The Virginia Supreme Court, which is the court that should have heard my individual case, preliminarily concluded it lacks the authority to mandamus (command order) the release of the essays, even in the context of a malfunction in the Board of Bar Examiner software system affecting a significant number of people, because the underlying decision whether or not to release them was a discretionary decision by a state official. However, the Virginia Supreme Court was presented with information that the Board has made it an unwritten policy that no one, including those who fall prey to its software failures,can obtain their essays. I have argued extensively that to apply a blanket rule like that is to ignore what we all know in our common sense is totally improper in any computer-based test. The Virginia Supreme Court and later the federal courts were also shown another Virginia law (Va. Code Section 54.1-3929) that requires the Board to preserve the essays for one year, a law that has been used in Virginia prior to the enactment of Va. Code Section 54.1-108(1), is still in effect today, and is used in other states to allow an applicant (or his/her representative) to obtain their essays following the exam.
Aside from a leading computer forensics expert's conclusions regarding the software failure and his citation to discoverable evidence, all the courts were directed to what appears to be the heart of the problem in Virginia: the Board, as an agency of the Virginia Supreme Court, is exempt from APA (Administrative Process Act) review by a state circuit court. And the only court that has supervisory authority over the Board of Bar Examiners is the Virginia Supreme Court. That court, in 2009, was informed in the initial pleadings that a leading computer forensics expert was retained and has been able to form significant conclusions as to the nature of the Board's software system failure and its policy of nondisclosure. Nevertheless, the court refused to hear the expert and immediately denied jurisdiction to compel the release of the essays because the Board has discretion on whether or not to release an individual's essays. This is a "catch-22" for aggrieved applicants and a classic due process dilemma, because the case law is clear that no claim, without the evidence to support it (i.e. the essays) would be able to survive dismissal if brought before the Virginia Supreme Court. As a result, I am informed that the software problems persist and there is still no recourse available for software system malfunctions at the Virginia Bar Exam. My individual case demonstrates this having been first argued orally in Fairfax Circuit Court in December 2008. While I am informed that court was persuaded of the injustice, it simply lacked the jurisdiction to do anything about it. When the judge pointedly asked the Virginia Attorney General's office at oral argument what process is available to an aggrieved bar examinee, the response was: "That is an interesting question." That immediately set my case on a journey of its own, which was followed by a constitutional challenge in federal court to Va. Code Section 54.1-108(1) which prevents all of these cases from being heard by the Virginia Supreme Court.
All of this begs the question, what is the role of the courts? I believe that courts should be courts of justice. There are some who believe otherwise, that the courts exist for the sole purpose of processing claims. If we fall into the thinking of the latter, then the courts will likely assign higher priority to high dollar cases and leave less consideration to cases like this one where a state law has been identified as violating individual rights and leaving a particular state agency without effective review. In a civilized society, the rights of the individual must be upheld by the courts.
The experience of having gone before so many state courts and federal courts in just a few years following law school has been both educational and rewarding. I am now intimately familiar with the Supreme Court Practice treatise, due process law, and bar admissions law throughout the country. The issue is certainly not going away any time soon, for example, the expert report still stands.
Clearly, the judiciary has its limitations. And where the judiciary fails, it is up to the People to decide whether a change in the law is appropriate. I will now consider appropriate next steps in addressing this issue. Please see, below, a copy of the certiorari petition:
QUESTIONS PRESENTED
Applicants who experience a software system malfunction at the Virginia Bar Exam have a right to bring claims to the Virginia Supreme Court. However, the Board follows a policy, uniformly applied, that no applicant can obtain their essays, a policy premised on Va. Code §54.1-108(1). Forty-Three (43) States plus the District of Columbia have adopted policies to allow their applicants to obtain or review their essays in light of the recent transition to computer-based testing, a number that is on the rise. Well more than half of bar applicants nationwide now rely on software provided by their testing boards.
1. Whether the changed circumstance of the transition to computer-based testing for the bar exam nationwide coupled with the overwhelming trend among the States allowing applicants to obtain their essays allows for a valid challenge under the Due Process Clause of the Fourteenth Amendment to a state policy that denies such rights.
2. Whether a bar applicant who has a software dispute with the board has standing to bring a prima facie constitutional challenge to a state law that bars applicants from obtaining their bar exam essays when the essays represent the only evidence that could be used in such disputes to petition the state supreme court under its original jurisdiction.
DECISIONS BELOW
The dismissal of the U.S. District Court for the Eastern District of Virginia is unreported and reprinted in the Appendix. Summary affirmance by the U.S. Court of Appeals for the Fourth Circuit is also reprinted in the Appendix.
JURISDICTION
The dismissal order of the Fourth Circuit was issued on February 13, 2012. This Court has jurisdiction under Article III, Section 2 of the Constitution. The federal question arises under the Due Process Clause of the Fourteenth Amendment of the Federal Constitution.
STATEMENT OF THE CASE
As the States have made the transition to computer-based testing for the written portion of the bar exam, there remain seven state bars that have kept policies in place to prevent applicants from being able to obtain their written essays following the exam (Appendix C, Chart, Transparency Policies of State Law Examiner Offices). Virginia is one such state. After being one of a significant number of applicants who experienced a software system malfunction during the Virginia Bar Exam, Petitioner noticed a scoring discrepancy in the results and sought to obtain his essays. After being prevented from doing so, notwithstanding a Virginia law that requires the Board to preserve the essays for one year (App. F), he sought relief from the Virginia Supreme Court pursuant to its inherent authority over the bar exam. That court, however, ruled that it did not have the authority to release test essays. Without reviewing the merits or hearing Petitioner’s expert witness, the court simply dismissed stating as follows:
"On consideration of this case, the Court is of opinion that mandamus does not lie to
compel the performance of a discretionary act and the writ of mandamus should not issue as prayed for. "
Bolls v. W. Scott Street, Sec’y of Va. Bd. of Bar Exmnrs., August 11, 2009, case no. 090915.
Consequently, his petition never could be heard on its merits and it remains as yet undetermined the extent of the affect the software malfunction had on his test essays and those of the others who sought review.
On June 24, 2011 he brought a prima facie constitutional challenge in the U.S. District Court for the Eastern District of Virginia to Va. Code §54.1-108(1) (reprinted in Appendix F), which prevents bar examinees whose essay scores are in dispute from obtaining their essays under the Virginia Freedom of Information Act. Since the recent transition to computer-based testing in Virginia in 2005, applicants continue to experience software system malfunctions requiring hands-on technical assistance and a system reboot during the saving stage of the test. The Respondent admits this occurs at every examination sitting. Despite the fact that the symptoms observed are consistent with proven data loss and misgrading in other state bar exams (Appendix E, Dec. of Stephen Castell PhD ¶35), and the fact that the software itself is provided by the Board, the Va. Board of Bar Examiners continues to enforce an antequated policy that has been in place since the early 1970’s that no applicant can obtain their essays. This policy is now being applied even to those who fall victim to a system software malfunction requiring hands-on technical assistance and system reboot. To this day applicants in Virginia are still being denied access to their essays, although 43 states and the District of Columbia afford their applicants such rights.
Petitioner has retained a leading computer forensic expert witness who has been able to conclude that "when a software glitch is encountered by an applicant, and should a dispute arise, the technically sound and reasonable way for the matter to be resolved is for there to be a policy in place for applicants to obtain their essays." Appendix E, Dec. of Stephen Castell, PhD, ¶2. If given the opportunity, he would also testify that the Board’s policy runs afoul of a core IT systems development principle and is a highly unusual way to administer any computer-based exam. Furthermore, because of Va. Code §54.1-108(1), applicants in Virginia who experience a system malfunction are prevented from the benefit of having the only workable remedy which was developed by the National Conference of Bar Examiners for resolving such disputes. Id. ¶38. Petitioner is advised that the technical assistance on standby at the exams are required to keep records detailing each incident of hands-on technical assistance and/or a system reboot provided at the exams.
Aside from the expert, Petitioner’s corroborative evidence includes witness testimony.
The first is a witness from New York who took the New York bar exam in 2007 and experienced a software system malfunction which required hands-on technical assistance and a reboot. Because he was able to obtain his essays under New York law, he could identify, unbeknownst to the New York board, portions of two of his essays that were cut short or erased. His essays were then regraded pursuant to the remedy developed by the National Conference of Bar Examiners, and he subsequently passed. The second witness is someone who can verify the magnitude of the problems experienced at the saving stage of the Virginia Bar Exam. The third witness is Petitioner himself, having fallen victim to the board’s software malfunctioning in both morning and afternoon sessions of the test requiring hands-on technical assistance and a reboot. He also observed others who had the same experience he did. Without a meaningful review mechanism in place, he lost a career position in a state’s attorney’s office as a result (Complaint ¶10, entitled "Parties & Standing").
Rather than hearing the case on its merits, the district court dismissed for lack of standing and lack of a triable Fourteenth Amendment due process question. Petitioner urges this Court to review because standing is satisfied by the injury to Plaintiff stated in Complaint ¶10, and the due process question is clear since the essays themselves represent sine qua non evidence in any software dispute with the board brought before the state supreme court.
There exists a universal right in every state for an applicant to bring a claim to the state high court under its inherent authority over the bar exam; nevertheless, without the essays, an applicant who experiences such a software malfunction is denied the liberty to state a claim upon which relief can be granted. Perhaps most importantly, precluding applicants under these circumstances from obtaining their essays also precludes the only available remedy as developed by the National Conference of Bar Examiners.
The National Conference of Bar Examiners, in response to a software system malfunction that affected New York’s July 2007 bar exam, developed an alternative grading methodology which first requires cooperation with the affected applicant. Where portions of the essays were identified as being truncated or lost, the following press release of the New York board describes how the method was applied:
"Fifteen of these candidates passed the examination based on their performance on the balance of the examination, with no credit being given for any missing essay. Seventeen
candidates failed the examination even when attributed a perfect score on any missing essays. The remaining 15 candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed."
Press release, New York Board of Law Examiners, Nov. 15, 2007, ¶5, available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm (last visited May 3, 2012).
Computer-based testing thus raises significant new issues that cannot be ignored and re-opens the question of what constitutes substantive and procedural due process protections following the bar exam.
REASONS FOR GRANTING THE WRIT
I. Unlike times past, there is today a compelling scientific explanation for revisiting the question of whether a bar examinee’s due process interest is infringed by a blanket rule that no applicant can obtain their essays following a computer-based bar exam.
Va. Code §54.1-108(1) specifically exempts examination papers of professional testing boards from the disclosure provisions of the Virginia Freedom of Information Act. See code section reprinted in Appendix F. The Board, in turn, follows an unwritten policy that no applicant can obtain their essays. This policy is applied uniformly to all, including those who undergo a software system malfunction in the Board’s testing software. The Fairfax Circuit Court addressed this issue in its order entered March 16, 2009 in Petitioner’s individual case, stating: "[the court] does not reach the issue of whether the Board has abused its discretion by adopting a policy to never release bar exam answers to applicants." Bolls v. Virginia Bd. of Bar Exmnrs., Case No. CL-2008-15212, n.1. Surprisingly, this important and timely issue has yet to be addressed on its merits in the context of a software malfunction by any state or federal court.
The Eastern District Court’s memorandum opinion acknowledges that applicants to the bar are to be afforded the protections of the due process and equal protection clauses of the Fourteenth Amendment. Appendix A, Opinion of the U.S. District Court, p. 7. However, it references Schware v. Bd. of Bar Exmnrs., 353 U.S. 232, a character and fitness case, to underlay an overly restrictive view on what protections fall within the scope of the Amendment. The court states: "federal courts have exercised restraint in reviewing non-discriminatory practices and procedures." Id. at p.8.
Instead of considering the novel issues raised by computer-based testing, the Court merely concludes that access to bar exam essays are traditionally not considered necessary for due process. Without addressing the evidentiary report of a leading computer forensics expert which pointedly states that this rule must be revisited (Appendix E, Dec. of Stephen Castell PhD ¶¶2, 35), the Court refers applicants who experience a software malfunction directly to the Virginia Supreme Court. Id. at p.8. But this rationale falls hopelessly short, because it fails to explain how it is possible to bring such a claim without the only evidence that could substantiate it, i.e. the essays. Petitioner’s own individual case demonstrates the point.
A. The Scientific Basis for the Argument
The Declaration of Stephen Castell PhD, included in the Appendix, identifies a clear Catch-22 that applicants are placed in when directed to the Virginia Supreme Court without their essays:
"I am informed that applicants have a legal right to petition the Virginia Supreme Court, which has the power to reverse the board’s assessments. I turn now to Mr. Bolls’ chart showing the various state boards’ policies [Appendix C] which places Virginia in a small minority of states that do not allow applicants rights to the essays. As of February 2009, when Mr. Bolls made the phone calls, 43 of the 50 states afforded these rights. As an expert witness 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."
Appendix E, Dec. of Stephen Castell PhD, ¶32.
The Board has already admitted that hands- on technical assistance and software system reboots are, in fact, occurring at every Virginia bar exam sitting. Nevertheless these applicants are prevented from protecting their interests because their essays remain cloaked in secrecy, becoming in a sense "unsolved mysteries." According to Dr. Castell, in ¶22 of his report, "[t]he need for a reboot in such circumstances is in my view a very real cause for concern."
Dr. Castell further alludes to an applicant who sat for New York’s computer-based bar exam in 2007 and who experienced a software system malfunction requiring hands-on technical assistance and a system reboot:
"Mr. Zeni’s personal account [Cmplt. ¶29] does show the confirmation of receipt of all essay responses by the board was proven to be inaccurate . . . Mr. Zeni obtained his essays as of right, and, through his assistance, he was able to identify for the board two separate essays where portions of his essays were missing, not just the one question where the crash occurred."
Appendix E, Dec. of Stephen Castell PhD, ¶26.
Mr. Zeni has also agreed to be a witness in this case. The impropriety of the state law and the Board’s corresponding policy is underscored further by Virginia’s departure from the normal way of operating a computer-based test:
"Virginia, as I understand it, does not allow applicants to obtain their essays. In my view and experience, this is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking, and difficulties in identifying and assessing any data corruptions or omissions potentially caused by system malfunction or otherwise. Clearly, to apply such a policy . . . is to overlook the possibilities of systemic error and to have no objective and even handed methodology of investigation in regard to ruling out such possibilities."
Id. at ¶30.
Perhaps most significantly, a remedy does exist but cannot be utilized in Virginia by the applicants due to Va. Code §54.1-108(1) and the board’s corresponding policy that no applicant may obtain their essays. The remedy was developed specifically in response to software system reboots experienced in New York’s July 2007 bar exam [Footnote: ABA Journal. Law News Now. Available at http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/ ]which Dr. Castell concludes is consistent with what is being experienced in Virginia (Id. at ¶35). On this point Dr. Castell explains:
"If, as in my view, there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays, then, if such portions were thereby identified, it seems to me that there would then be an obvious and sensible remedy, viz, to employ the alternative grading methodology developed by the National Conference of Bar Examiners."
Id. ¶38.
Dr. Castell is able to conclude that when a software glitch is encountered by an applicant, and should a dispute arise, the "technically sound and reasonable way for the matter to be resolved is for there to be a policy in place for applicants to obtain their essays." Id. ¶2. The reason for that is quite simple, as Dr. Castell states:
"[T]here will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital"
Id. ¶31.
The Eastern District Court avoids all of the above compelling reasons for why computer-based testing reopens the question as to whether access to the essays is an important protection to the applicant’s due process interest.
B. The overwhelming majority of States accord their applicants rights to the essays as the transition to computer-based testing is made.
Applicants to the bar in Virginia have a right, as do applicants in any state, to petition the state high court under its inherent authority with any grievance relating to the administration of the bar exam. With the advent of computer-based testing, a dispute that arises out of a software malfunction is certainly foreseeable and presents a valid and new kind of grievance. In such a situation, to withhold the essays is to withhold sine qua non evidence, which acts to completely vitiate the right to present one’s grievance to the state high court. Hence the Catch-22 . . . applicants are directed to the state supreme court but given no means to substantiate their claims. As the FifthCircuit pointed out in Parrish v. Board of Commissioners of the Alabama State Bar, 533 F.2d 942 (5th Cir. 1976), "access to bar examination papers was crucial to plaintiff’s case."
Petitioner’s argument is essentially for a modification or change to existing law based on changed circumstances. 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. den., 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 with the software during the test.
Most states now offer a computer-based test, and most applicants now choose to take the test on the board’s special testing software. Appendix C, Chart, Statistics of the Computer Based Bar Essay Examination. The answer for the vast majority of the states is resoundingly clear: transparency. All except for seven states allow applicants access to their essays following the exam. Appendix C, Chart, Transparency Policies of State Law Examiner Offices (note that Colorado has recently joined the trend of allowing the applicants access).
There are a couple of state cases that demonstrate the point. The high court in Alaska called the board’s position a logical "hiatus" in that it required the applicant to demonstrate error without affording a device to locate the error. Application of Peterson, 459 P.2d 703, 709 (Alas. 1969). The high court of Arizona dismissed a petition for lack of sufficiency where it did not set forth "exact and complete particulars" of alleged unfair or improper grading of a particular set of exam papers. Application of Heaney, 476 P.2d 846, 848 (1970). For these reasons, any valid software dispute is bound to be dismissed without the only evidence to bear on the issue, i.e. the essays. With the onset of the computer age and high reliance placed on information technology, it is no longer proper to keep in place policies that withhold test essays. As Dr. Castell states, "there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital." Appendix E, Dec. of Stephen Castell PhD ¶31.
C. Applicants who experience a software malfunction have at a minimum a due process right to a responsible determination of the issues present.
A license to practice law is a well-recognized protected liberty interest. Not just the Equal Protection clause but the Due Process clause was specifically invoked by this Court as a limitation on state regulation of its bar. Schware v. Bd. of Bar Exmnrs., 353 U.S. 232, 238-239 (1957) ("A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clauses of the Fourteenth Amendment") (emphasis added). See also this Court’s opinion in Greene v. McElroy, 360 U.S. 474, 496 (1959):
"[R]ight to follow one’s chosen profession comes within the 'liberty' and 'property' concepts of the provisions of the Fifth amendment to the Federal Constitution that no person shall be denied liberty or property without due process of law."
More recently in Goldberg, this court clarified the bare minimum of what constitutes due process. This Court stated:
"[T]he hearing can be tailored to the necessities of the situation and need not be a full scale, judicial trial of the issue, so long as it produces a responsible determination of the issues present."
Goldberg v. Kelly, 397 U.S. 254 (1970).
This is where the reasoning of the district court, and by extension the Fourth Circuit by summary affirmance, falls short. Without considering the content of the expert report (reprinted in the appendix) and the compelling reasons it gives for why applicants must be able to obtain their essays, it simply directs applicants who experience a software malfunction to the Virginia Supreme Court. But the opinion fails to address ¶¶ 9, 30, and 45 of the Complaint which speak to how the Virginia Supreme Court is not allowing the essays to be disclosed following a software problem, and legitimate complaints are being wrongfully dismissed as a result. In Petitioner’s own individual case previously, for example, he filed a sworn affidavit detailing the software malfunction that affected both himself and others. Nevertheless, the court would not overrule the Board’s policy that no applicant can obtain their essays. The Board advises applicants with a software dispute that all results are final and there is no appeal. There is no built-in review process, whether formal or informal, whereby the software dispute could even be properly investigated. The Board, as an agency of the state supreme court, is also specifically exempt from the Va. Administrative Procedure Act.
This is wholly unreasonable and unfair in a computer-based test. When dealing with bar admissions, the Virginia Supreme Court and the Board are essentially acting as a single administrative agency. Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (P.4). Since the actions of the Virginia Supreme Court and the Board directly impact the right to practice one’s chosen profession, they are subject to the constitutional limitations of the 14th Amendment and federal judicial review.
II. To deny standing for applicants that experience software malfunctions to challenge a state law which prevents access to their essays poses an impenetrable barrier to judicial scrutiny of legislative action.
The district court concludes that there is no Article III standing in this case, finding no harm to Petitioner and no personal stake in the matter. Appendix A, Opinion of the U.S. District Court, p. 6. This, however, directly contradicts the allegations of the Complaint, viz ¶10, stating as follows:
"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.' 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."
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 of state bar examiner policies. 7 Am. Jur. 2d Attorneys at Law §20. 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) ("manifest unfairness on the part of the bar examiners are grounds for inquiry into the integrity of bar examination results"); Whitfield v. Illinois Bd. of Law Exmnrs., 504 F.2d 474, 478 (7th Cir. 1974); Cf. Scinto v. Stamm, 620 A. 2d 99, 103 (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"). Given the recent transition to computer-based testing in Virginia (2005), it is especially important for federal courts to ensure that the applicant’s rights are being upheld at the state level.
A. Contrary to this Court’s holding in D.C. Court of Appeals v. Feldman, 460 U.S. 462, the lower court seeks to avoid jurisdiction over individual rights questions of national importance.
This Court in Feldman made a fine line distinction between what cases can and cannot be brought by an aggrieved bar applicant in federal district court. There being a circuit split on the matter at the time, the Court adopted the rule in Doe v. Pringle, 550 F.2d 596, 597 (10th Cir. 1976) that federal courts cannot review particular denials of bar admission but can review general attacks on the constitutionality of a bar rule. See Feldman, 103 S. Ct. at 1317:
"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."
The instant case represents such a case requiring federal court jurisdiction. It involves a facial challenge under the Due Process Clause to Va. Code §54.1-108(1) which prevents applicants to the bar from obtaining their essays. Upon this law the Board acknowledges it has formed the basis for its blanket rule that no applicant can obtain their essays.
Since its inception, the computer-based bar exam has had incidences throughout the country where essays have been erased or cut short so as to negatively impact the grading assessments. See, e.g., the remedy employed by the National Conference of Bar Examiners in cooperation with the New York Board of Law Examiners following New York’s July 2007 bar exam. "Candidates whose essays had been corrupted and irretrievable were either awarded full credit for those essays, or those questions were thrown out and the candidates were simply graded on the balance of the examination." Appendix E, Dec. of Stephen Castell, PhD ¶33. Law examining boards of Kentucky and New Jersey have also admitted to experiencing problems similar to this.
States such as Virginia appear to be conveniently ignoring the issue. By not allowing applicants to obtain their essays, they maintain an illusion of perfection, even though, as Dr. Castell states, "Without 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." Id. ¶30. It is thus paramount that this Court uphold the Due Process clause to vindicate individual rights at the state level, where information technology raises significant new issues not accounted for in the previous case law.
B. The question of what constitutes due process in the context of a software malfunction is ripe for review.
The overwhelming trend of the States is to allow the applicants to access their essays. Appendix C, Chart, Transparency Policies of State Law Examiner Offices. Only seven (7) states do not allow such access, although they administer a computer-based test, most of which have over 50% of their applicants relying on the satisfactory performance of the board’s chosen software. Appendix D, Chart, Statistics of the Computer Based Bar Essay Examination.
What all the States have in common is an unqualified right accorded to the applicants to petition its state’s high court with any grievance relating to the bar exam. The issue is thus squarely presented before this Court whether the introduction of computer-administered testing throughout the country is cause for a change in policy in those states that do not allow their applicants rights to the essays, especially when they experience a software malfunction.
C. Proper characterization of injury-in-fact
The injuries to Petitioner and a significant number of others that Petitioner complains of are not, as the district court 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 Petitioner and others similar situated is quite different, much more insidious, and ongoing. 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. Woodard v. Va. Bd. of Bar Exmnrs., 454 F. Supp. 4, 5 (E.D. Va), aff’d 598 F.2d 1345 (4th Cir. 1979). But this rightis 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 §54.1-108(1) denying Freedom of Information Act requests for the same.
The injury that Petitioner complains of is therefore an unreasonable hindrance to his and others’ access to the Virginia Supreme Court, namely the right to present necessary evidence in support of a complaint before 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 by applying the policy in question uniformly to applicants who experience a software system malfunction as described in Complaint ¶28 and Petitioner’s sworn 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 Virginia in 2005. This is going on while there exists a law that traces at least as far back as 1919 in Virginia (see Va. Code §54.1-3929, reprinted in Appendix F) that requires specifically the Board to preserve an individual’s essays, presumably for any kind of dispute that should arise, which would now include software disputes.
In sum, Petitioner does in fact have standing. He was directly affected by the software system malfunction in 2008, and he has firsthand experience with the law in question being applied to him just as he sought to substantiate a valid claim before the Virginia Supreme Court. As it turned out, it was impossible for the Virginia Supreme Court to hear the merits of his case because evidence crucial to the software dispute, the essays themselves, were unfairly held in secret.
D. Violation of access to the courts has been found with significantly less substantial impediments to an individual’s rights than what is seen here.
Bar examinees, regardless of which state they are from, continue to have rights following the release of the bar examination results. "[T]he 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." Whitfield v. Illinois Board of Bar Examiners, 504 F.2d 474, 477 (1974).
Procedural protections fail, as in the case of Virginia, when there exists an impediment which is significantly difficult for an individual to surmount. "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). How much more warranted is judicial review when the obstacle poses an impossible barrier. Without the essays, in any software dispute, it is utterly impossible to resolve the dispute.
E. 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.
Va. Code §54.1-108(1) is a product of the Virginia General Assembly, and it directly impacts the rights of every applicant to the Virginia Bar. 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). If an applicant such as Petitioner does not have standing to challenge the law, then that leaves open the question of who would have such standing. Petitioner experienced a software crash, then he sought to obtain his essays, was precluded from obtaining them so that he could petition the Virginia Supreme Court,and remains subject to the same flawed law (and corresponding policy) should he take the exam again in his home state. Petitioner’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, all of which is described by a prominent computer forensics expert as a "textbook case" of a software malfunction and "very real cause for concern." Appendix E, Declaration of Stephen Castell PhD ¶31 and ¶32. Further, Respondent has conceded that the software reboots are, in fact, occurring at every exam.
There is nothing paradoxical about a bar exam applicant who experienced the system reboots described in ¶28 of the Complaint 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 related dispute before the Virginia Supreme Court if he cannot first investigate, make an informed decision, and particularize the evidence in the complaint. Essentially, the Board is usurping the authority of the Virginia Supreme Court by unilaterally deciding which claims can and cannot proceed against itself. This case therefore goes to the very core of the integrity of the grading process and a sense of fairness in the American judicial system.
F. One or more of the essay answers for 47 candidates to New York’s July 2007 Bar Exam could not be recovered following software symptoms consistent with that of Virginia.
Software malfunctions have led to data loss, and consequently misgrading, in other state bar examinations. See, e.g., a press release by the New York Board of Law Examiners stating that one or more of the essay answers for 47 applicants could not be recovered following "technical problems" experienced with the software. Press release, New York Board of Law Examiners, Nov. 15, 2007, ¶5, available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm (last visited May 3, 2012). Eric Zeni, witness in the case at bar, can testify as to the press release’s authenticity. The ABA Journal reported the incident with more specificity as "problems saving and uploading [the] essays." ABA Journal, Law News Now, July 26, 2007, available at http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/ (last visited May 3, 2012).
After reviewing a statement provided by Eric Zeni, Dr. Castell was able to conclude that the software symptoms observed in Virginia are consistent with those of New York. Appendix E, Dec. of Stephen Castell PhD ¶35. However, unlike in New York, applicants in Virginia cannot avail themselves of the remedy developed by the National Conference of Bar Examiners for when a software malfunction happens. See press release, supra, ¶5. That is because applicants are prevented from obtaining their essays pursuant to Va. Code §54.1- 108 (1).
It is also important to note that Eric Zeni can testify that the board did not identify the portions of two of his answers that went missing as a result of the software malfunction. He did.
Those applicants in New York who experienced a software malfunction, and who were then able to obtain their essays and apply the above remedy, would not have had the same opportunity to protect their license had they taken the test in Virginia. That should be a compelling enough reason for any one of the applicants in Virginia who experienced software symptoms consistent with that of New York to have standing in a federal court to challenge the very law that prevented their cases from being heard.
III. Under the factors set forth in Matthews v. Eldridge, 424 U.S. 319, post examination administrative procedures of seven (7) States are not constitutionally sufficient given the transition to computer-based testing.
The seven States that preclude their applicants from obtaining or reviewing their bar exam essays are *Virginia, South Carolina, Georgia, South Dakota, Hawaii, Arkansas, and Missouri. Appendix C, Chart, Transparency of State Law Examiner Offices. [*Footnote: Colorado has recently switched to allow such access during the pendency of this litigation].Every one of these States now administers a computer-based test. Appendix D, Chart, Statistics of the Computer-Based Bar Essay Examination. [*Footnote: Hawaii is the most recent addition, having recently introduced the computer-based test during the pendency of this litigation. However, Hawaii has kept its policy in place that no applicant can obtain their essays].
The Fourth Circuit has explained that since the state supreme court acts as a court of first impression in the unique case of the bar exam, and since the Board is an agency of the supreme court, the court is "acting as an administrative agency, rather than as a court of appeals" and it is "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).
Petitioner thus urges this Court to grant review and consider the factors outlined in Matthews below.
A. Factors in analyzing judicial or administrative procedure
Petitioner contends that in states that do not allow applicants to obtain or review their essays following the bar exam, the post examination right to petition the state’s high court is vitiated in any software related dispute. Resolution of the issue of whether administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. In Matthews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976) this Court considered three factors when analyzing whether an individual is constitutionally entitled to a particular judicial or administrative procedure.
1. Private interest affected by the action.
Many applicants, like Petitioner, have decided to use their law degree to go into public service. Some, like Petitioner, have secured postgraduate fellowships at these organizations where they would be taken on full time once they pass the bar. Without a timely review process in place, applicants whose results may have been affected are effectively penalized for six months. If they work for a public service organization they will in all likelihood lose their job.
2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.
As it stands, it is an open question as to how a valid dispute relating to the testing software can even be presented without discovery of the item in question, i.e. the essays. According to Dr. Castell, expert witness in this case, "This leaves the question of what the means are of resolving such disputes." Appendix E, Declaration of Stephen Castell PhD, ¶32. Unbeknownst to them, this is a risk now undertaken by over 50% of the applicants in the seven states that do not allow access to the essays. Appendix C, Charts, Transparency Policies of the States, Statistics of the Computer Based Test.
Essay answers have been known to be partially or totally missing following software symptoms consistent with those that are occurring at the saving stage of the Virginia Bar Exam. Witness Eric Zeni and expert witness Stephen Castell can provide corroborative testimony on this point. Additionally, the Engineers’ Notes of standby technicians who assist the Virginia Bar Exam will also confirm that system reboots are occurring at the saving stage of every exam. The significance of this is that such symptoms lead to grading inaccuracies.
The value of releasing essays to applicants who take the computer-based test is in how it safeguards the integrity of the bar exam. First, it promotes the appearance of a fair test. Second, it encourages graders to identify and isolate essay responses that appear to have been corrupted. If they do not, the applicants will, as Eric Zeni can attest. Grading any of these responses leads to inaccuracy, which ironically defeats the underlying purpose behind having a proficiency test. Dr. Castell is also prepared to testify that a rule precluding access to essays following a computer-based test (CBT) violates a core IT systems development principle that in any CBT there are times when cooperation with the applicant is "necessary if not vital." Id. ¶31. Only then can a remedy developed by the National Conference of Bar Examiners be used.
3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.
Neither the Virginia Supreme Court nor its Board has been able to identify an interest or harm that would occur if an applicant could obtain his/her essays. As demonstrated in other jurisdictions, releasing essays is a safeguard that would not add one penny to the cost, which is typically borne by the applicant for a small fee. [*Footnote: For example, the Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service].
The Board may decide to adopt an informal process involving cooperation with the applicants who experience a software system malfunction. Technicians at the test site, working on behalf of the board, already know who required hands-on technical assistance and which computers required a system reboot (which they recommend). For example, in North Carolina, a state that allows applicants to obtain their essays, the board suggests that an applicant write to the chair about significant flaws in the grading.
Without employing any such measure, a right to obtain essay answers would add nothing to the cost. In each of these seven so-called "non transparent" states, applicants already do have a right to petition the state’s high court. These state courts can dismiss cases, and regularly do with relative ease, according to their discretion. However, if an applicant had the essays in hand that showed the impact of a software malfunction, as Eric Zeni would have been able to show, then the court would be remiss in dismissing such a case.
CONCLUSION
The district court’s dismissal of this case runs contrary to this Court’s decision in Feldman, 103 S. Ct. at 1317 that general challenges can be brought to bar examiner policies and procedures. This Court may intervene in cases involving states, particularly "in those situations where it feels the error is so serious as to constitute a fundamental unfairness in the proceedings." [*Footnote: R. Stern & E. Gressman, Supreme Court Practice 6.27, p. 460 (5th ed. 1978)].
The recent national transition to computer-based testing for state bar exams has been accompanied by a near uniform change in policy toward allowing applicants rights to their essays. For those seven states that do not, there is a legitimate question as to whether due process is being violated. Inaccessibility of the essays following a software system malfunction precludes the possibility of obtaining a fair hearing on the merits consonant with the requirements for a responsible determination of the issues present.
As this Court in Schware put it, bar examiners are subject to both the Due Process and Equal Protection clauses in the conduct of their duties. Schware, 353 U.S. at 238-239. A careful reading of the district court’s opinion on p.8, summarily affirmed by the Fourth Circuit, uncovers a reluctance to deal with due process cases that really should not be there. Even if Due Process cases are more rarely presented, it is all the more important that when they are they do not go ignored simply because more cases involve the Equal Protection clause. Certainly this Court would not stand for the proposition that the Virginia Supreme Court may employ procedures in flagrant violation of the Fourteenth Amendment Due Process clause without any kind of federal judicial review.
The issue is ripe for review as there is no precedent for what constitutes procedural due process protections in the context of a software malfunction. As this Court has stated, " ‘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). 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. In the past, such laws preventing access to the essays have generally been upheld; 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 who have been able 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.
Petitioner’s personal stake in the outcome should have been readily apparent to the court below. The injury to his due process rights is still ongoing as the evidence necessary for 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 exposing a flaw in a bar admissions process that he has a standing right to undergo again in order to practice his chosen profession, in his home state.
Petitioner respectfully requests this Court to grant review.
Respectfully Submitted,
Jonathan Bolls
Attorney Pro-Se
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