Update 25: On July 14, 2011 the Virginia Board of Bar Examiners was served with the following complaint returnable to the U.S. District Court for the Eastern District of Virginia. This is a public document (case no. 3:11CV427). Because of my bar results (October 2008) I requested my essay answers from the Virginia Board. All of my attempts to obtain my essays proved to be unfruitful. In December 2008 I had filed an emergency motion in Fairfax Circuit Court as a career position was on the line. It was there, before Judge Alden, that the constitutional dilemma became apparent. Since then, I have been attempting to handle both the due process problem in general and obtain my own essays so that I could receive individual relief. This time no individual relief for myself is being requested at all. I am rather filing this out of a sense of public responsibility given the information I have come across in the course of over two years' litigation in both state and federal court. This action seeks to declare unconstitutional a Virginia law (Va. Code 54.1-108) which dates back to the late 1970's that acts as the premise for state professional testing boards to install their own policies to prevent applicants from obtaining their test essays in the event of a dispute. It is my position that the recent transition to computer-based testing for the Virginia Bar Exam accompanied by the overwhelming reliance on the Board's software system (83% and rising) renders the Board's policy that no one can obtain their essays outmoded and technically improper. This position is backed by expert testimony as well as eyewitness testimony from an applicant from another state who experienced similar problems as what are being observed at every exam in Virginia, and corruption of his essays was found. As one of the largest professional testing boards in Virginia, this controversy surrounding the Board of Bar Examiners is representative of why Va. Code 54.1-108 must be reconsidered. I am also seeking relief for all future applicants to the Virginia bar so that they can obtain their essays, starting with the October 2011 results, just like the 44 other jurisdictions that currently afford such rights (a number that is on the rise).
I believe this is a timely and important issue as it addresses the rights of the individual in a system that places a high degree of reliance on computer software. It is a matter of common knowledge that system malfunctions happen. When they do, there needs to be transparency and an avenue of recourse. Even aside from the computer issues, for fairness reasons alone, why wouldn't someone be able to obtain their essays if they feel that the grading was wrong? It is time for a federal court to reexamine Va. Code 54.1-108 given the landmark transition to computer-based testing and uphold the rights of the individual and the principles of due process within the Commonwealth of Virginia.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
a resident of the Commonwealth
VIRGINIA BOARD OF BAR EXAMINERS,
COMPLAINT FOR DECLARATORY AND INUNCTIVE RELIEF
Plaintiff states as follows:
As of 2011, Virginia is the only state with a computer-based bar exam that combines Extegrity’s Exam4 software (software that in Virginia features no online submission capability to retrieve lost data) with a policy that no applicant can obtain their essays, including those who experience problems as described in this Complaint. Virginia bar examinees are therefore the least protected against a wrongful deprivation of their interest among all bar examinees throughout the country. In order to ensure due process, a policy that allows Virginia bar examinees to obtain their essays is technically sound and comports with the requirements of due process given the nature of a computer-based test. However, simply focusing on such a policy pertaining to bar examinees alone is insufficient. In order for due process to be achieved, the first clause of Virginia Code §54.1-108 must be addressed (denying Freedom of Information Act requests for “[e]xamination questions, papers, booklets and answer sheets, which may be disclosed at the discretion of the board administering or causing to be administered such examinations”) because it denies all applicants, no matter the profession, the very subject of proof that would be necessary to pursue a right that already exists: due process following a dispute in matters of test taking with any and all boards or departments. The following is representative.
1. The Virginia Board of Bar Examiners (hereinafter referred to as “Board”) introduced computer-based testing (CBT) for the essay portion of the exam (weighted 60%) to all candidates for the first time in July 2005. The test is administered with the aid of a security software program which the Board contracts to provide. Since then, the percentage of applicants taking the computer-based essay test has rapidly increased to 83%.
2. The Virginia General Assembly enacted Va. Code §54.1-3929 (reprinted App. 21a), a law that dates back to 1919 for the purpose of ensuring the preservation of the applicants’ essay response to the Virginia Bar Exam for one year. This law continues to the present and was relied on in the past when applicants found it necessary to obtain their essay responses.
3. In light of the recent transition to computer-based testing, the overwhelming majority of states have exhibited a strong national trend toward providing bar examinees rights to the essays following the release of test results. See Chart, App. 19a (note: as of 2011, Colorado has recently changed its policy to allow applicants rights to obtain the essays for a $15 fee following the release of test results, which increases the number of jurisdictions that afford their applicants rights to the essays from 43 jurisdictions to 44). This recent change reflects the steady increase in jurisdictions recognizing the need for post-examination due process rights nationwide during the transition to computer-based testing.
4. Such rights in these forty-four (44) jurisdictions exist regardless of whether or not there is an appeals process built into the board structure because the high court of each jurisdiction has the inherent authority to hear petitions from applicants should a dispute arise. As of 2011, even though forty-four (44) jurisdictions ensure rights to the essays after the release of test results, only nine (9) jurisdictions have an appeals process built into their board structure. These are as follows: Alaska, Arizona, District of Columbia, Indiana, Michigan, Mississippi, North Carolina, Rhode Island, and Washington. These states can and regularly do overturn bar exam results via the built-in appeals process. In states that do not have a built-in process, such as New Hampshire, the state supreme court has original jurisdiction over those cases. Aggrieved applicants in New Hampshire who have a dispute with the board after obtaining their test essays petition the Supreme Court of New Hampshire directly.
5. Part I of Virginia Code §54.1-108 contains a clause that exempts examination papers from the disclosure provisions of the Virginia Freedom of Information Act (§2.2-3700 et seq.) and vests professional examination boards with discretion in releasing exam papers (see law reprinted in App. 21a).
6. During the transition to computer-based testing, the Board has continued to follow an unwritten policy that no applicant can obtain their essays, which policy is premised on Virginia Code §54.1-108(1). This policy is hereinafter referred to as “Policy of Nondisclosure.” In its discretion, the Board has instituted this policy, a blanket rule that acts to bar applicants with a software dispute who seek to bring their claims to the Supreme Court of Virginia.
7. There exists no rule of the Supreme Court of Virginia that precludes an applicant from obtaining their essay responses.
8. Should a software dispute arise between an applicant and the Board following the administration of the Virginia Bar Exam, the only recourse to be had for an aggrieved applicant is to send their petition to the Supreme Court of Virginia under its inherent authority. See Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4, 5 (E.D. Va.), aff’d 598 F.2d 1345 (4th Cir. 1979) (“The 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.”). As an agency of the Supreme Court of Virginia, the Board is exempt from the application of the Virginia Administrative Process Act (§2.2-4000 et seq.) and state circuit court review. The Board has no built-in appeals process following the release of test results; applicants with disputes are told to send their complaints to the Supreme Court of Virginia directly.
9. The FOIA exemption contained in Virginia Code §54.1-108(1) combined with the Board’s Policy of Nondisclosure have created an effective deterrent and substantial obstruction to an applicant’s right to petition the Supreme Court of Virginia to allege reversible error, whether due to software malfunction or for any other reason. The Commonwealth is perpetuating the same kind of due process dilemma and “logical hiatus” as described by Alaska’s high court in Application of Peterson, where an applicant could petition the board for a review hearing if “serious grounds” are present but afforded no procedural device to enable the applicant to ascertain and demonstrate these grounds. Application of Peterson, 459 P.2d 703, 709 (Alas. 1969). As a result, Alaska and the vast majority of state bar examination boards throughout the United States have adopted policies that allow applicants rights to the essays in order to allow applicants to make an informed decision on how to proceed, thereby upholding the integrity of their grading systems. App. 19a (Transparency Policies of State Law Examiner Offices).
Parties & Standing
10. Plaintiff, a resident of the Commonwealth of Virginia, took the Virginia Bar Exam in July 2008. After experiencing a software system malfunction that affected himself and others (Affidavit App. 9a-10a) and after receiving notification of a deficient essay score, he sought unsuccessfully after over two years of litigation in state and federal court to obtain his essay responses in order to ascertain the full impact of the software system malfunction and make an informed decision prior to making an actual claim (see his blog, recording each stage of his case at http://jonathanbolls.blogspot.com). To date his essays have been held in secret even though his case has been described by a notable computer forensics expert as a “textbook case” where cooperation with the applicant is “necessary, if not vital.” Declaration of Stephen Castell PhD ¶31 (enclosed with the complaint). His essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service. He subsequently passed the District of Columbia bar exam on his first attempt, handwritten, on the essay section alone, his multiple choice score (weighted 40%) having been waived. He is now gainfully employed and files this action out of a sense of public responsibility.
The 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
11. This Court has jurisdiction pursuant to 28 U.S.C. §1331, viz the due process clause of the Fourteenth Amendment of the Constitution of the United States. Its authority to enter Declaratory Judgment derives from 28 U.S.C. §2001 et seq.
12. 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. Richardson v. McFadden, 540 F.2d 744, 750 (4th Cir. 1976) (“It is beyond question that the bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties”). See also Whitfield v. Ill. Bd. of Bar Exmnrs., 504 F.2d 474, 478 (1977) (“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 Application of Peterson, 459 P.2d 703, 710 (Alas. 1969) (bar examinees’ right to 14th Amendment due process is “firmly established”) and Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“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.”).
13. Judge Hall, in his concurrence in Richardson v. McFadden, 563 F.2d 1130, 1133 (4th Cir. 1977), clearly delineates exactly the kind of bar exam related claim which may be brought in federal court: “a constitutional challenge to the state’s general rules and regulations governing admission.” This language on jurisdiction was later affirmed by the Eastern District of Virginia the following year in Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4, 6 (1978). Finally, in 1983 the Supreme Court of the United States adopted this identical language to clarify the only kind of bar admissions related dispute which could be heard in federal district court. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 485, 103 S. Ct. 1303, 1316 (“constitutional challenge to the state’s general rules and regulations governing admission”) and Id., at 483, 103 S. Ct. at 1316 (“to the extent Hickey and Feldman mounted a general challenge to the constitutionality of Rule 46(I)(b)(3), the District Court did have jurisdiction over their complaints.”).
14. 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 the 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”).
Grounds for Relief
15. Since the inception of the computer-based test (CBT) for the essay portion of the Virginia Bar Exam, there have been and there continues to be ongoing observations of the need for hands-on technical assistance and software system reboots for a significant number of applicants during the saving stage of every examination sitting. See admission of the Attorney General, reprinted App. 42a ¶6: when pressed at a pre-trial conference whether symptoms similar to what [Plaintiff] has described have been known to exist, “including the reboot,” [the Assistant Attorney General] responded that, in fact, they do “at every exam.”
16. These observations are consistent with Plaintiff’s affidavit, reprinted in App. 9a-10a, and these same symptoms have a proven link to documented data loss and consequent misgrading in other jurisdictions administering the essay portion on computer-based testing software. App. 23a-24a (press release of the New York Board of Law Examiners following the July 2007 computer-based essay exam, ¶5, available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm). Such problems have been recently experienced in states including New York, New Jersey, and Kentucky.
17. Despite knowledge of the above facts and incidents and vehement complaints from applicants who believe their scores were negatively impacted, the Board has prevented these applicants from obtaining their essays by Policy of Nondisclosure.
18. Stephen Castell, PhD, expert witness in this case, has filed his report (enclosed with the complaint as Declaration of Stephen Castell, PhD) to aid this Court in understanding the scientific and technical reasons for applicants having rights to obtain their essays following the administration of a computer-based test. A leading computer forensics expert in the UK, he has been an expert witness in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communications technology, software systems and services. He files his report for the purpose of showing this Court the following:
a. That the observations described in ¶28 of this Complaint (and reprinted in App. 9a-10a, Plaintiff’s Affidavit) are consistent with the symptoms observed in another jurisdiction’s bar exam, where corruption of the essays was well documented;
b. That the fact that a number of applicants experiencing the same symptoms at the same saving stage indicates the presence of an ongoing system malfunction;
c. When disputes arise following observations described in ¶28 of this Complaint, the Board’s offer to compare the encrypted codes saved on the laptop to that saved on archive “in no way poses a remedy or even a sensible investigation of” the issue. Declaration ¶20.
d. Without an applicant having the right to obtain their essays following a software dispute, this leaves an open question of what the means are of resolving such disputes. Declaration ¶32.
Dr. Castell comes highly recommended by a justice of the English High Court, David Richards, who states, “I found Dr. Castell to be an honest and conscientious witness.” English High Court (Chancery Division)  EWHC 749 (Ch). Claim No. HC 04C00702 (testifying for the defense). His clients have included the British Broadcasting Corporation, the European Space Agency, Citibank, Motorola, DirecTV, Her Majesty’s Treasury, among many others (listed on curriculum vitae, attached). He has qualified as an expert in both English High Court and American federal district court for the plaintiff and defense. He is also a medalist recipient of the IT Consultant of the Year award by the British Computer Society.
As the expert witness in the instant case, he is acting in a pro bono capacity, and his contact information is included under the signature block of his Declaration.
19. During the July 2008 Virginia Bar Exam, there were 24 applicants who were found to have had essay responses misplaced in the system from the three-hour morning session. Affidavit App. 9a-10a ¶2. According to Dr. Castell, this announcement “raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site.” Declaration of Stephen Castell PhD ¶34.
20. It cannot be ruled out that the misplacement of these essays directly resulted from a software malfunction. See Declaration of Stephen Castell PhD ¶34 (the announcement regarding the 24 “raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site . . . this could be obviated if applicants could simply obtain their essays”). Neither can the Board be certain there were only 24 as a small staff purportedly rifled through five essays for a thousand applicants (5,000 essays in total) all during a one-hour lunch break.
21. The Board affords examinees no opportunity for a review or re-grade of the essays once the applicant receives the results, and no scoring information is made available aside from a numerical score. Any routine re-grades or reviews are conducted internally as a part of an internal control mechanism like any government agency or corporation. However, unlike all other state government agencies and corporations subject to Virginia law and the Virginia Administrative Process Act, the final product in the case of the Board is beyond question.
22. When contacted by an applicant who experienced a situation as described in ¶28 of this Complaint, the Board, through its secretary, denies that any problem exists and seeks no further information from the applicant which may be used to identify a software problem or improve the system.
23. The Board contracts with Extegrity, Inc. to provide the test taking software. As of 2011, Extegrity was the software provider for eight (8) state bar exams [Arizona, Commonwealth of Virginia, Commonwealth of Kentucky, Louisiana, Maine, Nebraska, Tennessee, and Wisconsin]. The other 37 that administer a computer-based test [not including New Jersey] use ExamSoft Worldwide, Inc., which has an additional safeguard capability that allows applicants to submit their essays online. As of 2011, only four jurisdictions do not yet have a computer-based test [District of Columbia, Indiana, Michigan, and Mississippi]. South Carolina for a number of years has kept its computer-based test under observation, allowing only a limited number of applicants to take it at every exam. This information is easily accessible to 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”).
24. Weeks prior to the exam, system checks are conducted to ensure compatibility of the Exam4 software with personal laptops. No personal laptop can be used to take the test without successfully completing a system compatibility check.
25. Computer-based testing for the essay portion of the Virginia Bar Exam (weighted 60%) was first offered to applicants as a whole on the July 2005 exam. By July 2008 over half of the applicants opted for it. Today, the number is 83% and rising.
26. The essay portion of the Virginia Bar Exam (weighted 60%) is administered on the first day of a two-day exam and consists of a three-hour morning session and a three-hour afternoon session separated by a one-hour lunch break. A large room is reserved for the majority who take the computer-based test (approx. 83%) and a smaller room for the minority of hand writers (approx. 17%).
27. When time is called following each three-hour session, the applicants stop their work and enter the saving stage, at which time the proctor directs the room through an approximately ten-step procedure that saves the essays. The last two or three steps consist of transferring the data that has been saved to a USB drive, an external device the size of a thumb which is inserted into the laptop. The applicant returns this USB drive to the proctor’s desk prior to leaving the test site. All data is saved in non-readable, encrypted format. Extegrity, Inc. then decodes the data into readable English for the Board. The Board maintains the readable English format of each test on site in Richmond.
28. At every exam, the Virginia Bar Exam is experiencing a software disruption and the need for hands-on technical assistance (and some cases, a system reboot) for a substantial number of applicants during the saving stage of the exam, particularly midway through the ten-step sequence described above. Technicians on standby were, for example, overwhelmed during both sessions of the July 2008 exam. In those cases where hands-on technical assistance is insufficient, the applicant is then instructed to reboot, i.e. turn the computer off and turn it back on, prior to completion of the saving process. On this point Dr. Castell, in his report, states as follows: “the need for a reboot in such circumstances is in my view a very real cause for concern.” Declaration of Stephen Castell PhD ¶22.
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 20, 2011). 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 ¶16) 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). Mr. Zeni has agreed to testify as a witness in the case at bar.
30. Policy of Nondisclosure in conjunction with Va. Code § 54.1-108(1) have effectively deprived the Supreme Court of Virginia of its inherent jurisdiction over bar exam related disputes, and in particular software related disputes, by withholding the very subject of proof that would be necessary for an applicant to make an informed decision on how to proceed with a claim or petition as of right to the Supreme Court of Virginia. Here is one aspect of the constitutional problem. The Supreme Court of Virginia has held as a matter of law, prior to hearing the merits or scientific reasons why the essays in the context of the software problems described in ¶28 of this Complaint must be released to the applicant, that it cannot force the release of the essays because the Board’s underlying decision whether or not to do so is discretionary. App. 1a (Order, August 11, 2009).
31. The Board, in contravention of the due process clause of the federal Fourteenth Amendment, has utilized its discretion to install Policy of Nondisclosure and has applied it uniformly to applicants, including those who experience software problems as described in ¶28.
32. The Board has not installed any written guidelines or criteria by which an exception to Policy of Nondisclosure could occur. If any such guidelines do exist, they are not technically or scientifically sound in the context of a computer-based test (CBT). See Declaration of Stephen Castell PhD ¶29, explaining that the transition to computer-based testing in Virginia is a part of a recent major international transition to such a high level of reliance placed on testing software.
33. The Rules of the Supreme Court of Virginia are silent with respect to the post-examination due process rights of candidates for the Virginia Bar. The Board conducts its duties subject to these Rules and the Laws of the Virginia General Assembly.
34. The Board has not set forth a remedy or solution (to the software symptoms described in ¶28 of this Complaint). See Declaration of Stephen Castell, PhD ¶19, addressing the issue of duplication/ replication of data: “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.”
35. The FOIA exemption contained within Va. Code 54.1-108(1) and Policy of Nondisclosure act to preclude the only true remedy for a software related dispute. The National Conference of Bar Examiners has in 2007 developed an efficient, thorough, and nationwide remedy following New York’s July 2007 bar exam. See press release of the NY Board of Law Examiners, Nov. 15, 2007, reprinted in App. 24a:
Fifteen of these candidates passed the examination based on their performance 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 fifteen 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 NCBE to develop and apply this methodology.
The Board in Virginia does already have a working relationship with the National Conference of Bar Examiners in administering the Multistate Bar Exam multiple choice test.
36. The computer-based tests in New York and Virginia are identical in the mechanism by which the essays are saved onto USB drive. See Declaration of Stephen Castell PhD ¶25
37. The symptoms observed in ¶28 of this Complaint in Virginia are consistent with those observed in New York in July 2007, where essay corruption by the software was documented. See Declaration of Stephen Castell PhD ¶23, ¶35, and ¶37 (“[Plaintiff’s] observations bear remarkable similarities to the software mishap in New York just one year prior”).
38. Policy of Nondisclosure in the context of a computer-based essay test is an unusual way to design a system. Declaration of Stephen Castell PhD ¶30 ([Policy of Nondisclosure] “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 . . . [w]ithout an allowance for applicants to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it.”).
39. A policy that would allow Virginia bar examinees to obtain their essays is technically sound and comports with the requirements of due process given the nature of a computer-based test. See Declaration of Stephen Castell PhD ¶38 (“reasonable, and technically sound policy in place for applicants to obtain and inspect their essays”). See also ¶32 (“I cannot conceive how it would be possible to bring a claim relating to a software malfunction without discovery of the item in question. This leaves the question of what the means are of resolving such disputes”).
40. Any petition related to a software dispute with the Board is bound to be dismissed, regardless of how meritorious, because the petitioner can neither make an informed decision on how to proceed nor particularize in the complaint without the very subject of proof necessary to do so: the essays. See Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (petition for review before state supreme court was insufficient where it contained a statistical review of petitioner’s exam results and general claim of unfairness in the manner of grading rather than setting forth exact and complete particulars of alleged unfair or improper grading of a particular set of exam papers).
41. As of 2011, Virginia is the only state with a computer-based bar exam that combines Extegrity’s Exam4 software, which features no online submission capability to retrieve lost data, with a policy that no applicant can obtain their essays, including those who experience problems as described in ¶28 of this Complaint. Virginia bar examinees are therefore the least protected among all bar examinees throughout the country.
Constitutional Basis for Relief
42. There exists no precedent within published case law for what constitutes due process in the context of a bar exam software dispute. The issue is thus ripe for review.
43. The rapid growth of reliance on computer-based testing in Virginia and throughout the country presents new questions on due process that demand the attention of the federal courts. In the landmark case Griffin v. Illinois, Justice Frankfurter states in his concurrence: “ ‘Due Process’ is, perhaps, the least frozen concept of our law- the least confined to history and most absorptive of powerful social standards of a progressive society.” Griffin v. Illinois, 351 U.S. 12 (1956). The meteoric rise in applicants nationwide taking the essay portion of the bar exam on a software program is exhibited on a chart in App. 20a. Since 2009 when this data was compiled the following states have since adopted a computer-based test for the essay portion of the bar exam: Alabama, Connecticut, Hawaii, and Massachusetts (all of which have chosen to contract with ExamSoft Worldwide, Inc. not Extegrity, Inc.). This brings the total number of states that administer a computer-based bar exam to 47 (only Indiana, Michigan, Mississippi, and the District of Columbia do not have such testing software). The shift to computer-based testing is precisely the kind of powerful societal change that demands to be reconciled with the principles of due process.
44. Addressing due process requires a scientific approach. “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.” Rochin v. California, 342 U.S. 165, 172 (1952). For this reason Plaintiff has acquired the assistance of a leading computer forensics expert to assist the court on the technical issues involved and to interpret for the Court materials obtained on discovery.
45. It is a fundamental tenet of due process that where a right is granted there may be other rights needed in order to make such right meaningful. Va. Code §54.1-108(1) and Policy of Nondisclosure together act to vitiate an applicant’s right to petition the Supreme Court of Virginia by withholding essays in the context of observations as described in ¶28 of this Complaint, which constitute evidence crucial to any software dispute. Without the essays, an aggrieved applicant is denied the fundamental liberty to state a claim upon which relief can be granted.
46. No harm would occur to the Board or to the Supreme Court of Virginia if applicants could obtain their essays. This represents the policy of the overwhelming majority of state bar examination boards, most of whom do not have a built-in appeals process anyway. App. 19a (Chart, Transparency Policies of State Law Examiner Offices) and ¶4 supra (listing states that currently have a built-in appeals process available to the applicants). Releasing the essays would not add one penny to the cost, which is typically borne by the applicant for a small fee. For example, the Florida bar examiners charge $50 and North Carolina charges $20 for the service.
47. On the other hand, the private interest of the applicant is great. Many applicants have secured positions prior to taking the bar exam. Those in public service are particularly vulnerable because some would end up losing their jobs wrongfully if the proper due process procedures are denied. If essays could be obtained as of right, like Eric Zeni and others in New York (¶29), it may very well be determined by a court of law that a system software malfunction was in fact the cause of data alteration, omission, or corruption that negatively impacted grading. See Declaration of Stephen Castell PhD ¶30:
Virginia 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.
48. Policy of Nondisclosure, an unwritten policy, acts to defeat the ultimate appellate authority of the Supreme Court of the United States. Jurisdiction of the Supreme Court over adverse decisions on individual applications to the state bar arises under 28 U.S.C. §1257(a). Under the Rooker-Feldman Doctrine, federal district courts have no jurisdiction over individual bar exam disputes. By withholding essays in a software dispute, the Board forecloses the possibility of a record being made at the state supreme court level which could then be reviewed by the Supreme Court of the United States.
49. The elements of federal due process cannot be limited by legislative action or defined with finality by a state court. It is meant to act as a prohibition upon the states to protect an individual’s federal rights which would otherwise be encroached upon by a state in the name of administrative convenience or expediency. Griffin v. Illinois, 351 U.S. 12 (1956).
50. As the U.S. Supreme Court has often said:
A State acts by its legislative, executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name of the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it.Ex Parte Virginia, 100 U.S. 339, 347 (1879).
WHEREFORE, Jonathan Bolls prays this Court to declare that Va. Code §54.1-108(1) is unconstitutional because it privileges documents that applicants need at times should a dispute arise and places sole discretion in state testing boards to unilaterally decide which complaints can and cannot proceed against themselves. It also lays the groundwork for state professional examination boards to install blanket policies, such as Policy of Nondisclosure, which counteract their own power of discretion and thwart efforts to obtain post examination due process pursuant to the Administrative Process Act or, in the case of disputes with the Board, the Virginia Supreme Court. This is a clear violation of due process. Jonathan Bolls additionally prays the Court to declare the unwritten Policy of Nondisclosure of the Virginia Board of Bar Examiners unconstitutional in light of the high reliance recently placed on the computer-based testing system in Virginia. Jonathan Bolls prays the Court to grant such further and additional relief as the ends of justice may require, including an injunction against the enforcement of Policy of Nondisclosure beginning as early as the upcoming release of the Virginia Bar Exam results in October 2011and for every succeeding bar exam thereafter.
June 24, 2011