VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

Update 28: In a previous entry, I stated that there are some documents that will be released at a later date. I will do so at the end of this entry.

On February 13, 2012 the 4th Circuit Court of Appeals affirmed the district court's order dismissing the constitutional challenge to the Virginia law that prevents bar examinees from being able to make FOIA requests to obtain their essays, even when they experience system software malfunctions by the Board's own testing software. Judges Wilkinson, Agee, and Floyd reviewed the matter, and the due process objections raised.

There was no analysis by the Court of Appeals, except to affirm, so we can look to the district court's opinion to find out why they do not believe the Virginia Board of Bar Examiners and Virginia Supreme Court have committed a due process violation.

Judge Henry Hudson of the Eastern District Court had before him a 20-page report by a leading computer forensics expert (see report reprinted in 2009 entries, Update 17), a statement by a bar applicant in New York who experienced the same symptoms that I and many others did in Virginia (who was able to identify misgrading as a direct result thanks to New York's policy of disclosing test essays), and the presence of a remedy specifically designed for this sort of problem developed by the National Conference of Bar Examiners. The judge was also informed that 43 states plus the District of Columbia now have policies that allow applicants access to their essays, a number that is on the rise. The judge was furthermore made aware of a statement by opposing counsel who, when pressed, admitted that the software reboots midway through the saving stage following the essay test are, in fact, occurring at every Virginia Bar Exam sitting.

Sadly, Judge Hudson skirted the above issues simply by not addressing them at all. His rationale for this not being a triable due process question apparently has to do with his narrow view of the due process clause. "[F]ederal courts have exercised restraint in reviewing non-discriminatory practices and procedures," the necessary implication being that applicants can bring 14th Amendment Equal Protection challenges but not 14th Amendment Due Process challenges. This does not comport with the seminal U.S. Supreme Court case, D.C. Court of Appeals v. Feldman, which clearly holds that "a bar applicant might bring in federal court...a constitutional challenge to the state's general rules and regulations governing admission...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" 460 U.S. at 485. In Schware, another Supreme Court case, both discriminatory and non-discriminatory cases were foreseen, as the opinion states, an applicant may bring either an equal protection challenge or a due process challenge. 353 U.S. at 238-239.

Here the procedural history of this case demonstrates that the due process violation cannot be more obvious, because after bringing the software dispute before state and federal courts, there is no forum for a bar exam software dispute. The local court in Fairfax, VA was about to consider the matter under the state Administrative Process Act(APA). Jurisdiction was successfully challenged there as the General Assembly specifically excluded the Board of Bar Examiners from the APA. Opposing counsel suggested bringing an appeal of an essay grade to the Supreme Court of Virginia without the very evidence that would be needed in doing so, the essays themselves. Because the essays represent sine qua non evidence ("without which there is nothing"), this was an absurd proposition. When a mandamus action was brought under the original jurisdiction of the Virginia Supreme Court, that court dismissed for lack of authority to issue mandamus on a discretionary decision by a state official whether to release test essays. Having preserved the constitutional issue for federal court, a non-monetary action was brought in federal district court to 1) release my test essays, and 2) strike down the policy that prevents applicants from obtaining their essays, which is improper in the computer-based testing environment. That action was dismissed as being applied to an individual(me). A second action was brought in the same court as a strict policy challenge with no individual relief for myself whatsoever, something I voluntarily did to help correct this ongoing wrong that affects a significant number of people at every exam. This action was denied on a different basis, this time on the ground that I was distancing myself from the case, allowing the court to now conclude there is no standing, or injury to myself. On appeal to the 4th Circuit, I explained that of course I have standing, having lost a job as a direct result of a lack of a corrective process, and being subject to the same ill-advised policy should I ever decide to take the Virginia bar exam again, in my home state. The Court of Appeals simply affirmed without explanation, and that is where we are now.

During the pendency of this latest action, I petitioned the Governor of Virginia and explained my own individual case to see if there might be anything he could do within his power to compel Mr. Scott Street, Secretary of the Virginia Board of Bar Examiners, to release the test essays. I am informed that the Governor has personally reviewed my letter and is unable to intervene in a legal matter. His staff provided helpful avenues should I decide to propose modifications of the legislation with the General Assembly.

Now, on the subject of documents related to this case I witheld earlier . . . On July 28, 2011 I received a letter from the assistant Attorney General handling the matter for opposing counsel asking me to drop the policy challenge or else sanctions will be brought against me. I responded, in the letter reprinted below: "I hope that you will reconsider as I have no intention of dropping this case. It is far too important to Virginia, and especially all of the bar applicants who continue to fall victim to this outdated law and technically improper policy in light of the recent transition to computer-based testing for the Virginia Bar Exam." Of course, the case was not dropped and a sanctions motion was brought. The motion for sanctions was denied, as the court found that I always acted in good faith. Significantly, the court also stated as follows: "In the immediate case, although defendant's motion alleges that plaintiff 'cannot possibly certify evidentiary support,' it fails to specify any such unsupported factual allegations. In fact, plaintiff has retained a number of witnesses to reinforce the factual components of his complaint."

My objective in bringing this latest action benefits every Virginia bar applicant who has reason to believe his/her essays were misgraded by the Board. It seeks no individual relief for me at all. Once applicants can obtain their essays, just like in the other states, they will be vigilant and will hold the Board accountable for its grading decisions. Furthermore, there will be an incentive for the Board to fix its software system which it already admits continues to experience problems at every exam. If no one can obtain their essays, then it apparently does not matter as far as the Board is concerned. This is basic human nature that results from any system run in secret without any legal review mechanism. As an attorney sworn to uphold the Constitution, I will bring the policy challenge to its final legal step: the Supreme Court of the United States.

The following is my letter in response to the threat of sanctions, followed by the initial letter from opposing counsel threatening sanctions:




August 2, 2011

Office of the Attorney General
900 East Main Street
Richmond, VA 23219

Mrs. Hill:

This is in response to your letter dated July 28, 2011 requesting that I drop my action challenging the constitutionality of Va. Code §54.1-108 (denying FOIA requests for examination papers) and the unwritten policy of nondisclosure of test essays of the Virginia Board of Bar Examiners. If I do not, you state that you will file a Rule 11 motion for “harassing and vexatious lawsuits.” I hope that you will reconsider as I have no intention of dropping this case. It is far too important to Virginia, and especially all of the bar applicants who continue to fall victim to this outdated law and technically improper policy in light of the recent transition to computer-based testing for the Virginia Bar Exam. There is no one more willing and proper to bring this case since the previous litigation demonstrates that there is no forum or meaningful process of review when a software dispute, or any other exam related dispute, arises with the Board. This is an ongoing issue, as you have stated yourself in chambers, that the symptoms that I have described, including the hands-on technical assistance required and the need for a reboot, continue to affect every succeeding exam.

If you will recall, going back to the original Dec. 2008 emergency motion hearing in Fairfax Circuit Court, Judge Alden asked you what process was then available to aggrieved bar examinees, and you stated succinctly, “That is an interesting question.” When the judge turned to me to ask the same question, I agreed that this was indeed an interesting question. Present at this hearing was the judge’s clerk, a family member of mine, a friend of mine who is a clerk for another judge in the Fairfax Circuit, and some other attorneys. It became clear to me at that time that this was a constitutional dilemma and I then sought two forms of relief in the succeeding litigation: individual relief for myself (only in the form of compelling the release of my essay answers) and general relief for all future applicants under due process so there might be some kind of meaningful process for when an exam dispute arises, whether related to a software system malfunction or for any other reason.

The Virginia Supreme Court dismissed without hearing the evidence, including the expert testimony, and ruled as a matter of law that it simply cannot compel the release of an individual’s test essays. That is clearly not an adequate process of review by any reasonable standard. The U.S. Supreme Court denied certiorari, which as you know is not a decision on the merits. Last year, the Eastern District Court dismissed my action requesting both individual relief in the form of compelling the release of my test essays and declaratory relief as to the unconstitutionality of the policy of nondisclosure. That court dismissed because of the individual relief component.

The case I have brought this time no longer concerns myself whatsoever. The jurisdictional bar has therefore been removed completely. What is also different here is this primarily challenges an outdated Virginia law, which I believe is the foundation from which the policy of nondisclosure springs forth. The case now has the potential to benefit not just applicants to the Virginia Bar but applicants to other occupations as well, particularly if they employ a computer-based test with a similar nondisclosure policy as the Board. Federal district courts undoubtedly have jurisdiction over a general challenge to a policy of the Board of Bar Examiners. See D.C. Court of Appeals v. Feldman, 103 S. Ct. 1303, 1317:

“a close reading of the complaints discloses that the respondents mounted a general challenge to the constitutionality of the rule and sought review of the District of Columbia Court of Appeals’ decisions in their particular cases . . . [t]he remaining allegations in the complaints, however, involve a general attack on the constitutionality of Rule 46 I(b)(3) . . . [t]he District Court, therefore, has subject-matter jurisdiction over these elements of the respondents’ complaints.”

I certainly would hope that you would agree that a citizen is well within his rights to challenge a Virginia law if the circumstances of a progressive society suddenly bring that law into direct conflict with 14th Amendment due process.

I cannot understate the importance of this issue, as it goes to the very heart of the integrity of bar admissions, individual rights, and even livelihoods. That is why I have acquired the assistance of a leading computer forensics expert who is capable of drawing certain conclusions already based on his over forty years experience in his field. He is willing to testify. Eric Zeni, an applicant from New York whose experiences were remarkably similar to my own, is willing to testify that misgrading did in fact result and it was only through obtaining his essays that he was able to protect his license. The number of states that allow applicants to obtain their essays has recently increased from 43 to 44 as you will see from the complaint.

Please consider placing the blame for this ongoing controversy where it rightfully belongs- with your client. As a state agency, the Board must know that all of its policies and procedures must be in compliance with due process. When the computer-based test was introduced to all the test takers the policy of nondisclosure should have been dropped, just like in almost all the other States. This is a matter of common sense and is solidly backed up in science.

It is for the foregoing reasons that I must not drop this case.

Regards,


Jonathan Bolls



July 28, 2011

Re: Bolls v. Virginia Board of Bar Examiners
U.S.D.C., Richmond, Case No. 3:11-cv-427

Dear Mr. Bolls:

I represent the Virginia Board of Bar Examiners in the above-referenced lawsuit. Please find enclosed a Motion for Sanctions which I intend to file at the expiration of the notice period provided for in Rule 11 of the Federal Rules of Civil Procedure, if you have not dismissed this lawsuit.

You have filed at least four prior suits arising out of the same facts and circumstances and raising the same issues, including: (1) a Petition for Emergency Injunctive Relief filed November 18, 2008 in the Fairfax County Circuit Court, requesting the court to order the Board to release copies of your bar exam answers to you, which was denied based upon lack of jurisdiction; (2) a Petition for Writ of Mandamus against the Board in the Supreme Court of Virginia, seeking an order compelling the Board to release your exam answers. As you know, the Court denied your petition by order entered August 11, 2009, and thereafter denied your Petition for Rehearing; (3) a Petition for Writ of Certiorari and/or Mandamus with the Supreme Court of the United States, which was denied. Bolls v. Street, 130 S. Ct. 1535; 176 L.Ed. 2d 133; 2010 U.S. LEXIS 1438 (Feb. 20, 2010); and (4) a suit for declaratory judgment filed against W. Scott Street, III, Secretary of the Board, challenging the Board's denial of your requests to release your exam answers, as well as the constitutionality of the rules and regulations supporting that decision. As you know, the Court granted the defendant's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and (6), and thereafter denied your Motion to Alter Judgment. You then appealed and the Fourth Circuit affirmed by unpublished per curiam opinion on March 17, 2011, denied your Petition for Rehearing as untimely on April 4, 2011, and denied your Motion to Reconsider on May 12, 2011.

Your current lawsuit is evidence of a pattern of filing vexatious and harassing lawsuits against the Board and represents a flagrant disregard for the mandates of Rule 11 of the Federal Rules of Civl Procedure, as well as an abuse of the judicial system. Further, while you are proceeding pro se in this matter, you are an attorney licensed to practice law in the District of Columbia. As a licensed attorney and officer of the court, you are required to comply with all Rules of Court.

Per the notice period under Rule 11, to avoid the possibility of sanctions, you have 21 days to dismiss this action against the Virginia Board of Bar Examiners.

Sincerely,

Catherine Crooks Hill
Senior Assistant Attorney General