurs before applicants receive their results in the mail).
15. Policy of Nondisclosure exists to further the objective of Policy of Finality.
16. Applicants who took the Virginia Bar Examination have a right to petition the Supreme Court of Virginia directly in the absence of a controlling statute providing a separate process of review. Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4,6 (E.D. Va.), aff’d 598 F.2d 1345 (4th Cir. 1979)(“The [Va.] Supreme Court has no explicit statutory authority to review the Board’s decisions or to reverse its evaluation of a particular candidate. Nonetheless, it is well settled that the Court retains such inherent power.”). It was upon this precedent that the Fairfax Circuit Court relied in foregoing a mandamus order to Respondent. See order, App. 3a-4a. See also Rogers v. Supreme Court of Virginia, 590 F. Supp. 102 (1984)(“the right not to be heard by the supreme court but to petition it for a hearing and to have the petition considered”).
17. Policy of Nondisclosure renders the right of every bar examination applicant to petition the Supreme Court of Virginia defective and illusory in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution. Petitioner could not in good faith petition the Supreme Court of Virginia because the evidence necessary to do so (i.e. the essays and short answers) are being unfairly withheld. This runs against one of the most fundamental and basic tenets of due process that where a right is granted, certain additional rights must be provided to make that right meaningful. See Application of Heaney, 106 Ariz. 391, 476 P. 2d 846 (1970), where an Arizona bar applicant petitioned the state supreme court for review of his bar examination papers. In that case, the petition was found to be insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading” and consequently was dismissed. See also Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (Alaska, 1969), where the Alaska Supreme Court called the board’s position a logical “hiatus” in that it required a bar examinee to demonstrate error without affording him a device in which to locate that error.
18. The opinion of the Supreme Court of Virginia (App. 1a, August 11, 2009) constituted final state action and complete exhaustion of all remedies at the state level. The Fairfax Circuit Court found that there was no remedy in the Administrative Process Act and denied mandamus to release the essays/short answers because of lack of jurisdiction. The Supreme Court of Virginia dismissed without even requiring Respondent to answer. In his petition for rehearing, Petitioner provided his affidavit (App. 9a-10a) confirming paragraphs already stated in his complaint. He also informed the court that an expert witness on data loss and retrieval was prepared to testify on his behalf. ¶9, Petition for Rehearing, reprinted in App. 7a. He furthermore set up and claimed his right to petition the Virginia Supreme Court and explained why the Board’s current policies prevented him from doing so. ¶¶2,3, and 4, Petition for Rehearing, reprinted in App. 5a-6a. Finally, he informed the Virginia Supreme Court of the federal constitutional due process considerations at play. ¶1 and ¶6. The two-sentence opinion failed to explain the mechanics by which a valid complaint could be initiated and substantiated without discovery of the only relevant evidence in the matter [i.e. the essays and short answers]. Order of Dismissal and Denial of Rehearing, App. 1a-2a. The Commonwealth of Virginia provided Petitioner with no alternative avenue to present his case by which his rights would be adequately protected.
19. Policy of Finality will from time to time come into direct conflict with Respondent’s ministerial duty that the examination be scored properly and scoring information be made available upon request where there are instances where error is possible, which duty continues beyond the electronic posting of the final results. This duty arises by custom from the special relationship of trust and confidence between examiner and examinee. An election contest in Florida raises an interesting parallel on the ministerial duty to ensure accuracy. In Ex Parte Beattie, 98 Fla. 785, 124 So. 273 (1929), there was question as to whether all of the ballots for sheriff were counted in every precinct, which constituted a ministerial duty on the part of the canvassing board. The respondent contended that a statutory remedy for contesting the election existed, which the court found did not specifically address the duty that needed to be performed. The court reasoned that this action was not to contest the election but to “require performance of a ministerial duty on the part of the canvassing board or returning officers such as to correctly and accurately count and make due return of votes cast at the election.” Id. Presumably, if the mandamus led to a different result in the count, this candidate for sheriff would want to use that evidence to contest. Until that point, however, it would make no sense to contest without the only evidence that mattered: the ballot count. Like election officers, Respondent and the graders are sworn in before the examinations to uphold the integrity of the process, placing the burden on Respondent to employ corrective measures and policies wherever necessary and possible to ensure accuracy.
20. For the sake of convenience and in violation of his duty, Respondent has applied the Policy of Finality to applicants including Petitioner who experienced problems with the Board’s testing software during the saving stage of the July 29, 2008 bar examination sitting. See affidavit, App. 9a-10a.
21. Rendering the foregoing right to petition the state’s highest court meaningless, Policy of Nondisclosure acts to defeat the ultimate appellate authority of the Supreme Court of the United States. In Ex Parte United States, 287 U.S. 241 (1932), the Supreme Court of the United States issued a writ of mandamus directly to a district judge who had refused to issue a bench warrant for the arrest of a person indicted by a grand jury. The refusal to issue the warrant, which prevented the case from being tried, defeated the eventual exercise of the Supreme Court’s appellate jurisdiction. Likewise here with the essays- Policy of Nondisclosure has prevented Petitioner from being able to send a cognizable petition to the Virginia Supreme Court, which is a court of first impression, because all of the relevant evidence (the essays and short answers) is withheld. The petition for certiorari before the U.S. Supreme Court in this case sought a mandamus to compel the essays’ release. Because all the evidence upon which Petitioner could rely was unfairly withheld from the outset, the Supreme Court simply had no way to review the adverse determination. Jurisdiction of the Supreme Court over adverse decisions on individual applicants to the state bar arises under 28 U.S.C. §1257(a). See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983) (state court proceedings relating to admissions to the bar are subject to the jurisdiction of the Supreme Court of the United States under §1257). See also Schware v. Bd. of Bar Exmnrs. of New Mexico, 353 U.S. 232; Theard v. United States, 354 U.S. 278.
22. Policy of Nondisclosure and Policy of Finality have allowed Respondent to usurp the judicial power of the Supreme Court of Virginia and the Supreme Court of the United States. Usurpation of judicial power is a qualifying factor for the mandamus remedy. De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212 (1945). In preparation of this complaint, I have acquired the assistance of an expert witness on software systems. Dr. Castell states in his declaration as follows: “it is my opinion that the board’s offer to compare [Petitioner’s] encrypted file against the one graded does not in any way address the matter at hand. That is to say, an exact match between the two does not inform the board or the Supreme Court of Virginia that there was no data corruption in this instance.” Declaration of Stephen Castell, PhD ¶36. He crystallizes the issue as follows: “This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” ¶19. He furthermore states: “If, as in my view, there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays, then, if such portions were thereby identified [portions that “went missing” or were “corrupted in some way”] it seems to me there would then be an obvious and sensible remedy, viz, to employ the alternative grading methodology developed by the National Conference of Bar Examiners.” See last sentence of Declaration of Stephen Castell, PhD.
23. As it stands now, the judicial system in Virginia hinders any and all aggrieved bar examination applicants from bringing a complaint against the Board, no matter how legitimate the complaint may be. At the conclusion of the December 5, 2008 hearing before the Fairfax Circuit Court, Judge Alden asked counsel for the Attorney General if it was the Attorney General’s position that the court could not mandamus the essays. When she said that it was, the judge then asked what remedies are available to an aggrieved applicant. Counsel responded: “That is an interesting question.” The Fairfax Circuit Court found that the Board is exempt from the state administrative process act and there is no remedy under the Freedom of Information Act. See order of March 16, 2009, App. 3a-4a. Unlike bar disciplinary proceedings, the Supreme Court of Virginia does not have original jurisdiction over bar examination disputes. Furthermore, its inherent authority is totally undermined by the Board’s Policy of Nondisclosure and Policy of Finality. Supra ¶17 and ¶19.
24. The Board contracts with Extegrity, Inc., a California corporation, to provide test taking software.
25. During the afternoon session of the Essay/ Short Answer examination, an announcement was made by microphone that there were approximately 24 applicants who had answers that were misplaced in the system from the morning session. Affidavit ¶2. Within a one-hour time period, the Board was able to identify as many as 24 tests with answers that were mispositioned.
26. On July 29, 2008 Petitioner was one of numerous applicants who experienced problems saving the essays. Affidavit, App. 9a-10a. According to Dr. Castell, “the fact that others experienced similar problems at the same time suggests a systemic problem.” Declaration of Stephen Castell, PhD ¶18. In ¶30 he states: “without an allowance for applicants such as [Petitioner] to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it.” He furthermore states in ¶31: “In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: [Petitioner] may be said to be a ‘textbook case’. It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity and reliability of systems if corruption of the essay responses is discovered.” In ¶35 he states: “It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions.” In ¶25 he draws upon a similar software mishap in New York one year prior to come to the “conclusion and view that [Petitioner’s] concerns about corruption of his essays are well founded.”
27. Software malfunctions of the nature experienced by Petitioner have caused data loss and, consequently, misgrading in other jurisdictions. Recently it occurred in the July 2007 bar examination sitting in New York. See New York Law Journal publication, reprinted in App. 30a ¶1 and top of App. 31a where it confirms that USB drives were used to transfer the data to graders just like in Virginia. See also the subsequent press release sent out by the New York Board of Law Examiners, App. 23a-24a (November 15, 2007, available on archive at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm (last visited on May 11, 2010) (specifically ¶5 which reads “one or more of the essay answers for 47 candidates could not be recovered”).
28. Petitioner’s observations at the examination both with respect to himself and others were improperly disregarded by Respondent. On this point New York’s July 2007 bar examination is instructive. The New York Law Journal reported that (unlike Virginia) a thorough investigation was commenced immediately. While the examination was still underway, the Chairwoman of the New York Board of Law Examiners stated: “the board suspects that a flaw in the [software company’s] software provided to test takers by [the software company] is responsible for the computer glitches.” App. 30a ¶2. New York no longer uses the same software provider. Other states, like Kentucky for example, admitted to having had similar software problems as New York. Petitioner’s phone conversation with the Kentucky bar examiner’s office, February 9, 2009.
29. A personal account from the July 2007 New York bar examination demonstrates the vital role that obtaining the essays plays in protecting the applicants’ rights. App. 25a-26a, available at http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html (last visited June 2, 2010). Significantly, the matter of Eric Zeni, whose New York bar exam was corrupted by a software glitch and later resolved, took place after the press release (supra ¶27) was sent out to the applicants along with the final results. Because Mr. Zeni was able to obtain his essays as of right, he was able to personally identify and prove that a significant portion went missing. This error was not caught by the bar examiners. The missing portion was later identified by technicians and graded, and Mr. Zeni was found to have passed and was promptly admitted to the bar. See also App. 38a (Mr. Zeni’s email confirming the veracity of the above characterization).
30. After a ten-week postgraduate fellowship, Petitioner was precluded from taking an opening that was available at the Arlington Commonwealth Attorney’s Office because he did not have a license to practice law.
31. The essays/ short answers are not just evidence crucial to Petitioner’s case; they represent the entire case itself. They must be allowed to stand on their own. To deny them to Petitioner is tantamount to denying Petitioner the liberty to prove the facts upon which a claim for relief can be granted.
32. In violation of his duty (see complaint ¶19), Respondent has not installed any guidelines or criteria by which exceptions to the Policy of Nondisclosure could occur. This is true because Petitioner’s circumstances would most certainly qualify for such an exception by any standard. It is further corroborated by the fact that at the Fairfax Circuit Court hearing, Respondent’s counsel made no reference to the software defect but alluded only to an 80% quota and the integrity of the examination as the justification for not disclosing the essays/short answers. When asked by the judge if the internal re-grades or review took place before or after Petitioner raised his concerns, counsel for the Attorney General responded: “I believe, before.” The argument regarding integrity was dropped in subsequent proceedings once evidence as to what the rest of the country’s state bar examination boards were doing was disclosed. See chart, App. 19a (Transparency Policies of State Law Examiner Offices).
33. Respondent was present in the examination room when he personally observed how his team of technicians on standby was visibly overwhelmed by software malfunctions occurring at the saving stage as described in Petitioner’s affidavit (App. 10a ¶9). At no time has Respondent requested an affidavit from Petitioner as to what he observed, which is what is done in some jurisdictions. Petitioner rather voluntarily attached his sworn affidavit to his Petition for Rehearing before the Supreme Court of Virginia. App. 9a-10a.
34. Respondent has not set forth a remedy or solution. He has instead offered to confirm that the work that was graded was connected to Petitioner. The Board seeks to do that by comparing the encrypted code still saved on Petitioner’s laptop with the encrypted code held in archive (see email correspondence in App. 15a and 16a). This method avoids the fundamental question as to data loss or corruption. See Declaration of Stephen Castell, PhD, addressing the issue of duplication/ replication of data in ¶¶19-20.
35. Not acting within his duty, Respondent is guilty of the following careless and negligent acts or omissions:
a. Failure to install criteria by which an exception to Policy of Nondisclosure or Policy of Finality could be made.
b. Failure to adequately investigate the consequences of a major technical irregularity.
c. Failure to employ alternative grading methodology developed for system wide software mishaps of this nature by the National Conference of Bar Examiners and New York Board of Law Examiners.
d. Failure to require standby technicians to record applicant identification numbers of all applicants who required hands-on technical assistance.
e. Failure to address Petitioner’s concerns or cooperate in any meaningful way.
36. Nationwide, there has been a near uniform transition to a more open and transparent essay grading system now that most applicants to the state bars are taking the examination on laptop. See App. 19a (Chart, Transparency Policies of State Law Examiner Offices) and App. 20a (Chart, Statistics of the Computer Based Bar Essay Examination). Only Virginia and seven other states continue to operate a closed licensing process. App. 19a. [FN 1]
37. Upon information and belief, well more than half type the examination on laptop for the Virginia Bar Examination’s July and February sittings.
38. Declaratory Judgment is necessary because the Supreme Court of Virginia has shown, as demonstrated by this case, that it does not order the release of the essays/short answers to applicants even under the most compelling of circumstances (complaint ¶18). This begs the question of how can an aggrieved applicant, who bears the burden of proof, possibly state in his/her petition to the Virginia Supreme Court a claim upon which relief can be granted. Chief Justice Marshall in Marbury for Madison crystallizes the underlying issue: “can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition.” 5 U.S. 137. That Court went on to identify the kind of act which could be reviewable in a court of justice: “when the rights of individuals are dependent on the performance of those acts; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.” See also 52 Am. Jur. 2d §31 (“[T]he plaintiff need not pursue other remedies if they are effectively unavailable or if the agency to which an appeal must be brought is failing to act or frustrating plaintiff’s ability to obtain relief.”). This kind of situation was encountered by the Fourth Circuit in 1999 in U.S. ex rel. Rahman v. Oncology Associates, P.C., 198 F.3d 502, 65 Soc. Sec. Resp. Serv. 573 (4th Circuit 1999). 201 F.3d 277, 66 Soc. Sec. Resp. Serv. 171 (4th Circuit 1999). See also 52 Am. Jur. 2d §32 (“An appeal is not an alternate remedy to mandamus if it would be meaningless . . . or the party can show some special reason why it is inadequate.”). Section 32 continues: “some courts hold that because of the sensitive nature of erroneous discovery orders an appeal may not be viable, because the appellate court is not able to cure the trial court’s error nor the compromising of the party’s ability to present a viable claim, nor make the missing discovery material part of the appellate record. This is particularly the case when the trial court has disallowed discovery and refuses to make the missing discovery material part of the record . . . [i]n such cases the party’s only remedy is by way of mandamus.” Id. Lastly and most importantly, “a technically available remedy will not preclude mandamus when the other relief is uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective. Therefore, to prevent mandamus from issuing, the other available remedy must be specific and adequate and be equally as beneficial, convenient, and effective as mandamus.” 52 Am. Jur. 2d §34. Dr. Castell’s opinion as expressed in his declaration corroborates that all of the issues laid out above pertain to this case. Petitioner’s unqualified right to retake the examination in no way addresses the software malfunction; neither does it make meaningful an applicant’s unqualified right to present his complaint to the Supreme Court of Virginia.
39. Respondent chose not to apply the proper remedy that does exist because of Policy of Nondisclosure and Policy of Finality. Following New York’s July 2007 software mishap, the National Conference of Bar Examiners developed a methodology for grading test papers that were affected. Press Release, App. 23a-24a ¶5. Respondent and Board already do have a working relationship with the National Conference of Bar Examiners. The Assistant Attorney General confirmed at the oral argument in Fairfax that Respondent did not undertake to review Petitioner’s essays even after Petitioner raised his concerns. App. 13a (Ex. F., Petitioner’s initial correspondence with the Board). Supra ¶32.
40. Petitioner cannot and will not petition the Supreme Court of Virginia without the very evidence that would be necessary in doing so, i.e. the essays and short answers.
41. The Board’s rule making power delegated by the Virginia General Assembly (App. 21a, Powers, Rules, and Regulations) is broad but that authority is nevertheless constrained by the Federal Constitution. The U.S. Supreme Court has made it clear that “a state cannot exclude a person from the practice of law…in a manner or for reasons that contravene the due process…clause of the Fourteenth Amendment.” Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). Cf. Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976) (“bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties.”). See also Whitfield v. Illinois Board of Bar Examiners, 504 F.2d 477 (1974)(“the due process clause requires the state to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections” and “there may be situations in which a capricious denial by state officials may give rise to a federal remedy.”). Cf. Hooban v. Board of Governors of Washington State Bar Assoc., 85 Wash. 2d 774, 539 P.2d 686 (1975), where the court stated in dicta that it could be argued that denial of access to bar exam answers is a due process violation (which issue has become moot in Washington because applicants can now obtain their essays as of right, App. 19a).
42. Where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue. Greene v. McElroy, 360 U.S. 474, 496 (1959); quoted with approval in Goldberg v. Kelly, 397 U.S. 254 (1970). In the instant case, such fact findings pertain to the software malfunction which was never investigated notwithstanding a vehement dispute as to the reported essay/short answer score.
43. The constitutional infirmity of Policy of Nondisclosure and Policy of Finality is overinclusion. There have been and there will be some instances, as in the present case, where the scope of inquiry demands at the very least that the essays be released to the applicant; nevertheless they are not disclosed in order to uphold Policy of Finality which, in turn, promotes administrative convenience. “Administrative inconvenience is insufficient justification for an arbitrary, overinclusive regulatory classification.” Keenan v. Bd. of Law Examiners of North Carolina, 317 F. Supp. 1350 (1970).
44. Policy of Nondisclosure has the improper effect of quashing even the most legitimate complaints against the Board or Respondent even before the Supreme Court of Virginia has an opportunity to listen to them. See App. 3a-4a (Order of the Fairfax Circuit Court, even with the facts of the software malfunction disclosed, the complaint fails to plead “any clearly identifiable, non-hypothetical damages”). Logically, Supreme Court of Virginia would have arrived at the same conclusion had Petitioner “appealed” without the essays and short answers. This is not by lack of merit but because the essays are unfairly withheld.
45. Refusing to investigate the effects of a software malfunction and withholding crucial evidence on the question constitutes a form of “manifest unfairness,” one of the substantive grounds for review in the circuit courts of appeals. Supra ¶7. See Parrish v. Board of Commissioners of the Alabama State Bar, 533 F.2d 942 (5th Cir. 1976)(plaintiff’s motion to compel production of the examination papers was granted because “access to the bar examination papers was crucial to the plaintiff’s case”).
46. Petitioner does not at this point in the proceedings have a duty to bring the pertinent facts forward to establish a claim against the Board. Because he lacks “the means (access to the examination papers)” he is thus “not saddled with the duty to bring the pertinent facts forward.” Id.
47. Mere denial of improper conduct is not enough to support a refusal to compel discovery. This is especially true when the applicant furnishes a specific affidavit. A contrary rule would “frustrate the discovery process” and erect an “unreasonably protective shield around parties possessing material relevant and necessary to fair litigation.” Id.
48. When additional procedural requirements are sought (as here, the applicant’s right to obtain the essays), the U.S. Supreme Court sets forth three factors for consideration: 1) private interest affected by the action; 2) risk of erroneous deprivation of such interest, through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; 3) government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail. Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976).
49. The private interest affected by the action is significant. If essays can be obtained then the right to petition the Supreme Court of Virginia under one of the substantive grounds of review (supra ¶7) will suddenly become a meaningful one. If substantiated, these complaints could potentially lead to reversible error. Applicants with a job on the line, like Petitioner, will at the very least have their issues addressed, and not ignored, by Respondent.
50. Eric Zeni’s personal account in New York’s July 2007 bar examination is proof of the high risk of erroneous deprivation without applicants being able to obtain their essays in the new computer based testing environment. Supra ¶29. Indeed, his situation would have gone uncorrected had it not been for New York’s disclosure policy.
51. No harm would occur to the Board or to the Supreme Court of Virginia if applicants can obtain their essays. This represents the policy of the overwhelming majority of jurisdictions. App. 19a. The Board does not have to institute an appeal, formal or informal. Furthermore, releasing essays would not add one penny to the cost, which is typically borne by the applicant for a small fee. [FN 2]. The Supreme Court of Virginia can and regularly does dismiss petitions with relative ease, according to its discretion. However, if an applicant had the essays in hand that proved unfairness, then they would be remiss in dismissing that case.
52. Policy of Nondisclosure and Policy of Finality have led to abuse in at least one other jurisdiction within the Fourth Circuit. On December 11, 2007 it was reported that South Carolina House Speaker Bobby Harrell called for independent oversight of the South Carolina Supreme Court following its mishandling of complaints relating to a bar examination score reporting error. App. 39a-40a, Court’s Actions Bring on Call for More Oversight, published by IslandPacket.com, available at http://www.lawschool.com/screwup.htm (last visited May 11, 2010). To view the situation in South Carolina in the proper context, see Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976), where the court found that the district court properly deferred action on the claim that the bar examiners’ failure to provide procedure for review of failing scores constituted denial of due process of law until the question was presented to the South Carolina Supreme Court on what review, if any, was available and appropriate under state law. That question having been submitted, the state supreme court then voluntarily established by rule procedures for the review of failing papers. See Judge Hall’s concurrence in Richardson v. McFadden, 563 F.2d 1130 (1977), specifically the reference to Rule 11 (effective date: 2/10/1975). All of the applicants who experienced the July 2007 bar examination mishap would have been able to benefit from this rule except that on June 1, 2007 the South Carolina Supreme Court again amended the rule to delete provisions allowing applicants to review and seek re-grading of their examinations. See South Carolina Supreme Court website, Supreme Court Amends Rule 402, SCACR, available at http://www.sccourts.org/bar/index.cfm (last visited May 7, 2010). Rule 402(i)(5) now reads as follows: “No applicant shall be given access to the answers the applicant submitted during the examination. The results reported by the Board of Law Examiners are final, and no applicant shall be allowed to seek re-grading or any other review of the results of the examination.” Later that year when the court was called upon to explain why it would not change the scores of all affected, it responded: “because (the scores) had already been posted.” Court’s Actions Bring on Call for More Oversight, December 11, 2007, published by IslandPacket.com, available at http://www.lawschool.com/screwup.htm (last visited May 11, 2010).
53. Petitioner applied to the Supreme Court of Virginia for a Writ of Mandamus not by choice but by necessity. The Supreme Court of Virginia was aware that he applied for it for no other reason than to protect his rights: “Once (he) obtains his essays he can make an informed decision as to how to proceed. This is a tedious, multi-step process only because (Respondent), and the Board collectively, have made it so.” Mem. of Law in Opp. To Resp’t Mot. To Dismiss ¶38. See also Petition for Rehearing, App. 5a-8a.
54. Respondent, the Board, and the Supreme Court of Virginia have collectively agreed, in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution, to install Policy of Nondisclosure and Policy of Finality. Without providing the means for Petitioner to present a cognizable claim, the Virginia Supreme Court’s dismissal constituted final state action. This is a clear violation of the intendment of U.S.C.A. Const. Amend. 14 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). See deposition of J. Means McFadden, Executive Director of the South Carolina Board of Law Examiners, Richardson v. McFadden, 563 F.2d 1130 n.1. “[W]e [law examiners] are subject to the control of the Supreme Court, and we take no action of an affirmative nature without first conferring with the Supreme Court and getting their approval of it…we are subject to their supervision in everything we do.”
55. The Supreme Court of Virginia and its Board have created an unconstitutional roadblock for bar examinees: a right exists to petition the Supreme Court of Virginia but no petition can ever be successful without the evidence needed. The Board, in order to uphold Policy of Finality by way of Policy of Nondisclosure, withholds the subject of proof (i.e. the essays and short answers). Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897) still puts it best:
“A state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This Court, referring to the 14th Amendment, has said: ‘Can a state make anything due process of law which, by its own Legislation, it chooses to declare such? To affirm that is to hold that the prohibition to the states is of no avail’…the same question could be propounded, and the same answer should be made, in reference to judicial proceedings inconsistent with the requirements of due process of law.”
Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897).
56. Petitioner filed a timely motion for rehearing before the Supreme Court of Virginia, citing a fundamental flaw in the administrative procedures of the Virginia Bar Examination and invoking his rights under the due process clause of the Fourteenth Amendment of the Constitution of the United States. Pet. For Reh’g ¶1, reprinted in App. 5a.
57. There exists no precedent in published case law for this case, which makes the issue ripe for review. The question of what constitutes due process within the context of a software malfunction at a bar examination has yet to be answered by this court or any court. The issue is conspicuously absent from the Bar Examiner publication notwithstanding the major technical difficulties documented in New York in July of 2007. Given the novelty of Computer Based Testing (CBT) and the overwhelming reliance on its integrity by bar admissions offices, it is proper for this court to rethink and define what constitutes post examination due process for bar examinees. The law requires that the content of due process varies with each factual context. Hannah v. Larche, 363 U.S. 420 (1960).
58. Respondent and the Board have agreed to preserve the essays and short answers while the mandamus action is pending. Letter from the Attorney General’s office, App. 22a. Following the denial of certiorari by the U.S. Supreme Court, Petitioner notified Respondent of the pending action before this court and the need to ensure that the essays continue to be preserved. See App. 36a (Petitioner’s March 22, 2010 letter to Respondent) and App. 37a (U.S. Postal Service Delivery Confirmation Receipt).
59. As the sole mechanism by which reversible error can be corrected, an applicant’s right to petition the Supreme Court of Virginia must be a meaningful one for compliance with the due process clause of the Fourteenth Amendment of the Federal Constitution. “It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges was perceived to be too great. We are not persuaded.” Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976). The court furthermore explained its reasoning: “To our knowledge, a person is not required by any state to repeatedly demonstrate his competence to practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and nowadays, money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that delay in getting it is an injury.” Id. This could not be more true than where there is a job on the line.
60. In the simplest terms, this case demonstrates that the policies surrounding the Virginia Bar Examination violate a fundamental requisite of due process, specifically the opportunity to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice. Trinity Episcopal Corp. v. Romney, D.C.N.Y., 387 F.Supp. 1044, 1084.
61. Computer Based Testing (CBT) for the bar examination is in its nascent stage. Since the July 2008 bar examination, Extegrity continues to make regular improvements every few months to its software. The Board has conceded that the system has only been employed in Virginia “for several years.” Mem. of Law in Resp. to Pet. Supp. Br. on the Application of the Administrative Process Act, In the Circuit Court of Fairfax County, 6. Other states have adopted a more cautious approach, waiting until jurisdictions like Virginia work out the “kinks” in their computer based tests. Petitioner’s phone conversation with West Virginia’s bar examination office, February 19, 2009. South Carolina continues to monitor the program closely by maintaining an artificially low number of CBT applicants, chosen by lottery. Boards in Massachusetts, Indiana, Connecticut, and West Virginia are considering the program but have not approved it as of 2009. Petitioner’s phone conversation with Connecticut and Massachusetts bar examiners’ offices on 1/15/09. Phone conversation with the Indiana office on 1/16/09. Phone conversation with the West Virginia office on 2/19/09. A number of states have observed it as a pilot program and are only just recently making the laptop option available to all applicants. Ohio and Tennessee have made this transition as recently as the February 2009 bar exam. Phone conversations on 1/15/09 and 2/10/09 respectively. As of February of 2009, Kansas’ laptop option has only been available to all for the last couple of tests. Conversation with the Kansas office, 2/6/09. Furthermore, of those jurisdictions that do offer the computer based test, almost all say the numbers of applicants taking the CBT are on the rise. See chart, App. 20a.
62. Examination board policies violate due process where there is evidence that they are “not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest.” Scinto v. Stamm, 224 Conn. 524, 620 A.2d 99 (1993).
63. Policy of Nondisclosure is not technically sound given the current realities of computer based testing for bar examinations. See Declaration of Stephen Castell, PhD, and in particular ¶¶ 28-31. For example, in ¶31 describes Petitioner’s case as a “textbook case” requiring the cooperation of the Board. In ¶30 he states that not allowing applicants to obtain their essays after a computer based test “is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking, and difficulties in identifying and assessing any data corruptions or omissions potentially caused by system malfunction or otherwise. Clearly, to apply such a policy, even to the circumstances of [Petitioner’s] case, is to overlook the possibilities of systemic error and to have no objective and evenhanded methodology of investigation in regard to ruling out such possibilities.”
64. Policy of Nondisclosure acts to preclude the only available remedy, a remedy which was developed by the National Conference of Bar Examiners just one year prior to the July 2008 Virginia Bar Exam. App. 24a (press release of the New York Board of Law Examiners that accompanied the release of the results of the July 2007 bar examination).
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays:
1. That this Court take the necessary steps to protect the rights of all future applicants to the Virginia Bar by declaring Policy of Nondisclosure and Policy of Finality unconstitutional.
2. The Court compel Respondent to send Petitioner his essays/ short answers from the July 2008 bar examination.
3. And that this Court compel Respondent to send Petitioner the key so that Petitioner can decode the essays saved on his laptop.
RESPECTFULLY SUBMITTED this 3rd day of August 2010.
Jonathan Bolls, Pro-Se
FOOTNOTE 1: The charts reprinted in App. 19a-20a represent information that can be easily accessed by the public by contacting the individual state board of law examiner offices. On its website, the National Conference of Bar Examiners provides a link to the websites and phone contact information for each at http://www.ncbex.org/ (click “Bar Admission Offices”).
FOOTNOTE 2: For example, the Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service. Petitioner’s phone conversations January 15, 2009 and February 10, 2009 respectively.
Update (16): July 6, 2010. Before I serve Secretary Scott Street, I have taken the time to write a brief recap (see below) of all the events relating to this matter, beginning with my initial request to the Board to obtain the essays/short answers and proceeding through each stage of the case. It is being sent separately to all Virginia law school newspapers . . .
On July 29, 2008 approximately 1500 law student applicants for the Virginia Bar, including myself, began the long and grueling process of a two-day, 6-hour a day exam at Roanoke, VA. The overwhelming majority took the exam on special software the Board of Bar Examiners contracted to provide. Right from Day 1, it became apparent that the new computer based essay test had some serious flaws.
Following the three-hour morning session, while applicants were saving their essays, the software displayed error messages and halted the saving process for many applicants. A team of several technicians that was on standby was so overwhelmed by the sheer number of problems that it took 10-15 minutes for one of them to come to my assistance, even after one of the staff members saw my hand go up immediately. The technician read the error message and began working on my computer hands-on. Once he determined that the problem, whatever it was, could not be resolved he then instructed me to turn the computer off and then on again, known as a “reboot,” and then save. Across the room similar problems were experienced, and reactions in the room were varied. All of the time, effort, and money invested into this caused people to react out of complete frustration, such as the female test taker assigned to sit across from me who got up and went straight to one of the technicians, or panic and tears in the case of another who was in the process of rebooting with another technician. Some, like myself, simply slipped up our hands to request assistance as we were told to do if anything technical were to go wrong.
After lunch, at the beginning of the afternoon session, Scott Street, longtime secretary of the board (nearly 40 years), made an announcement that 24 applicants had answers that were misplaced in the system, and these people would find out who they were by enclosures in their afternoon test booklets, with instructions on how to go back and correct the problem. A world renown software expert would later question how it would be possible to obtain this information in such a short period of time where there is no internet connection, let alone for it to be a comprehensive and 100% accurate number. The afternoon session was no better: the exact same problem occurred at the saving stage, once again on a mass scale.
The Computer Based Test is a relatively new phenomenon in the United States and in Virginia, having started just several years prior to the administration of this exam. It has not been a very smooth transition: states like New York, Kentucky, and New Jersey have documented cases of misgraded exams because of software failures. These errors have led to outrage by the applicants, and the boards ultimately securing different software companies for subsequent exams.
Key to understanding the unique constitutionality of this case is the fact that the Virginia Board of Bar Examiners is an arm or agency of the Virginia Supreme Court, which makes the Board positioned differently than all other boards and agencies within the Commonwealth. Its actions are reviewable by the Virginia Supreme Court only, of which it is a part. In other words, if a dispute should arise, the Virginia Supreme Court claims to be the only tribunal where it could be heard. When there is reason to believe that error has occurred in the evaluation, as here, an applicant has a right to a responsible determination of the facts. As it turns out, the state’s highest court is systematically ignoring this right. Allow me to tell my story.
Ten weeks after the test I discovered that my essay score was surprisingly low. Like any concerned person, I requested to obtain my essays. Scott Street, in his office as secretary, stonewalled me in every attempt. I was reasonable in all my requests, but when it became apparent that Mr. Street would not cooperate I had no choice but to bring an emergency court order in Fairfax Circuit Court to compel the essays’ release by writ of mandamus, a judicial order that forces a public official to do his public duty. That court, represented by Judge Alden on December 5, 2008, heard the merits of the case, including the details of the software glitch. My argument was simple: the Virginia General Assembly requires by law that the Board preserve the essays for a year, a law that was created for a reason. Secondly, it constitutes an abuse of discretion for Scott Street to be following an unwritten “policy” against any applicant obtaining their essays. The Attorney General’s argument was flimsy, referring to a quota and the integrity of the exam as reasons for the absurd lack of cooperation in this instance. When asked by the judge whether it was the Attorney General’s position that mandamus could not be issued, counsel for the Attorney General (which represents state entities named as defendants in legal actions) responded that it was because the Board is an agency of the Virginia Supreme Court. When then asked by the judge if the Virginia Supreme Court has original jurisdiction over such a dispute (that is, whether the high court reserves the exclusive right to such cases) the Assistant Attorney General (AGA) said that it did not. The judge paused, probably because of what this actually meant: the high court wants jurisdiction but provides no process for applicants with disputes to present their grievances. Getting to the heart of the matter, Judge Alden then asked the AGA what process was afforded to aggrieved applicants. AGA Catherine Hill responded candidly: “that is an interesting question.” In this way, a constitutional case was born. I became my own client.
After the hearing, the judge asked me to file a supplemental brief on the applicability of the state administrative process act. If this were the examination of another profession like a medical test for example, such would be resolved in this way. But my research at the Library of Congress’ law library brought me a swift answer: it did not apply because the Board was specifically excluded. This only further bolstered the constitutional dilemma. Three and a half months later, the Fairfax Court denied mandamus for lack of jurisdiction, directing me to the Supreme Court of Virginia.
In February 2009 I undertook the project of calling each of the 50 states’ bar examination boards to find out what rights applicants have to the essays. What I would discover was very interesting: almost all of them give applicants rights to the essays. Only eight states, Virginia included, do not. When this evidence was later presented in subsequent proceedings, the Board’s former argument as to the integrity of the test as a premise for not releasing the essays was entirely dropped.
In April 6, 2009 I called the Virginia Board of Bar Examiners to find out if there are any rules of the Supreme Court of Virginia that prohibited Scott Street from releasing the essays. This time, instead of being handled by staff, I was directed to Scott Street, who was impossible to get a hold of before. When I asked him about the rules, he said he was not aware of any but that the Board has been following a policy of nondisclosure since 1973 along with a policy that all results are final once released. I informed him that I have contacted the offices of the secretaries in all 49 states plus the District of Columbia, and I found it to be commonplace for them to post the rights of applicants up on their websites, which they can review before as well as after the exam. The Virginia Board of Bar Examiners has no such posting. When there was no response to that, I thanked him for the information, and began preparing the paperwork to bring the matter before the Supreme Court of Virginia.
In May 4, 2009 I met with my state senator to discuss this issue and the lack of cooperation by the board. His name is Senator George Barker, representing part of Fairfax County and part of Prince William County. Mr. Barker and I discussed the issue in detail at a Starbucks near my home in Springfield. I explained that the reason why I met with him was to seek a small change in the law, i.e. a one sentence addition to the very law that already preserves the essays for one year (Va. Code §54.1-3929). The amendment would read as follows: “An applicant may request in writing from the Board, within thirty (30) days after the results of the examination have been made public, copies of the questions and his essay answers and two representative answers to each such question which shall be provided to the applicant at his expense.” This would allow applicants to obtain their essays, as is done in the other states, upon request after receiving the results. Though he agreed with my concerns at the time, I have yet to hear from him.
From what I have been able to uncover, the Virginia Supreme Court has since the 1970’s been dismissing all bar exam disputes that have come before it. Part of the reason likely has to do with plausible deniability: without the evidence to send a petition there is no way for the court to review the matter. The court defers to Scott Street in his decision not to release essays. Street, as Secretary of the Board, is part of the Virginia Supreme Court. It is an entirely contained process, a classic Catch-22 for any applicant with a legitimate dispute with the Board. This paradox laid the foundation for building my argument on a due process theory, that before I petition the Virginia Supreme Court I need the Virginia Supreme Court to first order the release of the essays and short answers. Once again, rather than “appeal” without the evidence, I sought a writ of mandamus. In my complaint, I informed the court of my phone conversation with Street, the Board’s silence on the software failure at oral argument in Fairfax, and the Assistant Attorney General’s response to the judge’s question as to what process is due aggrieved applicants with “that is an interesting question.” Secondly, I was prepared to produce an expert witness on software technology, and informed the court of such. Significantly, the new issues raised in this case relating to software failures and rights of the applicants to obtain essays are ripe for review, especially when the overwhelming majority of the state bar examination boards allow applicants to obtain their essays as a matter of right. Extensive research has uncovered absolutely no precedent for a case with similar circumstances as this one.
While the case was pending before the Supreme Court of Virginia, the one-year mark came up which was the cut-off date for how long the General Assembly requires the Board to preserve the essays (presumably for such a dispute as this one). As I brought a motion to preserve the evidence for the pending case, even this ended up being a fight as the Board wanted to twist the wording from “all essay responses and short answers” to “all answers in question.” Wording in the law is of the utmost importance- the Board’s attempt could have allowed it improper wiggle room in exploiting the situation at a later point, once again reserving to itself more “discretion” to be the one to decide which essays are in question. Finally, they conceded the point.
The Virginia Supreme Court ended up prematurely dismissing the case, without even requiring Street to answer the complaint. It did this after being informed that I had an expert witness on software technology who was willing to testify that the Board’s procedures were not technically sound and that my concerns as to the accuracy of the grade were well founded. I brought a timely motion for rehearing, attaching a sworn affidavit confirming what was already stated in the complaint about the software failure, the rebooting at the saving stage, and the numerous others who experienced similar problems. I also set up and claimed my right under the due process clause of the 14th Amendment of the Federal Constitution. That was dismissed without comment. The court set forth no alternative avenue by which I could possibly bring this matter to its attention and survive a motion to dismiss for lack of evidence.
At this point the Virginia Supreme Court might have expected that I would do what most applicants already do: petition it or appeal the grade without the very evidence in hand needed to do so. That is like putting the cart before the horse. Not only would that be incredible but it would be a waste of time. Courts cannot make decisions without evidence, and the complainant is the one responsible for bringing the evidence to the court. That this Catch-22 has never come to the attention of the Virginia Supreme Court struck me as unbelievable. The simple fact of the matter was that the Virginia Supreme Court was not willing to do its job by supervising Scott Street. That having been the highest court in the state and only court that could hear the case, Virginia has just ignored a legitimate complaint. It was exactly what the Federal Constitution prohibits in the 14th Amendment when it states: “nor shall any State deprive a person of life, liberty, or property without due process of law.” A professional license is a well recognized liberty interest.
I then sent a petition for certiorari to the United States Supreme Court on December 23, 2009. The U.S. Supreme Court bears the ultimate authority over the constitutionality of bar exam proceedings. Though it was a snowy day, and the metro was closed in previous days, I was able to get it in just in time before the closing of my 90-day window for submitting the case. This was a forty page brief with an appendix of documents that included, among other things, charts that compared Virginia’s nondisclosure policy with the more transparent policies of the rest of the country as well as documented incidents in other jurisdictions where software malfunctions led to data loss. Such data loss was only correctable once applicants were able to obtain their essays and pinpoint the problems. In the course of my research, I discovered that the National Conference of Bar Examiners has an established alternative grading methodology for when situations of software data loss arise. Because Street works with the National Conference of Bar Examiners in administering Virginia’s exam, this was both relevant and important. I also included a personal account of an applicant for New York’s July 2007 exam who experienced a software glitch and, once he received the results, requested the essays. Upon discovering that portions of his essays were missing, he hired an attorney and confronted the board. Even though the Board initially took the position that his essays were submitted in full and it had a policy of finality with no appeal, a secret appeal was instituted and he was subsequently sworn-in when it turned out he was right after all. He was able to do this because of his right to obtain the essays.
In February 2010 the U.S. Supreme Court denied cert without explanation. This was no surprise, given the magnitude of cases on the court’s docket; nevertheless they should have taken it because the issue will by no means go away and is not limited to just myself. There are eight states that continue to operate behind closed doors, with no recourse for an aggrieved applicant. In any case, a cert denial is not an opinion. In other words, even after all of this, I still had not had my day in court. I then informed Street’s office that the essays needed to be preserved for when it is brought before the appropriate committee of the Va. General Assembly. Before referring this matter to the legislature, I found that because of the constitutional considerations at play I still had a federal remedy in the federal courts.
Federal court is my last legal resort. Before sending the complaint this time, I have acquired the assistance of a highly credentialed expert witness on data loss and software technology. Dr. Stephen Castell, from the UK, has testified before the English High Court and multiple American federal courts in high profile cases for many well respected law firms. When he reviewed my affidavit, he agreed that not only was the Board wrong to deny me the essays but he could see no other way for such a dispute as this one to be resolved than for the essays to be released to me. This turns the tide. Because the only relief I am seeking at this point is for the essays' release, if the Board does not bring forth an expert to counter this point, then I will be positioned to bring a summary judgment motion which requests the judge to decide in my favor even before trial because Scott Street and the Board are clearly in the wrong. Shortly Dr. Castell's opinion will be reduced to wring at which time the complaint will be filed in federal court.
Update (15): March 22, 2010. Today I notified Scott Street, Secretary of the Virginia Board of Bar Examiners, that I will now commence litigation of this case in federal court.
Update (14): February 23, 2010. The Court entered its order denying certiorari. Without further explanation it is difficult to know the reasoning. However, this is not a ruling on the merits of this case. Neither have the merits been addressed thus far. While there are many questions about this exam that may never be answered, what I find most interesting about this is that there was always a law that specifically required the board to preserve the essays after the exam. Sixteen months later, my essays continue to be cloaked in secrecy.
As I informed the Supreme Court, I will not appeal the exam results to the Virginia Supreme Court without the essays, which are crucial to any case ever being successful. The Va. Attorney General's office was informed prior to the filing of this petition that this was likely to become a political question for the General Assembly in Richmond. I will now look into what further steps are appropriate at this time.
South Carolina, one of the eight so-called "nontransparent" state bar exams, demonstrated in 2007 the unreasonableness of not having a corrective process in place and the need for proper oversight of the state supreme court. http://www.lawschool.com/screwup.htm [December, 2007].
Bar examination boards are agencies of their respective states, and every applicant throughout the country has a right to petition the state supreme court. The following is a list of the States and the procedural protections for the applicants:
Right to Review the Essays
Right to Obtain the Essays
District of Columbia
Update (13): Jan. 14, 2010. The Virginia Attorney General's Office, representing Mr. Street, has decided to waive its right to file a brief in opposition.
Update (12): December 28, 2009. The case was filed with the U.S. Supreme Court on December 22, 2009 and docketed the following day. Mr. Street has the right to respond by January 22nd. The case number is 09-8199. My certiorari brief is reprinted as follows:
In the Supreme Court of the United States
W. SCOTT STREET III, SECRETARY OF THE VIRGINIA BOARD OF BAR EXAMINERS,
On Petition for Writ of Certiorari and/or Writ of Mandamus to the Supreme Court of Virginia
PETITION FOR WRIT OF CERTIORARI AND/OR MANDAMUS
Jonathan B. Bolls
1.) As the nation undergoes a transition to computer based testing for bar examinations, was due process under the Fourteenth Amendment violated by the bar admission agency of the Virginia Supreme Court when it refused to release essay responses, the very evidence needed to determine what happened, when an applicant for the bar experienced a crash in the agency's software while uploading his answers and the agency continued to deprive the applicant of any remedy?
2.) Did the Virginia Supreme Court, in its administrative oversight capacity, in conflict with 42 state supreme courts and the D.C. Court of Appeals, violate due process under the Fourteenth Amendment when it refused to force its bar admission agency to release essay responses, the very evidence needed to petition itself for relief, after the bar applicant experienced a crash in the agency's software during the essay exam and that agency closes the case without proper inquiry?
TABLE OF CONTENTS
QUESTIONS PRESENTED ………………………… i
TABLE OF AUTHORITIES ……………………….. vi
DECISIONS BELOW ………………………………. 1
JURISDICTION …………………………………….. 1
INTRODUCTION …………………………………... 1
STATEMENT OF THE CASE …………………….. 10
1. Jurisdiction in the Virginia Supreme Court . 10
2. Course of the Proceedings ………………... 10
a.) Fairfax Circuit Court …………….. 10
b.) Virginia Supreme Court and the
Federal Question …………….. 11
Finality of the Opinion of the
Virginia Supreme Court …….. 13
REASONS FOR GRANTING THE WRIT …..……. 15
THE RECENT TRANSITION TO COMPUTER BASED TESTING NOW AFFECTS MOST APPLICANTS TO THE STATE BARS, MAKING THE ISSUE OF WHAT CONSTITUTES MINIMAL DUE PROCESS PROTECTION RIPE FOR REVIEW …………………………………… 15
THE RULING OF THE SUPREME COURT OF VIRGINIA CONFLICTS WITH THE SUBSTANTIVE GROUNDS RULE OF REVIEW PREVAILING IN MOST OTHER JURISDICTIONS ………………………….. 25
NO REAL REMEDY IS BEING OFFERED BY THE BOARD TO IDENTIFY OR CORRECT SOFTWARE ERROR ………. 30
THROUGH ITS POLICIES THE BOARD IS USURPING JUDICIAL POWER MAKING MANDAMUS THE ONLY AVAILABLE REMEDY ………………………………….. 31
THROUGH DISMISSAL, THE VIRGINIA SUPREME COURT IGNORED THIS COURT’S FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE UNDER MATTHEWS v. ELDRIDGE, 424 U.S. 319 …………………. 35
A. NO CORRECTIVE PROCESS ……….. 35
B. FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE
PROCEDURE …………………..……... 37
1. Private interest affected by the action …………….…………………….. 37
2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards … 37
3. Government’s interest............................................................38
CONCLUSION ……………………………………. 40
Opinion of the Supreme Court of Virginia
(Aug. 11, 2009) ……………...……...……………… 1a
Denial of Petition for Rehearing, Supreme Court of
Virginia (Sep. 23, 2009) ……………………………. 2a
Order of the Circuit Court of Fairfax County
(March 16, 2009) ………………………………... 3a-4a
Petition for Rehearing …………………………... 5a-8a
Sworn Affidavit on Software Malfunction ……. 9a-10a
Fourteenth Amendment, Section 1 ………….…….. 11a
Bar Examination Results ………………………….. 12a
Initial Request to the Board (Oct. 21, 2008) …...…. 13a
Response to Petitioner’s Request (Oct. 21, 2008) … 14a
Respondent’s Request for Encrypted File
(Nov. 3, 2008) ………………………………….…. 15a
Response to Respondent’s Request
(Nov. 4, 2008) …………………………………….. 16a
Final Denial of Petitioner’s Requests
(Nov. 7, 2008) …………………………………….. 17a
Response to Final Denial …………………………. 18a
Chart, Transparency of States’ Law Examiner
Offices …………………………………………….. 19a
Chart, Percentages of Applicants Taking State Bar
Examinations on Laptop ………………………….. 20a
Virginia Code: Powers, Rules, and Regulations
of the Board ……………………………………….. 21a
Virginia Code: Preservation of Examination
Papers …………………………………………...… 21a
Virginia Code: Discretion of Professional Testing
Boards in Releasing Test Papers ………………….. 21a
Agreement to Preserve Essay Responses and
Short Answers …………………………………….. 22a
Press Release, New York Board of Law
Examiners (Nov. 15, 2007) ………………...… 23a-24a
New York Personal Injury Law Blog, Eric
Turkewitz, Esq., The Turkewitz Law Firm,
New York, NY ……………………………..… 25a-29a
New York Law Journal. “Software Snafus Upset
Test Takers.” (July 26, 2007) ………………... 30a-32a
TABLE OF AUTHORITIES
Applicant No. 26 v. Bd. of Bar Examiners of
Delaware, 780 A.2d 252 (Del. 2001) ……… 26, 29
Application of Heaney, 106 Ariz. 391 (1970) .. 7, 26, 32
Application of Peterson, 459 P.2d 703
(1969) …………………………………...7,8, 26, 27
Bankers Life & Casualty Co. v. Holland,
346 U.S. 379 (1953) ……………………………. 34
Chaney v. State Bar of California, 386 F.2d 962
(9th Cir. 1967) ………………………………….. 26
Chicago B&Q R.R. v. Chicago, 166 U.S. 226
(1897) …………………………………………... 28
De Beers Consolidated Mines, Ltd. v. United
States, 325 U.S. 212 (1945) ……………………. 34
Enterprise Irrigation Dist. v. Farmers Mutual
Canal Co., 243 U.S. 157 (1917) ……………….. 14
Ex Parte Beattie, 98 Fla. 785 (1929) ………………. 31
Feldman v. State Bd. of Bar Examiners,
438 F.2d 699 (8th Cir. 1971) …………………… 26
Goldberg v. Kelly, 397 U.S. 254 (1970) …….………. 7
Greene v. McElroy, 360 U.S. 474 (1959) ………….... 7
Griffin v. Illinois, 351 U.S. 12 (1956) …………....… 41
In re Monaghan, 126 Vt. 193 (1967) …………….… 26
In re Thorne, 635 P.2d 22 (Utah 1981) ………….… 26
Parrish v. Bd. of Commsnrs. of Al. State
Bar, 533 F.2d 942 (5th Cir. 1976) …...…. 18, 28, 29
Petition of Pacheco, 85 N.M. 600 (1973) ……… 26, 29
Poats v. Givan, 651 F.2d 495 (7th Cir. 1981) …….… 26
Richardson v. McFadden, 563 F.2d 1130
(4th Cir. 1977) ……………………………...…… 33
Rogers v. Supreme Court of Virginia,
590 F. Supp. 102 (1984) …………………..…… 31
Rogers v. Supreme Court of Virginia,
772 F.2d 900 (4th Cir. 1985) (Unpub. 84-1746) .. 27
Schware v. Board of Bar Examiners of New Mex.,
353 U.S. 232 (1957) ……………………...…… 1, 6
Scinto v. Stamm, 224 Conn. 524 (1993) ……..… 18, 26
Staley v. State Bar of California,
17 Cal. 2d 119 (1941) ………………………….. 26
Taylor v. Saftly, 276 Ark. 541 (1982) …………….... 30
Theard v. United States, 354 U.S. 278 (1957) ………. 1
Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975),
cert. denied, 426 U.S. 940 (1976) ………….. 19, 26
White v. Ragen, 324 U.S. 760 (1945) ……………… 19
Whitfield v. Illinois Board of Bar Examiners,
504 F.2d 477 (7th Cir. 1974) ……………..….. 6, 26
Willner v. Committee on Character,
373 U.S. 96 (1963) ………………………...…… 15
Woodard v. Virginia Board of Bar Examiners,
454 F. Supp. 4, aff’d 598 F.2d 1345
(4th Cir. 1979) ………………………………... 5, 35
Constitutions and Statutes:
U.S. Const. amend. XIV ………………………….…. 9
28 U.S.C. §1257(a) ………………………………….. 1
28 U.S.C. §1651(a) ………………………………….. 1
Va. Const. art. VI, §1 ………………………………. 10
American Jurisprudence ………...………...…… 12, 17
Black’s Law Dictionary, 5th ed. ……………………. 41
Corpus Juris Secundum ………...………………….. 12
Joel Stashenko and Mark Fass, Software Snafus
Upset Test Takers During First Day of State
Bar Exam, New York Law Journal,
July 26, 2007 …………………………..…… 21, 38
Press Release, New York Bd. of Law Exmnrs.,
Nov. 15, 2007, available at
http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm ............................... 21, 22
Thomas Pobjecky, The Demands of Due
Process in Bar Admissions Proceedings, Bar
Examiner, Feb. 1996 …………………………….15
The opinion of the Virginia Supreme Court is unreported and reprinted in Appendix (App.) 1a. The decision on petition for rehearing is reprinted in 2a. The order of the Circuit Court of Fairfax County is reprinted in 3a-4a.
The Virginia Supreme Court, as a court of first impression and acting in its administrative capacity, issued its decision on August 11, 2009 and its decision on rehearing the petition on September 23, 2009. This Court has jurisdiction under 28 U.S.C. § 1257(a), 28 U.S.C. § 1651(a), and its ultimate appellate authority in reviewing adverse decisions on applications to the state bar. Schware v. Bd. of Bar Exmnrs. of New Mexico, 353 U.S. 232; Theard v. United States, 354 U.S. 278.
This Court is faced with a situation in which an applicant for the Virginia Bar experienced more than one software malfunction in the software of the Virginia Board of Bar Examiners’ servicing company during the essay portion of the examination. Upon receiving the results he perceived a wide discrepancy between his performance and the reported score for the essay portion. Despite repeated requests, no investigation has been made into what damage may have been caused and no remedy set forth albeit one exists and has been proven to work in other jurisdictions. Without proper inquiry, Petitioner was informed that all results are final, there is no appeal, and the case was closed. Petitioner now seeks his essays so that he can make an informed decision on whether to contest and, if necessary, send his petition to the Virginia Supreme Court, which is responsible for overseeing the activities of its agency, the Board. Extensive research has revealed no authority within published case law for an applicant’s right to obtain essays within the context of a software malfunction.
The computer based bar examination is a relatively new phenomenon now being utilized on a wide scale by 42 jurisdictions and rapidly growing in popularity among applicants nationwide. See App. 20a (chart showing the percentages of applicants writing their essays on laptop). Bar examination boards contract with software companies to provide the service.
The facts in this case are not in dispute. Petitioner took the Virginia Bar Exam in July 2008 and experienced a software malfunction that caused him to have to seek hands-on technical assistance from one of the software company's technicians who, after making an attempt, instructed him to turn his computer off and turn it on during an approximately ten step process of saving the essay responses onto his laptop. This happened twice. Ex. G, reprinted in App. 9a-10a (sworn affidavit). [Footnote: he definitely recalls one of these times being instructed to turn his computer off and turn it on somewhere in the middle of the ten steps when the first attempt by the technician was made, although it may very well have occurred both times]. He had no choice but to copy his answers onto a USB drive and hand that in without seeing what was submitted. Upon receiving the results, Petitioner observed a significant scoring discrepancy on his performance of the essay portion. See App. 13a (initial correspondence with the Virginia Board of Bar Examiners, hereinafter referred to as "Board”), in which Petitioner immediately requested assistance in determining "some other fathomable explanation for the scoring discrepancy [he] believe[s] exists." See also App. 14a (response, written immediately thereafter by the Respondent Secretary of the Board, stating: "After the results are released, there is no appeal or re-evaluation process for candidates who do not successfully pass").
Software malfunctions of this nature have led to data loss in several state bar examinations and the National Conference of Bar Examiners has workable grading methods for when data is lost by the software. See eg., App. 23a-24a (press release, New York Board of Law Examiners, Nov. 15, 2007, ¶5, available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm (last visited Oct. 30, 2009). The Board has maintained that all results are final once posted, repeatedly turned down Petitioner’s appeals, and refused to allow him to obtain his essays.
Petitioner then brought an emergency motion in state circuit court to compel the essays' release, which was taken under advisement for three months and ultimately denied for lack of jurisdiction. He then brought a mandamus action under the original jurisdiction of the Virginia Supreme Court, which was dismissed on the grounds that Respondent’s decision to not release the essays was discretionary.
In his petition for rehearing, ultimately denied, he stated that it was impossible for him to have this matter properly reviewed by the court without him first obtaining the essays to personally determine what, if anything, happened to the answers he wrote. This is the procedure that is done in the vast majority of jurisdictions. Attached to his petition was his sworn affidavit (App. 9a-10a) of what occurred. This statement had been reviewed by an expert witness who was prepared to testify as to the inadequacy of the Board's current procedures. See App. 5a-8a, Pet. for Rh’g. ¶10.
The Multistate Bar Exam (MBE), a multiple choice lesser weighted component, was never at issue in this case. Petitioner's score is approximately what he expected and is good enough to be waived into other jurisdictions. See App. 12a (bar exam results, Oct. 16, 2008).
The Virginia Supreme Court was notified that Petitioner sought the information necessary to make an informed decision and, if necessary, to make a cognizable petition to that court. See Replacement Pet. for Mandamus, Prayer for Relief (“That, in the interests of judicial economy, in the event that a claim is made, [the Virginia Supreme Court] bifurcate the proceedings to allow for an expedited second hearing specifically with reference to reviewing [Petitioner’s] essays”).
Although applicants have been known to request model answers and other graded test papers along with their own in order to contest a grader's assessment, Petitioner has only requested his essays. Petitioner argued that the Virginia Supreme Court, through its Board, has vitiated his right to bring the matter before itself by withholding necessary evidence:
"The Supreme Court of Virginia pursuant to its inherent supervisory authority over the bar admission process has the discretion whether to hear an applicant’s complaint or appeal; however, without the possibility of obtaining the essays, any appeal to this Court is rendered defective and illusory because the underlying petition or appeal fails to ‘plead any clearly identifiable, non-hypothetical damages.’ This is not out of lack of merit but because of the erroneous withholding of evidence."
Pet. for Reh’g ¶7.
42 states and the District of Columbia disclose essays to bar applicants upon written request after the results are released. See Ex. A, reprinted in App. 19a (chart showing state board of law examiner office policies). [Footnote: the charts reprinted in App. 19a-20a represent information that can be easily accessed by the public by contacting the individual state board of law examiner offices. On its website, the National Conference of Bar Examiners provides a link to the websites and phone contact information for each at http://www.ncbex.org/ (click "Bar Admission Offices"). Most states release the essays in the mail for a small fee.
Virginia is one of eight hold-out states in which applicants have no access to the essays. Id. However, where there is reason to believe that a reported score is substantially incorrect, an applicant in Virginia does have a right to petition the Virginia Supreme Court within its inherent supervisory power. Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4,6 (E.D. Va.), aff'd 598 F.2d 1345 (4th Cir. 1979) ("The [Va.] Supreme Court has no explicit statutory authority to review the Board's decisions or to reverse its evaluation of a particular candidate. Nonetheless, it is well settled that the Court retains such inherent power."). The Virginia General Assembly also has a law that preserves the essays for one year (App. 21a) presumably for such a dispute as the instant case. Unfortunately, this law has been of no help to Petitioner. Nevertheless, the essays continue to be preserved for this litigation. App. 22a (agreement to preserve the test papers while the case is pending before this Court).
Not only has the Board repeatedly refused to look into the software issue, it has simultaneously deprived Petitioner of his right to petition the Virginia Supreme Court by denying, under the auspices of discretion, his repeated requests to obtain the only evidence that he could use to prove his case: his essay responses. At no time has the Board informed Petitioner that the software malfunction was benign.
Despite the presence of a sworn affidavit and an expert witness, the Virginia Supreme Court hastily ruled that it cannot compel the release of the essays and dismissed the case. Whether Respondent is delinquent in not releasing the essays or the Virginia Supreme Court is delinquent in not properly exercising its supervisory powers, Petitioner's case demonstrates a fundamental flaw in the administrative procedures of the Virginia Bar Exam.
While the Board may not afford a corrective process to an aggrieved bar applicant, Petitioner nonetheless has recourse to the Virginia Supreme Court where there is reason to believe error has occurred and no other recourse is available. The problem is that Petitioner has no way of making an informed decision on whether to contest or present a valid petition should he choose to do so, because the essays are being unfairly withheld.
This Court has made it clear that "a state cannot exclude a person from the practice of law...in a manner or for reasons that contravene the due process...clause of the 14th Amendment." Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). See also Whitfield v. Illinois Board of Bar Examiners, 504 F.2d 477 (1974) ("the due process clause requires the state to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections."). Furthermore, based upon an application to take the bar examination there exists a special relationship wherein a duty does exist that the examination be scored properly and scoring information be made available upon request where there are instances where error is possible.
To ignore Petitioner's concerns, particularly where there was a flaw in the software utilized by the Board, is to disregard Petitioner's rights. As the court in Schware puts it: "Certainly the practice of law is not a matter of the state's grace." Cf. Greene v. McElroy, 360 U.S. 474, 496 (1959); quoted with approval in Goldberg v. Kelly, 397 U.S. 254 (1970) ("certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."). In the instant case, such fact findings pertain to the software malfunction and the perceived discrepancy in the reported score.
The Virginia Supreme Court, and its Board, would have to be fully aware that Petitioner and other similarly situated applicants who fall prey to a software glitch could never plead with the kind of particularity that would be able to survive a motion to dismiss. The entire system in Virginia contravenes due process when a legitimate complaint arises and there is no way for the Virginia Supreme Court to make an informed decision on whether to grant review in the first place. A case in Arizona well demonstrates the problem where a petition to the state supreme court to review bar examination papers was dismissed because it failed to set forth “exact and complete particulars of alleged unfair or improper grading…” Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970).
The court below's ruling conflicts with the common sense approach adopted by the Alaska Supreme Court in Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (1969), a state that allows the applicant to petition the board for a hearing which the board may grant according to its discretion. When the board denied a hearing, the court stated: "[the board's argument] left unexplained the mechanics by which the rejected applicant could demonstrate that his failure was caused by fraud, imposition, or other serious grounds." Id. (emphasis added). Citing to the minimum standards of basic procedural fairness, the court stated: "inaccessibility of these documents [graded essays] precluded the possibility of obtaining an appellate hearing on the merits consonant with the requirements of a fair hearing." In Virginia, and the seven other states still operating a closed licensing process (App. 19a), there exists no right to petition the board for a hearing but there does exist a right to petition the state supreme court under its inherent supervisory authority over bar admissions. In either case, withholding essays while requiring the applicant to demonstrate substantive grounds for review such as (inter alia) manifest unfairness (See Infra §1) constitutes the same logical “hiatus” that the Alaska court said denies “fair process.” Id.
As the nation undergoes the transition to computer based testing for the bar examination, testing boards must change in like measure. Of the 42 states that offer a computer based test, 30 of them have over half of the applicants now typing their essays on computer. See chart, App. 20a. The reasons for that are plain. Today, law students primarily take their notes and exams on laptop. There are significant advantages in typing speed and a way to go back and delete and insert information into the paragraphs. As a result, the computer based test has become practically an established institution. But like every established institution, it is by no means perfect. Bar examination boards concede that software malfunctions have occurred midway through the essay test and particularly at the end during the saving stage of the examination. Consequently data has been lost. Ex. B, See App. 25a-27a (personal account of an applicant for the New York bar in 2007 who experienced a software crash and despite being reassured by the Board that no material was lost he still requested his essays and discovered that material was lost. After failing he was provided an ad hoc appeal despite a standing finality policy), available at http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-new-york-bar-exam.html (last visited Oct. 30, 2009).
The Board has conceded that its so-called "remedy" has nothing to do with ruling out the effects of a software glitch but is designed rather for the purpose of authentication: "the only way to authenticate [Petitioner’s] answers is to compare the encrypted file on his computer to the encrypted file held by the Board." See Mem. of Law in Support of Mot. To Dismiss at 7. The case at bar involves no question of authentication.
Disposition of the present case is therefore straightforward: the essays must be released so Petitioner can decide whether or not to contest. The Commonwealth of Virginia, whether by means of discretion or otherwise, cannot "deprive any person of...liberty...without due process of law." U.S. Const. amend. 14, §1. The right to pursue one’s profession is well recognized to be within the confines of this amendment. The Virginia Supreme Court, through the omission of its Board and its own refusal to exercise supervisory authority with respect to Petitioner's application, has unduly incapacitated Petitioner's right to petition itself, rendering it impossible for Petitioner to seek a proper review of his examination.
This Court should therefore grant review.
STATEMENT OF THE CASE
1. Jurisdiction in the Supreme Court of Virginia
The mandamus petition in this case invoked the original jurisdiction of the Supreme Court of Virginia. Va. Const. art. VI, §1.
2. Course of the Proceedings
a.) State Circuit Court
Petitioner filed for an emergency court order in Fairfax County Circuit Court to compel the Board's Secretary to release his essays. On December 5, 2008 Petitioner was heard on the merits, including details of the software malfunction. He presented a "case in point," see Ex. B, App. 25a-27a, where a software malfunction of a similar type led to significant misgrading in another jurisdiction, identified and corrected only once the applicant obtained his essays. Arguments were heard on discretion and abuse of discretion. When asked why comparing the encrypted codes was an inadequate remedy, Petitioner responded that the "code saved on [his] computer may have been corrupted," rendering the method of no value. The judge took the case under advisement while both parties prepared supplemental briefs on the applicability of the state Administrative Process Act. Both parties concluded that the Board was exempt from the APA and there was no remedy under the Freedom of Information Act. On March 16, 2009 the court determined that it was without jurisdiction.
b.) Supreme Court of Virginia and the Federal Question
Unable to send a valid petition to the Virginia Supreme Court without his essays, Petitioner applied for a Writ of Mandamus to compel their release. In his Prayer for Relief, he reserved the right to petition the court once he obtained his essays: "in the interests of judicial economy, in the event that a claim is made, this Court bifurcate the proceedings to allow for an expedited second hearing with reference to reviewing Petitioner's essays." Replacement Pet. for Mand.
In response to the motion to dismiss, Petitioner stated: "the essay answers themselves represent the single most important piece of evidence, without which a claim or appeal could not be made." Mem. of Law in Opp. To Resp’t Mot. to Dismiss ¶1. In ¶21, Petitioner stated as follows: "in order to uphold this erroneous position [that all results are final and there is no review], Mr. Street is systematically squelching all complaints to [the Virginia Supreme Court] by denying all applicants their answers as a blanket rule." Id. The quandary was further underscored in ¶32: "Petitioner merely reserves the right to send his complaint to [the Virginia Supreme Court] but the one piece of evidence upon which he could rely is being withheld."
Entitled “Writ of Mandamus is necessary to prevent a procedural due process violation,” Id. ¶¶ 33-38, Petitioner explains more fully:
"Petitioner has applied for a Writ of Mandamus not out of choice but necessity. Mandamus will allow Petitioner to obtain his essays and then decide at that point if he has any legitimate matters to present to [the Virginia Supreme Court]. If there are not, then Petitioner will not bring a claim...however [he] is convinced that the essay score is completely inaccurate. To deny Petitioner the very evidence he would need to present the matter to [the Virginia Supreme Court], which has the power to correct, would cause any recourse he has to [the Virginia Supreme Court] to become illusory."
The court below refused separately to consider any of Petitioner's claims regarding abuse of discretion and procedural due process and asked only whether it had the power to compel an act of discretion (in not releasing essays). It then issued a two-sentence opinion on discretion. See App. 1a. In its analysis of the legality behind compelling a discretionary act, the court also failed to consider under what circumstances mandamus can be a remedy for an act of discretion. Choosing to dismiss rather than to hear the case, the court did not even require Respondent to answer or make a showing as to how discretion was utilized in this instance.
The court ignored ¶14 of Petitioner's Response to Mot. to Dismiss, citing to the relevant legal principle that an official acting in disregard of evidence pointing to a contrary result may not deny Petitioner the right to resort to mandamus. "An official may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakenly pointing to a contrary result and yet deny the right to resort to mandamus to compel proper action on his part." 34 Am. Jur. Mandamus §69. Cf. C.J.S. Mandamus §83 (“it may also be employed to correct an arbitrary action which does not amount to the exercise of discretion”).
The Board concedes that its "remedy" was for authentication purposes, which in no way addresses the computer glitch. Nevertheless the court’s opinion fails to take into account that "[t]he writ will not be denied...because of the existence of another remedy which is inadequate, or which serves another function." Am. Jur. 2d Mandamus §31.
Discretion is meaningless unless it is exercised on a case by case basis. Here there is every indication that it was not.
Petitioner filed a timely motion for rehearing, citing a fundamental flaw in the administrative procedures of the Virginia Bar Exam and invoking his rights under the “due process clause of the Fourteenth Amendment of the Constitution of the United States.” Pet. for Reh’g ¶1, reprinted in App. 5a.
Petitioner voluntarily attached a sworn affidavit to the petition for rehearing which confirms and restates several paragraphs of the mandamus petition that pertain to the software malfunction and his other observations during the examination. Ex. G, App. 9a-10a. He also notified the court that he had an expert witness on computer software who read the sworn statement and was prepared to explain the inadequacy of the Board's procedures. Pet. for Reh’g ¶10, reprinted in App. 5a-8a.
The petition for rehearing was denied without opinion on September 23, 2009. Conspicuously absent was any suggested alternative roadmap to how it would be possible to have this matter properly reviewed.
c.) Finality of the Opinion of the Supreme Court of Virginia
The opinion of the court reads: “On consideration of this case, the Court is of opinion that mandamus does not lie to compel the performance of a discretionary act and the writ of mandamus should not issue as prayed for.” App. 1a.
Without the essays it is impossible to plead this case before the Virginia Supreme Court. See Pet. for Reh’g ¶4, reprinted in App. 5a-8a (“Petitioner assigns as error the exclusion of evidence required to make an informed decision to contest the assessment of his bar candidacy. No scoring information was provided to Petitioner except a simple numeric score; therefore, the only relevant piece of evidence, i.e. the essay responses and short answers, has been unfairly withheld.”) and ¶ 5 (“Given the circumstances of the software malfunction and the proposal of an inadequate remedy, the scope of inquiry commands at the very least the release of the essays and short answers.”).
Petitioner cannot and will not petition the Virginia Supreme Court without his essays. When the court denied the motion for rehearing without opinion, it necessarily held adversely to these specially set up claims of federal right. Such claims went to the very foundation of the whole proceeding.
If recognized and enforced, this matter would not have been dismissed. Since they were not, the effect was to end this case at the state level.
This Court’s jurisdiction is plain because the issue of Respondent’s discretion is inextricably intertwined with the federal question of what rights a bar applicant who experiences software failure has to their essays before petitioning the state supreme court. See Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., 243 U.S. 157 (1917) (jurisdiction is plain where non-federal ground is “so interwoven as not to be an independent matter,” which is also true “where non-federal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary or mere device to prevent review of the decision upon the federal question.”).
REASONS FOR GRANTING THE WRIT
I. THE RECENT TRANSITION TO SOFTWARE TESTING NOW AFFECTS MOST APPLICANTS TO THE STATE BARS, MAKING THE ISSUE OF WHAT CONSTITUTES MINIMAL DUE PROCESS PROTECTION RIPE FOR REVIEW
In the past, bar examination boards have been notorious about depriving their applicants of due process protections, particularly in the character and fitness evaluation. See Willner v. Committee on Character, 373 U.S. 96 (1963). The advent of computer based testing in the 21st century necessarily extends due process scrutiny to the examination itself. Thomas Pobjecky, in the Feb. 1996 edition of Bar Examiner magazine states: “it is recommended that bar examiners simply ask themselves the following question: are our procedures fair? If bar examiners cannot answer such question in the affirmative without any hesitation, then an evaluation of their procedures should be undertaken.” [Footnote: Thomas Pobjecky. The Demands of Due Process in Bar Admissions Proceedings. Bar Examiner. February, 1996]. Unfortunately, it has been the case that law students have been struggling for decades to secure fair treatment from bar examination boards. Most of the states have rectified their policies as shown by the near uniform transition to a more open and transparent essay grading system. App. 19a.
As of September 2009, 42 states currently offer a computer based essay exam, 30 of which have over half now take it on laptop. See App. 20a (Chart, Percentages of Applicants Taking State Bars on Laptop). A number of states are now as high as 70% and 80% and rising. Id. Some states, eg. New Jersey and South Carolina, maintain an artificially low proportion to take the examination on computer software, chosen by lottery [Footnote: Phone conv. N.J. bar examiners' office. Jan. 9, 2009. S.C. bar examiners' office. October 8, 2009]. Others, like Tennessee, Missouri, Wisconsin, Montana, New Hampshire, Rhode Island, and Texas have recently implemented the computer based test in the last 2-3 years [Footnote: phone conv. with respective bar examiners' offices. Aug. 27, Aug. 31, Sep. 2, Sep. 3, and Sep. 15, 2009]. Tennessee and New Jersey began just this past year. Id.
Other states, like Massachusetts, have judicially decided to adopt a waiting period before implementing a computer based test. [Footnote: phone conv. MA bar examiners' office. Jan. 15, 2009]. See App. 20a (“no computer based test”). As early as January, 2009 Indiana was considering it but to date has not yet approved it [Footnote: Phone conv. IN bar examiners' office. Jan. 16, 2009]. Kentucky concedes that it has had similar software problems as New York. [Footnote: Phone conv. KY bar examiners' office. Feb. 9, 2009].
Central to this matter is an allowance to test the integrity of the computer based test, which now directly affects most newly admitted attorneys in the United States. 36 states plus D.C. have adopted policies that allow applicants to obtain their essays upon written request whether or not there is reason to believe error occurred. See Ex. A, App. 19a (Chart, Transparency of States’ Law Examiner Offices). 13 of these have implemented administrative appeals, id., which sometimes involve an informal first step. Another six ensure a right of review. Id.
Eight states, including Virginia, operate a closed bar examination. Id., see column for “non- transparent states.” These eight states, with the exception of Hawaii, operate a computer based test that affects a significant number of applicants. Incidentally, Virginia is the only one of these eight "non-transparent" states that has no backup system whereby lost data can be retrieved. See App. 20a (view “backup system” column and compare with list of “non-transparent” states cited in App. 19a). Of the states that do not have a backup system, all except for Virginia allow applicants access to their essays. See App. 19a and 20a, specifically Arizona, Kentucky, Louisiana, Maine, Nebraska, Tennessee, Wisconsin.
Therefore, an applicant who takes the bar examination in Virginia on laptop places himself or herself in the highest degree of jeopardy among all bar applicants in the country. The Board neither releases the essays if a software malfunction occurs nor looks into the matter, stating merely that all results are final once posted. App. 17a ¶1. The Virginia Supreme Court, in lockstep, denies the very means by which an applicant can bring even a legitimate case before itself. In so doing, the Virginia Supreme Court and its Board have created a Catch-22 for bar examinees: a right exists to petition the Virginia Supreme Court but no petition can ever be successful without the evidence needed. The Board as a blanket rule withholds the evidence.
Prior to the advent of computer based testing, the rule was that the state supreme courts would review bar examinations where certain substantive grounds for review were present, including “fraud or coercion, or the result of unfair, arbitrary, unreasonable, or other similar conduct on the part of the bar examiners.” 7 Am. Jur. Attorneys at Law §20. Circuit courts which have dealt with this issue are in agreement that these are the factors which warrant review. See Infra §3.
This rule is still the same today but some state supreme courts continue to counteract it by depriving an aggrieved applicant the means by which to prove the substantive grounds which would warrant a hearing. Just as analysis of other applicant test papers was necessary to discover alleged racial discriminatory grading practices, Parrish v. Bd. of Commsnrs. of Al. State Bar, 533 F.2d 942 (5th Cir. 1976), so too is it necessary for an applicant who suspects misgrading due to a software crash or some other reason to be able to obtain the essays.
Along with its conveniences, the advent of computer based technology has raised significant questions as to what procedural protections constitute the bare bones of due process protection, especially in a state that does not have a controlling statute. This is no more true than for Virginia and the seven other states that operate closed licensing processes with broad, seemingly limitless authority granted by the legislatures. See, eg. App. 21a, Powers, Rules, and Regulations of the Board.
Computer based testing thus brings new consideration to the meaning of "manifest unfairness" as a substantive ground for review. As the court in Scinto v. Stamm, 224 Conn. 524 puts it: “grading procedures violate due process where [there is] evidence that they result in gross grading errors.” The present case is not so much concerned with the procedures that are in place as it is with what is not in place: a bona fide corrective process, or in the absence of that full disclosure of the essays to guard the right to petition the state supreme court if necessary. This is absolutely essential given the recent, less-than-perfect transition to computer based testing in Virginia and throughout the country. We must now ask whether withholding crucial evidence in an environment where additional procedures and safeguards for the computer based test are nonexistent can constitute another form of manifest unfairness rising to the level of a due process violation.
By showing a prima facie violation in a state's corrective process and subsequent dismissal by a state supreme court without requiring a respondent to answer, this Court can assume upon review that the allegations of the petitioner are true. White v. Ragen, 324 U.S. 760 (1945) (an inmate's conviction subsequently shown to have been secured by perjured testimony was later dismissed by the Illinois Supreme Court without opinion not having appointed counsel for the defendant or requesting an answer from the warden). Of course, the criminal trial was heard on its merits, but the issue as to whether the process had been corrupted was never addressed on its merits. The U.S. Supreme Court assumed therefore that the facts contained in a sworn affidavit as to the perjured testimony of a key witness were true. This Court granted certiorari "in order to consider whether the State of Illinois affords corrective process for such violations of constitutional right." Id.
The unqualified right to take the examination again is meant to remedy an entirely different situation than the one present. In bar examination disputes, where the issue centers on the opinion of a grader, courts have generally held that the opportunity for reexamination provides an adequate means of exposing grading errors. See Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976). This case rather involves a software malfunction. To the extent that Petitioner seeks to obtain his essays, he seeks to protect his interests in correcting error in a way that the Board is sadly not willing to do because of its finality policy. The case is fundamentally different that the typical grading dispute because the essays are sought principally to determine the extent of the effect of a software malfunction. While the effect still remains uncertain, that there was a malfunction in the software has never been disputed. If the essays manifest substantial or intentional misgrading, Petitioner also reserves the right to make that case to the Virginia Supreme Court.
Over the past few years in which computer based testing has been employed, bar examination software malfunctions have been unpredictable [Footnote: According to an article in the New York Law Journal, reprinted in App. 30a-32a, the Board of Law Examiners never experienced a problem with the software even after using it for several years prior to the July 2007 software mishap. See Par. 13] and have led to substantial misgrading in multiple jurisdictions. In his conversations with state bar admission offices, Petitioner has discovered that several other states have experienced software glitches that have led to data loss during the essay examination. New York has received the most publicity after its infamous problem in July of 2007. See App. 23a-24a (press release, NY Bd. of Law Exmnrs., Nov. 15, 2007).
What happened in New York is strikingly similar to what Petitioner experienced and observed. See App. 9a-10a (sworn affidavit regarding software malfunction). The day after the examination, it was reported that "test takers who typed the essays on the New York state bar examination into their laptop computers this week experienced problems saving their work and uploading the files for transfer to graders, the chair of the Board of Law Examiners acknowledged yesterday." App. 30a ¶1. Immediately suspecting a flaw in the software company's software provided to test takers, the chairwoman of the Board of Law Examiners stated: "the board suspects that a flaw in the [software company's] software provided to test takers by [the software company] is responsible for the computer glitches." Id. ¶2. The article explains that the investigation commenced even before the examination was completed: "Even as the board was administering the second day of the two-day bar exam yesterday, officials were trying to determine how many test takers were affected by the software problems and whether any of their essays would be lost." Id. (emphasis added). The article further explained that the software malfunction affected some and not others and described the problem, in part, as having "difficulty" "uploading(ing) their essays." Id. ¶¶ 6,7. See also further discussion on this point on page 24, where New York’s resolution is highlighted in the case of Eric Zeni.
A follow-up article a week after the test provided a hopeful statement by the software company's president that backup systems had succeeded. Joel Stashenko, Backup Systems Avert Loss of N.Y. Bar Exam Essays, New York Law Journal, Aug. 3, 2007, available at http://www.law.com/jsp/article.jsp?id=1186089398538 (last visited Nov. 5, 2009). In fact, it turns out they did not for 47 candidates out of the 5,000 who took the test on laptop. In a press release issued on Nov. 15, 2007 along with the final results, the board stated: "one or more of the essay answers for 47 candidates could not be recovered." App. 23a-24a ¶5. Recovery efforts necessarily involved examining the files saved on USB drives, which constitute Virginia’s primary method for saving (See App. 30a-32a ¶10. Cf. App. 9a-10a, Petitioner’s sworn affidavit), which apparently did not work either.
In its press release, The New York board proceeded to explain an ad hoc procedure it adopted to handle those 47 applications:
"Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined."
App. 23a-24a ¶5.
This information directly undercuts the Virginia Attorney General’s position that even if discretion was abused, “ordering [Respondent] to release copies of [Petitioner’s] bar exam answers to him would serve no useful purpose.” Mem. of Law in Supp. of Mot. to Dismiss at 6. Petitioner’s experience and observations of Virginia’s July 2008 examination (App. 9a-10a) tightly correspond to what was observed in New York’s July 2007 examination, albeit handled differently. Both states have policies of finality once results are posted but only Virginia has a policy of nondisclosure. Without proper disclosure (or at least the exercise of true discretion on a case by case basis), the incentive is all too high for bar examiners to arrive at the convenient conclusion that any incomplete or missing answers is attributable to an applicant simply running out of time. In his Brief in Opposition to the Motion to Dismiss, Petitioner stated:
"Curiously [Respondent] has taken no interest whatsoever in what Petitioner has had to say about the software glitch. He could have requested a sworn affidavit detailing the event, if for no other reason than to improve the system for the next examination. Rather, when Petitioner initially reminded him of the announcement about the 24 [Footnote: Ex. G (Sworn Affidavit), reprinted App. 9a-10a Par. 2. Somehow this was determined to be a comprehensive number in a one-hour lunch break for approximately 1,000 USB drives] he merely defended the system: '[y]our assertion that there was some problem with the 'Extegrity computer system' is without basis. There was none.' "
Mem. of Law in Opp. to Mot. to Dismiss ¶16.
Circumstances strongly suggest there was never any intention of the Board to consider the computer glitch issue or exercise the careful judgment of discretion in releasing essays. At the hearing in the Fairfax Circuit Court, counsel for the Attorney General stated two reasons in its rationale for not releasing essays: 1) "integrity" of the exam; and 2) an 80% quota. There was absolutely no comment in regards to the software issue, even when the matter was laid out in detail. The Assistant Attorney General also confirmed that any internal regrades were conducted prior to when the results were posted and not in response to Petitioner's request that "some fathomable explanation" for the perceived scoring discrepancy be explored. Ex. F, reprinted in App. 13a (Initial Request to the Board). Months later, the matter was apparently still being ignored. [Footnote: On April 6, 2009 Petitioner spoke over the phone with Respondent Scott Street requesting any rules of the Virginia Supreme Court that preclude an applicant from obtaining essays. He said he did not recall any but the Board has followed a policy since 1973 that no applicant can obtain their essays, which policy he recalled sending to Petitioner. Afterwards, Petitioner sent a letter requesting that if this policy was reduced to writing, that it be sent to him. No written policy was sent].
The Virginia Supreme Court was provided with a case on point in a different jurisdiction. Eric Zeni, a laptop applicant from the New York July 2007 examination shares his experience in rectifying a software malfunction on his attorney's blog. App. 25a-29a. The software failed midway through one of his questions. After being assured that his essays were received in full, he nonetheless requested copies of his essays. He discovered that a portion of one of his essays was still missing: the same essay in which the software malfunction occurred. Zeni states: "In my request [for essays to be reviewed for the effects of a software glitch], I explained what occurred on the day of the exam, and I attached copies of emails that I had received from the software company which confirmed that my exam had been uploaded and also from [the board] stating that they were in receipt of all my printed and handwritten essay responses. Despite those assurances, I explained, I discovered that my essay was still missing." Id. ¶2 (emphasis added). The board's executive director informed him that they were able to go back to the software company's archives and retrieve the missing essay. He passed and was promptly admitted to the bar. Id. ¶4.
This occurrence in New York sheds light on two things. First, there is a backup system employed by most states, not including Virginia. App. 20a (view column for “Backup System”). Secondly, it shows how dependent boards are on their software company's assessment of any problems with their own software. A week after the above referenced examination it was reported that the software company's president said that backup systems "appear to have prevented the loss of any test takers' answers." Joel Stashenko, Backup Systems Avert Loss of N.Y. Bar Exam Essays, New York Law Journal, Aug. 3, 2007, available at http://www.law.com/jsp/article.jsp?id=1186089398538 (last visited Nov. 5, 2009). On the very same day, the chairwoman of the board stated: "we are advised that no problems have been detected." Id. ¶21 (emphasis added). This turned out to be mere wishful thinking as many applicants would soon point out once they obtained their essay responses.
Eric Zeni's attorney posted comments by affected test takers on his website that demonstrate how vital it is for applicants to obtain their essays. App. 28a-29a (view the second comment: "portions of two of my essays are incomplete and missing. [The board] admitted that whatever they sent me was all they had and all they graded, thus graders did not have the benefit of my complete responses." Note that these observations were made after the press release and when the final results were posted.
Weeks prior to the exam, all laptops must pass extensive checks with the software company to ensure compatibility with the software before they are approved. Petitioner's laptop was approved in this way.
II. THE RULING OF THE SUPREME COURT OF VIRGINIA CONFLICTS WITH THE SUBSTANTIVE GROUNDS RULE OF REVIEW PREVAILING IN MOST OTHER JURISDICTIONS
On August 11, 2009 the Virginia Supreme Court dismissed this case on the grounds it could not compel a discretionary act. By preventing an applicant from obtaining their essays, the Virginia Supreme Court has made it impossible for an applicant to prove any substantive ground for review.
It is for the jurisdictions to determine what constitutes the substantive grounds for review, but the circuits and state supreme courts that have addressed this issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant review. Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967); Feldman v. State Bd. Of Bar Examiners, 438 F.2d 699, 704 (8th Cir. 1971); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974); Poats v. Givan, 651 F.2d 495 (7th Cir. 1981). See also Applicant No. 26 v. Bd. of Bar Examiners of Delaware, 780 A.2d 252 (Del. 2001); In re Thorne, 635 P.2d 22, 23 (Utah 1981); Petition of Pacheco, 85 N.M. 600, 514 P.2d 1297 (1973); In re Monaghan, 126 Vt. 193, 225 A.2d 387 (1967); Staley v. State Bar of California, 17 Cal. 2d 119, 121, 109 P.2d 667 (1941); Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (“treated unfairly or unjustly”); Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (1969 Alaska)(“other serious grounds or circumstances”); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest”).
What this Court is being asked to decide is, first of all, whether lack of a corrective process and a strict adherence to policies of nondisclosure and finality in the context of a software failure constitutes the kind of manifest unfairness or other serious grounds which warrant review. If so, does due process require at a minimum that an applicant whose case bears facts on one of the substantive grounds be furnished with copies of their essays prior to petitioning the state supreme court.
When reviewing or declining to review petitions regarding bar examinations, the Virginia Supreme Court acts “as an administrative agency rather than as a court of appeals. Rogers v. Sup. Ct. of Va., 772 F.2d 900 (4th Cir. 1985) (Unpub. No. 84-1746). Therefore, a proper question looks into the review procedures of the court and the board collectively. Id. The charts reprinted in 19a (Transparency of States’ Law Examiner Offices) and 20a (Percentages of Applicants Taking State Bars on Laptop) show how markedly different Virginia’s policies are than the rest of the country, particularly when it comes to releasing the essays.
The Board of Governors of the Alaska Bar Association argued that as a precondition to the exercise of review, the bar applicant must have demonstrated that his failing grade was a product of "fraud, imposition, or other serious grounds." Application of Peterson, 459 P.2d 703 (1969). Rejecting this contention, the Alaska Supreme Court held that it "left unexplained the mechanics by which the rejected applicant could demonstrate that his failure was caused by fraud, imposition, or other serious grounds or circumstances." Id. In order to comply with "basic concepts of fair procedure" the court ordered that the applicant be furnished with copies of his essay questions and answers. Id. Today, applicants to the Alaska Bar can obtain their essays by written request. App. 19a.
The basic concept of fair procedure is precisely what is lacking in Virginia and other states that follow a similar model. These states may decide as a matter of public policy not to install an administrative appeal as Alaska does, but where no statutory protections are in place the Federal Constitution guarantees that certain minimal due process protections still must exist, particularly for when the Board, and by extension the state supreme court, is at fault. Otherwise, the 14th Amendment prohibition on the states is of no effect. This Court, in Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897) put it well:
"A state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form."
Id. (emphasis added).
The Fifth Circuit, in overruling a summary judgment in a suit alleging racial discriminatory grading practices by the Alabama State Bar came to the conclusion that "access to the bar examination papers was crucial to Plaintiff's case." Parrish, 533 F.2d 942. Rejecting the argument of the Alabama bar that its denial of improper conduct is adequate to support a refusal to compel discovery, the court explained that such a rule would "erect an unreasonably protective shield around parties possessing material relevant and necessary to fair litigation." Id. Similarly, in the case at bar, discretion has become an unreasonably protective shield, especially since the issue upon which discretion should have been based (the software glitch) was ignored. The Virginia Supreme Court then refuses to step in on any matters discretionary.
As in Parrish, Petitioner simply needs the evidence: "With the essays in front of him [he] will finally have an opportunity to determine if his answers were altered by the Exam4 software or an opportunity to demonstrate substantial misgrading of his answers." Mem. Law in Opp. to Mot. to Dismiss ¶2. Furthermore, he "cannot in good faith send a complaint to the (Virginia) Supreme Court because of a public official's inaction (refusal to release essays)." Id. ¶6.
The Supreme Court of Delaware maintains that applicants are not entitled to discovery "absent prima facie showing of impropriety." Applicant No. 26 to the 2000 Delaware Bar Examination (No. 529, 2000) available at http://www.courts.delaware.gov/bbe/scdecisions.pdf (last visited Nov. 6, 2009) Today, Delaware allows their applicants to obtain their essays (Ex. A, App. 19a).
The Supreme Court of New Mexico listed the factors to consider in whether a hearing should be granted to a bar applicant: allegations of fraud, coercion, imposition, misconduct on the part of the bar examiners, or absence of an "appropriate and properly administered bar examination." Petition of Pacheco, 85 N.M. 600, 514 P.2d 1297 (1973). Because no such allegations were made there, the essays were withheld from the applicant. Today, New Mexico has changed its policy to allow all applicants to obtain their essays as a matter of right. Ex. A, App. 19a.
One state supreme court was unwilling to exercise its inherent supervisory authority, setting forth suggestions that in the end proved toothless. Rather than exercise its inherent supervisory authority it instead posed a suggestion to create more transparency: "it offends a sense of fairness for an applicant to invest the time and effort needed to make it through law school and to prepare for and undergo a rigorous bar exam, only to fail it, and be told he is not entitled to know how or why he failed. The court's own view was that the added burden would be outweighed by the benefits inherent in a fairer, more open system." Taylor v. Saftly, 276 Ark. 541, 637 S.W.2d 578 (1982). Despite the exception of its supreme court, the Arkansas board continues to operate a closed licensing process. Ex. A, App. 19a.
It may be the case that the Virginia Supreme Court is likewise taking a passive role. Regardless, the effect is identical and no state can infringe upon the minimal procedural due process protections accorded to bar applicants by the Federal Constitution.
III. NO REAL REMEDY IS BEING OFFERED BY THE BOARD TO IDENTIFY OR CORRECT SOFTWARE ERROR
In Virginia, the Board's cooperation extends only insofar as it will cover their own tracks. Comparing the encoded examination file on Petitioner's computer with the encoded file saved on archive serves one purpose: authentication. Mem. of Law in Supp. of Mot. to Dismiss, at 7. Authentication never was an issue. If the Board ever had reason to believe that the answers were switched with that of another applicant, Petitioner was certainly never informed of that. Petitioner, however, has insinuated that he would be willing to send that information once the essays are released. App. 16a (Response to Respondent’s Request).
The issue at hand rather has to do with two software glitches that required hands-on technical assistance, at least one of which caused him to have to turn his computer off and turn it on again during the saving stage of the exam. App. 9a-10a (sworn affidavit). The fact that this occurred before the data was saved to the USB drive is significant because any damage that would have occurred was localized to the file on his laptop before it was saved onto the USB drive for the Board. Therefore, comparing the encoded file held by the Board with Petitioner's is futile; it is merely a duplication. If Question 4 and Question 7 were cut short (as has been known to happen) then both Petitioner's file and the Board's file would necessarily reflect these two responses being cut short. To classify this as a remedy is misleading.
IV. THROUGH ITS POLICIES THE BOARD IS USURPING JUDICIAL POWER, MAKING MANDAMUS THE ONLY AVAILABLE REMEDY
Both parties agree that Petitioner has a right to petition the Virginia Supreme Court to have a hearing, i.e. “the right not to be heard by the supreme court but to petition it for a hearing and have the petition considered.” Rogers v. Supreme Court of Virginia, 590 F. Supp. 102 (1984). What they disagree on is whether he can obtain his essays in order to undergo this process. To ask this question is very nearly to answer it. It would be impossible for someone to make a successful petition based on an occurrence at the examination if he is deprived of the only evidence that could bear on the issue.
An election contest in Florida raises an interesting parallel on the ministerial duty to ensure accuracy. In Ex Parte Beattie, 98 Fla. 785, 124 So. 273 (1929), there was question as to whether all of the ballots for sheriff were counted in every precinct, which constituted a ministerial duty on the part of the canvassing board. The respondent contended that a statutory remedy for contesting the election existed, which the court found did not specifically address the duty that needed to be performed. The court reasoned that this action was not to contest the election but to “require performance of a ministerial duty on the part of the canvassing board or returning officers such as to correctly and accurately count and make due return of votes cast at the election.” Id. Presumably, if the mandamus led to a different result in the count, this candidate for sheriff would want to use that evidence to contest. Until that point, however, it would make no sense to contest without the only evidence that mattered: the ballot count.
Respondent has been made aware of two important facts: 1) Petitioner has observed a significant discrepancy between the reported essay score and his performance on this section; and 2) Petitioner experienced a crash in the Board's software while saving his essays (an incident that occurred twice). See Ex. G, App. 9a-10a ¶¶3-4(sworn affidavit). The underlying reason for any petition regarding a bar examination is to present specifics as to why it was incorrectly graded. Petitioner clearly has one plausible explanation but no way of proving it without his essays. The essentials of being able to plead with particularity in bar examination disputes is discussed in an Arizona case where a petition was insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading.” Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970).
The Board's notion of discretion in not releasing essays is best summed up in its response brief in state circuit court: "in its discretion, the Board does not provide copies of bar exam answers to any applicant, including petitioner." Mem. of Points and Authorities in Opp. to Pet. for Emerg. Inj. Relief at 3 (December 2, 2008). See also App. 17a ¶1 (“This will confirm that no copies of answers are provided to any applicant”). Remarkably, Petitioner never received any indication that real discretion was exercised in regards to his case.
Without considering any of the evidence regarding the reasons for releasing the essays, the Virginia Supreme Court dismissed the mandamus altogether. App. 1a. The court decided not to address Petitioner's contention that the "inherent authority of (the) court is undermined and effectively neutralized where essay answers, which constitute the heart of the matter, are withheld." Mem. of Law in Opp. to Resp’t Mot. to Dismiss ¶35.
Applying for a writ of mandamus was the only recourse available under the circumstances, as Petitioner made clear to the court below that he "applied for a writ of mandamus not out of choice but necessity." Id. ¶35. The court below was also aware that he applied for it for no other reason than to protect his interests: "Once [he] obtains his essays he can make an informed decision as to how to proceed. This is a tedious, multi-step process only because [Respondent], and the Board collectively, have made it so." Id. ¶38.
A deposition of the Executive Director of the South Carolina Board of Law Examiners sheds further light on the relationship between the Board and its supreme court in a closed licensing process:
"[W]e [law examiners] are subject to the control of the Supreme Court, and we take no action of an affirmative nature without first conferring with the Supreme Court and getting their approval of it…we are subject to their supervision in everything we do.”
Dep. of J. Means McFadden. Richardson v. McFadden, 563 F.2d 1130 n.1.
Assuming that Virginia is similar to South Carolina, another one of the so-called "non-transparent" states (see App. 19a), one could infer that the Virginia Supreme Court is actually responsible for its Board’s policies of finality and of applicants not being able to obtain their essays, even when there are probative facts left unexplored. See Ex. G, App. 9a-10a (sworn affidavit). If such is the case, the Board is not so much usurping authority with the Virginia Supreme Court as is the Virginia Supreme Court engaging in plausible deniability. [Footnote: Recall, however, that in Taylor, 276 Ark. 541 (1982), the supreme court recognized the unfairness of a closed licensing process and made suggestions to increase transparency, which represents a passive approach to the problem]. Once again, this is a Catch-22 for any applicant with a legitimate dispute.
The U.S. Supreme Court has the power, in a proper case, to issue writs of mandamus where appeal is a clearly inadequate remedy. 28 U.S.C.A. S 1651(a). To qualify for mandamus, this Court has "required that petitioners demonstrate clear abuse of discretion" Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953) or conduct amounting to "usurpation of judicial power" De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212 (1945). See supplementary review power conferred by the All Writs Act, 28 U.S.C.A. § 1651(a). For all of the above reasons, both are shown.
The other requirement for mandamus is that there be a showing that there are no adequate alternative means to obtain the relief sought. Here the relief sought is the essays themselves. At state circuit court both parties filed briefs on the applicability of the state Administrative Process Act, and both concluded that the Board is exempt to that as well as the Freedom of Information Act. In fact, even if the circumstances warranted issuance [Footnote: At the conclusion of the Dec. 5th 2008 hearing before the Fairfax Circuit Court, Judge Alden asked counsel for the Attorney General if it was the Attorney General's position that the court could not mandamus the essays. When she said that it was, the judge asked what remedies are then available to an aggrieved applicant. Counsel responded: "that is an interesting question."], the state circuit court is without jurisdiction to compel the release of the essays. App. 3a-4a (Order of the Fairfax Circuit Court) (Alden, J).
Without the essays, Petitioner will never be able to petition the Virginia Supreme Court, which likewise defeats the eventual exercise of the U.S. Supreme Court's appellate jurisdiction over his case.
V. THROUGH ITS DISMISSAL, THE VIRGINIA SUPREME COURT IGNORED THIS COURT’S FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE UNDER MATTHEWS v. ELDRIDGE, 424 U.S. 319
The decision not to compel the release of the essays while there is an open question as to whether the essays had been corrupted or not by a software crash contravenes this Court's due process jurisprudence as discussed below.
The Virginia Supreme Court exercises inherent supervisory authority over its bar examination board. Woodard at 5. This Court should not tolerate the court below's decision to place its supervisory power into the hands of the very organization (the Board) it is supposed to supervise. Since an act of discretion was in dispute, the Virginia Supreme Court should have construed all evidence that pointed to arbitrariness, capriciousness, or abuse of discretion in Petitioner’s favor. The alternative acts to deny him his day in court.
A. NO CORRECTIVE PROCESS
This Court held in Goldberg v. Kelly, 397 U.S. 254 (1970) that due process may not require a full blown hearing but there must at least be a "responsible determination of the issues present.” To date, the Board refuses to acknowledge that there is a problem with their software system notwithstanding what Petitioner experienced, implying that there could be no injury. Doubtless this is the ground on which the Board has chosen not to investigate. Furthermore, Respondent incapacitates the minimal due process protection afforded to applicants to petition the Virginia Supreme Court by making a blanket rule against any applicant obtaining their essays. Respondent’s only action is to offer to compare the code the Board has on archive to the one saved on Petitioner’s computer. Petitioner rejected this offer for the following reasons as laid out to the Virginia Supreme Court:
"Herein lies the problem. Nothing in the facts indicates that there is a possibility that Petitioner's answers were switched with that of another applicant. Rather, the facts do point to the very real possibility that the answers themselves were corrupted in some way before they were saved. If there was corruption, such would simply have been duplicated [onto the USB drive]."
Mem. of Law in Opp. to Resp’t Mot. to Dismiss ¶18.
In other words, an exact match of Petitioner’s encrypted file to the one saved on archive does not rule out the possibility of software corruption of the essays. If the court below would not have dismissed the case, a highly credentialed expert witness would have confirmed this.
As demonstrated in the case of Eric Zeni, no amount of internal checks and procedures can substitute for an applicant being able to obtain their essays. App. 25a-27a; see also comments in App. 28a-29a.
B. FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE
In Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976) this Court considered three factors when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure.
1. Private interested affected by the action
Many applicants, like Petitioner, have decided to use their law degree to go into public service. Some, like Petitioner, have secured postgraduate fellowships at these organizations where they would be taken on full time once they pass the bar. [Footnote: After a ten-week fellowship, Petitioner was precluded from taking an opening that was available at the Arlington Commonwealth Attorney's Office]. Without a corrective process in place, all applicants who should have been corrected are effectively penalized for six months. If they work for a public service organization they will in all likelihood lose their job.
2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards
The flaws inherent in the software used for the bar examination demonstrate this risk. This is a risk (unbeknownst to them) now undertaken by over 50% of bar applicants throughout the country. App. 20a. Essay answers have been known to be partially or totally missing after software problems of the exact same nature experienced by Petitioner. App. 30a-32a (New York Law Journal report on New York July 2007 software mishap). Obviously, no credit can be given for what is not there.
The value of releasing essays to applicants who take the computer based test is fundamental and safeguards the integrity of the bar examination. First, it promotes the appearance of a fair test. Second, it encourages graders to identify and isolate essay responses that appear to have been corrupted, because if they do not then the applicants themselves will. App. 28a-29a. Grading any of these responses leads to inaccuracy, which ironically defeats the underlying purpose behind having a proficiency test.
In the absence of a corrective process on the part of the Board when the performance of its software is in question, applicants do have a right to petition the Virginia Supreme Court. However, without the essays this right is of no meaningful value. Even legitimate complaints are doomed from the outset. See App. 3a-4a (Order of the Fairfax Circuit Court, even with the facts of the software malfunction, the complaint fails to plead “any clearly identifiable, non-hypothetical damages”). There is no reason to believe that without the essays the Virginia Supreme Court will not come to the same conclusion. This is not out of lack of merit but because the essays are erroneously withheld.
3. Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail
Neither the Virginia Supreme Court nor its Board have identified an interest or harm that would occur if an applicant could obtain his/her essays. [Footnote: Respondent did refer at the December 5, 2008 hearing at the state circuit court to an 80% quota and the integrity of the exam, but these concerns were dropped at the supreme court level once evidence as to what the other states were doing was disclosed]. The Board maintains that all results, once posted, are final and there is no appeal. App. 17a (Final Denial of Petitioner’s Requests). In so doing, it forestalls any costs after that point. However, releasing essays is a safeguard that would not add one penny to the cost, which is typically borne by the applicant for a small fee. [Footnote: For example, the Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service. Phone conversations January 15, 2009 and February 10, 2009 respectively].
Should the Board recognize the flaws inherent in the software and decide to adopt a corrective measure, the process need not be a formal one. In North Carolina, a state that allows applicants to obtain their essays (App. 19a), the board suggests that an applicant write to the chair about significant flaws in the grading by pointing out where points should have been awarded. [Footnote: Phone conversation. January 9, 2009].
Without employing any such measure, a right to obtain essay answers would add nothing to the cost. In each of these eight so-called "non-transparent" states (App. 19a) applicants already do have a right to petition the state supreme court. These state courts can dismiss cases, and regularly do with relative ease, according to their discretion. State supreme court justices are, of course, sworn to uphold the law. If an applicant had the essays in hand that proved fraud, arbitrariness, mistake, coercion, manifest unfairness, or other serious grounds for reversal, then they would be remiss in dismissing that case.
Without the intervention of this Court, applicants will have vastly different constitutional rights based on where in the country they are located. When a software glitch of a nature known to result in inaccurate grading (as in the Eric Zeni case) has occurred, due process demands that there be a means to rectify. In Virginia the corrective process is not only inadequate; it is nonexistent. This issue directly bears on the bar admission processes of eight States.
Given what occurred, the present case should never have been dismissed. Petitioner has sought nothing more than the evidence that is absolutely essential if he finds it necessary to petition the Virginia Supreme Court.
The Board has violated its duty, arisen through custom between examiner and examinee, to make scoring information available when error is possible. This duty is ministerial and exists notwithstanding any policy of nondisclosure or finality. In lockstep, the Virginia Supreme Court says it cannot compel the release of the essays, ignoring its own inherent supervisory authority. Petitioner is thereby caught in a classic Catch -22.
Assuming that portions of Petitioner’s essays were lost by the software malfunction, there would be no way for him to substantiate his petition under the current system unless he was to affirm personal knowledge that portions were in fact missing. Without the essays, such an affirmation would compromise his integrity because he would be attesting to something he could not possibly know. As an aspiring attorney, Petitioner holds himself to the same standards of honesty and candor that is expected in the legal profession.
Black’s Law Dictionary, 5th ed. defines “due process rights” as: “All rights which are of such fundamental importance as to require compliance with due process standards of fairness and justice.” This Court has struck down legislation which denied trial transcripts and hence in effect access to appellate review of their criminal convictions. Griffin v. Illinois, 351 U.S. 12, 19 (1956). Like a trial transcript in a criminal appeal, the essays are essential to a bar examination petition to the state supreme court. Without a corrective process by the Board, without judicial review under the state Administrative Process Act, and without the essays to present a petition to the Virginia Supreme Court, Petitioner simply has nowhere else to go but here.
This Court should grant review.
December 22, 2009
Update (11): November 30, 2009. The cert brief is completed and will be posted in a couple weeks after Scott Street, Secretary of the Virginia Board of Bar Examiners, has been served. The following is a follow-up to the article published last spring, and is currently running in the most recent issue of Washington & Lee School of Law's "The Law News" and George Mason University Law School's "Docket."
Over the past year I have decided to represent myself in an interesting legal case against the Virginia Board of Bar Examiners. First, a quick review of my background. I graduated from law school in May 2008 and took the Virginia Bar Exam in July. At the test I experienced a software malfunction that caused me to have to seek hands-on technical assistance during the saving stage of the exam. In October, when the results came out, my essay score appeared to be significantly underreported, and I requested my essays. After being denied from obtaining my essays, I filed for an emergency court order in the Fairfax Circuit Court in November. That court took the matter under advisement and ultimately denied relief for lack of jurisdiction in mid-March.
The Fairfax Circuit Court, in considering what remedies are available to an aggrieved test taker, requested supplemental briefs on the applicability of the state Administrative Process Act. It turns out the Board is both exempt from that as well as the Freedom of Information Act. Without the essays, it was impossible to make an informed decision as to whether to petition the Virginia Supreme Court under one of the substantive grounds of review for a bar exam (substantial misgrading, manifest unfairness, fraud, imposition, or coercion). Even if one of the above occurred, it would be impossible to prove it without the only evidence in which it could be proved. Despite repeated requests, I was completely thwarted in all my attempts to obtain the essays.
In order to get perspective on Virginia's nondisclosure policy, I phoned each bar examiner office in the country (contract info. easily accessble off of the National Conference of Bar Examiners' website) to find out what rights applicants in those jurisdictions have to their essays. It turns out 43 jurisdictions allow some form of access, most of which simply send the essays in the mail for a small fee. I also discovered that many of these states, like New Hampshire and Tennessee, just recently instituted the computer based test in the last year or so. Some, like Connecticut, Massachusetts, and Indiana have been considering it for some time but have decided against it for one reason or another.
On April 6th, I called Scott Street, Secretary of the Board, and asked if there was any rule of the Virginia Supreme Court that precludes an applicant from obtaining their essays. He said he was not aware of any but the Board has been following a policy of nondisclosure since 1973. Furthermore, he said that once the results are posted they are final, which policy he recalled sending to me. I informed him that other state bar examiners' offices are posting all such policies on their websites and there is a strong national trend towards an open grading system. In a follow-up letter I inquired as to whether the policy of nondisclosure is a written or informal policy and if written that it be sent to me. No written policy was ever sent. There was also never any mention that my concern about the software glitch was even considered.
Having every indication that no real discretion in releasing essays was exercised, I had no choice but to petition the Virginia Supreme Court for mandamus under its original jurisdiction to compel the secretary to release the essays. Mandamus is a court order to compel a public officer to do his duty, in this case disclosing essays where error is possible. I also reserved the right to petition for a second hearing for the purpose of reviewing these essays if it turns out to be a case of substantial misgrading or the software glitch caused data loss. My argument was straightforward: discretion in releasing essays was abused because the issue present, i.e. the potential impact of the software crash, was never looked into and no remedy was set forth. Furthermore, the Board has unduly incapacitated my petition to the Virginia Supreme Court by withholding the only evidence in which I could present a valid petition with the kind of particularity necessary to withstand a motion to dismiss. Representing the Board, the Assistant Attorney General argued that even if discretion was abused, nothing could be done about it now.
While the court was considering, the July 29 one year mark was fast approaching. According to law, the Board is required to preserve the essays for one year following the test, presumably for disputes like this one that arise. I brought a motion for protective order to ensure that the Board does not destroy the test papers while the litigation is underway, since they represent not just a significant part of my case but the entire case itself, "upon which all of my rights rely." In response, the AG's office filed an informal letter on behalf of the secretary and the Board agreeing to protect the "answers in question." When asked by the clerk if that would suffice, I responded by letter that it did not because the glitch covered the entire exam; therefore, all of it is in question. The language, I argued, could be exploited at a later date. Despite my objections, the AG did not change the letter. The court then denied relief. When I asked if the judges had my letter in front of them, the clerk's office could not confirm this although, strangely enough, they could confirm that the AG's letter was there.
One week away from the one year mark, I brought an emergency motion for reconsideration on the ground that my letter and reasons for objecting to the AG's letter was probably not considered. This time the Assistant Attorney General revised the letter to use the same language I used in my motion: "all essay responses and short answers."
Finally, on August 11th, in a two-sentence opinion that was significantly shorter than the Fairfax Circuit Court, the court found that it could not compel a discretionary act, dismissing the case altogether. This dismissal came as a surprise, especially since the court was informed in detail about the software glitch on both my computer as well as a number of others. They were also made aware that other jurisdictions have experienced loss of essays and portions of essays due to software malfunctions just like mine. In New York's July 2007 test, for example, alternative grading methods approved by the National Conference of Bar Examiners went into effect (See the board's press release, fifth paragraph down, http://web.archive.org/web/20071118141039/www.nybarexam.org/PRESS.HTM). After retrieving lost data on hundreds of test takers who experienced software malfunctions at the saving stage, 47 could still not be found despite a USB backup. Dismissals act to deny a person their day in court, which is why every allegation is supposed to be taken as true as well as any fair inferences that could be drawn. My case easily satisfied this standard.
According to the rules of the Virginia Supreme Court, you have thirty days to petition for rehearing. I seized this opportunity to inform the court that there was no other way for me to petition it without the essays in hand, making any bar applicant's right not to a hearing but to petition for one completely illusory. In other words, the court itself is prevented from making an informed decision on whether to hear the case. I set up my rights specifically under the due process clause of the Fourteenth Amendment of the Constitution of the United States. In addition, I voluntarily attached a sworn affidavit and notified the court that I had an expert witness to address the inadequacy of the Board's procedures. On September 23rd this was denied without opinion. Conspicuously absent was any alternative roadmap to resolve this issue.
At the Library of Congress I began reading Gressman's Supreme Court Practice, where I learned everything I needed to know about how to file a petition for certiorari to the U.S. Supreme Court as a pro-se plaintiff. I also got on the phone with each jurisdiction's bar examiner office again and discovered that over half of bar applicants nationwide are now taking the bar exam on laptop. It's now firmly established, which means the time is ripe for Virginia to join the other states in implementing more open and transparent policies in regards to the essays. I have three months from September 23rd to timely file this and I am currently in the middle of preparing the cert brief. Until then, I remain in my Catch-22.
Update (10): October 10, 2009. In my research for the cert petition, I have discovered that 42 jurisdictions have a laptop essay exam. Out of the 42, 30 of these jurisdictions now have over 50% of their candidates taking it on laptop. This number appears to be rising as applicants like myself who are accustomed to taking law school exams on laptop sign up thinking all the same safeguards of full disclosure would be in place. While I agree that it is a good thing for us to be making a transition to computer based testing, it is no longer appropriate to be cloaking these tests in secrecy. I have confirmed that several other states besides Virginia have had problems with the software. In the brief it submitted to the Virginia Supreme Court concerning my case, the AG's office argued that even if there was abuse of discretion by not releasing essay answers, nothing can be done about it now. The National Conference of Bar Examiners does indeed have an established protocol for when data is lost in a software malfunction (see website below). I commend states like New York whose bar examiners are open about problems that occur and give a good faith effort at resolving them. Let me remind you that at two separate sessions during the July 2008 bar exam an entire team of technicians was overwhelmed by the sheer number of applicants who experienced problems saving and uploading their essays. Unless I obtain my essays, which constitute the only evidence that could determine what occurred, this question will always be an open one.
Update (9): On September 23rd the Supreme Court of Virginia denied the petition for rehearing without opinion. Included in that petition was a sworn statement by myself detailing the Exam4 software malfunction which required me to reboot my computer at the saving & uploading stage of the essay portion and how the computer technicians on standby were overwhelmed by the sheer number of applicants who experienced other similar problems at this point of the exam. The Court was also informed that I have an expert witness on data loss and retrieval. By utilizing the ever helpful Internet Archives I have been able to locate a press release which has since been taken down from the New York Board of Law Examiners website that went out with the results from the July 2007 test. http://web.archive.org/web/20071118141039/www.nybarexam.org/PRESS.HTM. See the fifth paragraph down, where it discusses that after retrieving lost essay data on hundreds of laptop test takers, essays of 47 applicants never could be found. Unfortunately in Virginia there does not seem to be a capacity to retrieve lost data at all; nevertheless we will not know the extent of this problem in Virginia until it adopts the generally accepted approach of 43 US jurisdictions in disclosing the essays upon written request. If it turns out that data was indeed lost then I myself can still be made whole by pursuing several methods. I am now prepared, as I have continued from Day 1 to pursue this on my own, to proceed with this case to the U.S. Supreme Court.
Update (8): Yesterday, August 24th, while at the Library of Congress, I discovered that the first question that the U.S. Supreme Court will ask is whether the federal question was sufficiently argued at the state level so as to put the state's "court of last resort" on notice that a federal question is involved. The federal question must either be raised or addressed in the opinion of the Virginia Supreme Court, and because the court did not address the matter in its opinion I need to ensure that it was at least raised properly. Arguing due process at the state level can be construed as applying to a state constitution's due process clause, which would be cause for dismissal at the Supreme Court of the United States. In Virginia, I have a right to petition for rehearing within two weeks of the court's decision. I am now preparing this petition to clarify my rights under the fourteenth amendment of the Constitution of the United States.
Update (7): Yesterday, August 20th, I was doing research at the Library of Congress and I came across a very interesting article. It turns out Eric Zeni (mentioned below and included as evidence in my case) was only one of hundreds of applicants who experienced a software malfunction during New York's July 2007 bar examination. Refer to ABA Journal, "Law News Now," July 26, 2007. Most remarkable about the problem was how it was characterized: "problems saving and uploading their essays." Mind you, this is about 400 candidates whose scoring was under question. Refer to New York Law Journal, September 15, 2007. Another article in the New York Law Journal confirmed that software problems have led to many scoring inaccuracies over the years.
Update (6): Today is August 13th. On the afternoon of August 12th I received a letter from the Supreme Court of Virginia dismissing my complaint altogether in an opinion that was significantly shorter than the circuit court opinion. Disposing of the case in just one sentence the court states: "on consideration of this case, the court is of opinion that mandamus does not lie to compel the performance of a discretionary act and the writ of mandamus should not issue as prayed for." As a concerned citizen of Virginia I believe it is now my duty to send my petition for mandamus to the United States Supreme Court. Below is a letter to the Virginia Board of Bar Examiners faxed to their office this morning:
I am in receipt of a letter from the Supreme Court of Virginia dated August 11th indicating that my petition for mandamus was dismissed. As you are aware from my complaint and argumentation in response to the motion to dismiss, there are due process considerations involved in this matter which can only be resolved once I obtain the evidence, namely my essay responses and short answers. Furthermore, my research demonstrates that the Commonwealth of Virginia is one of a select few states whose bar exam policies run contrary to the national trend to adhere to an open and transparent essay grading system in light of the ever increasing dependency on computer based testing. Consequently, I have decided to send my petition for mandamus to the United States Supreme Court.
While my mandamus petition goes forward I will be seeking an order of protection for all evidence in relation to my bar exam, especially the bar exam essay responses and short answers which your office has already set aside to preserve beyond the one year required by law.
Enclosed is a $50 check for attorney's fees as ordered by the Supreme Court of Virginia.
cc: Assistant Attorney General Catherine Hill"
Update (5): On July 7th the motion was denied I suspect because the judges were unaware of my reasons for pursuing the motion. I filed another emergency motion for reconsideration for that reason. On July 22nd I received a copy of a letter sent to the court by the Attorney General's office agreeing to preserve all "essay responses and short answers."
Update (4): The case is at the pleading stage. Since the July 29 cutoff date is fast approaching whereby the Board is no longer required by law to preserve the essays, I brought an emergency motion to protect all "essay responses and short answers." The Board informed the court that it will preserve the "bar exam answers in question." I have informed the court that because of the vagueness of this response, I wish to pursue the motion. I would not want to be in a situation where, after all of this, the Board feels at liberty to be destroying particular essays or short answers that they feel are "not in question." Because of the nature of the Board's software glitch at the saving stage, all of it is in question.
Update (3): On April 22nd I sent ten copies of my complaint to the clerk of the Supreme Court of Virginia requesting mandamus relief. I will be representing myself, pro-se.
Update (2): On April 6th I called the Virginia Board of Bar Examiners and requested the Rules of the Virginia Supreme Court that prohibit applicants from obtaining their essays. Scott Street, Secretary-Treasurer, informed me that he was not aware of any and that this has been a policy of the Board since 1973. I explained to him that other jurisdictions often put up any rules that pertain to obtaining answers, review, and appeal on their websites.
Update (1): On March 16th the Fairfax Circuit court denied the motion to compel the Board of Bar Examiners to release my essays for lack of jurisdiction. "To the extent the Petitioner seeks a mandamus ordering the Board to release his bar exam answers, the Petitioner should invoke the original jurisdiction of the (Virginia) Supreme Court." Additionally, "the Court does not reach the issue of whether the Board has abused its discretion by adopting a policy to never release bar exam answers to applicants."
George Mason School of Law's Docket, Feb. 12, 2009
(two part story)
William & Mary School of Law's Marshall-Wythe Press, March 5, 2009
Washington & Lee School of Law's The Law News, early March 2009
(expected to be published on-line as well by the end of the year)
For those of us who want to go on to practice law after graduating from law school, the bar exam represents that final hurdle that must be overcome. After graduation there is a grueling 10-week study streak before the exam. When taking a bar review course students are advised to tell all family members and friends that they will be temporarily hard to reach for at least a while. It is here where the ambiguities and open ended questions we wrestle with in law school are set aside while the black letter law is clearly laid out. But what happens if something goes wrong during that "final hurdle"?
As a recent graduate of William & Mary School of Law, I took the Virginia Bar on July 29th and 30th last summer. The first day entailed a six-hour essay examination made up of nine essay questions and one short answer section. I spotted all the legal issues and applied the facts to the relevant law. In fact, not one question threw me despite the fact that my law school class was told by a representative from the bar examiners that we would probably be clueless on one of the essays given the sheer volume of information we would be taking in over the next ten weeks. We were reminded that this was just a test of minimum competency, so if you don't know the answer then reason like lawyers do and use legal terminology profusely in the essays and, by all means, come to a conclusion. None of this was a problem for me as I knew the material like the back of my hand. After the test was completed I felt supremely confident that my essay performance was well above the curve.
I was one of a growing number of students who opted to take the exam on laptop through Exam4 software, a service the Board contracts for with Extegrity, a security software company based out of California. This is a new way of testing that is being employed throughout the country and remains a pilot program for further observation by a number of states. Although I would have preferred a hand written test, the fact that there is an option to type the exam on laptop affords an obvious advantage over the handwriters because of the typing speed- I have never heard of a fast handwriter being able to even come close to a fast typer. Even more significantly, the graders probably favor the laptop system since it saves them the hassle of having to read through and decipher pages and pages of handwritten material. One could say they have a vested interest in perpetuating an illusion of perfection so that more and more applicants take it by laptop every year. I am sure that you will all be told, as I was last year, that there are no problems with this system. But don't believe everything you hear, and consider my story.
I experienced serious technical difficulties with the Exam4 software during the very crucial saving stage of the exam. When time was called, a person on the microphone led us through a ten step process that was given orally and only once (which is strange considering that a step by step procedure for setting up the Exam4 software was given to us in writing before taking the test). I followed the instructions exactly as stated. About halfway through these oral instructions an error message came up on my screen. Just as we were instructed to do if there was a problem, I put my hand up to request technical assistance. After the last instruction for saving was given, the person on the microphone asked for a show of hands for any problems. Many hands went up. In fact, there were so many hands that went up at that point that despite a sizable team of technicians on standby no one could get to me for about ten or fifteen minutes. I do not remember exactly how many test takers with problems there were but I can safely say that there wasn't nearly enough of the technical staff to go around. When someone finally came over to help me amidst the noise and confusion of everyone lining up to hand in their USB drives and rushing to get out for the one-hour lunch break, the technician had to begin working on my computer hands-on. As I recall, I was even instructed to reboot my computer and then undergo the process of saving again. At no time did the technician tell me that I did something wrong or that my laptop was at fault or make mention of what the problem actually was. If there was a camera monitoring the room it would further show that the same exact thing happened in the afternoon. That time I was so frustrated I actually got up from my seat and stood by a technician until he came to my computer. The young lady sitting across from me experienced a problem as well and, looking at me in an exasperated way as if to say "you too?!" she got up to get a technician. Once again, the technician had to work on my computer "hands on", once again, without explanation. I was so delayed in the afternoon session that in fact I was the last applicant to leave the room out of approximately 1,000 people.
The reoccurring computer difficulties could be an explanation for the discrepancy between the reported score and how I believe I performed. Of course, this could still be a case of significant oversight in the analysis of my answers. I remain confident that once my answers are revealed, and if they are intact, they will be shown to have clearly passed. In order to pass, you need a Combined Weighted Total of 140, and my Multistate Score was 137.5, right around where I expected it to be since I spent less than half of my time preparing for a section that was lesser weighted. To obtain a license in Washington D.C. all you need is a Multistate score of 133. In order to pass the test, all I needed was a 141.5 on the essay portion. The essays are entirely knowledge based and I strongly felt that I hit that out of the park. To see a grade in the mid 120's told me immediately that something was amiss. Practically speaking, there is only one question concerning my admission to the bar. Are my essays deficient, or not?
Looking back on that day, I also recall another interesting occurrence during the test. Shortly before the afternoon session, an announcement was made to everyone in the laptop room that 24 applicants were found to have had answers misplaced in the system. I remember well the looks of concern on people's faces that resulted from this announcement. Nobody knew who they were. These 24 would know once they received a note along with their afternoon test booklet instructing them on how to reposition their answers. Clearly the system had problems. On October 21st, following the notice that I did not pass, I sent a letter to the Board requesting a review of my essays. In my letter I cited "one of the most fundamental concepts of the law...that of appeal." The Board responded that the essays were regraded since the overall grade was close, and that there is no review or appeal process available. On October 28th I reminded the Board of the technical mishap with the 24 and requested an immediate appointment to review my essays in Richmond, a ninety minute drive from my house, to rule out the possibility of a computer mishap. I stated: "Is it unreasonable to question the system in light of this error? My own case may be an example where the translation of the essay responses is left incomplete, partly translated, or perhaps mistranslated." I received a response on October 30th completely disregarding my request and stating, "the results are final." On October 31st I again contacted the Board: "The letter I received from you did not respond to this specific request (of reviewing the answers in person) and, despite my best efforts, I have been unable to reach you (Secretary Scott Street) over the phone all week...it now seems to be necessary that I obtain my essay answers." Shortly thereafter, on November 3rd I received an email from a staff member directing me to send them an encrypted copy of the Exam4 file saved on my computer so they could compare it to the one they had. This did not address my concern. All this would do is confirm that the USB drive appropriately saved whatever encrypted data was on my computer, corrupted or not. It does not answer the question of what happened, if anything, at the saving stage of the exam. The file on my computer, as I would later tell the court, may very well have been corrupted. What if the data was lost when the error box came up? I would need to see my answers. Why not send me my essay answers?
Applicants for the bar have no idea how much trust they are putting into a computer system that is far from perfect. Consider what happened in the much more transparent state of New York on its July 2007 bar exam:
Eric Zeni, a recent graduate, experienced technical difficulties just like I did. In the middle of a question the software gave out on him and he was forced to handwrite the rest of the exam. After receiving a failing grade, he petitioned the Board and reminded them of this computer mishap. Just like me, he was informed that his answers were received in full and to rest assured that the result was accurate. Then he requested his essay answers. Unlike me, he was able to get his answers, apparently without a problem. Sure enough, he was able to pinpoint where a significant portion of his test was lost in the encryption/ translation of his answers. What's more, the essay was graded despite the fact that his answer was incomplete. Eric used his recollection of what he wrote to pinpoint for the Board exactly where the missing portion was, and by doing so was of great help to the Board in ensuring accuracy. As a result, his test was reviewed again and found to have passed. Soon thereafter, he was sworn in. It turns out that Eric was one of many who experienced technical difficulties, and consequently New York changed its computer software servicer from Exam Secure to Exam Soft, which is most commonly used in all state bars that provide the laptop as an option. I am also informed that New Jersey recently switched software companies as well. At least these states recognize the inherent imperfections in the system and leave open the door for review. Had Eric Zeni not gotten his answers his problem would likely have become a lost cause. New York's process is clearly an open and honest one, which upholds accuracy and not finality as its primary goal. After dealing with the Virginia Board of Bar Examiners, I got the distinct impression that they simply want my problem to go away. It would, if they would just send me my essay answers.
After doing this research on what happened in New York, I replied to the Board on November 4th that before I send over the encrypted file I needed to obtain the essay answers. That is how it was done in the case with Eric Zeni, and it is the only way that makes sense. Examining the code could be a helpful second step but it does not address my concern about what happened at the critical saving stage of the exam. I am undoubtedly the best asset the Board has in determining the authenticity and completeness of my essays. Eric Zeni's mishap affected one question. The problem I experienced may have affected my entire test! It would certainly explain the discrepancy. Still, without responding to my requests to get my answers, I received a response that no further action would be taken. A follow-up letter said this matter was now "CLOSED."
At this point I had no other option but to file for emergency injunctive relief in my county of residence at the Fairfax Circuit Court where I requested that the Board be forced to release the essays to me. The Board right away challenged jurisdiction, saying that they are an agency of the Virginia Supreme Court and could not be hailed into court there. I argued that they were indeed subject to jurisdiction of the circuit court because they are a quasi governmental body subject not only to the Rules of the Supreme Court of Virginia but to the laws of the General Assembly. I argued that this was a case of abuse of discretion by not exercising the discretion to release answers afforded to the Board by law. Va. Code Section 54.1-108(1). The Board, represented by Assistant Attorney General Catherine Hill, argued that "in its discretion the Board does not provide copies of bar exam answers to any applicant." Respondent's Brief, December 2, 2008. I argued that this was no real or meaningful discretion at all, that the Board was circumventing its own discretion by making an inappropriate rule against the discretion afforded to it by law. Such a hard line rule is designed for no other purpose but to effectively obliterate the last remaining transparency that the General Assembly intended for the public to have to ensure the integrity of the system. To show how the board was undermining legislative intent, I brought up the point of what would be the reason for Virginia instituting a specific law that requires the Board to maintain the essays for one year. See Va. Code Section 54.1-3929. It's for cases and controversies like mine. The board’s policies are simply encouraging a closed licensing process. Why all the secrecy? What harm could there possibly be in sending me my essay answers?
Long story short, Judge Alden in my emergency motion of December 5th, asked Catherine Hill whether the Virginia Supreme Court has original jurisdiction over this matter. The answer was no, unless it could be likened to a disciplinary matter, which this is not. When asked what recourse does an aggrieved person have, Catherine Hill responded: "that is an interesting question." When the same question was given to me I said after doing research there appears to be little or no precedent. Since December 5th the matter has been taken under advisement by the judge and we await the ruling. Since then I have researched other jurisdictions such as North Carolina, Michigan, Indiana, and the District of Columbia and they all recognize the importance of an appeal process because test results have in the past been overturned, even after having been re-graded. The Virginia Board of Bar Examiners has many examples of how other jurisdictions uphold the integrity of the subjective essay grading system. During this transition stage where the Board is encouraging more and more to take the test on laptop, it is time for the Board to adapt to the changing trends throughout the United States and adopt the appropriate safeguards. Releasing the essay answers upon request would be a first step in that direction. For additional information, refer to my blog: http://jonathanbolls.blogspot.com.
In my last statement to the Board of November 12th I explained my reasons in going forward with this: "I understand that you do not appreciate anyone questioning this system, but may I remind you of the simple truth that no system is perfect." To date, the Board has refused to send the answers, even though they have been informed that my aspiring prosecutorial career in Virginia hangs in the balance. After the bar I did a postgraduate fellowship with the Arlington Commonwealth Attorney's office. Just about every other state on the east coast would honor a request to obtain the answers for a small fee, even without a reason given. Here not only do I have a legitimate reason but the Board has discretion; they simply haven't exercised it. In a system as new as this, where data is automatically encrypted as it is typed, saved onto laptop then transferred to USB drive before being translated back to the English for the graders, one is absolutely at the mercy of the correct functioning of the computer system. When things go wrong, as in my case, there is no better reason to divulge the answers to at least rule out the possibility of technical mishap. The integrity of the system and the people of Virginia depend on it. It's nothing but a small inconvenience to photocopy the answers- other states do it regularly. For me on the other hand, it would be of great benefit- they have been made well aware of that.
So the question remains...why not send me the essay answers?
I have called the following states' board of bar examiners to find out what their policies were on this subject. I have called every state on the east coast and plan to call all fifty so this is still a work in progress.
On January 9th, 12th, 15th, and 27th I called the following states on the east coast:
Maine (essays obtainable) (model essays obtainable)
Vermont (essays obtainable) (model essays obtainable)
New Hampshire (essays obtainable) (appeal)
Massachusetts (essays obtainable)
New Jersey (essays obtainable)
Rhode Island (essays obtainable) (appeal)
Connecticut (essays obtainable) (provides breakdown of each essay score)
New York (essays obtainable)
Pennsylvania (essays obtainable)
Maryland (essays obtainable)
Virginia (no transparency)
District of Columbia (essays obtainable) (model essays obtainable) (appeal) (review)
North Carolina (essays obtainable) (selected approved answers obtainable) (appeal)
South Carolina (no transparency)
Georgia (no transparency)
Florida (essays obtainable)
On January 15th I called the following:
Washington (essays obtainable) (model answers obtainable) (appeal)
Ohio (essays obtainable)
Illinois (essays reviewable) (model essays reviewable)
On January 16th I called the following:
Indiana (essays obtainable) (model essays obtainable) (appeal)
Colorado (no transparency)
Michigan (essays obtainable) (appeal)
Nebraska (essays reviewable)
Iowa (essays obtainable)
On February 6th I called the following:
Texas (essays obtainable)
Montana (essays obtainable)
Wyoming (essays reviewable)
Wisconsin (essays obtainable) (model essays obtainable)
Kansas (essays obtainable)
On February 9th I called the following:
South Dakota (no transparency)
Hawaii (no transparency)
Kentucky (essays reviewable) (model essays reviewable)
New Mexico (essays obtainable) (model essays obtainable)
Minnesota (essays obtainable) (model essays obtainable)
On February 10th I called the following:
Arkansas (no transparency)
Alaska (essays obtainable) (appeal)
Missouri (no transparency)
Tennessee (essays obtainable)
On February 11th I called the following:
Alabama (essays obtainable)
Oklahoma (essays obtainable) (model essays obtainable) (appeal)
North Dakota (essays obtainable)
Utah (essays obtainable with scoring breakdown) (model essays obtainable)
On February 12th I called the following:
Oregon (essays obtainable) (model essays obtainable) (appeal)
Arizona (essays obtainable) (appeal)
On February 13th I called the following:
Louisiana (essays reviewable)
California (essays obtainable) (appeal)
On February 17th I received an email response from the following:
Delaware (essays obtainable) (model essays obtainable)
On February 19th I called the following:
West Virginia (essays reviewable)
On February 20th I contacted the following by phone and email respectively:
Idaho (essays obtainable) (appeal)
Nevada (essays obtainable) (model essays reviewable)
On February 23rd I extracted the following from the bar examiners' website:
Mississippi (essays obtainable) (essays reviewable) (appeal)
I experienced software glitches in both the morning and afternoon sessions of the July 2008 Virginia Bar Exam, and despite the Board knowing this fact for months I have not been able to obtain or review my essays. I see it as my duty to let as many potential applicants know about this continuing injustice. My essay score fell way below how I thought I did and I consequently failed the test. No explanation or breakdown of the essay questions was provided in the documentation- just a number, as if this is some kind of an exact science. This is a very important matter because it's not just the applicants that are at risk. The people of Virginia trust in the integrity of the system that selects which lawyers are admitted to the practice of law.
The solution is obvious: make the system transparent. That means proper disclosure of the essay answers upon request. The way it is now, graders know full well they will never have to justify their assessments. By the way, these are not necessarily law professors who do the grading- they are busy practicing lawyers. It means putting the final saving instructions in writing, just like it does the setup instructions. It means allowing first time test takers the opportunity to review their essays in person. Applying for a license is not the same as applying for a job. If the person does the work and fulfills the requirements then they are entitled to the license. Witholding a license has to be justifiable. Otherwise, the Board appears to be acting arbitrarily. Finally, it means ensuring the right to appeal. Jurisdictions like North Carolina, Michigan, Indiana, and the District of Columbia all recognize the importance of an appeal because test results have in the past been overturned, even after having been regraded. The state of Washington bar is unique in that it consists entirely of essays, for three days straight. For the past four or five exams it has used Exam Soft as its computer software company (which by the way is the service of choice for most states that have the laptop option). Failed applicants can not only get copies of their essays but the model answers as well; in fact, they are allowed to appeal directly to the board. Connecticut has not approved the laptop program, yet it allows applicants to obtain their answers and provides a breakdown of the individual essay scores. Both Vermont and Maine allow applicants to obtain their answers and get a sample of the model answers. The Virginia Board of Bar Examiners has many examples of how other jurisdictions uphold the integrity of the subjective essay grading system. During this transition stage where the Board is encouraging more and more to take the test on laptop, it is imperative for the Board to adapt to the changing trend throughout the United States and adopt the appropriate safeguards.
In a follow-up brief to Judge Alden I cited several analogies to shed light on how the Board is circumventing its discretion by making a rule against anyone obtaining their essay answers. As we all learn in law school, discretion is a legal word that implies review of the discretion. Under Va. Code Section 2.2-3004, pertaining to grievance hearings, "the court, in its discretion, may receive such other evidence as the ends of justice require." If the court, in its discretion, decided not to receive other evidence then certainly there would be some instances where justice would not be served. Such a rule would only make sense if efficiency and finality are the only ends sought, as opposed to justice. Consider another instance. The fact finder (a judge, for example) has the discretion to award exemplary damages to the plaintiff if the evidence shows that the defendant acted with malice. Va. Code Section 8.01-44.5. If a judge were to make it a rule never to award exemplary damages then the deterrent purpose of this law would certainly go unserved.
January 26, 2009