Sunday, January 23, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY Initial Brief on Appeal

Update(22): February 2, 2011. Two weeks ago I filed the appellate brief (reprinted below) in the U.S. Court of Appeals for the 4th Circuit. This federal court is responsible for overseeing the region encompassing Virginia, Maryland, West Virginia, North Carolina, and South Carolina.

The argument is straightforward- the federal district court below should not have dismissed for lack of jurisdiction because two specific policies of the Board of Bar Examiners are being challenged as they create an ongoing due process violation for all Virginia bar examinees. In the first part, I list 50 paragraphs in the pleadings where I made my intent crystal clear that I am seeking to correct a systemic flaw for the benefit of all future examinees, not just myself. The first policy, an unwritten one, is that no applicant may obtain their essays, and the second is that all results are final once posted electronically (which occurs before the mail-outs). They effectively prevent anyone from exercising their established right to petition the Virginia Supreme Court for manifest error in the essay grading (due to software malfunction or otherwise).

Because the burden of proof rests on the applicant, no petition can possibly be successful without evidence crucial to these cases, i.e. the essays themselves. This same problem has been recognized in another jurisdiction which called it a "logical hiatus" to require proof to substantiate a claim but withhold the very evidence where such proof would be located. Individual relief to myself in the form of a court order releasing my essays is derivative, i.e. retroactively applied based on the court's finding on the constitutionality of these two policies.

I have spoken with three and only three computer forensic experts over the phone about this matter and all three agreed that having a policy of nondisclosure and a policy of finality is no longer appropriate now that the bar is administered on computer testing software. The Virginia Attorney General has not filed an expert report. Even though they claim "lack of sufficient knowledge" as to my software problem/ need for reboot, they admitted that such reboots and similar observations are in fact occurring "at every exam." The only expert testimony filed in this case unequivocally confirms that with the new computer-based testing environment where the number of applicants relying on the software is rapidly approaching 90% does mean that Virginia must change its policies.

It is time for Virginia to be in line with the transparency shown throughout the rest of the country.

IN THE
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT
2010-2011 TERM
No. 10-2361


JONATHAN BOLLS,
APPELLANT

v.

W. SCOTT STREET III, SECRETARY OF THE
VIRGINIA BOARD OF BAR EXAMINERS,
APPELLEE


On appeal from the
United States District Court for the
Eastern District of Virginia

INITIAL BRIEF FOR THE APPELLANT



Jonathan B. Bolls
Pro-Se



QUESTION PRESENTED FOR REVIEW

1. In light of a system malfunction experienced by a number of bar examinees with the Board of Bar Examiners’ testing software, whether a federal district court has jurisdiction over a Fourteenth Amendment due process challenge to two policies of the Virginia Board of Bar Examiners, under D.C. Court of Appeals v. Feldman, 460 U.S. 462, brought by an aggrieved bar examinee who:
(a) Seeks the permanent removal of these policies; and
(b) Seeks individual relief to protect his own interest as well.


TABLE OF CONTENTS

Opinion Below
Jurisdiction
Preliminary Statement
Statement of the Case
Argument

I. IN ALL FEDERAL PLEADINGS AND THE PRE-TRIAL CONFERENCE, APPELLANT MADE HIS INTENTION CLEAR THAT HE IS CHALLENGING THE TWO POLICIES IN ORDER TO FIX A SYSTEMIC PROBLEM THAT DIRECTLY AFFECTS THE POST-EXAMINATION DUE PROCESS RIGHTS OF ALL APPLICANTS TO THE VIRGINIA BAR.

A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.
B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.
C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers.
D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.

II. AS A CITIZEN, AN AGGRIEVED BAR EXAMINEE HAS A RIGHT TO BRING A CONSTITUTIONAL CHALLENGE IN FEDERAL DISTRICT COURT TO THE BOARD OF BAR EXAMINERS’ POLICY OF NONDISCLOSURE AND POLICY OF FINALITY.

A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions.
C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level.
D. Broad Injunctive Relief Can Be Directed Against a Defendant Government Agency or Official to Remedy an Ongoing Violation of Federal Law Even in the Absence of a Certified Class.

III. COMPUTER-BASED TESTING IN VIRGINIA HAS EXHIBITED SYMPTOMS ASSOCIATED WITH DATA LOSS IN OTHER JURISDICTIONS, WHICH RAISES NEW QUESTIONS ON WHAT CONSTITUTES DUE PROCESS THAT ARE RIPE FOR REVIEW.

A. Due Process of Law Analysis Requires a Scientific Approach and the Science Demands the Removal of the Policy of Nondisclosure and Policy of Finality.
B. The Two Policies in Question Fall Under the Rational Basis Test Because There is No Legitimate State Goal and No Harm to the Board or to the Virginia Supreme Court That Outweighs the Applicant’s Due Process
Interest.

1. No Legitimate State Goal Exists for the Two Policies in Question.

2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies.

IV. APPELLANT’S PRAYER FOR INDIVIDUAL RELIEF IS NOT BARRED BECAUSE THE TWO POLICIES IN QUESTION PREVENTED HIS CASE FROM BEING HEARD AT THE STATE LEVEL.

A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.
B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level.
C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.
D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.

V. APPELLANT REQUESTS ORAL ARGUMENT.

Conclusion

.....................................................................................


OPINION BELOW

The opinion of the United States District Court for the Eastern District of Virginia appears in its order of dismissal, Civil Action No. 3:10cv550 (November 5, 2010), and in its order denying the motion to alter judgment (December 16, 2010).

JURISDICTION

The United States Court of Appeals for the Fourth Circuit has jurisdiction to hear this appeal pursuant to the due process clause of the Fourteenth Amendment of the Constitution of the United States.

PRELIMINARY STATEMENT

The appellant, Mr. Jonathan Bolls, brought this declaratory judgment action in federal district court in reference to two policies of the Virginia Board of Bar Examiners (hereinafter referred to as “Board”), a policy that no applicant can receive copies of their test essays (hereinafter referred to as “Policy of Nondisclosure”) and a policy that all results are final once posted electronically (hereinafter referred to as “Policy of Finality”). These policies he alleges are technically improper in the new computer-based testing environment and directly undermine the right of applicants to bring a valid claim to the Virginia Supreme Court pursuant to its inherent authority over bar exam disputes. They run contrary to the overwhelming national trend toward disclosing the essays during the national transition to computer-based testing for the bar exam (charts, App. 19a-20a, showing how 42 states plus the District have since adopted disclosure policies) and ignore the fact that the number of applicants in Virginia relying on the software is 83% and rising (Answer ¶37). The Eastern District Court dismissed for want of jurisdiction on the premise that Mr. Bolls challenged the policies with reference to his own exam (which Mr. Bolls adamantly disputes), referencing the Virginia Supreme Court’s past refusal to order the release of his essays. Mr. Bolls now appeals this decision based on the fact that he is challenging these two policies for the first time in federal court for the sake of all applicants who sit for the computer-based bar exam.

STATEMENT OF THE CASE

The larger question of the propriety of having these two policies in place in a computer-based testing environment is what Appellant was asking the district court to evaluate. Such would involve declaratory judgment and broad injunctive relief. (Prayer for Relief, Part One: “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.” Whether or not Appellant qualifies for individual relief in the form of an order releasing his test essays is secondary to the larger issues involved. (Prayer for Relief, Parts Two and Three). Nonetheless, Appellant’s individual case furnishes the court with the “concreteness” needed to understand this controversy. (Declaratory Judgment ¶6: “The personal circumstances merely furnish concreteness to an action attacking general rules as facially unconstitutional”). The following facts are recounted in order to show why Appellant is the right person to bring this policy challenge.

Appellant took the July 2008 Virginia Bar Examination in Roanoke and was one of a number of applicants who experienced a malfunction in the Board’s software system which required hands-on technical assistance and system reboots. (Affidavit of Jonathan Bolls, Appendix 9a-10a ¶3, speaking in reference to a “dialog box wherein the program refused to proceed despite my following the instructions exactly” and “on at least one of these occurrences I was instructed to reboot my computer and resubmit the essays” and ¶9: “After the oral instructions were read at the saving stage, a proctor then asked for a show of hands if there were any problems. There were quite a few hands that immediately went up in both sessions of the test, which visibly overwhelmed a full team of technicians on standby. My hand was raised for ten to fifteen minutes both times before someone could come to my aid.”) (Declaration of Jonathan Bolls regarding pre-trial conference, attached to Motion to Alter Judgment ¶6: “When pressed [by the judge] whether symptoms similar to what I described have been known to exist, ‘including the reboot,’ [counsel for the Attorney General] responded that, in fact, they do at every exam. ”). [FOOTNOTE: Dr. Castell, a computer forensics expert, infers from these facts that "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." Declaration of Stephen Castell, PhD Par. 18]. 72%, approximately 1,000 applicants, took the bar exam on special software the Board contracts with Extegrity, Inc. to provide. (Answer, ¶37). At the exam, the Secretary of the Board made an announcement following the morning session that 24 applicants were found to have had entire answers incorrectly positioned, an occurrence he conveniently concludes is a result of human error. (Answer, ¶25). This means that a small staff must have perused all 1,000 exams during a one-hour lunch break, 5,000 essays in entirety, and concluded that the matter was properly disposed of. Just one year prior in New York, where the Board’s secretary commenced an investigation into similar software glitches observed also during the saving stage of the exam, the same symptom of mispositioning of the essays was discovered. App. 28a-29a (website featuring statements of bar applicants who received their essays finding portions missing, duplicated, or magically appearing in a blank answer). See also New York Law Journal article, App. 30a.

In October 2008 Mr. Bolls was informed that he had failed the exam. Recognizing that his essay score was “surprisingly deficient,” he immediately contacted the Board for assistance. App. 13a (initial letter to the board). Mr. Bolls was told that the “grades are final and non-appealable” (which is the crux of the due process question before this court) and “no copies of answers are provided to any applicant.” App. 17a. The policy that no copies of answers are provided to any applicant is unwritten. When Mr. Bolls reminded Secretary Scott Street about the 24, he was simply told that his assertion that there was some problem with the Extegrity computer system is without basis and that if he had any complaints he could present those to the Supreme Court of Virginia. Id.

After careful research following New York’s software mishap in 2007 (also during the saving stage), the National Conference of Bar Examiners invented a remedy. This includes, first, that applicants obtain their essays, and second, if the essays are found to have been altered in any way, then such essay responses are either thrown out, given perfect scores, or the overall probability of passing was computed based on the balance of the examination. (Press Release, New York Board of Law Examiners, Nov. 15, 2007, reprinted top of App. 24a; available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm). This is described as the “obvious and sensible remedy” by Dr. Castell in the final sentence of his report which can only exist if “there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays…” Declaration of Stephen Castell. On the other hand, the offer by the Board to Mr. Bolls (and presumably others similarly situated) is for Mr. Bolls to send the encrypted files saved on his laptop to the Board for the purpose of comparison, as the Board states: “We will review the version on your computer against the one graded.” App. 15a (November 3, 2008 email from the Board). Mr. Bolls immediately rejected this offer on November 4th as it is not applicable to the situation. As Dr. Castell states in his expert report: “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.” Declaration of Stephen Castell, PhD ¶19. See also ¶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 (emphasis in original). 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.”

With a job at a local prosecutor’s office on the line, Mr. Bolls applied for an emergency mandamus order from the Fairfax Circuit Court to compel the release of the essays. The Board was represented at the hearing by an attorney from the Virginia Attorney General’s office who, when asked by the judge what process was available to aggrieved bar examinees, stated “That is an interesting question” and suggested that one way to possibly obtain the original jurisdiction of the state supreme court would be to liken it to a disciplinary matter. (Affidavit of Carol Ann Bolls, witness to the hearing, Exhibit A of the response to the motion to dismiss). The matter was taken under advisement while the judge requested Mr. Bolls to file a supplemental brief on the Virginia Administrative Process Act (Exhibit C of the response to the motion to dismiss). Both parties agreed that as an agency of the Virginia Supreme Court, the Board is exempt from the Act. Three months later, the court denied mandamus for lack of jurisdiction and expressly left open the question of “whether the Board has abused its discretion by adopting a policy to never release bar exam answers to applicants.” Order of the Fairfax Circuit Court, n. 1, March 16, 2009, reprinted in App. 3a-4a. Because of the basic requirement to plead with the kind of particularity to make a cognizable claim, Mr. Bolls, rather than simply “appealing” his grade without his essays, instead applied for a mandamus from the Virginia Supreme Court to obtain the evidence necessary to his case (essays and short answers) and to make an informed decision on how to proceed. (Prayer for Relief before the Va. Supreme Court requesting first that the court order the immediate production of the essays and, second, “in the event that a claim is made, this Court bifurcate the proceedings to allow for an expedited second hearing specifically with reference to reviewing Plaintiff’s essays.”). Without a hearing on the merits or even requiring an answer, the court narrowed its two-sentence ruling to a limited point of Virginia law regarding discretion, more particularly that “mandamus does not lie to compel the performance of a discretionary act…” (Dismissal of mandamus, Supreme Court of Virginia opinion, August 11, 2009, reprinted in App. 1a). Nowhere in the opinion does the court explain how it would be possible for Mr. Bolls to present a viable claim without the item in question, i.e. the essay responses, or make an informed decision on how to proceed. Mr. Bolls 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.

Mr. Bolls now brings a fundamentally different action to test the policies of the Board that handicap software or any such similar disputes from having their day in court. He has since taken the bar exam in the District of Columbia (handwritten), an exam with a significantly higher rate of failure, and passed on his first attempt. The facts and procedural history of his case are being used to demonstrate the flaw in the state process and to obtain broad injunctive relief for all applicants. If the court so chooses, he seeks individual relief of which he believes he is still entitled.

Prior to initiating action in federal court, he performed his due diligence by contacting three and only three software experts over the phone. All three agreed that Policy of Nondisclosure and Policy of Finality are technically improper in the computer-based testing environment and that the symptoms observed by Mr. Bolls and others are a serious cause for concern. Dr. Stephen Castell, a leading UK computer forensics expert who has testified in American federal court and the English High Court, offered his services pro bono. He filed a declaration in support of Mr. Bolls’ policy challenge based on Mr. Bolls’ affidavit and similar symptoms observed in another jurisdiction where there is well-documented evidence of the correlation between these symptoms observed and misgrading. Such was corrected only once applicants could obtain their essays. He comes well-recommended by English High Justice David Richards who said “I found Dr. Castell to be an honest and conscientious witness.” English High Court (Chancery Division) [2005] EWHC 749 (Ch). Claim Number HC04C00702 (testifying for the defense). Similarly, as shown in his curriculum vitae, he has extensive experience in American federal court. Appellee has not filed an expert report. This report discusses the system as a whole, not just with reference to Mr. Bolls’ exam, and has been offered to the federal district court only; neither the Virginia Supreme Court nor U.S. Supreme Court had it. See, for example, ¶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.”

During the initial disclosure phase at the district court, Appellant listed two witnesses, Mr. Eric Zeni, who would be recounting his software problem in New York and how obtaining his essays proved vital to his case; and Dr. Stephen Castell, who would be testifying on the technical issues involved and interpreting material obtained on discovery. (Oct. 28, 2010 email to AG’s office). Prior to the pre-trial conference held in chambers, Mr. Bolls sent a letter to Assistant Attorney General Catherine Hill listing fourteen items he would be requesting for discovery, among which are included Engineers’ Notes of the technicians at the exam (not just for himself but for all), performance evaluation reports on the Extegrity software, and documentation regarding the 24 applicants with mispositioned essays. (Email to Catherine Hill, Esq. October 18, 2010). At the end of the pre-trial conference, Mr. Bolls reminded the judge in front of the Assistant Attorney General and the judge’s assistant, that the technical matters involved are all explained in the expert report. The judge responded that he does not care about the expert report. (Declaration of Jonathan Bolls ¶9, attached to Motion to Alter Judgment). The judge dismissed the case on November 5, 2010; Mr. Bolls’ motion to alter judgment, which listed the reasons why he brought action in federal court, was denied on December 15, 2010. Mr. Bolls now files this brief for review by this court on appeal.

ARGUMENT

I. IN ALL FEDERAL PLEADINGS AND THE PRE-TRIAL CONFERENCE, APPELLANT MADE HIS INTENTION CLEAR THAT HE IS CHALLENGING THE TWO POLICIES IN ORDER TO FIX A SYSTEMIC PROBLEM THAT DIRECTLY AFFECTS THE POST-EXAMINATION DUE PROCESS RIGHTS OF ALL APPLICANTS TO THE VIRGINIA BAR.

Mr. Bolls not only made his intentions clear orally and in writing, but the supporting declaration of his expert witness speaks directly to the system as a whole, not just to Mr. Bolls’ exam. The excerpts listed below are to show the Fourth Circuit that the district judge’s conclusion is unfounded that Mr. Bolls brought this case to challenge Policy of Nondisclosure and Policy of Finality only with reference to his own exam.

A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.

1. Prayer for Relief: “(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. “Policy of Nondisclosure renders the right of every bar exam applicant to petition the Supreme Court of Virginia defective and illusory in violation of the due process clause of the 14th Amendment of the Federal Constitution.” ¶17.

3. “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 the laptop.” ¶9.

4. “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.” ¶19.

5. “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.” ¶20.

6. “On July 29, 2008 Petitioner was one of numerous applicants who experienced problems saving the essays.” ¶26.

7. “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.” ¶21.

8. “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.” ¶22.
9. “As it stands now, the judicial system in Virginia hinders any and all aggrieved bar exam applicants from bringing a complaint against the Board, no matter how legitimate he complaint may be.” ¶23.

10. “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.” ¶25.

11. “Software malfunctions of the nature experienced by Petitioner have caused data loss and, consequently, misgrading in other jurisdictions.” ¶27.

12. “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.
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.”

13. “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. Only Virginia and seven other states continue to operate a closed licensing process.” ¶36.

14. “The constitutional infirmity of Policy of Nondisclosure and Policy of Finality is overinclusion.” ¶43.

15. “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.” ¶44.

16. “No harm would occur to the Board or to the Supreme Court of Virginia if applicants can obtain their essays.” ¶51.

17. Footnote 2, Page 22 (in reference to no harm to the Board in releasing essays): “[t]he Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service.”

18. “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.” ¶55.

19. “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 14th Amendment of the Federal Constitution.” ¶59.

20. “In the simplest terms, this case demonstrates that the policies surrounding the Virginia Bar Exam 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.” ¶60.

21. “Policy of Nondisclosure is not technically sound given the current realities of computer-based testing for bar examinations.” ¶63.

22. “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 29, 2008 Virginia Bar Exam.” ¶64.

B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.

1. “The heart of this matter involves the absence of needed rights to make an applicant’s right to petition the Virginia Supreme Court meaningful, in light of the new computer-based essay exam.” Introduction Paragraph.

2. “[T]he action before this Court represents a prima facie constitutional challenge to two policies that the Board has not until recently admitted to having: Policy of Finality and Policy of Nondisclosure.” Page 1.

3. “[T]he procedural history of Plaintiff’s case demonstrates an ongoing flaw in the process by which an aggrieved bar examinee presents their complaint to the Supreme Court of Virginia. The facts of his case provide the court with the ‘concreteness’ required in order to decide the constitutional question before it.” Page 1.

4. “[T]he matter is ripe as extensive research has uncovered no precedent for rights to the essays in the context of a software mishap.” Page 2.

5. “At issue here is whether the right to petition the Virginia Supreme Court is vitiated by Policy of Nondisclosure and Policy of Finality, whereby no applicant can obtain their essays and all results are final once posted electronically. This court is simply being asked to assess the validity of these rules, which Plaintiff claims handicapped his petition from the start and continues to do so for any applicant who has a similar experience.” Page 4.

6. “It was not established at the Virginia Supreme Court level that the unwritten Policy of Nondisclosure was even in existence. Only in Defendant’s recent Answer before [the federal district court] does he admit to having that policy.” Page 6.

7. “[T]his court is now being asked to review the constitutional questions for the purpose of correcting a substantial flaw in the post-examination process available to examinees in light of the less-than-perfect transition to computer-based testing.” Page 6.

8. “Applicants such as Plaintiff do not have a full and fair opportunity to litigate their cases before the Virginia Supreme Court, because the essays are unfairly withheld. The essays are withheld because of longstanding policies that no longer make sense in the computer-based testing environment.” Page 7.

9. “This and other evidence obtained on discovery is being compiled to hopefully effect a systemic remedy, not just an individual one for Plaintiff . . . if Plaintiff’s case is successful, it will revive the post examination due process rights of all future Virginia bar examinees.” Page 9.

10. “Such a systemic problem requires a remedy.” Page 1.

11. [Speaking directly the transition of Mr. Bolls’ individual case into a general policy challenge]: “The procedural history of Plaintiff’s case says more about the flaw in the system than about the merits of his case. Now Plaintiff is bringing a constitutional challenge to the policies that appear to be at the root cause of the problem in Virginia.” Page 10.

12. “Plaintiff has acquired for this Court the assistance of a leading UK forensic computer expert. Dr. Castell’s expertise is important in explaining why the finality and nondisclosure policies are no longer advisable now that the number of applicants who take the exam on software is 83% and rising.” Page 13.

13. “Although this right exists [right to petition the Supreme Court of Virginia], it is not apparent to the Attorney General’s office, let alone the examinees.” Page 13.

14. “In short, Plaintiff’s case, and all other cases like it, are handicapped from the outset.” Page 16.

15. “ ‘The court has held that 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 the administration of the rules.’ D. C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 1316 (1983). Plaintiff is doing just that, by challenging the validity of Policy of Nondisclosure and Policy of Finality in the new computer-based testing environment. His individual relief is derivative of this action.” Page 18.

16. “The issue is squarely presented whether a state system which purports to accord due process to bar examinees is really doing so when it withholds the subject of proof (i.e. the essays/ short answers).” Page 19.

17. “Plaintiff’s cause of action before this court is designed to attack the longstanding policies that are even now creating an ongoing due process violation for applicants, such as Plaintiff, who have a legitimate reason to bring their petitions to the Virginia Supreme Court. Given the circumstances, without an informed decision, it is impossible to bring a petition.” Page 19.

18. Plaintiff “requests discovery to get a better sense of the facts and allow the expert to interpret for this court what the implications are of keeping these two policies in place.” Page 21.

C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers.

When asked by the judge whether he would be willing to swear in open court as to not just his own experience with the software but with respect to others, Mr. Bolls said that he would. After being asked to recount in detail his own experience, Mr. Bolls stated clearly that there is a larger component to this case, that he is above all else challenging these two policies which he perceives as no longer tenable given the less-than-perfect transition to computer-based testing. (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment ¶8). When asked how many other states have policies allowing disclosure of the test essays, Mr. Bolls responded that there are 42 states plus the District of Columbia that have such policies. Id ¶7.

D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.

1. “Plaintiff re-emphasizes that his purpose in bringing this case is, above all else even including individual relief to himself, to stop the Board of Bar Examiners from enforcing Policy of Nondisclosure and Policy of Finality for all subsequent bar examinations.” Page 1.

2. “He has undertaken this case for several reasons. First, Plaintiff is interested in protecting others who in their plain everyday common sense will be making the same request that he did to obtain their essays so that they can make an informed decision whether to bring a claim before the Virginia Supreme Court. Second, the transition to the computer-based test (CBT) now affects approximately 83% of the applicants. Third, Defendant appears to be conveniently concluding on the spot at the test site that system reboots and error boxes are all human errors even though [as Dr. Castell states] ‘it seems clear that [Mr. Bolls’] experience and observations at the exam are consistent with the same symptoms associated with data loss in other jurisdictions.’ Fourth, there have been incidences of data loss in other states that were not readily obvious to the graders, only to be later proven by an applicant who obtained his/her essays pursuant to a state disclosure policy. Fifth, the overwhelming majority of States have adopted transparent policies of disclosure.”

3. “[N]ew information has been disclosed [at the pre-trial conference in chambers] that software glitches that require hands-on technical assistance, and even system reboots, are occurring at the saving stage at every [Virginia bar] exam.” Page 2.

4. “Now Plaintiff is turning to a federal district court to strike these policies down once and for all.” Page 2.

5. “The ‘necessary steps’ that Plaintiff is referring to in his Prayer for Relief is just that: broad injunctive relief.” Page 4.

6. “Plaintiff is seeking relief under the Declaratory Judgment Act on behalf of all future bar examinees who seek to exercise their right to petition the Virginia Supreme Court.” Page 4.

7. “For the foregoing reasons, Plaintiff respectfully asks this Court to alter its judgment by recognizing the fact that Plaintiff’s true intent is to correct a systemic flaw in the petitioning process in Virginia, which he believes is far more important than any one case including his own.” Page 4.

II. AS A CITIZEN, AN AGGRIEVED BAR EXAMINEE HAS A RIGHT TO BRING A CONSTITUTIONAL CHALLENGE IN FEDERAL DISTRICT COURT TO THE BOARD OF BAR EXAMINERS’ POLICY OF NONDISCLOSURE AND POLICY OF FINALITY.
Appellant wishes to make it clear at the outset that he is not claiming that applicants have a constitutional right to appeal under the Virginia Constitution or the Constitution of the United States. The essential issue at bar is confined to the vital claim that any applicant who has reason to believe the essay score was misreported (by software problem or otherwise) is being denied due process of the law contrary to the Constitution of the United States by being denied the right to make an informed decision and to seek review by the Virginia Supreme Court of their examination which they claim was had by manifest error that deprived them of a fair test. Appellant’s individual case at the state level is representative, i.e. a “textbook case” of a software issue (as stated by Dr. Castell in his declaration ¶31) and its repeated dismissals reflect not on its merits (which were never heard) but rather on a substantive and procedural flaw that exists within the state system. Policy of Finality and the unwritten Policy of Nondisclosure are the root cause. This issue is ripe for review because there exists no precedent in published case law on what rights applicants have to their essays following software problems requiring hands-on technical assistance and a system reboot. Furthermore, the 50% threshold for applicants typing rather than handwriting has recently been exceeded in the vast majority of jurisdictions. App. 20a. This is a compelling reason for a policy change at this time.

It is firmly established that bar examinees have a constitutionally protected interest following the release of the results. “Bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties.” Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976). It was not until a 1957 U.S. Supreme Court decision, Schware v. Board of Bar Examiners of New Mexico, that law admissions became a right not a privilege, as the court succinctly stated: “Certainly the practice of law is not a matter of the state’s grace.” 353 U.S. 232 (1957). The Fourth Circuit has subsequently applied this principle to the bar exam specifically by acknowledging how important it is for the very first exam to be scored accurately: “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 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.” Richardson, at 752. This could not be more true than with an individual like Mr. Bolls who had a public service job on the line, where unlike a private law firm the job would be lost (and in fact was in his case) if the bar exam is not passed.

A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The Supreme Court in Feldman held that United States district courts have subject-matter jurisdiction over general challenge as to state bar rules, promulgated by state courts in non- judicial proceedings, which “do not require review of final state court judgment in a particular case.” 460 U.S. 462, 486-487, 103 S. Ct. 1303, 1317. Appellant is now for the first time, and with the support of an expert witness, bringing a constitutional challenge to Policy of Nondisclosure and Policy of Finality in federal court, both of which arose from non-judicial proceedings. As he has stated to the court below, any individual relief that the court may also accord to Appellant is derivative, i.e. retroactively applied based on the constitutionality of the two policies. (Response to the Motion to Dismiss, top of p. 18).

The cases relied on by the court below for its dismissal for lack of subject-matter jurisdiction include Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345 (4th Cir. 1979) and Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977), both of which are civil suits for racial discrimination. No policy was identified as being challenged in either case; rather, to the extent that the court in Woodard is referring to policies being challenged with respect to an individual case, the court is speaking of the bar exam in general and no specific policy in particular. Appellant’s case is different in that his challenge arises under the due process clause not the equal protection clause, and he is in fact challenging two specific policies of the Board.

In resolving the subject-matter jurisdiction issue, the U.S. Supreme Court in Feldman (1983) underscored the 10th Circuit’s reasoning in Doe v. Pringle, 550 F.2d 596, 597 (1976) in declaring that there is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court: “the first is a constitutional challenge to the state’s general rules and regulations governing admission; the second is a claim based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission.” Feldman, at 1316 (citing to Doe, at 597). This goes directly to the subject-matter jurisdiction question at hand. Here the court correctly references Judge Hall’s concurrence in Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977), which cited to the same exact Doe language even before Feldman made it national law. Richardson, at 1133 (Hall, J. concurring). In 1979, in Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345 (4th Circuit 1979), the other case relied on by the court below, the 4th Circuit affirmed Judge Hall’s concurrence and use of the subject-matter jurisdiction language in Doe (highlighted in bold above). Since the Supreme Court’s Feldman decision in 1983, it is well-settled national law that constitutional challenges to specific policies fall squarely within federal district court jurisdiction. [FOOTNOTE: This language (in bold) continues to be applied in more recent decisions within the 4th Circuit such as, for example, Clark v. Va. Bd. of Bar Exmnrs., 861 F. Supp. 512, 519].

Article III courts are forbidden by the Constitution from deciding questions in the abstract, and the personal circumstances are needed so the court can resolve cases or controversies. On the subtle but fundamental distinction highlighted above, the Feldman court answers the question of who might bring either such claim: “[T]here is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court . . .” Feldman, at 1316 (quoting Doe v. Pringle, supra). In either case, it is a “frustrated bar applicant” bringing the claim. Appellant, not a law professor or law school dean for example, is thus qualified to bring a general policy challenge. The next question then becomes whether the action he is bringing is a general policy challenge or a review of a particular application. It could not be the latter for a couple reasons.

First, Appellant explicitly stated everywhere possible that his intent in bringing a policy challenge to federal court was to protect the due process rights of all future examinees whose claims will be similarly undercut by the two policies in question. (See Argument Part I supra). Second, he has gathered evidence that is more pertinent to a large scale policy challenge than to a mere individual dispute. See charts, reprinted App. 19a-20a entitled “Transparency Policies of State Law Examiner Offices” and “Statistics of the Computer Based Bar Essay Examination,” which show a strong national trend toward openness and transparency. He has two witnesses, Eric Zeni and Stephen Castell, the former showing how the applicant’s right to obtain the essays proved vital in a software mishap in New York; and the latter offering expertise on the technical propriety of Policy of Nondisclosure and Policy of Finality in a computer-based test. (Initial Disclosures, email to the Attorney General, October 28, 2010).

Challenges to the constitutionality of state bar rules do not necessarily require a United States district court to review a final state court judgment in a judicial proceeding. Feldman, at 1316-1317. This is because, as the court says, “state supreme courts may act in a nonjudicial capacity in promulgating rules regulating the bar.” Id., at 1316. The 4th Circuit has held that the Board as an agency of the Virginia Supreme Court acts administratively when it installs post examination review policies. In reversing Rogers v. Supreme Court of Virginia, 590 F. Supp. 102 (1984) (E.D. Va. 1984), the 4th Circuit 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, 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.” 772 F.2d 900 (4th Cir. 1985) (Unpub. No. 84-1746, Page 4). Again, jurisdiction was found under District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Id., Page 3. In the case at bar, Appellant is similarly asking the 4th Circuit to view the Board and the state supreme court together and assess the two policies in question in light of the recurring computer problems and technical objections raised.

B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions.

In these cases individual relief stands or falls based on the court’s finding on the constitutionality of the bar examiner policy or rule identified for review. See Brown v. Supreme Court of Virginia, 359 F. Supp. 549 (1973) (two applicants previously denied by the Supreme Court of Virginia because of a residency requirement brought an equal protection challenge to Rule 1A:1 residency requirement. In its analysis, the court examined the rules of other states and compared them to Virginia’s on stringency); Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975) (equal protection challenge to reciprocity Rule 202(7). The court conducted a rational basis test). Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974), aff’d 419 U.S. 955 (equal protection challenge to the diploma privilege, and rational basis test applied). In each of these cases the declaratory judgment and broad injunctive relief was also accompanied by a petition for individual relief by the plaintiff.

Keenan v. Bd. of Law Examiners of North Carolina, 317 F. Supp. 1350 (1977), involved an equal protection challenge to Rule VI(6), which required a person to have been a bona fide citizen and resident of North Carolina for twelve months before taking the bar exam. Relief sought included declaratory judgment declaring the rule unconstitutional and injunction preventing enforcement of the rule. Individual relief was sought as well. The court held that the “familiar rule” that final judgment of a state court is reviewable by the Supreme Court of the United States not the federal courts does not apply here: “These plaintiffs do not challenge a state court’s disposition of an individual case . . . their personal circumstances merely furnish concreteness to a class action attacking a general rule as facially unconstitutional.” Id. Upon finding that the rule is unconstitutional as imposing a burden on interstate travel without being necessary to promote a compelling state interest and as denying equal protection of the laws, it enjoined the Board from giving Rule VI(6) any force or effect. Id., at 1361. The court also provided individual relief. Having passed, the two plaintiffs were ordered to be licensed. Interestingly, as a corollary to the instant case, the Board argued undue expense and burden. But the court points out a better alternative given the existence of an efficient and widely used nationwide investigatory service operated by the National Conference of Bar Examiners. “Furthermore, any reasonable expense above and beyond that normally required to investigate a resident bar applicant might, perhaps, be charged to the out-of-state applicant under scrutiny.” Id., at 1360. Likewise, Appellant points to the National Conference of Bar Examiners as being the source of a sensible remedy for software mishaps and has indicated that in other jurisdictions the cost of photocopying the exam papers is negligible and typically borne by the applicant in the other jurisdictions.

A more recent successful challenge to a bar examiner policy brought by an aggrieved bar applicant in federal court highlights the distinction between a policy challenge and review of an individual case. In Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 515 (E.D. Va. 1994), an applicant for the Virginia Bar brought action under the Americans with Disabilities Act against the Board for requiring applicants to answer a mental health question, which she refused to answer. At first, the district court, in alluding to the language in Doe, supra, found that “Clark does not challenge the state’s general rules and regulations. The Board has no rule or regulation that prohibits a person with a mental disability from obtaining a license to practice law. Each application is decided individually on its own merit.” Clark, at 516. The court, however, rethought this point and on a motion to alter judgment stated: “it is now clear to the court that, rather than attacking the Board’s treatment of Clark in particular, this case challenges the defendants’ right to enforce their rule of general application that all applicants must answer question 20(b)…under the principles of Feldman, it has jurisdiction over this case.” Clark, at 519. Ultimately, the district court held that Question 20(b) violated the ADA and ordered it to be sliced out of the character and fitness questionnaire. Clark v. Virginia Board of Bar Examiners, Civ. A. No. 94-211-A (E.D. Va. Feb. 23, 1995). Like Clark, Appellant is challenging a specific policy that is “applied uniformly” (Answer ¶13) as well as its accompanying policy of finality that “all scores are final and not appealable” (Answer ¶14). That the case was meant to challenge the defendant’s right to enforce these policies against all future applicants was not only the exact wording of the first part of the Prayer for Relief but is made crystal clear throughout the complaint, the response brief to the motion to dismiss, and the motion to alter judgment. Furthermore, the expert’s declaration speaks at length on the wisdom of having such policies in place in a computer-based test that exhibits the same signs as led to grading errors in other jurisdictions where applicants had the right to obtain the essays. Appellant, like Clark, is merely regarded as a “textbook case,” all the more reason for him to be the one to bring the policy challenge. (¶31 Declaration of Stephen Castell, PhD).

C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level.

The rule in Wright v. Castles, 232 Va. 218 (1986) is that there is no res judicata where the causes of action or the remedies sought are not identical. In that case the court found that the same evidence will not support both actions since the evidence necessary to obtain an injunction differs from the evidence necessary to prove slander of title and interference with contractual relations. Wright, at 219. The case at bar similarly represents a fundamentally distinct declaratory judgment action under the Declaratory Judgment Act, whereas previous litigation at the state level was always in the form of a mandamus petition. Secondly, the relief is different. The two policies in question are only now for the first time being challenged to effect broad injunctive relief. The existence of the unwritten Policy of Nondisclosure was established only in federal court once Appellee was required to answer. And finally, the evidence is different. Dr. Castell’s declaration addresses the systemic problem and is filed in support of the policy challenge. The Virginia Supreme Court did not have this evidence. [FOOTNOTE: Dr. Castell, in Par. 35, states: "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."] See also Worrie v. Boze, 198 Va. 533, 538 (even if the causes of action are considered to be “closely related,” there is no res judicata unless they are identical). Neither Appellant’s Declaratory Judgment action nor his Prayer for Relief are identical so res judicata should not apply. [FOOTNOTE: The district judge also concluded orally at the end of the pre-trial conference in chambers that the Rooker-Feldman Doctrine "probably does not apply" because the policies are being challenged.]

D. Broad Injunctive Relief Can Be Directed Against a Defendant Government Agency or Official to Remedy an Ongoing Violation of Federal Law Even in the Absence of a Certified Class.

A number of courts upheld the issuance, under the Declaratory Judgment Act, of broad injunctive relief directed against a defendant government agency or official to remedy an ongoing violation of federal law even in the absence of a certified class. See Evans v. Hartnett County Bd. of Educ., 684 F.2d 304, 306 (4th Cir. 1982); Sandford v. R.C. Coleman Realty, 573 F.2d 173, 178 (4th Cir. 1978). Thus, broad injunctive relief can be brought by a single individual.

The “necessary steps” that Appellant refers to in his Prayer for Relief is just that: broad injunctive relief. Over the years legal aid advocates have successfully obtained broad relief under the Declaratory Judgment Act for their clients in cases involving civil rights, public benefits, social security, health care, housing, and labor issues. Cf. Burrell v. Norton, 381 F. Supp. 339, 340 (D. Conn. 1974) (granting declaratory relief to individual plaintiff challenging constitutionality of certain state eligibility standards for emergency assistance welfare payments); Harmon v. Thornburgh, 878 F.2d 484, 491-494 (D.C. Cir. 1989) (constitutional challenge to random drug tests of federal employees); and Gallinot, 657 F.2d at 1019 (constitutional challenge to state mental health involuntary commitment procedures). The remedies afforded by the Act are particularly suited for attacking and correcting illegal policies, practices, and rules that harm large numbers of persons. Appellant is seeking relief under the Declaratory Judgment Act on behalf of all future bar examinees who seek to exercise their right to petition the Virginia Supreme Court.

III. COMPUTER-BASED TESTING IN VIRGINIA HAS EXHIBITED SYMPTOMS ASSOCIATED WITH DATA LOSS IN OTHER JURISDICTIONS, WHICH RAISES NEW QUESTIONS ON WHAT CONSTITUTES DUE PROCESS THAT ARE RIPE FOR REVIEW.
The right to practice one’s chosen profession is a well-recognized liberty interest that cannot be taken away without certain due process protections in place. Whitfield v. Illinois Bd. of Bar Exmnrs., 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”). See also the Fourth Circuit’s per curiam opinion in Richardson: “Before turning to the factual basis of their claims, we stress that our function . . . is to determine if there has been a denial of due process or of equal protection.” 563 F.2d 1130. Appellant alleges that the unwritten Policy of Nondisclosure and the Policy of Finality directly undermine the only available post examination right for applicants, which is to petition the Supreme Court of Virginia under its inherent authority over the bar exam. Where there is good reason to believe that error has occurred as a result of problems with the test software (Declaration of Stephen Castell ¶25: “Mr. Bolls’ concerns about corruption of his essays are well founded”), without discovery of the item in question, there cannot be a full and fair hearing on the merits.

A. Due Process of Law Analysis Requires a Scientific Approach and the Science Demands the Removal of the Policy of Nondisclosure and Policy of Finality.

The Supreme Court in Rochin v. California, 342 U.S. 165, 172 (1952) states: “In each case ‘due process of law’ requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims.” See also J. Frankfurter’s concurrence in Griffin v. Illinois, 351 U.S. 12 (“ ‘due process’ is, perhaps, the least frozen concept of our law- the least confined to history and the most absorptive of powerful social standards of a progressive society”). The introduction of the computer-based test is an aspect of society’s progression that must be reconciled with due process. It is also clear the Commonwealth of Virginia may not make anything due process of law, either through its legislature or high court. When addressing whether a state can make anything due process of law that it chooses to declare, the Supreme Court clearly rejects such notion: “ ‘To affirm this 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). Therefore, the federal district court does have jurisdiction to evaluate state procedures and policies, and in applying due process to the technical matters of the instant case, the court must seriously consider the expert testimony.
[FOOTNOTE: The district judge, rather than adopting a scientific approach which is essential in this case, handled the only expert report filed in the case with blatant disregard. Declaration of Jonathan Bolls Par. 9, attached to the Motion to Alter Judgment. The judge states that he does not care about the expert report.]

Dr. Castell’s over forty-year successful career as an information technology consultant and law specialist would be invaluable to the court in addressing the constitutional questions before it. He has examined hard copies of the evidence, including Appellant’s affidavit (App. 9a-10a), setup instructions provided to applicants at the exam, the Board’s 11/3/08 email to Appellant requesting he send the encrypted file of his essay responses to compare against the one graded, and charts Appellant compiled from personal phone calls he made to each state bar examination board in the country. (Declaration of Stephen Castell, PhD ¶16). He states his opinion that not only are “Mr. Bolls’ concerns about the corruption of his essays well founded” (¶25) but “[t]he fact that others experienced similar problems at the same time suggests a systemic problem.” (¶18). This information contradicts the apparent conclusion drawn by Appellee, as represented at the pre-trial conference in chambers, that the error boxes, hands-on technical assistance, and, when that fails, the system reboots, are all a result of human errors. (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment ¶6, stating a recurring problem ). Appellant is without a doubt that his was not a result of human error, as he stated in his affidavit that the software “halted and displayed a dialogue box wherein the program refused to proceed despite [his] following the instructions exactly.” App. 9a-10a, Affidavit of Jonathan Bolls ¶3. Arriving at the self-serving conclusion that such problems are a result of simple human errors is to ignore some very important questions that go to protecting the applicant’s interest. [FOOTNOTE: Dr. Castell also proceeds to list twenty technical questions regarding the announcement about the 24 who had answers mispositioned, which questions are "obviated if applicants could simply obtain their essays." Declaration of Stephen Castell, PhD Par. 34]. As Dr. Castell states, “Virginia, as I understand it, does not allow applicants to obtain their essays. In my view and experience, this 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 Mr. Bolls’ case, is to overlook the possibilities of systemic error and to have no objective and even handed methodology of investigation in regard to ruling out such possibilities.” (Declaration of Stephen Castell, PhD ¶30).

The alternative to having a policy of disclosure is prohibitively costly. As Dr. Castell states, “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.” ¶21. See also ¶30: “[F]orcing 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 technically unsound and strikes me as wholly unreasonable and unfair. Clearly the state of New York addresses such concerns by having a policy by which Mr. Zeni was able to obtain his essays.” When the computer-based test was introduced to all examinees in July 2005 (Answer ¶37) the Board should have considered the applicants’ interests and done away with Policy of Nondisclosure and Policy of Finality.

The Board’s offer to Appellant (and presumably all others similarly situated) of comparing the encrypted file saved on his laptop to the one held in archive does not apply to the corruption concerns raised. As Dr. Castell states in his summary opinion: “(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.” ¶2. That is because if there is corruption, it will not be detected in this way: “the data on the USB drive will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” ¶19. Rather, should there be a policy in place that allows applicants to obtain their essays as of right, Dr. Castell endorses the remedy developed in 2007 by the National Conference of Bar Examiners. ¶38. However, this remedy is foreclosed as long as Policy of Nondisclosure and Policy of Finality are in place.
The reboot, which the Board concedes occurs with a number of applicants at the saving stage of every exam following hands-on technical assistance (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment, ¶6), is described by Dr. Castell as a “very real cause for concern.” Declaration of Stephen Castell, PhD ¶22. Using Appellant’s circumstances as a case-in-point, Dr. Castell explains Appellant’s observations in the following way: as an Extegrity technician’s unsuccessful attempt to operate Extegrity’s software before Appellant was told to reboot as a last resort. Id. Again, this does not appear to be human error.

B. The Two Policies in Question Fall Under the Rational Basis Test Because There is No Legitimate State Goal and No Harm to the Board or to the Virginia Supreme Court That Outweighs the Applicant’s Due Process Interest.

The due process interest of applicants is substantial. Without a right to obtain the essays in the computer-based test, an applicant who experiences a software glitch who subsequently observes a scoring discrepancy has no way to substantiate the claim without discovery of the item in question. Hence, the right to petition the Virginia Supreme Court becomes meaningless. This procedural and substantive flaw was encountered in Alaska in Application of Peterson, 459 P.2d 703, 39 A.L.R. 3d 708 (1969) where the board allowed a bar examinee to petition under certain substantive grounds to have a hearing in which a score can be changed. The court referred to it as a “logical hiatus,” however, for the Board to require such a showing without a procedural device to enable the applicant to ascertain and demonstrate these grounds. Holding that such was a “denial of fair process,” the court decided that fair process required that Peterson receive his examination questions and answers. Consequently, in Alaska today applicants have a right to obtain their essay answers. (Chart, App. 19a). This right has been very beneficial especially in the new computer-based testing environment. The case of Eric Zeni in New York is proof that a right to obtain the essays does protect against an erroneous deprivation of an applicant’s interest in the computer-based test- indeed, his situation would have gone uncorrected had it not been for New York’s disclosure policy. (see App. 38a, May 11, 2010 email from witness Eric Zeni confirming the veracity of this characterization). The applicants’ interest in the accuracy of exam grading is substantial because of what is at stake: livelihoods, and the integrity of bar admissions, upon which the public relies.

1. No Legitimate State Goal Exists for the Two Policies in Question.

The 4th Circuit applied a rational basis test when a due process challenge was brought against a rule that admitted out-of-state attorneys without examination only if they intend to practice full time in Virginia. Goldfarb v. Supreme Court of Virginia, 766 F.2d 859 (4th Cir. 1985). The court upheld the rule, finding that the requirement rationally served the interest of Virginia in insuring the competence of attorneys practicing in the Commonwealth. The case at bar involves two policies, the purpose of which remains unclear. In the Declaratory Judgment action, ¶15, Appellant alleges that Policy of Nondisclosure exists to further the objective of Policy of Finality. In the Answer, Appellee states that he is “without sufficient knowledge” as to this point. Neither ¶13 nor ¶14 of the Answer provide a reason for having the unwritten Policy of Nondisclosure and Policy of Finality respectively, which Appellant alleges works an ongoing due process violation for the applicants. Regardless of what the state goal may be, it is not a legitimate one. Administrative inconvenience, for example, cannot be a reason, as the court in Keenan v. Bd. of Law Exmnrs. of North Carolina, 317 F. Supp. 1350 (1970) clearly states, “Administrative inconvenience is insufficient justification for an arbitrary, overinclusive regulatory classification.” Appellant has alleged in ¶43 that the constitutional infirmity of the two policies in question is overinclusion. A true scientific approach reveals that there will be some instances where the scope of inquiry demands at the very least that the essays be released to the applicant so that the applicant can present a viable claim to the state supreme court.

2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies.

The vast majority of jurisdictions, both small and large, wealthy or not, have in place policies of disclosure. (App. 19a, listing 42 jurisdictions plus the District as having policies of disclosure). This strong national trend has not been reversed for the simple reason that it works well. The Board does not have to institute an appeal, formal or informal. Releasing the essays would also not add one penny to the cost, which is typically borne by the applicant for a small fee in other jurisdictions. A simple disclosure of the essay responses is not time consuming, does not prejudice the Board, and not to allow such would create a substantial injustice to the applicant.

IV. APPELLANT’S PRAYER FOR INDIVIDUAL RELIEF IS NOT BARRED BECAUSE THE TWO POLICIES IN QUESTION PREVENTED HIS CASE FROM BEING HEARD AT THE STATE LEVEL.

The second and third parts of the Prayer for Relief have to do with Appellant’s individual case, a separate request from the primary one for injunctive and declaratory relief for all future applicants to the Virginia Bar. Appellant never had an opportunity to obtain a full and fair hearing on its merits because the essays, the subject of proof, were withheld. Appellant is not now seeking a second opinion from federal court. A second opinion has already been provided by the D.C. Bar. Instead, he seeks to obtain his essays in order to make an informed decision on how to proceed and, if he so chooses, to bring a claim. Absent the essays, the claim cannot be formulated or substantiated.

A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.

Rejecting the contention that plaintiffs were accorded a full and fair opportunity to litigate a vote dilution claim, the Supreme Court in Johnson v. De Grandy, 512 U.S. 997, 1005-1006 held that the state was “exaggerating the review afforded the De Grandy plaintiffs and ignoring the court’s own opinion of its judgment’s limited scope.” Likewise in Appellant’s individual case- the Virginia Supreme Court’s dismissal included a two-sentence opinion which held that mandamus does not lie to compel the performance of a discretionary act. App. 1a. Without hearing the expert testimony and without requiring the Board to answer and without providing an alternative avenue by which Appellant could bring a valid claim without the item in question, this ruling has to be limited to a narrow point of Virginia law on discretion. It is certainly not a dismissal on the merits. Rather, it is more like a dismissal for lack of standing.

B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level.

Since Appellant’s case was dismissed purely on a point of state law, not reaching the federal constitutional questions involved or the merits of the case, Appellant is within his rights to have the federal constitutional questions decided by a federal district court that does have jurisdiction. See Johnson v. Degrandy, at 1005: “the State balks at recognizing this express reservation by blaming the De Grandy plaintiffs for not returning to the state supreme court with the Section 2 claims. But the plaintiffs are free to litigate in any court with jurisdiction, and their choice to forego further, optional state review hardly converted the state constitutional judgment into a decision following a full and fair opportunity to litigate.” Appellant is therefore free to apply for individual relief separate and distinct from the general policy challenge and petition for broad injunctive relief.

C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.

Denial of writ of certiorari by the Federal Supreme Court imports no expression of opinion upon the merits of a case but means only that there were not four members of the Court who thought the case should be heard. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L.Ed. 469, reh’g denied 73 S. Ct. 827. Furthermore, the two policies in question act to undermine individual cases seeking the Supreme Court’s ultimate appellate review because they act to prevent a record that could be reviewed. Its ultimate appellate authority over individual bar exam disputes arises under 28 U.S.C. §1257(a) and 28 U.S.C. §1651(a). See also Theard v. United States, 354 U.S. 278. Inadequacy of the record may be a reason for why certiorari was denied in Appellant’s individual case, as the dissent in the landmark Griffin case states, he would “decline to decide the constitutional question tendered by petitioners because the record does not present it in that ‘clean-cut,’ ‘concrete,’ and ‘unclouded’ form usually demanded for a decision of constitutional issues.” Griffin v. Illinois, 351 U.S. 12 (1956). The two policies thus create an unconstitutional roadblock with very far reaching effects.

D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.

The circuits 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 federal court review. See Chaney v. State Bar of California, 386 F.2d 962, 967 (9th Cir. 1967); Feldman v. State Bd. of Bar Exmnrs., 438 F.2d 699, 704 (8th cir. 1971); Whitfield v. Illinois Bd. of Law Exmnrs., 504 F.2d 474, 478 (7th Cir. 1974); 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”). The unfairness of not releasing the essays to Appellant after experiencing a problem with the Board’s testing software, especially when there is a Virginia law that preserves the essays [FOOTNOTE: Va. Code Section 54.1-3922.] presumably for such a dispute, is manifestly unfair. Therefore, the federal district court, or the 4th Circuit, has the authority to award individual relief to Appellant as well.

V. APPELLANT REQUESTS ORAL ARGUMENT.

Appellant respectfully requests oral argument. He is well-practiced in oral argument before three-judge panels (mock) and has tried cases under supervision for different state prosecutor’s offices. He also has hundreds of hours of courtroom observation time. Please see attached a bench trial critique of his courtroom demeanor and performance in law school.

CONCLUSION

Federal district court does have subject-matter jurisdiction over the policy challenge/ broad injunctive relief for all applicants as well as individual relief for Appellant. The court below states that there is no misunderstanding whatsoever about Appellant’s reasons for bringing the case. Since it does not dispute these reasons clearly articulated in the Motion to Alter Judgment, the district judge thus draws an impermissible inference that the individual relief component of the Prayer for Relief acts to somehow disqualify the policy challenge. This is not a fair reading of Feldman, which remanded the case back to the district court for similar reasons. For the foregoing reasons, the dismissal of the Eastern District Court should be reversed.


Respectfully Submitted,

Jonathan Bolls
Pro-Se

January 18, 2011