VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

Update 34.  My letter to the Virginia General Assembly has been received favorably and a timeline has been requested of me as well as the name of the chief justice of the Va. Supreme Court at the time the case was presented, Leroy Hassell.  Below is the procedural history of the legal case I brought on behalf of myself as well as all applicants for the Virginia Bar:

DECEMBER 2008    FAIRFAX CIRCUIT COURT.   Between the end of October and beginning of November I attempted to obtain my essays from the Virginia Board of Bar Examiners.  I was told repeatedly that once the results are released they are final and there is no possibility of review.  At the end of November I filed an emergency motion in Fairfax Circuit Court seeking a mandamus, a judicial command order, under the Administrative Process Act, to compel the release of the essays.  Senior Judge Leslie Alden heard the arguments for a half hour.  An assistant attorney general, who came up from Richmond, did not at that time dispute that there was a software failure.  When asked by the judge, "what remedy is available to aggrieved bar examinees," she stated:  "that is an interesting question."  The judge then took the case under advisement and requested I file a supplemental brief on the applicability of the Administrative Process Act (see enclosed).  It was discovered that the Virginia Board of Bar Examiners is among a list of exempted entities from the general application of the APA (by the Code of Virginia, as one of three agencies of the Virginia Supreme Court).  Unlike practically all other state agencies, therefore, the Fairfax Circuit Court had no jurisdiction.

Note that in her decision (enclosed), Judge Alden found that while there is no explicit statutory authority to review the decisions of the Board, the Virginia Supreme Court retains such inherent authority and that I should therefore invoke the original jurisdiction of the Virginia Supreme Court in this case.  Note also that the judge, in footnote 2, states:  "the Court does not reach the issue of whether the Board has abused its discretion by adopting a policy that it can never release bar exam answers to applicants."

In the opinion the court suggests:  "To the extent the Petitioner seeks a mandamus ordering the Board to release his bar exam answers, the Petitioner should invoke the original jurisdiction of the Supreme Court.  Va. Const. art. VI, Section 1." 


MAY 2009 VIRGINIA SUPREME COURT (Chief Justice Leroy Hassell).  As instructed by the lower court, I brought the mandamus action to the Virginia Supreme Court under Va. Const. art. VI, Section 1.  Along with the complaint, I included my sworn affidavit as to the details of the software failure that affected my test as well as observations I made about other applicants who experienced the same difficulties saving the test essays.  I also disclosed how 24 applicants were found to have had essays mispositioned in the software system from the morning session as evidenced by an announcement made at the test site.  In addition, in the complaint I referenced the case of an applicant in New York who experienced the same software symptoms that I did who was able to prove misgrading of his test essays only once he was able to obtain his essays. 

The court simply dismissed the petition altogether.  What little the court did say was mandamus does not lie to compel a discretionary act (which it does, in the case of abuse of discretion, which was clearly a part of the claim).  In a petition for rehearing, I claimed that there was no other forum to hear the case and by not hearing the case (or such cases) the court is propounding a due process violation of the Federal Constitution.  Still, the court denied rehearing, again without explanation.


AUGUST 2010   U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.  Judge Robert Payne.  Because the Virginia Supreme Court declined to exercise its own inherent authority over the bar exam, I was essentially left without redress in the Commonwealth of Virginia.  I then brought the case to federal district court as a violation of due process on the part of the Virginia Supreme Court and its Board of Bar Examiners.  The case precedent for jurisdiction here is Rogers v. Supreme Court of Virginia, 772 F. 2d 900 (4th Cir. 1985) ("we 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.").  See also Richardson v. McFadden, 540 F.2d 744, 750 (4th Cir. 1976) ("It is beyond question that the bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties") and Whitfield v. Illinois Board of Bar Exmnrs., 504 F.2d 474, 478 (1977) ("the due process clause requires the State to employ fair procedures in processing applications for the admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections"). 

I obtained a leading computer forensic expert who submitted a brief to the court where he was able to already form certain conclusions which corroborated that my concerns were indeed justified and that the descriptions of what occurred in New York's software failure matched what is being observed in Virginia.  See attached expert report of Stephen Castell PhD.  The expert also concluded that the National Conference of Bar Examiners has already developed an "obvious and sensible remedy" to use for situations that come up with the computer based test (see last sentence of Stephen Castell's report).  It also characterizes my case, in Paragraph 31 of the expert report, as a "textbook case" and that the Board's unwritten policy of nondisclosure "is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking."

In the complaint, Paragraph 17, I allege that the unwritten policy of nondisclosure of test essays has the effect of rendering the right of every bar exam applicant to petition the Supreme Court of Virginia defective and illusory.  That is because of the basic requirement that one "plead with particularity" so as to make out a cognizable claim.  Without such particularity, cases are dismissed by the Virginia Supreme Court (and all courts) on a routine basis.  See Application of Peterson, 459 P.2d 703 (Alaska 1969), where the Alaska Supreme Court called the board of bar examiners' position a "logical hiatus" in that it required a bar examinee to demonstrate error without affording him a device in which to locate that error.  The essays are known as "sine qua non" evidence in this instance- evidence without which there exists no case.

In my prayer for relief, I ask for no monetary compensation whatsoever.  I merely ask that the unwritten policy of nondisclosure be struck down as unconstitutional and that my essays be released to me at once. 

Defendant's Answer.  The Board's Answer to the Complaint (enclosed) admits to the unwritten policy of nondisclosure.  See Paragraph 13.  It furthermore confirms that it has been applied in this case and has been applied uniformly to all applicants.  In chambers, the assistant attorney general was corrected by Judge Payne when she misstated that it has always been this way, because he said it was not when he took the exam.

Court's Decision (see enclosed).  Without addressing the merits, the court dismissed the case on the premise that I was challenging the Board of Bar Examiners' unwritten policy with respect to my own exam as opposed to all applicants.  In fact, I was doing both.  As the prayer for relief states first and foremost:  "That this Court take the necessary steps to protect the rights of all future applicants to the Virginia Bar by declaring Policy of Nondisclosure and Policy of Finality unconstitutional."

Court of Appeals for the Fourth Circuit (see enclosed). The decision of the lower court is sustained without giving any reasons.  I have enclosed my brief.  The attorney general's office did not bother to respond, other than with a paragraph or so.


JUNE 2011 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA.  Judge Henry Hudson.  Since the previous case was dismissed for challenging the policy of nondisclosure with respect to my own exam, this time I brought forth a new action simply challenging the policy on its face as unconstitutional and seeking no relief for myself whatsoever.  See the enclosed complaint.  By this point, I had waived in my multiple choice score from Virginia (not the essay portion) into D.C. and took only the essay test in D.C.  D.C. runs a fully transparent system, and with a 60% failure rate, I still was able to pass on my first attempt.  Virginia is a mere 15% fail rate for first time takers.

Board Threatens Sanctions.  When this second case was filed, which becomes a part of the record, the attorney general's office claimed that I was bringing "vexatious lawsuits" and sought sanctions against my D.C. license.  Previously, this threat was made as an attempt to get me to withdraw the case.  And my response letter (see response to the sanctions motion, attached) was sent to the assistant attorney general as well as personal and confidential to Attorney General Ken Cuccinelli, explaining my reasons why this case had to go forward.  Even though this assertion as to "vexatiousness" was completely without basis, this issue was litigated and the court found in my favor and denied the motion.  Therefore, the case was able to proceed. 

Court's Decision.  The court issued a 9-page opinion.  At the heart of its rationale, found on the bottom of p. 7, is the idea that federal courts will not review due process or equal protection cases unless they involve cases of discrimination.  In other words, racial discrimination cases are the only ones they will review.  Other cases cited to in my brief that show federal review is not and cannot be just limited to discriminatory cases were simply ignored and not addressed in the opinion.

Ironically, as opposed to the prior district court decision which concluded it had no jurisdiction because I was applying the facts too much to my own case, this district court concluded no jurisdiction on exactly the opposite ground:  "In crafting his complaint, Plaintiff seeks relief on behalf of all future bar applicants and appears to distance himself from the group of individuals directly affected by the statute."  (p. 6 of the opinion).  Ignoring my primary contention that a policy withholding essays in a disputed essay exam prevents a case from going forward to the Virginia Supreme Court, the court lackadaisically states that applicants can petition the Virginia Supreme Court or take the bar exam again.  Without transparency, and given my personal experience with the Board, it should be quite obvious why I would never take the Virginia bar exam again without an appropriate change in policy.  This forced me to go elsewhere to gain admission to the Bar.

Court of Appeals for the Fourth Circuit (enclosed).  Sustained the lower court's decision, without explanation.


PETITION FOR CERTIORARI BEFORE THE U.S. SUPREME COURT (enclosed booklet).  Denied October 1, 2012.  The Supreme Court is careful to note that a denial of cert is by no means an expression on the merits of the case.  All legal remedies at the state and federal level have therefore been exhausted.  Despite the evidence and witness testimony available, the case never was heard on its merits.