Update 27: On September 14, 2011 the Eastern District Court, by Judge Henry Hudson, wrote a 9-page opinion accompanying an order dismissing the constitutional challenge to Va. Code Sec. 54.1-108(1) for lack of standing and lack of a triable federal due process controversy. The case has since been appealed to the U.S. Court of Appeals for the Fourth Circuit and the initial opening brief/ assignment of errors (reprinted below) was submitted on November 10, 2011. The standing question and due process question will be reviewed de novo ("as they were new," i.e. no deference given to the lower court). After my previous action was denied jurisdiction on the basis that it challenged the policy that no applicant can obtain their essays with reference only to my own exam, now the same court is concluding that a facial attack on the same policy and its foundational law cannot be brought by an aggrieved bar examinee either. Again, the merits of the case (consisting of an expert report, eyewitness testimony both in and outside Virginia relating to the same software symptoms observed, major move toward transparency nationwide given the transition to computer-based testing, and the existence of an actual remedy developed by the National Conference of Bar Examiners) have yet to be addressed.
My argument for reversal is fairly simple and straightforward. The injury to myself was clearly stated up front in the complaint, and it is ongoing. The injury to others is also ongoing, as the Attorney General has conceded that software system reboots and hands-on technical assistance at the saving stage are occurring at every exam. The district court simply mischaracterized the injury as mere software malfunctions that could be sorted out by the Virginia Supreme Court. On the contrary, the injury that I complain of is much more insidious and could only be heard by a federal court- the law in question takes away an applicant's right to present evidence vital to the Virginia Supreme Court in the exercise of its authority. Essentially, the policies of the Virginia Supreme Court and its Board work a "catch-22" for the applicants in violation of federal due process procedural protections accorded to U.S. citizens. Whatever the case law may have been in the 1970's and 80's the introduction of computer-based testing, and experiences of applicants at the saving stages, means Va. Code Sec. 54.1-108(1) denying applicants who have a software dispute from obtaining by FOIA their essays, is no longer proper and violates individual rights following the exam. Dr. Castell, the expert in this case, can testify that having such a policy in place violates a core IT systems principle. The only two other experts I have consulted concur.
UNITED STATES COURT OF APPEALS
VIRGINIA BOARD OF BAR EXAMINERS,
On appeal from the
United States District Court for the
Eastern District of Virginia
INITIAL BRIEF FOR THE APPELLANT
Jonathan B. Bolls
ASSIGNMENTS OF ERROR
1. The district court erred in holding that Appellant lacked standing to bring a prima facie constitutional challenge to Va. Code §54.1-108(1) and its corresponding unwritten policy of the bar examiners that no applicant can obtain their essays.
2. The district court erred in finding that Appellant suffered no injury-in-fact and bears no personal stake in the outcome.
3. The district court erred by finding that the Due Process Clause of the Fourteenth Amendment of the Federal Constitution is not implicated by failing to address the ultimate issue of the case: what the means are of resolving software related disputes before the Virginia Supreme Court if a law and policy present an obstacle to applicants obtaining their essays in the first place.
4. The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction over a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant.
The opinion of the United States District Court for the Eastern District of Virginia
appears in its order of dismissal, Civ. No. 3:11CV427-HEH (September 14, 2011).
The United States Court of Appeals for the Fourth Circuit has jurisdiction to hear this appeal pursuant to 28 U.S.C. §1331, viz the due process clause of the Fourteenth Amendment of the Constitution of the United States.
This case is a prima facie constitutional attack, given the recent transition to computer-based testing in Virginia, on Va. Code §54.1-108(1), denying applicants’ FOIA requests to obtain their test essays, and to the corresponding unwritten policy of the Board that no applicant can obtain their essays. Appellant’s previous case, Bolls v. Street, brought a constitutional challenge to just the Board’s policy that no applicant can obtain their essays coupled with a request for the release of his own essays. That case was dismissed as an as-applied challenge under Woodard v. Virginia Bd. of Bar Exmnrs., 598 F.2d 1345 (4th Cir. 1979). Because others continue to experience the same problems Appellant experienced with the software, and the fact that at least three computer forensic experts are in agreement that it violates a core IT systems principle to prevent applicants in a computer-based test from obtaining their essays, Appellant now brings a prima facie case against the policy and its foundational law.
The injuries to Appellant and a significant number of others that Appellant complains of are not, as the district would have it, merely software system malfunctions. Though these malfunctions are a seminal reason for a change in law and policy, the actual injury to Appellant and others similarly situated is quite different, and much more insidious. In Virginia a bar examinee has a right following the release of the results to bring a complaint to the Virginia Supreme Court, which has the power to reverse exam assessments under its inherent authority. See Order of the Fairfax Circuit Court, App. 3a. But this right is fatally handicapped when there exists an unwritten policy followed by the Board that no applicant can obtain their essays, which policy is rooted in Va. Code §108(1) denying Freedom of Information Act requests for the same. The injury that Appellant complains of is therefore an unreasonable hindrance to his and others’ access to the Virginia Supreme Court, namely the right to present necessary evidence to that court. The evidence in this case would prove, by expert and eyewitness testimony, that the Board is engaging in a pattern of improper activity in setting forth a sham remedy and applying the policy in question uniformly to applicants who experience a software system malfunction as described in Complt ¶28 and App. 9a-10a in Appellant’s affidavit. This policy of uniform application has been in existence since the 1970’s, long before the software system was introduced to all applicants in 2005. This activity is also going on while there exists an even longer standing law in Virginia that requires the Board to preserve an individual’s essays, presumably for any kind of dispute that should arise (see Va. Code §54.1-3929, reprinted App. 21a).
On standing, the injury to Appellant is both real and concrete, as borne out in the procedural history of his individual case, Bolls v. Street. Immediately after reaching an impasse with the Board with respect to obtaining his essays, he filed for an emergency court order in Fairfax Circuit Court to compel the release of the essays so that he could avail himself of his right to make an informed decision and particularize his complaint appropriately for the Virginia Supreme Court. That court, having found that the Board is not subject to review under the Virginia Administrative Process Act, directed Appellant to the Virginia Supreme Court. Appellant’s prayer for relief before the Virginia Supreme Court was two-fold: first, he sought to compel the release of the test essays, and then second, he sought an expedited second hearing “in the event that a claim is made.” Appellant informed the court as to what he and others experienced at the test site and that he had a leading computer forensics expert to back him up. Without hearing any of the evidence, the Virginia Supreme Court dismissed on the grounds that it cannot compel a discretionary decision on the part of the Board. App. 1a (Opinion of the Supreme Court of Virginia). He lost a career position (see Cmplt ¶10: “denied his license and lost a job in public service”) after experiencing a software system malfunction not the fault of his own (Complt. ¶10: described by a leading computer forensics expert as a “textbook case”) and then, once he requested to obtain his essays so that he could make an informed decision on how to proceed, he was denied his essays. The essays are patently sine qua non evidence in any bar exam software related dispute before the Virginia Supreme Court.
Appellant has informed the Board, and every former court that has denied jurisdiction, that his essay score on the 2008 Virginia Bar Exam is completely inaccurate- he has simply been prevented from making an informed decision and particularizing his complaint to the Virginia Supreme Court because his essays have been wrongfully witheld. Applicants do have a right, as the district court points out to “simply take the bar exam again” (Mem. Op. p. 8) but that court failed to address the fact that when such applicants take the exam again they will be subject to the same flawed law and policy that Appellant objects to on constitutional grounds. The district court’s opinion therefore acts to perpetuate the problem and does not square with the Fourth Circuit’s previous statement that “the rule is: once is enough” (see Richardson v. McFadden, infra). Appellant continues to have a right to have his first bar exam properly reviewed and resolved by the Virginia Supreme Court.
Since the Board is an agency of the Virginia Supreme Court and the Virginia Supreme Court bears ultimate responsibility for determining admission to the Virginia bar, this Court has concluded that for the purposes of reviewing a constitutional challenge to a bar examiner policy the federal court should conceptualize the Virginia Supreme Court and its Board as a single administrative agency. “[W]hen that court [Virginia Supreme 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  allegations concerning the review procedures of the court and the Board make out a viable claim.” Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (P4). Where an applicant experiences a system software malfunction at the test site and later observes that his/her essay score was surprisingly low, that applicant is currently prevented from obtaining their essays and directed to the Virginia Supreme Court. When the applicant seeks an order by the Virginia Supreme Court to compel the release of the essays prior to filing a complaint in that court, the Virginia Supreme Court rules, even before hearing the expert testimony, that it cannot mandamus a discretionary act on the part of the Board. App. 2a (Supreme Court of Virginia order of dismissal of Appellant’s individual case). This is a “catch-22” for these applicants; the Virginia Supreme Court bears just as much responsibility as the Board in maintaining a meaningless review mechanism with impossible obstacles to the individual complainant.
Virginia’s transition to computer-based testing has not taken place in a vacuum. Other state bars have faced similar difficulties as the evidence in this case shows. The vast majority of states have taken steps to ensure their applicants rights to the essays, Virginia being only one of seven (7) states that do not. App. 19a (note that Colorado has recently changed its policy to allow applicants such rights). In almost all the States, over 50% of the applicants now rely on the satisfactory performance of testing software. See Chart, App. 20a. Applicants to many other Virginia licensing boards and departments, such as the Virginia Board of Pharmacy for example, now rely on computer-based tests. Indeed, the change is also an international one as Appellant’s expert states: “The move towards computer-based testing is a major transition, as was identified and discussed at the 10th CAA International Computer Assisted Assessment Conference, July 4-5 2006, held at Loughborough University here at the UK.” Declaration of Stephen Castell PhD ¶29.
The instant case represents a constitutional challenge to both (i) Va. Code §54.1-108(1) and (ii) the Board’s unwritten policy that no applicant can obtain their essays. These are not one in the same but work in tandem, as the latter acts to circumvent the discretion of the former. Perhaps most illuminating is the Board’s initial argument before the Fairfax Circuit Court, stating as follows: “In its discretion, the Board does not provide copies of bar exam answers to any applicant, including petitioner.” (Mem. Opp. Mot. for Emerg. Inj. Relief, p.3 (emphasis in original). Appellant’s previous action in federal court, Bolls v. Street, was found to be a prohibited as-applied constitutional challenge to a bar examiner policy that no one can obtain their essays. The instant case is a prima facie constitutional challenge to the same policy and to Va. Code §54.1-108(1), its foundational underpinning. A comparison of the two complaints will bear out the difference.
STANDARD OF REVIEW
The standard of review for jurisdictional dismissal by the district court is de novo. “We review issues of justiciability pursuant to Article III de novo.” National Rifle Ass’n v. Magaw, 132 F.3d 272, 278 (6th Cir. 1997) (quoted with approval in Thomas Moore Law Center v. Barack Obama, 2011 FED App. 0168P (6th Cir.)). Issues of justiciability encompass dismissals based on 12(b)(1) subject matter jurisdiction and 12(b)(6) failure to state a claim. The Fourth Circuit reviews dismissals de novo for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. See Cavallo v. Star Enter., 100 F.3d 1150, 1153 (4th Cir. 1996); Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir. 1994). In the case at bar, the district court dismissed under Rule 12(b)(1) and Rule 12(b)(6) based on its findings as to standing and due process respectively. Memorandum Opinion, page 9. Further, “the issue of standing presents a pure question of law, thus a trial court’s ruling on the issue is entitled to no deference on appeal.” C.J.S. Actions §102 (2009).
A district court dismissal for failure to state a claim is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). On this point, courts are held to a “beyond a reasonable doubt” standard. “[U]nless it appears beyond a reasonable doubt that the Appellant can prove no set of facts in support of his claim which would entitle him to relief” a court should not dismiss a complaint for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 47 (1957).
I. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(1) MOTION BASED ON LACK OF STANDING.
The “irreducible constitutional minimum of standing” contains three elements: “(1) an
injury in fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.” Granite State Outdoor Advertising Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003). In ruling on a motion to dismiss, this Court simply needs to examine Appellant’s allegations:
At the pleading stage, general factual allegations of injury resulting from defendant’s conduct may suffice, for on a motion to dismiss we “presume[e]that general allegations embrace those specific facts that are necessary to support the claim.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (quoting Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 889 (1990). Thus, “mere allegations of injury” are sufficient to withstand a motion to dismiss based on lack of standing. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 (1999).
Appellant laid out his injury in ¶10 of the Complaint, entitled “Parties & Standing,” stating as follows: “[h]is 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.” As soon as he received his bar exam results, right away he contacted the Board and explained to them that the “essay segment of the exam” was “surprisingly deficient.” App. 13a (Appellant’s initial letter to the Board dated October 21, 2008). The rest of ¶10 details how he petitioned state and federal courts for over two years to release his essays, which are preserved by law , after he and others experienced a software system malfunction with identical symptoms to what was observed one year prior in New York where corruption of the essays was proven and properly remedied.
The injury to Appellant therefore consists of injury to his right to make an informed decision and, if necessary, present the evidence alongside his complaint to the Virginia Supreme Court. Va. Code §54.1-108(1) and the Board’s corresponding Policy of Nondisclosure effectively foreclosed any form of meaningful review by the Virginia Supreme Court because that court could not possibly act without the essays in question. As Appellant’s expert states in his declaration:
As an expert in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communication technology, software, systems, and services, 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.
Declaration of Stephen Castell PhD ¶32.
The district court simply misconstrues the alleged injury. Apparently focusing on what could possibly be known about the extent of damage as a result of the software malfunctions where the essays are not released, it characterizes the injury as speculative and hypothetical. Mem. Op,, p.6. The software malfunction, however, is not the injury Appellant seeks a federal court to redress. Once applicants who experience a software malfunction can obtain their essays, the Virginia Supreme Court can make such determinations on its own. Until the law and policy in question are removed as improper following a computer-based test, legitimate software disputes will become “unsolved mysteries.” The right to practice one’s chosen profession is a well-recognized liberty interest and cannot be taken away without certain due process protections in place. This Court has recognized that in Virginia, an applicant’s due process interests are satisfied by the Virginia Supreme Court’s inherent authority over bar admissions. The injury that Appellant complains of is simply the taking away of his (and others’) right to present the evidence vital to that court in the exercise of its authority. Essentially the injury is Va. Code §54.1-108(1) creating an impediment to an applicant’s right to present their complaint to the Virginia Supreme Court. “In order to work a violation of the right to access the courts, it is not necessary for a statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult.” C.J.S. Constitutional Law §2156 (2009). Without the essays, in any software dispute, it is utterly impossible to resolve the dispute.
To support its conclusion as to there being no injury, the district court ignores this Court’s precedent and reaches for an out-of-circuit precedent that poses a contrary view. On page 8 of the Memorandum Opinion, the district judge cites to Brewer v. Wegmann, 691 F.2d 216, 217 (5th Cir. 1982) which held that the unqualified right to retake the bar exam constitutes adequate due process protection. However, after considering the issue of reexamination and due process, the Fourth Circuit is clear that reexamination is not a more effective remedy than judicial review:
It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges
was perceived to be too great. We are not persuaded . . . To our knowledge, a
person is not required by any state to repeatedly demonstrate his competence to
practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and nowadays money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that delay in getting it is an injury.Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976).
To require applicants who have a legitimate software dispute, some of whom have a career position on the line, to take the exam again six months later does nothing to correct the underlying fault in the review process that is supposed to be available to the applicants. Dr. Castell was prepared to testify that withholding essays following the mishaps described in Complaint ¶28 goes to the heart of a core IT systems development principle. Hence, where a fault is built into an exam or the examining procedures, reexamination will not correct the fault and suit is proper before a federal district court. See Castro v. Beecher, 334 F. Supp. 930 (D. Mass. 1971).
The district court erroneously concludes on page 6 of its Memorandum Opinion that Appellant has no personal stake in the matter. Because he “will suffer no actionable harm as a direct result of the challenged statute [Va. Code §54.1-108(1)] , he does not have a sufficient personal interest at stake to prosecute this action” (citing to City of Los Angeles v. Lyons, 461 U.S. 95 (1983)). Lyons brought suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where the police were not threatened with death or serious bodily injury (alleged to be an official policy). The Lyons court concluded, “[a]bsent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to bring an injunction than any other citizen of LA; and a federal court may not entertain a claim by an or all citizens who no more than assert that certain practices of law enforcement officers are unconstitional.” Id. at 111. Appellant Jonathan Bolls is situated differently than Lyons because Mr. Bolls’ injury is ongoing; it is not complete. He never was heard by the Virginia Supreme Court because that court ruled as a matter of law, even before receiving the expert testimony, that it could not mandamus the essays (App. 1a). Putting the injury in its proper context as a denial of access to crucial evidence to bring a complaint, the injury to Appellant is therefore a continuing one. Secondly, as the district court points out, he has a right to retake the examination. He cannot take the examination, however, without being subject to the very same law and policy that he contends is compromising the integrity of the test. Unlike Lyons, where the likelihood of him being subject to another chokehold was found to be miniscule, Appellant most certainly does have a substantial personal interest in fixing the very process that he would again be subject to in order to practice his chosen profession in his home state.
II. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(6) MOTION BASED ON ITS FINDING THERE IS NO VIABLE DUE PROCESS CLAIM.
In support of this finding, the district court relies on settled case law prior to the institution of computer-based testing for the bar exam. The 4th circuit authority it cites to on page 9 of its memorandum opinion, Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985), is the same one that Appellant cites to in order to establish jurisdiction. But it is crucial for this Court to understand that the facts presented between this case and that one are fundamentally different. Rogers’ test was not administered on a software program; Rogers did not experience a software system malfunction requiring hands-on technical assistance and a system reboot while the essays were being saved; Rogers did not have an expert report concluding that the software symptoms observed are consistent with that of another jurisdiction where data loss and misgrading as a direct result were proven. Rogers also had an opportunity to at least review her essays in a previous failed exam- the review policy she challenged merely precluded applicants from having a second review on a following exam.
The purpose of Appellant citing to Rogers is two-fold. First, it is to show that when a Virginia bar examinee brings a complaint as to the constitutionality of a review policy, the district court does have jurisdiction under D.C. Court of Appeals v. Feldman [see Part III infra]. Rogers v. Supreme Court of Virginia, No. 84-1746, August 22, 1985 p.3. Second, it is to show that when this Court determines allegations regarding post examination review procedures for the bar, it does not consider the state supreme court an appellate court but rather an administrative agency. As such, the review procedures of the Virginia Supreme Court and its agency, the Board, are to be reviewed together to know if a viable due process claim exists. See page 4 of Rogers:
[W]e think that when that court [Virginia Supreme 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.
The district court departs from applying this type of analysis by sidestepping the heart of the issue, which is how a software dispute could possibly be resolved if an applicant cannot obtain their essays before approaching the Virginia Supreme Court. Having overlooked this crucial point, the court simply directs such aggrieved applicants to the Virginia Supreme Court, where the procedural due process injury originates. See Memorandum Opinion, page 8: “Bar applicants who have been notified that they have failed the bar examination and who believe that it is attributable to a computer or software glitch have two available statutory options. They can either present their grievance to the Supreme Court of Virginia or, if decided adversely to them, petition the Supreme Court of the United States for certiorari.” This does not take into account the fact that the district court in Rogers was reversed for its similar line of reasoning. The review procedures of the state supreme court, and its board, are appropriately reviewed together by a federal court when challenged under due process, particularly procedural due process actions like the instant case. A contrary rule would simply undermine the 14th Amendment’s prohibition upon the States.
Certainly, this Court would not stand for the proposition that no due process challenges may be brought against a policy of the Virginia Board of Bar Examiners or law of the Virginia General Assembly. It is an established principle that the content of due process varies with each factual context. Hannah v. Larche, 363 U.S. 420 (1960). The recent major transition to computer-based testing in Virginia, and indeed throughout the country, is undoubtedly such a change that requires the courts to now reconsider the question of what rights applicants have to their essays in this new context. The expert report filed with the Complaint has been able to conclude, even absent a forensic analysis of Virginia’s software system, that the only way for an applicant who undergoes a software system malfunction as described in ¶28 of the Complaint to have the matter properly resolved is for that applicant, the “key creator of the data,” to obtain their essays. Declaration of Stephen Castell PhD ¶2, ¶31. This is also what is done in the vast majority of States. As it stands now in Virginia, any legal recourse such applicant has to the Virginia Supreme Court is meaningless unless they can obtain their essays. Paragraphs 9, 30 and 45 of the Complaint speak directly to this for Va. Code §54.1-108(1) and the Board’s Policy of Nondisclosure. See also ¶31 which states the fact that the Board has used its discretion to install Policy of Nondisclosure which is applied uniformly to all applicants, including those who experience the software problems described in ¶28. And see ¶36 which states that the USB saving mechanism in Virginia is identical to that used in New York where, as explained in ¶35 and ¶29 , data corruption and misgrading were proven.
Whether a remedy exists for a plaintiff alleging violation of constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). The new realities of computer-based testing turn the case law that the district court relies on completely on its head. Before the software issues came into being, it was generally thought that the opportunity for reexamination provided an adequate means of exposing grading errors. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974). Thirty years after these decisions came down the computer-based test was introduced, raising a new question on what procedural safeguards are adequate to protect an individual’s rights should something go wrong during the test. The answer for the vast majority of the states is resoundingly clear: transparency. All except for seven allow failed applicants access to their essays (see charts, App. 19a-20a) (note that Colorado has recently made the transition to allow such access after this data was compiled). It is no wonder why the Board has dropped its initial argument before the Fairfax Circuit Court that such disclosure would compromise the integrity of the exam when such policies work just fine in other states, regardless of whether they have a built-in appeals process or not. The high court of every state still has the inherent authority over its bar admissions and essentially becomes a court of first impression if no other statutory procedure is in place.
A. Due Process Procedural Protections
In Virginia, as the Attorney General concedes, applicants are experiencing the software symptoms described in ¶28 of the Complaint at every exam. App. 42a ¶6. A law that prevents these applicants from obtaining their essays through FOIA, particularly when the applicants claim a significant discrepancy in their essay score, means that “the bar examiners may very well have a serious problem on their hands and not even know it” (Declaration of Stephen Castell PhD ¶30). Neither can the applicants prove it without their essays, effectively denying them the procedural right to which they are already entitled- to present their complaint to the Supreme Court of Virginia.
Bar examiners are subject to due process requirements in carrying out their duties, (Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976), on reh’g, 563 F.2d 1130 (4th Cir. 1977), and bar examination procedures are reviewable to ascertain whether there has been a due process infringement. The 2nd Circuit has held that the principal function of the due process clause is to ensure that state power is exercised only pursuant to procedures adequate to vindicate individual rights. In re Taylor, 567 F.2d 1183 (2nd Cir. 1977). Cf. Opinion of the Justices, 252 Ala. 351, 40 So.2d 849 (1949) (while due process of law does not guarantee any particular form, mode, or method of procedure, the fundamental principles inherent therein must be observed).
The law is clear that one of the fundamental principles inherent in due process is the right of a plaintiff to present evidence to court in support of the complaint. “A litigant’s right to present evidence in court is generally considered essential to due process.” C.J.S. Constitutional Law §1790 (2009). In a software dispute, the essays themselves happen to be the only evidence. Simply put, without them there is no complaint, i.e. sine qua non evidence. As Eric Zeni would testify, had his case been in Virginia his essay grade would not have been corrected. The Virginia Supreme Court would not likely accept a petition from a bar examinee without concrete evidence. It has already ruled in Appellant’s individual case, described by Dr. Castell as a “textbook case” of a software mishap (Declaration of Stephen Castell PhD ¶31), that it cannot mandamus a discretionary act on the part of the Board. App. 1a. This in no way addresses the fact that the Board has used its discretion to make a policy that no one, including those who experience software mishaps, can obtain their essays. The problem is thus a systemic one requiring federal court intervention to consider the new issues brought on by the computer-based test.
III THE DISTRICT COURT ERRED BY IGNORING THE JURISDICTIONAL MANDATES OF D.C. COURT OF APPEALS V. FELDMAN.
The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction for a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant. Given the then-current state of confusion among the circuits over what jurisdiction a district has in this area, the U.S. Supreme Court drew a distinction between as-applied and facial challenges to a bar examiner policy:
The Court of Appeals for the 10th Circuit in Doe v. Pringle properly emphasized the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission . . . United States district courts, therefore, have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1316-1317.
The Eastern District Court has since upheld under the principles of Feldman constitutional challenges to state bar rules that are applied uniformly to all applicants. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 519 (E.D. Va. 1994) (“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.”) . See also Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“the district court correctly decided it had jurisdiction, on the ground that Rogers was challenging the conduct of a non-judicial proceeding under District of Columbia Court of Appeals v. Feldman. . . 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.”). Similarly, in the instant case, the Board continues to enforce an unwritten policy of uniform application that no applicant can obtain their essays, which the expert testimony would show violates a sound IT systems principle in a computer-administered examination.
In citing to Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232 (1957) on page 7 of the Memorandum Opinion, the district court places an undue limitation on a federal court’s enforcement authority over due process and equal protection cases. Schware is essentially a character and fitness case, not a bar exam case, and the court quoted a portion of Schware that is appropriate for a character and fitness case to illustrate its point. Certainly the principles of due process would also be able to reach the bar exam, which is the most significant part of the bar admissions process.
A. The Courts have a duty to open, rather than close, the door to the courthouse where a denial of standing would pose an impenetrable barrier to any judicial scrutiny of legislative action.
There is nothing paradoxical about a bar exam applicant who experienced the software system reboots described in ¶28 by himself and a significant number of others to eventually seek to change an improper policy that denied him and others meaningful review. The Supreme Court of Virginia is the proper forum for these disputes but it is utterly impossible for a litigant to bring a software dispute before the Virginia Supreme Court if he cannot first investigate, make an informed decision, and particularize the evidence in the complaint. This goes to the very core of the integrity of the grading process and a sense of fairness in the American judicial system. The Supreme Court of Alaska, for example, has properly characterized the Alaska bar examiner board’s process requiring applicants to prove error without a device to locate the error as a “logical hiatus.” Application of Peterson, 459 P.2d at 709 (Alaska 1969).
It is patently false for the Attorney General to assert that the Board is offering a remedy for those who experience the problems described in ¶28 of the Complaint. As Dr. Castell, a leading computer forensics and computer law expert of over forty years experience, states in his preliminary report filed with this Court:
To the extent that the board seeks to “review the version on [the applicant’s] computer against the one graded,” this can only merely confirm that the file was written by [the applicant] using the Exam4 software. In no way does this pose a remedy to, or even a sensible investigation of, any potential corruption problem caused by the Exam4 software itself, or through other (temporary or permanent) system fault, for which [the applicant] could not have been
responsible.Declaration of Stephen Castell PhD ¶20.
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 the 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.Id. ¶19.
The only remedy that does exist is not being employed presumably because it requires cooperation with the applicant. Following the software mishaps of New York’s July 2007 exam, the National Conference of Bar Examiners developed an alternative grading methodology detailed in a press release sent out by the New York Board of Law Examiners on Nov. 15, 2007 (reprinted top of App. 24a ). Eric Zeni, an attorney in New York whose software had to be rebooted in the middle of the essay exam in July 2007, has agreed to testify to the authenticity of the above referenced press release and to how the alternative grading methodology helped protect his license from being unfairly denied only once he was able to obtain his essays as of right. Dr. Castell has described this remedy as an “obvious and sensible remedy” which could work if “there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays . . .” Id. ¶38.
If Appellant does not have standing to challenge this law and policy, then that leaves the question of who would have such standing. Where “a denial of standing would pose, in effect, an impenetrable barrier to any judicial scrutiny of legislative action, the court’s duty is to open, rather than close, the door to the courthouse.” C.J.S. Actions §112 (2009). The fact that Appellant’s software malfunctioned at the saving stage of both morning and afternoon sessions of the test, requiring hands-on technical assistance which was to no avail, and finally a system reboot is a “textbook case” of a software malfunction and “very real cause for concern.” Declaration of Stephen Castell PhD ¶31 and ¶22. See also Appellant’s affidavit in App. 9a-10a. These problems also affected a significant number of others (App. 10a ¶9) and the Attorney General has conceded that the software reboots are occurring at every exam (App. 42a ¶6). There is significant evidence and expertise brought to this case, including expert testimony, eyewitness testimony, and research on other state bar exam policies and computer-based tests. Further evidence relating to the Engineers’ Notes of the technicians at the Virginia Bar exams could be obtained on discovery to corroborate Appellant’s observations that the software problems are localized to the saving stage of the exams, an indication of a systemic problem. In light of all the ongoing problems associated with software administered testing, post examination review mechanism of the Virginia Supreme Court and its Board must be reviewed by a federal court. Ignoring these observations, or downplaying them, is to trifle with individual rights. If this Court affirms such denials of standing to the only individuals who possibly would have standing then this Court is being too overly restrictive of its judicial role.
Previously in Bolls v. Street, Appellant brought a challenge to the policy that no applicant can obtain their essays coupled with a request for his own essays to be released. This was found to be an as-applied challenge to a bar examiner policy, which is prohibited under Feldman, supra. In this case there is no request whatsoever that Appellant Jonathan Bolls’ essays be released. Additionally, the case seeks not just to bring a prima facie challenge to the Board’s policy but to its foundational underpinning, Va. Code §54.1-108(1). The allegations borne out in the Complaint clearly establish a solid case for a prima facie challenge as they refer to software problems that affected a substantial number of others in Virginia, evidence consisting of eyewitness and expert testimony on the propriety of the law and policy in question, research compiled on what the policies are of the other States, and the existence of an efficient, thorough, and nationwide remedy developed by the National Conference of Bar Examiners for such situations (see Complaint ¶35). The procedural history of Appellant’s individual case is instructive to this Court as one case in point.
The novel issues raised by computer-administered testing, and the evidence of the instant case, are compelling reasons for the court to hear this case, notwithstanding previous case law on the subject that took place before these issues were even a consideration.
In sum, the district court characterized the injury-in-fact incorrectly. Appellant had to bring this case to a federal court because the policies of the Board and the Virginia Supreme Court were effectively denying individuals their right to bring evidence in support of their complaints, thereby preventing them from accessing needed evidence for their complaints. See Complaint ¶10 detailing his own particular injury (“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.”). Without considering the novel issues raised with respect to the computer-based testing, without squaring the opinion with the content of the expert’s report, and without addressing the overwhelming trend among all the state bars toward openness and transparency, the district court concludes that due process is satisfied by the recourse applicants have to the Virginia Supreme Court. In so concluding, it fails to address ¶¶6, 9, 30, 31, 36, and 45 of the Complaint and relies on settled case law from the 70’s and 80’s, well before the software issues were even a consideration. The heart of this matter is that the applicants’ right to petition the Virginia Supreme Court under its inherent authority is vitiated because the evidence necessary to substantiate such a complaint is being withheld by the law and policy in question. An applicant such as Eric Zeni in New York would not be able to have his grade corrected in Virginia.
The standing question is linked with the due process question. Having found that there is no due process interest at issue with the law and policy in question, the court concludes that there is therefore no injury-in-fact and no standing. Had the court concluded, as it should have, that due process procedural protections were fairly implicated, then “the law is clear that injuries to common law, constitutional, and statutory rights are sufficient for standing.” Whether a remedy exists for a plaintiff alleging constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). Had the district court understood the injury in its proper context, this controversy would have been heard on its merits and Appellant would be able to proceed with the prima facie case to vindicate his rights and the rights of all future applicants to the Virginia bar.
This issue is ripe for review as there is no precedent on what constitutes procedural due process protections in the context of a software malfunction. The parameters of due process must keep up with a rapidly changing society, and technology clearly represents a driving force for such as change. Va. Code §54.1-108(1) was enacted into law at a time when the General Assembly could not have foreseen the vast implications of computer software performance on society as a whole, let alone on individual rights as we see today. As the Supreme Court states, “ ‘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 law that prevents FOIA requests and a corresponding policy that no applicant can obtain their essays has been generally upheld in the past, however, the advent of computer-based testing demands that courts take a second look. The evidence shows that applicants in other parts of the country that are allowed to obtain their essays have indeed proven that the same software symptoms observed at the Virginia Bar Exam have led to corruption of their essays, and misgrading as a result. Furthermore, a workable remedy does exist that requires cooperation with the applicants.
Appellant’s personal stake in the outcome should have been readily apparent. The injury to his due process rights is still ongoing as the evidence necessary to a proper review of his case continues to be held in secret pursuant to an improper policy following a computer-administered exam. He furthermore has a vested interest in fixing a bar admissions process that he has a standing right to undergo again in order to practice his chosen profession, in his home state.
November 10, 2011