tag:blogger.com,1999:blog-6112253434334441822024-02-20T14:49:00.070-08:00Jon BollsJonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.comBlogger16125tag:blogger.com,1999:blog-611225343433444182.post-61331706914113513222017-01-16T16:37:00.000-08:002017-05-08T19:02:46.469-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<b>Update 36</b>. Last month I provided the deans of Virginia's law schools with the twenty-page expert report in relation to my case and all candidates who experience similar technical problems saving their bar exam essays using the Exam4 software. Also included were my sworn statement as to what I experienced at the test site (and observations of others) and print-offs of the policies of neighboring state board of bar examiners who, unlike Virginia, recognize the due process rights of the applicants and allow access to the graded essays following the exam. See, for example, Maryland's Rule 19-207, available at http://www.courts.state.md.us/ble/pdfs/baradmissionrules.pdf<br />
<br />
Last year, when the Courts Committee held a hearing on this, the Board told them that it has decided to change its unwritten policy of not allowing anyone access to their essays to allowing a review of the essays after second and subsequent failures, but still not after the first exam. This is unacceptable and poses no remedy to applicants like Eric Zeni in New York, who was told his essays were properly received only to discover that was in fact not the case once he actually obtained his essays as of right. Mr. Zeni also provided a well written letter to the Courts Committee in Richmond explaining how critical the right to obtain his essays in New York was to identifying and correcting a grading mistake as a result of a technical failure of the board's software (his symptoms were very similar to what we are experiencing in Virginia). <br />
<br />
With the help of friends, an analyst for a federal intelligence agency and a lawyer for the Federal Reserve, I have prepared the following letter presenting the issues to the deans of the law schools of Virginia. It is time for Virginia to join the rest of the States in ensuring transparency in the system and guaranteeing the due process rights of the applicants.<br />
<br />
<br />
December 3, 2016<br />
<br />
Re: Transparency of the Virginia Bar Exam<br />
<br />
1. Virginia does not allow an unsuccessful candidate to obtain their essay answers or review them until a second failure, even in situations where there is evidence of a system software malfunction or other technical failure in the grading. This undercuts the spirit and purpose behind Virginia Code Section 54.1-3929, which requires the Board to preserve the essay answers for one year.<br />
<br />
2. This is fundamentally unfair, makes little sense, and is contrary to the recommendations of professional associations, the approach taken by 43 other states, and the analysis of outside experts.<br />
<br />
3. This policy seriously adversely impacted myself and others, and will continue to do so. It reflects poorly on the Commonwealth, calls into question unnecessarily the credibility of the exam results, and can create the impression that Virginia law schools are lagging in successfully preparing their students to pass the bar exam.<br />
<br />
4. It is high time for a change in policy now that the bar exam has made the transition to being administered as a computer-based test.<br />
<br />
<br />
Dear [Dean]:<br />
<br />
As Justice Brandeis once said, "Sunlight is the best disinfectant." I am writing to you and the other Virginia law schools in reference to a matter that directly affects the integrity of the bar admissions process in Virginia, a problem that directly impacts law school rankings and has gone largely ignored by the courts and the legislature after it was presented to them. And that is the existence of an unwritten rule that no applicant can access their bar exam essays after their first bar exam. This rule was applied to me after I experienced a system software malfunction and reboot on Exam4 software provided by the Board of Bar Examiners (see my sworn affidavit enclosed and, separately, article published in the <i>Computer Law & Security Review</i> by myself and a leading computer forensics expert). As you will see when you read the article, these software problems are occurring nationwide and are directly tied to misgraded bar exams (fn. for example, see this story of a New York bar applicant who experienced a software problem and how he was able to protect his interests by obtaining his essays as of right: http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html). I have no doubt that my essays were impacted, as the essay score was nowhere near how I had actually performed. Shortly after the exam I was able to reconstruct my essays by memory and was able to compare them to the approved solution. The relatively recent national transition to computer-based testing is therefore a significant reason for a policy change at this time for the Board to allow applicants to obtain their essays upon request, <i>especially</i> if something went wrong at the test site (fn. this would be an inexpensive proposition, as the other states are simply charging a nominal fee to cover the costs of making the copies. Florida, for example, charges $50; North Carolina $20; New York $40). 43 of the states have made this transition already (see enclosed chart) given the inherent risks of computer-based testing, and Virginia would do well to follow suit in order to protect the due process rights of the applicant.<br />
<br />
I brought a constitutional challenge to the policy of withholding the essays from review in federal district court in Richmond and filed a 20-page expert report in support (see report enclosed). This report was filed pro bono by Dr. Stephen Castell, a leading computer forensics expert with over forty years of experience as an IT consultant in some of the highest profile cases in the world. For example, in 2012 he led a team of three experts in Australia's T-Card highway transportation system failure (ITSL & ERG v. PTTC, a $200M claim against the government for contract termination was ultimately settled on the eve of trial largely due to Dr. Castell's involvement and findings). See http://www.smh.com.au/it-pro/government-it/tcard-battle-settled-out-of-court-20120217-1tegm.html. He also testifies in high dollar patent cases in American federal courts for law firms such as Jones Day and Morrison & Foerster. Virginia is certainly very fortunate to have him looking at this issue (cv attached). Dr. Castell describes how my case was a "textbook case" of a system software failure and how there is no way to properly determine completeness checking without including the applicant in the process. In Par. 20 of the expert report he states as follows: <u><i>"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 . . . for which Mr. Bolls could not have been responsible</i></u><i>."</i> I have consulted two additional experts who have arrived at the same conclusion as Dr. Castell, which may be one reason why the Board has never brought forward an expert witness of its own. In the end, the case was dismissed for lack of subject matter jurisdiction, but one good aspect that came out of it was this: in their Answer, the Board admits to having made a uniform and <i>unwritten</i> rule that no applicants may have access to their essays and that rule was applied to the circumstances of my case. I have enclosed a copy of my sworn affidavit on what took place at the test site for your review as well, which clearly affected many others as well as myself. To this day, my essays remain cloaked in secrecy, encrypted on my laptop, and I have never seen them to verify completeness (fn. it is also interesting to note that Virginia Code Section 54.1-3929 requires the Board to preserve an applicant's essays for one year. The Board, however, has interpreted discretion accorded to it in another code section as license to make a uniform rule that no applicant can access their essays. This, of course, is not a proper use of discretion). <br />
<br />
Meanwhile I took my MBE (multiple choice) score, which was high enough to waive into other jurisdictions, and waived that portion of the test into Washington, D.C., taking the remainder of the essay exam only. I successfully passed in D.C. on my first attempt, in a test where over half of the applicants failed. I then took the Maryland Bar Exam and passed on the first attempt as well, scoring highly. I have been working as a full-time magistrate in Fairfax, VA. I also served as president of the Washington Inn of Court in D.C. last year and I teach trial advocacy at a local prep school. So fortunately things here worked out for me despite the actions of the Virginia Board of Bar Examiners (fn. a member of the admissions committee of the Maryland Board of Law Examiners actually apologized to me for what the Virginia Board did and said they hope that I will have a better experience with the legal community in Maryland). Nevertheless, I am cognizant of the fact that the facts of my case militate so strongly in favor of a change in policy at this time to allow applicants access to their essays in a computer-based test (which are preserved for a year by Va. Code Section 54.1-3929) that it would be unfair to future applicants for me to look the other way on this issue. As previously stated, I was one of many applicants who experienced the software system malfunction and presumably all of them were treated the same way I was if they had later asked to see or obtain their essay answers.<br />
<br />
To borrow the words of the computer forensics expert:<br />
<br />
<i>"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, even to the circumstances of Mr. Bolls' case, is to overlook the possibilities of systemic error and to have no objective and evenhanded methodology of investigation in regard to ruling out such possibilities. Mr. Bolls knows what he wrote and, with his input, it may be discovered that software malfunction was the cause of the discrepancy. Without an allowance for applicants such as Mr. Bolls to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it."</i> Par. 30 of expert report.<br />
<br />
The Board saw all of this information, including my sworn statement as well as the expert report; nevertheless, they still refused to release the test essays, even though they had the discretion to do so. When asked by senior Circuit Court Judge Alden in Fairfax why not, they told the judge in open court that they used their discretion to make a blanket rule that no applicant can access their essays. This is why when it was ultimately determined that the Board was exempt from the Administrative Process Act, in her dismissal the judge made it clear in her written opinion that she is preserving the issue of whether the Board abused its discretion in making a blanket rule that no one can review their essays. As it stands, I was not able to view my essays following the system reboot at the test site and I have not been allowed to see them ever since. Furthermore, due to my blog which tells this story (and has nearly 11,000 hits from the legal community), I have been informed by applicants as recent as last year<b><u> that these software problem persist</u></b> at the test site for many people. Presumably, all of them are being offered the same sham remedy that I was (see below, an offer I did not accept as this would lead to a misleading result). The Board's lack of cooperation is likely a result of not wanting to employ the National Conference of Bar Examiners' alternative grading methodology for when a software malfunction occurs. See Par. 5 of http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm. This would necessarily include all applicants affected, which they consider an inconvenience to their usual way of doing things prior to the advent of computer-based testing.<br />
<br />
SHAM REMEDY OFFERED BY THE BOARD<br />
<br />
The sham remedy being offered to applicants who experience a software system crash while the essays are being saved is as follows: compare the encrypted file on their Exam4 software (saved on the applicant's computer) to what was graded. But herein lies the problem: the file saved on the Exam4 program on the applicant's computer itself is likely corrupted to begin with. Therefore, what the graders graded was necessarily a duplicate of such potentially corrupted data.<br />
<br />
As Dr. Castell states in his report:<br />
<br />
<i>"It is my opinion that the Board's offer to compare Mr. Bolls' encrypted file against the one graded does not in any way address the matter at hand. That is to say, an exact match between the two does not inform the board or the Supreme Court of Virginia that there was no data corruption in this instance. It merely confirms that the work is that of Mr. Bolls, without providing any illumination as to whether or not the work itself had been corrupted. </i><b><i>The only way that I can see this can be reasonably resolved is for there to be a policy in place for applicants to obtain their essays</i></b><i>."</i><br />
Par. 36 of the Expert Report<br />
<br />
<i>"Like Mr. Zeni, applicants such as Mr. Bolls would and in my view should then have the opportunity to identify places where portions of the essays went missing or were corrupted in some way. 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."</i> <br />
Par. 38 of the Expert Report<br />
<br />
What ends up happening is most applicants, generally unfamiliar with computer data storage methods, will take the Board up on their offer to do this comparison exercise, and be naively satisfied with it. In reality, had they actually seen their essays, it is likely they would be seeing what the applicants in New York observed in 2007- missing or altered data that impacted the grading. This is what Mr. Zeni experienced after facing a similar reboot of his software in the middle of the bar exam in New York. See the enclosed letter from Mr. Zeni to the Courts Committee in Richmond.<br />
<br />
Because of my experiences with the Board, I no longer have confidence in the integrity of bar admissions in Virginia, so rather than retaking the exam I have decided to go to other jurisdictions to become barred. However, I have recorded every stage of my legal case as well as a hearing before the Courts Committee on my blog. Included in the packet for your review are the proposal and other materials set before the committee. Ultimately, the committee concluded that my case, while badly handled by the Board, was not enough to take action that would ensure applicants rights to review the essays. However, it is important to remember that I was certainly <i>not</i> the only one affected (and many more <u>continue</u> to be affected), and our test results remain unsolved mysteries in that first exam sitting.<br />
<br />
Since the litigation of this case, the Board has changed its policy to allow applicants to review their essays on the second or subsequent failure; however, the first bar exam is the most important. This is the exam where many applicants (like myself) have jobs on the line; law school rankings are also impacted by the first exam results. It is essential that the <i>first</i> bar exam be graded accurately and any software failures include a satisfactory review which according to my expert (and all other experts that I have consulted) necessarily includes the applicant in that process. It is no longer proper for a computer-based test to have a rule that no applicant can review their essays afterwards, and it is high time for a change in policy.<br />
<br />
The American Bar Association, the National Conference of Bar Examiners, and the American Association of American Law Schools have drafted a "Comprehensive Guide to Bar Admission Requirements 2016." See http://ncbex.org/publications/bar-admissions-guide (page X). In Section 25 it has this to say:<br />
<br />
<i>"25. </i><u><i>Rights of Failing Applicants</i></u><i> . . . [a]n applicant who fails a bar examination should have the right, within a reasonable period of time after the announcement of the results of the examination, to see the applicant's answers to the essay questions and the grades assigned thereto, and to compare each of these answers with an approved answer."</i> <br />
<br />
I have included in this packet the printed rules of surrounding jurisdictions Maryland, District of Columbia, North Carolina, and New York that adhere to this best practice. These are but a small sample of the vast majority of the States that have the same transparency protections in place for the applicants (see chart, enclosed). <br />
<br />
If you are interested in this subject and in using your influence to help Virginia join the 43 other states who have already protected the due process rights of the applicants, I would be happy to discuss or answer any questions you have of me. What needs to be done to fix this problem is what most of the other states area already doing- to allow applicants to <i>obtain</i>, not just review, their essays. And this must be after every examination, not just second or subsequent failures (see legislative proposal, enclosed). We live in a time where there is such a high degree of reliance on computer systems, which has many benefits, but we must ensure that our policies are appropriately tailored to the changed circumstances to ensure that rights are protected while the Board of Bar Examiners performs its functions. Indeed, that was the clear intent of the General Assembly when they enacted Va. Code Section 54.1-3929, which requires the Board to preserve essay answers for one year.<br />
<br />
Thank you for your attention to this matter and I look forward to hearing from you.<br />
<br />
<br />
Regards,<br />
<br />
Jonathan Bolls<br />
Magistrate, 19th Judicial District<br />
Fairfax, VA<br />
<br />
Cc: the law schools of Virginia<br />
<br />
<br />
<br />
<br />Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-50885527179667622332016-03-22T13:52:00.002-07:002016-03-22T13:52:55.593-07:00
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<div align="center" class="MsoNormal" style="margin: 0in 0in 8pt; text-align: center;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">SEE
LETTER BELOW<o:p></o:p></span></div>
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<b style="mso-bidi-font-weight: normal;"><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Update
35.<span style="mso-spacerun: yes;"> </span></span></b><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">On February 1,
2016 this matter was brought to the attention of the Civil Courts Subcommittee
by Delegate Vivian Watts of northern Virginia.<span style="mso-spacerun: yes;">
</span>After looking at the facts of my case, she agreed that the time has come
to bring transparency to the Virginia Board of Bar Examiners, especially now
that it is operating a computer-based test.<span style="mso-spacerun: yes;">
</span>In Richmond, she brought forward House Bill 550, which is to ensure that
all applicants have access to their essays as originally intended by the
Legislature.<span style="mso-spacerun: yes;"> </span>I was also called as a
witness to the system software failure that took place affecting me and many dozens
of others at the test site who were then told we could not see what impact there
was on our essay answers.<span style="mso-spacerun: yes;"> </span>Present at the
hearing were the committee members, led by Chairman Greg Habeeb of Southwest
Virginia as well as an audience of Virginia residents.<span style="mso-spacerun: yes;"> </span>Delegate Habeeb is very public about the need
for transparency and accountability in government.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Delegate Watts spoke first, explaining that the bill
is in line with what 43 of the States are already doing and offers much needed
transparency and accountability in the grading process.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">I explained to the committee that I serve as a
magistrate and have since passed the bar in multiple jurisdictions, on the
first attempt, and scored highly.<span style="mso-spacerun: yes;"> </span>I am
and have always been certain that the essay score I received for the Virginia
Bar Exam was inaccurate and highly likely a result of the system software
malfunction I and numerous others experienced at the test site.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">In my statement I first laid out a blow-by-blow
account of what happened at the bar exam with the Board’s software- how it
froze during the saving stage of the essays and how a technician went to work
hands-on but was unable to fix the problem and finally, as a last resort,
instructed me to reboot the system (turn it off and on again) and then save to
a USB thumb drive without looking at the essays.<span style="mso-spacerun: yes;"> </span>One of the delegates blurted out, “You should
have filed for an injunction!”<span style="mso-spacerun: yes;"> </span>I later
went into my legal case and so he was able to find out that is exactly what I
did do.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">I then provided each member a chart of all the States
that do allow access as well as a personal letter [see letter below] addressed
to the committee and written by an applicant in another jurisdiction who
experienced the same thing we did here in Virginia.<span style="mso-spacerun: yes;"> </span>The difference was that he was able to obtain
his essays by right.<span style="mso-spacerun: yes;"> </span>When he got them,
he discovered portions were missing, and indeed, one answer response was
completely erased.<span style="mso-spacerun: yes;"> </span>His answers were graded
as if those were his complete answers.<span style="mso-spacerun: yes;">
</span>Since 48 others who obtained their essays after his test had similar
observations of erased material, this forced a corrective process in the state
of New York not previously in existence.<span style="mso-spacerun: yes;">
</span>Importantly, prior to the applicants obtaining their essays they were
reassured by the Board that they need not be concerned and that their complete
answers were received.<span style="mso-spacerun: yes;"> </span>No so.<o:p></o:p></span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">The delegates were additionally provided with a
20-page expert report submitted in support of my case.<span style="mso-spacerun: yes;"> </span>Dr. Stephen Castell, a leading computer
forensics expert who has testified in high dollar cases for companies such as
Motorola, Citibank, and Harvard Securities PLC, on both the Plaintiff and
Defense side, was able to form a conclusion that, given what happened at the
test site (<i style="mso-bidi-font-style: normal;">and still does in the most
recent exams from what I am told by multiple sources</i>), my concerns were
well justified.<span style="mso-spacerun: yes;"> </span>Further, he says there
is no way for the Board to properly investigate <u>without including the
applicants</u>, the actual writers of the essays, in the review.<span style="mso-spacerun: yes;"> </span>As he says, “they [the Board] may have a very
serious problem on their hands and not even know it.”<span style="mso-spacerun: yes;"> </span>In other words, all of the tests of those
affected remain unsolved mysteries.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Just last year ExamSoft Worldwide, Inc., the sister
software company to the one that Virginia uses (Extegrity) was sued in a class
action by the applicants for software failures at a test site in another
jurisdiction, resulting in a multi-million dollar settlement.<span style="mso-spacerun: yes;"> </span><span style="color: black; mso-themecolor: text1;">See
</span></span><a href="http://lawschoolcafe.org/2015/05/20/examsoft-settlement"><span style="color: black; font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%; mso-themecolor: text1;">http://lawschoolcafe.org/2015/05/20/examsoft-settlement</span></a><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">.<span style="mso-spacerun: yes;"> </span>Case No. 1:14-cv-22950.<span style="mso-spacerun: yes;"> </span>Protecting the software company may be one
reason for the lack of cooperation with Virginia bar applicants who are falling
prey to system software malfunctions and who notice a significant scoring
discrepancy in how they believed they performed on the test. <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Finally, I shared some research with the committee I
conducted on the history of Va. Code Section 54.1-3929, which since 1919 has required
the Board to preserve the essays for one year.<span style="mso-spacerun: yes;">
</span>Sure enough, I discovered that prior to 1973 applicants in Virginia were,
in fact, able to have access to their essays, which was the fundamental
reasoning behind requiring the Board to preserve them for a year.<span style="mso-spacerun: yes;"> </span>Sometime after 1978 the language pertaining
to the right of access was removed, leaving an absurd result of the Board being
still required to preserve the essays but the applicants left unable to access
them, even in the most compelling circumstances.<span style="mso-spacerun: yes;"> </span>This paradox lays the groundwork for the
ongoing violation of Due Process in the Commonwealth of Virginia for anyone who
has a legitimate dispute with the Board.<span style="mso-spacerun: yes;">
</span>The very evidence that is needed, i.e. the essays, is being withheld in
order to prevent a fair hearing.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">I left them with this: even if the right to access the
essays was for the sole purpose of allowing applicants to be able to prepare
and improve the next time, is that not good enough reason alone to get rid of
the blanket rule that no applicant can access their essays? <span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">The committee seemed a bit lackadaisical unfortunately
and not as focused as one would like on the important issues at hand.<span style="mso-spacerun: yes;"> </span>Chairman Habeeb seemed to actually be the
only proactive one.<span style="mso-spacerun: yes;"> </span>He first said, as
the matter was being called forward, that this ultimately has to do with
whether we trust the Virginia Board of Bar Examiners.<span style="mso-spacerun: yes;"> </span>Some did take an interest when I explained
the procedural history of my legal case and how venue was changed from the
Fairfax Circuit Court to the Virginia Supreme Court due to the fact that the
Board managed to have itself exempted from the Administrative Process Act
(which reviews for agency wrongdoing).<span style="mso-spacerun: yes;"> </span>And
the Virginia Supreme Court has no original jurisdiction and dismisses all of
these cases as a matter of course.<span style="mso-spacerun: yes;"> </span>This
is why, as I explained, the Board behaves this way towards people as opposed to
other professional licensing boards, such as the Architects, which deal
directly with public safety.<span style="mso-spacerun: yes;"> </span>There is no
doubt that if a candidate for an architect license experienced a software
glitch in the computer-based test, and their board refused to cooperate with
that applicant, a hearing could be heard in Fairfax Circuit Court.<span style="mso-spacerun: yes;"> </span>Should it be any surprise then that the Board
of Bar Examiners, as the only such organization shielded from judicial review,
would treat people so poorly?<span style="mso-spacerun: yes;"> </span><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<br />
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">The new Secretary of the Board, Catherine Hill, spoke
against the bill.<span style="mso-spacerun: yes;"> </span>She cited to a lot of
statistics about the pass rates, etc. which really were beside the point for
the most part.<span style="mso-spacerun: yes;"> </span>She decided not to
address any of the computer forensics evidence and simply argued for the status
quo, which she argued was working just fine.<span style="mso-spacerun: yes;">
</span>When asked by Chairman Habeeb if she has looked into this problem, she
said yes and said vaguely that there was no problem found.<span style="mso-spacerun: yes;"> </span>There should have been a follow-up question
as to <i style="mso-bidi-font-style: normal;">how</i> did you look into it and
what technical expertise was brought to bear in any supposed review of the
situation.<span style="mso-spacerun: yes;"> </span>Instead, in response to the actual
follow-up question of whether there have been any statistical anomalies over
the years, she simply said no.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Besides these softball questions, there unfortunately
wasn’t much in the way of critical analysis.<span style="mso-spacerun: yes;">
</span>Any semblance of rigorous debate to get at the truth of this was wholly
lacking.<span style="mso-spacerun: yes;"> </span>Either the committee was ill
equipped to handle a matter of this complexity or there was a simple deference
to a government agency (many of them are licensed by the Board).<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Whatever the case may be, the committee tabled the
issue from any further consideration this year.<span style="mso-spacerun: yes;">
</span>At the end, Chairman Habeeb told the Board (which showed up as a team)
they “really do not want us legislating this so make sure that people are
happy.”<span style="mso-spacerun: yes;"> </span>Folks in the audience could be
heard in agreement with that statement.<o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">Judging by one of his comments, Delegate Habeeb
revealed some of his rationale by saying that we do not want to make bad law
based on a badly mishandled case.<span style="mso-spacerun: yes;"> </span>While
that may be true in certain instances, that is certainly not the case here for
two reasons.<span style="mso-spacerun: yes;"> </span>First, I was by far not the
only one affected by the system software failure; and second, these problems
are persisting up to the most recent exams I am told by some who follow this
blog.<span style="mso-spacerun: yes;"> </span>The truth of the matter is that
badly mishandled cases will continue unless a good law is made now.<span style="mso-spacerun: yes;"> </span>It has worked just fine to require
transparency in almost all of the other States.<span style="mso-spacerun: yes;">
</span><o:p></o:p></span><br />
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">But, as we joked at the hearing, we all know that
Virginia is usually the last to change.<span style="mso-spacerun: yes;">
</span>Here was Virginia’s opportunity to do something right for the People,
but passed up the opportunity.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;"><o:p> </o:p></span></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<u><span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">LETTER FROM ERIC ZENI, ESQ TO VIRGINIA
GENERAL ASSEMBLY<o:p></o:p></span></u></div>
<br />
<div class="MsoNormal" style="margin: 0in 0in 8pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt; line-height: 107%;">January 30, 2016 <o:p></o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Courts
Committee<o:p></o:p></span><br />
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">General
Assembly Building<o:p></o:p></span><br />
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">201
N. 9<sup>th</sup> Street<o:p></o:p></span><br />
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Richmond,
VA<span style="mso-spacerun: yes;"> </span>23219<o:p></o:p></span><br />
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Re:<span style="mso-spacerun: yes;"> </span>Virginia House Bill 550<o:p></o:p></span><br />
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Dear
Members of the Courts Committee:<o:p></o:p></span><br />
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">I
would like to submit this statement in support of House Bill 550, which would
allow bar exam applicants access to their essays.<span style="mso-spacerun: yes;"> </span>I am an attorney admitted to practice in New
York State.<span style="mso-spacerun: yes;"> </span>I sat for the July 2007
administration of the New York Bar Exam, which I registered to take using a
computer.<span style="mso-spacerun: yes;"> </span>I believe that my experience
with the New York Bar Exam shows why it is important to make the applicant’s
answers available to them.<o:p></o:p></span><br />
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">When
I sat for the bar exam, there were wide-spread problems with the exam software
that was used.<span style="mso-spacerun: yes;"> </span>In my testing location, a
great many people were affected by the software glitches.<span style="mso-spacerun: yes;"> </span>Later we learned that these problems occurred
state-wide.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">The
exam software froze twice while I was taking the exam.<span style="mso-spacerun: yes;"> </span>As I was typing my first essay, the software
froze and a technician came to assist.<span style="mso-spacerun: yes;">
</span>The technician restarted my laptop, which I did not think was a good
idea, but eventually got the software running again.<span style="mso-spacerun: yes;"> </span>I then completed the first essay and moved on.<span style="mso-spacerun: yes;"> </span>As I was half way through the second essay,
the software crashed again.<span style="mso-spacerun: yes;"> </span>A technician
came and advised me that he could take my laptop to a table in the back of the
exam room and work on it.<span style="mso-spacerun: yes;"> </span>I glanced back
to see a table in the rear corner of the room with computer technicians,
equipment, and anxious test-takers- a veritable computer triage area.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">At
that point, I told the technician to give me an answer booklet.<span style="mso-spacerun: yes;"> </span>I completed the remainder of the second essay
and finished the exam on paper, the old-fashioned way.<span style="mso-spacerun: yes;"> </span>At the end of the day, we were instructed to
transfer our files on a thumb drive and upload them.<span style="mso-spacerun: yes;"> </span>At the conclusion of the test, I spoke with
the technicians and the head proctor who advised me that the software had a
“backup system” and that no data would be lost.<span style="mso-spacerun: yes;">
</span>I believe that I even received an email confirmation from the software
company that they had received my test responses.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Ultimately,
when the exam results were released, I was told I failed by four points.<span style="mso-spacerun: yes;"> </span>At that time, in New York, test-takers who
failed were allowed to request copies of their answers.<span style="mso-spacerun: yes;"> </span>After I received the copies of my essays, I
discovered that my response to the first essay written on the computer was
incomplete and that the first half of my response to the second essay (which I
had typed on my computer) was completely missing.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Although
New York does not allow appeals of the test results, I contacted the Board of
Law Examiners and explained that significant portions of my responses were
missing and explained the software malfunctions that had occurred.<span style="mso-spacerun: yes;"> </span>Several weeks later, the Board of Law
Examiners informed me that they had done some sort of “review” and were able to
locate the missing portions of my essays.<span style="mso-spacerun: yes;">
</span>My essays were re-graded and I was informed that I did, in fact, pass
the bar exam.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">It
is important to note that if New York did not allow an applicant who failed to
request and review their essays, I would never have discovered (or been able to
prove) that the graders did not have my complete answers and that the software
malfunction had resulted in the loss of significant portions of my essay
responses.<span style="mso-spacerun: yes;"> </span>The ability to review my
answers was truly life-changing for me- it meant that I did not have to sit for
the bar exam again and I was able to be sworn in on admission day with my peers
and begin my career.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">This
is why I write in support of H.B. 550, which I believe will protect the
interests of the applicants.<span style="mso-spacerun: yes;"> </span>I believe
that it is only fair that applicants have access to their responses, especially
if they need to prepare to retake the examination.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">If
I can be of assistance to your committee, please feel free to contact me if you
have any questions.<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;"><o:p> </o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Sincerely,<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">S/<o:p></o:p></span></div>
<br />
<div class="MsoNoSpacing" style="margin: 0in 0in 0pt;">
<span style="font-family: "Times New Roman",serif; font-size: 14pt;">Eric
Anthony Zeni<o:p></o:p></span></div>
Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com1tag:blogger.com,1999:blog-611225343433444182.post-64609968141285202962014-11-26T07:18:00.000-08:002014-11-26T07:18:18.659-08:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 34</strong>. 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:<br />
<br />
<u>DECEMBER 2008 FAIRFAX CIRCUIT COURT</u>. 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.<br />
<br />
Note that in her decision (enclosed), Judge Alden found that while there is no explicit <em>statutory</em> authority to review the decisions of the Board, the Virginia Supreme Court retains such <em>inherent</em> 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."<br />
<br />
In the opinion the court suggests: "To the extent the Petitioner <em>seeks a mandamus</em> 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." <br />
<br />
<br />
<u>MAY 2009 VIRGINIA SUPREME COURT (Chief Justice Leroy Hassell</u>). 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 <em>only once he was able to obtain his essays</em>. <br />
<br />
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.<br />
<br />
<br />
<u>AUGUST 2010 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. Judge Robert Payne</u>. 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 <em>Rogers v. Supreme Court of Virginia</em>, 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."). <em>See also Richardson v. McFadden</em>, 540 F.2d 744, 750 (4th Cir. 1976) ("It is <em>beyond question</em> that the bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties") <em>and</em> <em>Whitfield v. Illinois Board of Bar Exmnrs</em>., 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 <u>entitled to some procedural protections</u>"). <br />
<br />
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. <em>See</em> 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."<br />
<br />
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. <em>See Application of Peterson</em>, 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.<br />
<br />
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. <br />
<br />
<strong>Defendant's Answer</strong>. 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.<br />
<br />
<strong>Court's Decision (see enclosed)</strong>. 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 <em>first and foremost</em>: "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."<br />
<br />
<strong>Court of Appeals for the Fourth Circuit (see enclosed).</strong> 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.<br />
<br />
<br />
<u>JUNE 2011 U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA. Judge Henry Hudson</u>. Since the previous case was dismissed for challenging the policy of nondisclosure <em>with respect to my own exam</em>, 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% <em>failure </em>rate, I still was able to pass on my first attempt. Virginia is a mere 15% fail rate for first time takers.<br />
<br />
<strong>Board Threatens Sanctions</strong>. 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. <br />
<br />
<strong>Court's Decision</strong>. 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.<br />
<br />
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.<br />
<br />
<strong>Court of Appeals for the Fourth Circuit (enclosed</strong>). Sustained the lower court's decision, without explanation.<br />
<br />
<br />
<u>PETITION FOR CERTIORARI BEFORE THE U.S. SUPREME COURT (enclosed booklet</u>). 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. Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-62234127889927326322014-09-10T17:28:00.000-07:002014-09-10T17:28:13.678-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 33</strong>. The courts, having punted this issue over to the General Assembly, have demonstrated the flaw in the procedural protections afforded to applicants to the Virginia Bar. With the enclosed letter (see below) I have notified a select group of state delegates and senators who may be willing to sponsor legislation that will bring Virginia up to speed with the other states in terms of transparency. The Board of Bar Examiners is on record in federal court as admitting to having an unwritten rule, unbeknownst to the candidates, that prevents any applicant from obtaining their essay answers, a rule they admit was applied in this case. I am informed by a witness to the latest exam in 2014 that the Board's software failures persist and continue to affect significant numbers of applicants at every succeeding exam. This is what happens when people, including judges, look the other way.<br />
<br />
I have since taken the D.C. and Maryland bar exams and passed on the first attempt. Both systems operate transparently. I have decided not to take the Virginia Bar Exam again because I have lost confidence in the integrity of the system.<br />
<br />
<br />
Dear Delegate/Senator:<br />
<br />
I am writing to you about a proposal that I have enclosed which would remedy a fault that exists in the current procedures of the Virginia Board of Bar Examiners. Let me first say that the Board is an administrative agency with both judicial and delegated legislative powers. And while there is support at the local level in northern Virginia for this proposal, this will require your office's support to succeed because the Board of Bar Examiners has refused to cooperate in making this adjustment towards transparency. I am an attorney and a magistrate in Fairfax and, based on what I have observed and experienced, there is no doubt that this proposal is what is necessary to protect the applicants and correct an ongoing problem with the new computer based bar exam. I attempted to litigate this issue, but the Virginia state courts and federal courts have decided that it is essentially a political question for the General Assembly and decided not to hear the merits of the case.<br />
<br />
<strong>SOFTWARE FAILURES AT THE VIRGINIA BAR EXAM</strong><br />
<strong></strong><br />
Virginia's bar exam is now being administered on computer software provided to the applicants by the Board of Bar Examiners. The Board contracts with an out-of-state software company to provide this software so they can administer their test for over a thousand applicants every year. When I took the Virginia Bar Exam, I was one of a significant number of applicants who experienced a software system failure that occurred at the moment when the essay answers are to be saved and submitted. Members of the Board's technical team attempted to work on the problem but ultimately said the system had to be rebooted (abruptly turned off and then turned back on). One of the female applicants was in tears when this happened to her. An announcement was made that over the lunch break they had already discovered that 24 applicants had answers misplaced in the system from the morning session. This was exactly what happened in New York the year before: <strong><em>see attached, </em>New York Law Journal "Software Snafus Upset Test Takers," July 26, 2007. </strong>I was then forced, without being able to see and verify that the answers were intact, to transfer the potentially corrupted data onto a USB thumb drive and hand it in to the graders. Upon receiving my essay score months later, I noticed a <em>significant</em> scoring discrepancy between the reported score and how I had performed on that day. No other information was disclosed. Of course, I immediately requested to obtain my essays. In response to my request, however, I was told there existed no corrective process and they had an unwritten rule, applied uniformly, that no applicant can obtain their essays for any reason. Even under these circumstances, where I explained that I had a job lined up at the prosecutor's office and produced a sworn affidavit saying exactly what had occurred at the test site, the secretary of the board refused to cooperate. Moreover, I was able to obtain a 20-page expert report from a leading computer forensics expert who concluded that the fault lay not with my computer but with the board's software system. As a result, I was given no redress and consequently lost a career position at the Arlington Commonwealth Attorney's Office.<br />
<br />
<strong>SHAM REMEDY</strong><br />
<strong></strong><br />
The only remedy offered to me was a sham remedy wherein the board agreed to examine only what was on the USB thumb drive and do a comparison with what was printed off from the USB drive for the graders to grade (recall that the data was transferred from the software to the USB drive <em>only after</em> the software system failure . . . at no time was I permitted to confirm if the answers were still intact). The computer expert, and three other experts I interviewed, have been unequivocal in their conclusions that this is no remedy at all and does not address the underlying issue, <u>namely whether the data that was saved on the USB drive in the first place was corrupted</u>. Therefore, a comparison exercise like this accomplishes nothing because a copy of already corrupted data will necessarily be a match; nevertheless, it is still corrupted data. This is misleading. Therefore, there is no proper way to go about this other than to allow the applicant to obtain his/her essays and determine if what was graded includes everything that was written. That is what the National Conference of Bar Examiners recommends for the computer-based test, and that is how it was handled in New York. All of this was explained to a federal judge but, as I mentioned, the judge avoided the question, ruling this was essentially a political question for Virginia's legislature.<br />
<br />
<strong>SAME PROBLEMS CONTINUE TO THE PRESENT DAY</strong><br />
<br />
This occurred in 2008, and I have a witness who confirms that he observed that the board's software failures continue to affect the applicants up to the most recent examination in 2014. Furthermore, this is a problem that is happening nationwide since the advent of the computer based test in 2005. For example, in New York's 2007 computer-based examination, it is well documented that as many as 47 applicants had essays that were either missing or cut short by the software after experiencing the same symptoms that I and others experienced in Virginia. <strong><em>See enclosed </em>Press Release, New York Board of Law Examiners (Nov. 15, 2007) </strong>(available on archive at <a href="http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm"><em>http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm</em></a><em>) </em>(specifically paragraph 5 which reads "one or more of the essay answers for 47 candidates could not be recovered"). These applicants were allowed to obtain their essays; and once they did, it forced a corrective process that was not previously in existence. In the case of Eric Zeni, this made the difference between passing and failing. <strong><em>See enclosed </em>Eric Zeni's account in the New York Personal Injury Law Blog. </strong>Had Eric Zeni been in Virginia when this happened, there would have been absolutely no recourse. This cannot stand, and it violates the due process rights of the applicants who expend an enormous amount of time and resources into this test and have secured positions contingent on their passing. <br />
<br />
<strong>LEGISLATIVE HISTORY</strong><br />
<strong></strong><br />
Allow me to provide you some background on the legislative history of this issue. In 1919 the General Assembly enacted Va. Code Section 54.1-3929 which requires the Board of Bar Examiners to preserve an individual's examination papers for a period no less than one year following an examination. This provision was relied upon by applicants and their attorneys whenever a dispute would arise. This important protection to the rights of the applicant and the integrity of the system as a whole has been effectively nullified sometime in the early 1970's when the Board put into effect an unwritten policy, unbeknownst to the candidates, that prevents applicants from being able to obtain or review their essays. This policy is being applied uniformly without exception, a fact I have the Board as having admitted to on the record in federal court. Prior to that, applicants could obtain their essays. This is a fact that I know because U.S. District Court Judge Robert Payne in Richmond replied that he could have gotten his answers when the Board attempted to say it has always been this way. Since 2005 the Board has been administering a computer-based bar exam for the essays, a condition that demands a change in policy at this time.<br />
<br />
<strong>NATIONAL MOVEMENT TOWARDS TRANSPARENCY</strong><br />
<strong></strong><br />
In light of the national transition to computer-based testing, 44 of the states now afford their applicants an opportunity to review or obtain their essays, <em>for any reason</em>. <strong><em>See enclosed </em>chart, "Transparency Policies of State Law Examination Offices." </strong>I hope that you will see that it is time for Virginia to acknowledge the new realities of computer-based testing and the need for transparency in the system.<br />
<br />
The vast majority of the other state boards of bar examiners have rules that protect their applicants. In Virginia, the General Assembly sets laws from which the Board must derive its rules. Va. Code Section 54.1-3929 mentioned above is an example of one such law. The only way for this problem to be solved is for the General Assembly to act, because the Board is insistent on resisting this change.<br />
<br />
<strong>ABOUT ME</strong><br />
<br />
To provide you with a brief background on myself, I went to William & Mary Law School (Class of 2008) as well as the College of William & Mary after transferring from the U.S. Military Academy at West Point. I have since taken the bar exam in the District of Columbia and Maryland, having passed both on the first attempt and have been admitted to practice in the federal courts and pending admission in the U.S. Supreme Court. However, I have not taken the Virginia Bar Exam again because, with an unwritten policy like this one in place, I have lost confidence in the integrity of the system. For more background on my story, I have published an article along with the expert I consulted in the <strong>Computer Law & Security Review (2013)</strong> (attached). <br />
<br />
<strong>PROPOSAL</strong><br />
<strong></strong><br />
Please see my attached proposal, which includes language taken from other states which Virginia can look to for guidance to solve this problem. The Virginia Board of Bar Examiners is a state administrative agency with both judicial <u>and delegated legislative powers.</u> <br />
<br />
This nonpartisan issue affects not just candidates for the Virginia Bar but by extension it affects the people of Virginia, causing well qualified lawyers trained in Virginia to leave the Commonwealth and seek admission elsewhere. Most legislation relating to the Virginia Bar Exam will be sought by the Board, but this one is for protecting the applicants from the Board's iniquitous unwritten policy of nondisclosure of test essays. I will certainly make myself available to provide a statement or sworn testimony before any committees as necessary. Furthermore, the expert report and his contact information is available upon request.<br />
<br />
Thank you for your time, and I look forward to working with you on this important matter affecting the Commonwealth. <br />
<br />
Regards,<br />
<br />
Jonathan Bolls<br />
<br />
Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com1tag:blogger.com,1999:blog-611225343433444182.post-57745411532351797762013-09-02T09:21:00.000-07:002013-09-02T09:21:24.443-07:00Virginia Bar Exam: Lack of Transparency<strong>Update (32</strong>): The following was just published in this quarter's edition of <em>Computer Law & Security Review</em> (Volume 29, Issue 4 (2013), p. 446-449, <em>Computer Based Testing</em>, available at <a href="http://www.sciencedirect.com/">www.sciencedirect.com</a> :<br />
<br />
"Computer based testing <em>- Bolls v. W. Scott Street, Sec'y of Va. Bd. of Bar Exmnrs</em>., August 11, 2009, case no. 090915"<br />
<br />
By <br />
<br />
Jonathan Bolls and Stephen Castell PhD<br />
<br />
ABSTRACT<br />
<br />
The most significant change to law licensing in the United States is the recent reliance on computer-based testing for the bar exam in all of the fifty states. Virginia, for example, has been providing the computer-based test on a wide scale since 2005. New Jersey was the very first, in 2001. Since then, almost all of the states are now administering a computer-based test. The following comment piece is meant to inform the computer and technology law community how the use of testing software must necessarily be accompanied by additional procedural protections and corrective processes that may not have existed previously. Chief among these is the availability of discovery of the item in question, namely in this case the essays in a computer-based bar exam, which constitutes evidence that is essential in vindicating one's rights when a software failure occurs.<br />
<br />
ARTICLE<br />
<br />
In July of 2008 I (Jonathan Bolls) took the essay portion of the Virginia Bar Exam on special testing software provided by the bar examiners. At the conclusion of the morning session, the software froze while in the process of saving the essays. There was a team of technicians on standby and the candidates were instructed to seek their assistance if anything went wrong with the software. At the conclusion of the test, when the proctor asked if there were any problems, a significant number of hands went up including my own, visibly overwhelming the full team of technicians on standby. It took a full 15 min before one could come around to assist me. He worked on my computer hands-on and, when that didn't work, he instructed me to reboot and try saving the answers again. So I did. But after the reboot I was not able to see any of the content of what supposedly was being saved. Then I had no choice but to transfer the file to a USB drive which was then handed in for grading. That afternoon, prior to the start of the second session, the candidates were informed by loudspeaker that over the lunch hour they discovered that 24 candidates had essays which were "misplaced" in the USB drives. These candidates did not know who they were and would receive further instructions in their afternoon test booklets on how to rearrange their essays properly. After the afternoon session, I again experienced the same software malfunction that happened in the morning requiring hands-on technical assistance, which ultimately failed, and had to reboot. Again, I was by far not the only one.<br />
<br />
Months later I received my results and became aware of a major scoring discrepancy in my essay score. With a career position hanging in the balance, I immediately contacted the Board of Bar Examiners and requested that copies of my essays be sent to me. My request was denied at once by the secretary of the board simply because, as he stated, there is no review or appeal process available and the results are final. Furthermore, there exists an unwritten rule that no applicant can obtain their essays.<br />
<br />
I began to do some research and it was not long before I discovered that software system malfunctions are happening throughout the different state bar exams of the country and, in fact, data has been found missing, misplaced, or otherwise altered in some way. Indeed, it has been proven that misgrading happened as a result. Most interestingly, perhaps, is the fact that these affected applicants had been previously reassured (just as I was) that their answers were intact. It was not until they received their essays as of right (which the vast majority of the states allow) where applicants became so outraged that they forced a corrective process not previously in existence.<br />
<br />
With a career position at a district attorney's office on the line, I had no choice but to bring a mandamus action (judicial command order) in Fairfax, Virginia to force the state agency to release the essays. At the hearing, the local judge asked the attorney representing the state what process is available to aggrieved bar applicants, to which the answer was "that is an interesting question, Your Honor." This set the case on a constitutional detour that I would never have expected to be on so soon out of law school.<br />
<br />
The case was taken under advisement, and while I was informed by a judicial law clerk that the judge was persuaded that the essays had to be released, it was ultimately determined that since the Board is an arm of the Virginia Supreme Court, only that court could issue such an order.<br />
<br />
Before taking the case to the Virginia Supreme Court, I conducted some research of my own, and what I discovered was interesting and troubling. The year before (2007), applicants who sat for the New York bar exam complained of software glitches and system reboots in the process of saving the test essays, basically the same symptoms that I and numerous others in Virginia experienced. <em>See</em> New York Law Journal, <em>available at </em><a href="http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/">http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/</a> One key difference between New York and Virginia, however, is that applicants in New York have a right to obtain their essays.<br />
<br />
This right proved crucial for 47 applicants who discovered portions of their essays went missing, were duplicated, or otherwise altered in some way by the software system failure. Initially, it was the testing board's position that there was no cause for concern, that all the essays were received in their original and complete form. Even after the board released a press release about the 47 (New York Bd. of Law Exmnrs, <em>available at (5th Paragraph Down)</em> <a href="http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm">http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm</a> ), we know of at least one applicant in particular (Eric Zeni) who demonstrated that the 47 was not all that were affected (New York Personal Injury Law Blog, <em>available at </em><a href="http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html">http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html</a> ). <br />
<br />
Eric Zeni, for example, demonstrated that two essays, not just one, were cut short by the software. He has told me privately that the board actually tried to place the blame on him, as if it was somehow his fault their software wasn't working properly. In the end, he was able to prove two of his essays were impacted by the software failure and should not have been graded because they were not reflective of his performance on the test. After a proper review, his failing grade was therefore changed to a passing grade. New York is therefore an example of how transparency upheld the integrity of the system- despite some level of inconvenience to the bar examiners themselves.<br />
<br />
Since 2007, the National Conference of Bar Examiners has created a remedy in response to what happened in New York, which includes identifying the essay portions that were affected and then grading the balance of the examination. <em>See</em> New York Board of Law Examiners' press release, Par. 5, <em>available at </em><a href="http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm">http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm</a><br />
<br />
Prior to bringing the case to the Virginia Supreme Court, I called every state board of bar examiners' office and inquired whether applicants have rights to the essays following an exam. 42 of the 50 states said they do (with Colorado most recently changing its policy to allow this right, increasing the number to 43). Virginia stood as one of a small minority to operate a computer-based test with an unwritten rule that no applicant can obtain their essays, even in the event of a software system malfunction. The other states that are still doing this include Arkansas, Georgia, Hawaii, Missouri, South Carolina, South Dakota, all of which are currently administering computer-based tests.<br />
<br />
One right that all applicants in each of the States have in common is they may present their grievance to their state supreme court, which has inherent authority over bar admissions. As in the case when any legal claim is brought, evidence is needed to show injury. In this case, only the release of the essays could do that. The Board merely cited to an unwritten rule instituting in the early 1970's that no applicant can obtain their essays.<br />
<br />
I therefore had no choice but to bring a mandamus action, seeking a command order of the state supreme court to compel a public official to do his duty under an abuse of discretion claim. I have confirmed that in my case no guidelines for discretion were followed. No investigation of the software failure took place whatsoever. It simply came down to a blanket rule that no applicant can obtain their essays. With my sworn affidavit, Eric Zeni's testimony for what happened in New York just the year prior, the existence of a remedy developed by the National Conference of Bar Examiners, and the presence of a witness who can confirm my observations at the test site, the court still refused to hear the case or order the release of the test essays. That being the highest court in the state, I was left without recourse and without being able to have my day in court.<br />
<br />
Because of the failure of Virginia's judicial system to provide any forum for handling software claims of bar examinees, I decided to bring a constitutional challenge in federal court to the Virginia state board's policy preventing applicants from obtaining their essays even following a system software failure. Such a rule runs directly afoul of the due process protections of the applicants, particularly given the recent changed circumstances of the computer-based test. The relief I was requesting was simply the release of test essays. No request for damages or monetary compensation was included in state or federal court as I was seeking merely to vindicate my own rights and fix the obvious problem for all future examinees.<br />
<br />
First, I needed a computer forensics expert to look at this issue and provide the science behind the common sense as to why this rule is no longer appropriate in the environment of computer-based testing. I had the great fortune to come across Dr. Stephen Castell, an <em>IT Consultant of the Year</em> Professional Award Medalist of the British Computer Society (<a href="http://www.castellconsulting.com/">http://www.CastellConsulting.com</a>). Over the course of his thirty-five year career, Dr. Castell has become a leading international expert in his field and has testified in the English High Court, the Sydney Commercial Court, and American Federal Courts, for both plaintiff and defense, and for many major clients worldwide. He has acted in both the longest (<em>GEC-Marconi v LFCDA</em>, 1991-1992) and largest (<em>AirTours v EDS</em>, 2001; total claims $250M pounds sterling) computer software development contract lawsuits heard in the English High Court. After hearing about this case, he was kind enough to submit a 20-page report <em>pro bono</em> in support of the case. <br />
<br />
The federal court had all the evidence that the Supreme Court of Virginia had with the added benefit of Dr. Castell's report in which he was able to form certain preliminary conclusions and opinions based on what happened at the test site.<br />
<br />
First, he was able to conclude that there was no way for a proper review to take place without including the applicant, the key creator of the data. That is because, as he states, the need for a reboot under these circumstances is "a very real cause for concern," and "the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital . . . [i]t is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity, and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered." <br />
<br />
Secondly, he was able to conclude that the Board's offer to compare what was saved on the USB drive for hand-in to the graders with what was saved in encrypted format on my computer was just a sham remedy because the software system failure took place <em>before</em> the data was even transferred to the USB drive. Therefore, as he states, "[T]his can only merely confirm that the file was written by Mr. Bolls 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 Mr. Bolls could not have been responsible." <br />
<br />
Third, he affirmed the usefulness of the remedy as developed by the National Conference of Bar Examiners, which is entirely foreclosed to applicants in Virginia until there exists a means for obtaining the essays: "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 the essays, then, if such portions were thereby identified, it seems to me that there would then be an obvious and sensible remedy, <em>viz</em>, to employ the alternative grading methodology developed by the National Conference of Bar Examiners." It is important to note that no expert was brought forward by the Board of Bar Examiners; in fact, I had found two other experts who came to the same conclusions that Dr. Castell did. <br />
<br />
The federal court nevertheless dismissed the case without a hearing or determination of the merits on the grounds that I was challenging the agency's rule as applied to my own exam and not as a rule applied to all. This actually wasn't true as I made it very clear in my complaint to the court that besides relief for myself (in the form of releasing the test essays) I was also challenging the rule on its face and sought in my relief to have the rule struck down for future applicants who will have to undergo a computer-based test ("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"). The appellate court affirmed without explanation.<br />
<br />
While preparing for the next step in the case, I decided to take the bar exam in another jurisdiction, and was able to successfully pass the Washington, D.C. bar on my first attempt (handwritten not typed). I have taken a job as a magistrate judge in Fairfax, Virginia, a position that is appointed by the Supreme Court of Virginia.<br />
<br />
It was becoming clear something was very wrong with how the judicial system in Virginia was approaching software disputes with the Board of Bar Examiners. Either they did not want to take the time to understand the science and hear the expert or they were simply hostile to the issue. There is no doubt that with the evidence presented, this case should never have been dismissed without a proper hearing. <br />
<br />
Taking the cue from the last decision, I brought the case again in federal court, this time not asking for relief for me at all, but rather a declaratory judgment that the rule that no applicant can obtain their essays and the corresponding state law preventing Freedom of Information Act requests for test essays was unconstitutional on its face in light of the recent transition to computer-based testing in Virginia. But that judge too went out of his way to deny jurisdiction, this time extending just the opposite reasoning to deny a hearing on its merits. This time, the court said that I lacked standing. In other words, it was the court's opinion that I was not applying the case <em>enough</em> to my own injury and so could not bring it on behalf of all the others. It was a true Catch-22. Again, this was based on a false premise but nevertheless the only way for the court to ensure the evidence and witnesses were not heard in open court.<br />
<br />
Because of the high importance of the integrity of bar admissions and the novel issues at play with technology, due process, and movement towards more transparent policies nationwide to protect the applicants, I brought a petition before the U.S. Supreme Court to correct the antequated policies of the 7 hold-out states, including Virginia, where applicants have no recourse when a software malfunction affects their test essays. Certiorari was not granted for that. Unfortunately, the Court can only hear a mere 2% of its cases, though it is widely known that is only a small fraction of the many cases that have actual merit.<br />
<br />
So we see the Judiciary clearly has its limitations when it comes to software related disputes. I have no doubt that something went wrong with my essays, and the Board's having fought tooth and nail to keep me from seeing them, for years, says something in and of itself. To this day, the essays remain saved on an encrypted file held on my laptop, the key to which remains in the hands of the Board. Had my test been administered in Alaska, for example, the essays would have been sent to me upon request for a charge of $10; in Florida it would have been $50. <br />
<br />
As Dr. Castell put it well, under these circumstances where a dispute presents itself, the essays themselves represent <em>sine qua non</em> evidence <em>i.e.</em> no chance of bringing a claim that could withstand a motion to dismiss for lack of evidence. A healthy judicial system <em>must </em>be willing to address technology and people's rights, even if it is not a high dollar case, because it goes to the core of individual liberty. Short of this, rights will be trampled by those who take advantage of the courts' limited understanding of technology and unwillingness to deal with the obvious implications for citizens' rights. This will inevitably lead to an unjust result for the individual, which in this case impacts not only the candidates but the public at large.<br />
<br />
There are many benefits to technology. But as technology increases, transparency must increase in like measure even if it means additional procedural safeguards are put in place. That is the only way to protect the rights of the individual and our freedom in today's Information Age (*<em>footnote</em>).<br />
<br />
*<em>Footnote</em>: Particularly when evidence derived from Information Technology may arguably be 'ontologically unreliable', as noted earlier in this Journal by Dr. Castell - see for example 'A computer of the simplest kind...', Letter, page 158, [1994] 10 CLSR, May - June 1994, and its appended Footnotes.Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-21174226130056915662013-08-10T08:47:00.000-07:002013-08-10T08:47:18.710-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update (31):</strong> I have written an article, along with Stephen Castell PhD, the expert in this case, that was peer reviewed and published in this quarter's edition of the <em>Computer Law & Security Review</em> (Volume 29, Issue 4 (2013), p. 446-449, <em>Computer Based Testing</em>). I will post it to this site shortly. <br />
<br />
Dr. Castell has become a leading international expert in his field and has testified in American federal courts for both plaintiff and defense, and for many major clients worldwide. Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-30064466947357966522013-05-11T07:31:00.000-07:002013-05-11T07:31:21.549-07:00<strong>Update (30):</strong> May 11, 2013. <span style="font-family: "Times New Roman","serif"; font-size: 16pt; line-height: 115%; mso-ansi-language: EN-US; mso-bidi-language: AR-SA; mso-fareast-font-family: Calibri; mso-fareast-language: EN-US;"><span style="font-size: small;">As</span>
<span style="font-size: small;">a brief update, steps have recently been taken to refer this issue to the
legislature of the Commonwealth of Virginia.<span style="mso-spacerun: yes;">
</span>At the start, when I was granted an emergency hearing, it quickly became
clear that this matter would not be resolved on an emergency basis, which would
have saved that career position by simply allowing me to obtain my essays.<span style="mso-spacerun: yes;"> </span>The question then became, what position do
the courts take on such a matter?<span style="mso-spacerun: yes;"> </span>I then
began to embark on a course to find out.<span style="mso-spacerun: yes;">
</span>Who else could take this course but someone like myself with such a
unique position to have standing?<span style="mso-spacerun: yes;"> </span>The
judicial system, in order to make its rulings on constitutionality, must have before
it an injured party to demonstrate why there is a constitutional violation (in
this case a due process violation).<span style="mso-spacerun: yes;"> </span>The
courts are now on record as having dismissed the case without hearing it on its
merits.</span></span>Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com2tag:blogger.com,1999:blog-611225343433444182.post-53304485782182307332012-10-24T09:49:00.000-07:002013-01-01T11:49:50.342-08:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<b>Update (29): </b> On October 1, 2012 the Supreme Court of the United States denied certiorari on this case's constitutional challenge to Va. Code Section 54.1-108(1) which precludes FOIA requests for bar exam essays (certiorari brief included below). The Supreme Court is careful to note that denials of cert are not an expression on the merits. Indeed, it only has the time to hear a mere 1% of the cases. This was a paid case that sought no monetary or individual relief for me; rather, it was meant to draw the courts' attention to a procedural irregularity that uniquely affects Virginia bar examinees (and the examinees of 6 other states). Interestingly, after exhausting the state and federal courts, no court, including the Virginia Supreme Court, has passed upon the merits of the case. The case charted its own path as one judge after another passed the baton, each one concluding it lacks jurisdiction for one reason or another. <br />
<br />
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, <i>including</i> 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. <br />
<br />
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. <br />
<br />
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 <i>must</i> be upheld by the courts. <br />
<br />
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 <i>Supreme Court Practice </i>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. <br />
<br />
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:<br />
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<span style="font-size: small;"><strong>QUESTIONS PRESENTED</strong> </span><br />
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<span style="font-size: small;">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. <br />
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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. <br />
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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. </span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>DECISIONS BELOW</strong> </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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<strong>JURISDICTION</strong> <br />
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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. <br />
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<strong>STATEMENT OF THE CASE</strong> <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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: </span></span><br />
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<em>"On consideration of this case, the Court is of opinion that mandamus does not lie to<br />
compel the performance of a discretionary act and the writ of mandamus should not issue as prayed for. "</em><br />
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<em>Bolls v. W. Scott Street, Sec’y of Va. Bd. of Bar Exmnrs</em>., August 11, 2009, case no. 090915. <br />
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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. <br />
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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</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. <br />
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Aside from the expert, Petitioner’s corroborative evidence includes witness testimony. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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"). <br />
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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 <em>sine qua non</em> evidence in any software dispute with the board brought before the state supreme court. <br />
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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; </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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: <br />
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<em>"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<br />
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."</em> <br />
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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). <br />
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Computer-based testing thus raises significant new issues that cannot be ignored and re-opens the question of what constitutes substantive and </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">procedural due process protections following the bar exam. <br />
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<strong>REASONS FOR GRANTING THE WRIT</strong> <br />
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<strong>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.</strong> <br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <em>See</em> 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." <em>Bolls v. Virginia Bd. of Bar Exmnrs</em>., 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. <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Amendment. Appendix A, Opinion of the U.S. District Court, p. 7. However, it references <em>Schware v. Bd. of Bar Exmnrs</em>., 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. <br />
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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. <br />
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<strong>A. The Scientific Basis for the Argument </strong><br />
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<span style="font-size: small;">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: <br />
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<span style="font-family: Century,Century; font-size: small;"><em><span style="font-family: Century,Century; font-size: small;">"I am informed that applicants have a legal right to petition the Virginia Supreme Court, which has the power to reverse the </span></em></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>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." </em>
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Appendix E, Dec. of Stephen Castell PhD, ¶32. <br />
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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." <br />
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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: </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>"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." <br />
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Appendix E, Dec. of Stephen Castell PhD, ¶26. <br />
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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: <br />
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<em>"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." </em>
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Id. at ¶30. <br />
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Perhaps most significantly, a remedy does exist but cannot be utilized in Virginia by the </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <em>Available at </em><a href="http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/">http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/</a> ]</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">which Dr. Castell concludes is consistent with what is being experienced in Virginia (Id. at ¶35). On this point Dr. Castell explains: </span></span><br />
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<span style="font-family: Century,Century; font-size: x-small;"><span style="font-family: Century,Century; font-size: x-small;"></span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>"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."</em> <br />
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Id. ¶38. <br />
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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: <br />
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<em>"[T]here will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital" <br />
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Id. ¶31. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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<strong>B. The overwhelming majority of States accord their applicants rights to the essays as the transition to computer-based testing is made.</strong> <br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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 <em>sine qua non</em> 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 Fifth</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Circuit pointed out in <em>Parrish v. Board of Commissioners of the Alabama State Bar</em>, 533 F.2d 942 (5</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Cir. 1976), "access to bar examination papers was crucial to plaintiff’s case." </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <em>Tyler v. Vickery</em>, 517 F. 2d 1089 (5th Cir. 1975), cert. den., 426 U.S. 940 (1976);</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> <em>W</em></span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>hitfield v. Illinois Board of Law Examiners</em>, 504 F.2d 474 (7</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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). <br />
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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. <em>Application of Peterson</em>, 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. <em>Application of Heaney</em>, 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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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<strong>C. Applicants who experience a software malfunction have at a minimum a due process right to a responsible determination of the issues present.</strong> <br />
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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. <em>Schware v. Bd. of Bar Exmnrs</em>., 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 <em>or </em>Equal Protection Clauses of the Fourteenth Amendment") (emphasis added). <em>See also</em> this Court’s opinion in <em>Greene v. McElroy</em>, 360 U.S. 474, 496 (1959): <br />
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<em>"[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." </em>
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">More recently in <em>Goldberg</em>, this court clarified the bare minimum of what constitutes due process. This Court stated: <br />
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<em>"[T]he hearing can be tailored to the necessities of the situation and need not be a f</em></span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>ull scale, judicial trial of the issue, so long as it produces a responsible determination of the issues present."<br />
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<em>Goldberg v. Kelly</em>, 397 U.S. 254 (1970). <br />
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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. <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">administrative agency. <em>Rogers v. Supreme Court of Virginia</em>, 772 F.2d 900 (4</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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 14</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Amendment and federal judicial review. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>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.</strong> <br />
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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: <br />
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<em>"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."</em>
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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.</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">7 Am. Jur. 2d Attorneys at Law §20. <em>See Chaney v. State Bar of California</em>, 386 F.2d 962, 967 (9th Cir.</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">1967); <em>Feldman v. State Bd. of Bar Exmnrs</em>., 438 F.2d 699, 704 (8</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Cir. 1971) ("manifest unfairness on the part of the bar examiners are grounds for inquiry into the integrity of bar examination results"); <em>Whitfield v. Illinois Bd. of Law Exmnrs</em>., 504 F.2d 474, 478 (7</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Cir. 1974); Cf.<em> Scinto v. Stamm</em>, 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. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>A. Contrary to this Court’s holding in <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462, the lower court seeks to avoid jurisdiction over individual rights questions of national importance.</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">This Court in <em>Feldman</em> 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 <em>Doe v. Pringle</em>, 550 F.2d 596, 597 (10</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;">th </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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 <em>Feldman</em>, 103 S. Ct. at 1317: </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><em><span style="font-family: Century,Century; font-size: small;">"United States district courts, therefore have subject-matter jurisdiction over general </span></em></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><em>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."</em>
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. <em>See, e.g.,</em> 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. <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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<strong>B. The question of what constitutes due process in the context of a software malfunction is ripe for review.</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>C. Proper characterization of injury-in-fact</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <em>Woodard v. Va. Bd. of Bar Exmnrs</em>., 454 F. Supp. 4, 5 (E.D. Va), aff’d 598 F.2d 1345 (4th Cir. 1979). But this right</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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 §54.1-108(1) denying Freedom of Information Act requests for the same. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. <br />
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<strong>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.</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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." <em>Whitfield v. Illinois Board of Bar Examiners</em>, 504 F.2d 474, 477 (1974). <br />
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Procedural protections fail, as in the case of Virginia, when there exists an impediment which is </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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<strong>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.</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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). <u>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</u>. 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,</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">and remains subject to the same flawed law (and corresponding </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>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.</strong> <br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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, <em>available at</em> 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, <em>available at</em> http://www.abajournal.com/news/ny_bar_exam_marred_by_glitch/print/ (last visited May 3, 2012). <br />
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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. <em>See</em> press release, <em>supra</em>, ¶5. That is because applicants are prevented from obtaining their essays pursuant to Va. Code §54.1- 108 (1).</span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. <br />
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<strong>III. Under the factors set forth in <em>Matthews v. Eldridge</em>, 424 U.S. 319, post examination administrative procedures of seven (7) States are not constitutionally sufficient given the transition to computer-based testing.</strong> <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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].</span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Every one of these States now administers a computer-based test. </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Appendix D, </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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]. <br />
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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." <em>Rogers v. Supreme Court of Virginia</em>, 772 F.2d 900 (4th Cir. 1985) (P4).</span></span><span style="font-family: Century,Century; font-size: xx-small;"><span style="font-family: Century,Century; font-size: xx-small;"></span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">Petitioner thus urges this Court to grant review and consider the factors outlined in <em>Matthews </em>below. <br />
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<strong>A. Factors in analyzing judicial or administrative procedure</strong> </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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 <em>Matthews v. Eldridge</em>, 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. </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>1. Private interest affected by the action.</strong> <br />
</span></span><span style="font-size: small;">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. </span><br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"><strong>2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards.</strong> </span></span><span style="font-size: small;">
</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"></span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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Essay answers have been known to be partially or totally missing following software symptoms consistent with those that are occurring at </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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. <br />
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<strong>3. The Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.</strong> <br />
</span></span><br />
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]. <br />
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</span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. </span></span><br />
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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. </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> </span></span><br />
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<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> <strong>CONCLUSION </strong><br />
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The district court’s dismissal of this case runs contrary to this Court’s decision in <em>Feldman</em>, 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)]. </span></span><br />
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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.</span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;"> </span></span><br />
<span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">As this Court in <em>Schware</em> put it, bar examiners are subject to both the Due Process and Equal Protection clauses in the conduct of their duties. <em>Schware</em>, 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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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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." <em>Griffin v. Illinois</em>, 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. <br />
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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 </span></span><span style="font-family: Century,Century; font-size: small;"><span style="font-family: Century,Century; font-size: small;">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. <br />
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Petitioner respectfully requests this Court to grant review. <br />
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Respectfully Submitted, <br />
<br />
Jonathan Bolls <br />
Attorney <em>Pro-Se</em> <br />
</span></span> Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com2tag:blogger.com,1999:blog-611225343433444182.post-80876652741923195372012-03-12T17:53:00.003-07:002012-03-13T08:57:56.713-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 28:</strong> 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. <br /><br />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. <br /><br />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. <br /><br />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.<br /><br />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, <em>D.C. Court of Appeals v. Feldman</em>, 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 <em>Schware</em>, another Supreme Court case, both discriminatory and non-discriminatory cases were foreseen, as the opinion states, an applicant may bring <em>either</em> an equal protection challenge <em>or</em> a due process challenge. 353 U.S. at 238-239. <br /><br />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 <em>sine qua non </em>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.<br /><br />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. <br /> <br />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." <br /><br />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 <em>legal</em> step: the Supreme Court of the United States. <br /><br />The following is my letter in response to the threat of sanctions, followed by the initial letter from opposing counsel threatening sanctions:<br /><br /> <br /> <br /><br />August 2, 2011<br /><br />Office of the Attorney General<br />900 East Main Street<br />Richmond, VA 23219<br /><br />Mrs. Hill:<br /><br /> 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.<br /> <br /> 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.<br /> <br /> 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. <br /><br /> 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. <em>See D.C. Court of Appeals v. Feldman</em>, 103 S. Ct. 1303, 1317: <br /><br /><em>“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.” </em> <br /><br /> 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. <br /><br /> 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.<br /><br /> 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.<br /> <br />It is for the foregoing reasons that I must not drop this case. <br /><br /> Regards,<br /><br /><br /> Jonathan Bolls<br /><br /><br /><br />July 28, 2011<br /><br />Re: <em>Bolls v. Virginia Board of Bar Examiners</em><br /> U.S.D.C., Richmond, Case No. 3:11-cv-427<br /><br />Dear Mr. Bolls:<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> 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.<br /><br /> Sincerely,<br /><br /> Catherine Crooks Hill<br /> Senior Assistant Attorney GeneralJonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com1tag:blogger.com,1999:blog-611225343433444182.post-82770253794828632132011-11-13T10:58:00.000-08:002011-11-13T12:21:13.134-08:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 27</strong>: 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 <em>de novo </em>("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.<br /><br /> 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.<br /><br /> <br /> <br /> IN THE <br /> UNITED STATES COURT OF APPEALS<br /> FOURTH CIRCUIT<br /> 2011-2012 TERM<br /> No. 11-2115<br /><br /><br /><br />JONATHAN BOLLS, <br />APPELLANT<br /><br /><br />v.<br /><br /><br />VIRGINIA BOARD OF BAR EXAMINERS,<br />APPELLEE<br /> <br /><br /><br /><br />On appeal from the<br />United States District Court for the <br />Eastern District of Virginia<br /><br /><br /><br />INITIAL BRIEF FOR THE APPELLANT<br /><br /><br /><br /> Jonathan B. Bolls<br /> <em>Pro-Se</em> <br /> <br /> <br /> <br />ASSIGNMENTS OF ERROR<br /><br />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.<br /><br />2. The district court erred in finding that Appellant suffered no injury-in-fact and bears no personal stake in the outcome.<br /><br />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.<br /><br />4. The district court erred by ignoring the jurisdictional mandates of <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462 (1983), establishing jurisdiction over a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant.<br /><br /><br /> <strong>OPINION BELOW</strong><br /><br />The opinion of the United States District Court for the Eastern District of Virginia <br />appears in its order of dismissal, Civ. No. 3:11CV427-HEH (September 14, 2011).<br /><br /> <strong>JURISDICTION</strong> <br />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.<br /><br /> <strong>PRELIMINARY STATEMENT</strong><br /><br /> This case is a <em>prima facie </em>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. <br /><br /> 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). <br /><br /> 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 <em>sine qua non </em>evidence in any bar exam software related dispute before the Virginia Supreme Court. <br /><br /> 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 <em>first</em> bar exam properly reviewed and resolved by the Virginia Supreme Court. <br /> <br /> 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.<br /><br /> 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. <br /><br /> 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. <br /><br /> <strong>STANDARD OF REVIEW</strong><br /> 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). <br /> <br /> 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). <br /><br /> <strong>ARGUMENT</strong><br /><br /><strong>I. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(1) MOTION BASED ON LACK OF STANDING.</strong><br /><br />The “irreducible constitutional minimum of standing” contains three elements: “(1) an<br />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:<br /><br /> <em>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.” </em><br /><br />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). <br /> <br /> 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. <br /><br /> 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:<br /><br /> <em>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.</em> <br />Declaration of Stephen Castell PhD ¶32. <br /> <br /> 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.<br /><br /> 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:<br /><br /> <em>It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges<br />was perceived to be too great. We are not persuaded . . . To our knowledge, a <br />person is not required by any state to repeatedly demonstrate his competence to <br />practice law. <strong>The rule is: once is enough</strong>. 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.</em>Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976). <br /><br />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).<br /> <br /> 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. <br /><br /><strong>II. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(6) MOTION BASED ON ITS FINDING THERE IS NO VIABLE DUE PROCESS CLAIM.</strong><br /><br /> In support of this finding, the district court relies on settled case law <em>prior to </em>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. <br /><br /> 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:<br /><br /> <em>[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. </em> <br /><br /> 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.<br /><br /> Certainly, this Court would not stand for the proposition that <em>no</em> 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.<br /><br /> 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. <br /> <br /> <strong>A. Due Process Procedural Protections</strong> <br /><br /> 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. <br /><br /> 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). <br /><br /> 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.<br /><br /><strong>III THE DISTRICT COURT ERRED BY IGNORING THE JURISDICTIONAL MANDATES OF <em>D.C. COURT OF APPEALS V. FELDMAN</em>.</strong> <br /><br /> 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:<br /><br /> <em>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.”</em>D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1316-1317. <br /><br /> 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. <br /><br /> 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. <br /> <br /> <strong>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.</strong> <br /><br /> 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). <br /><br /> 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:<br /><br /> <em>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 <br />responsible.</em>Declaration of Stephen Castell PhD ¶20.<br /><br /> <em>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.</em>Id. ¶19. <br /><br /> 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. <br /><br /> 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.<br /> <br /> 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. <br /><br /> 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.<br /><br /> <strong>CONCLUSION</strong><br /><br /> 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.<br /><br /> 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. <br /><br /> 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. <br /><br /> 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. <br /><br /><br />Respectfully Submitted,<br /><br />Jonathan Bolls<br />Appellant Pro-Se<br /><br />November 10, 2011Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-38683523374156674522011-09-09T08:17:00.000-07:002011-09-12T15:41:11.798-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update</strong>: There are a couple of documents that I will hold onto and release at a later date as appropriate. On August 23, 2011 I filed a memorandum of law (reprinted below) opposing the Attorney General's motion to dismiss this complaint that challenges Va. Code Section 54.1-108(1), which denies FOIA requests for license examination papers. This action also challenges the Board's policy that no one can obtain copies of their test papers following the administration of a computer based bar exam. This policy also undermines Va. Code Section 54.1-3929 which requires the Board to preserve the essays for one year after the exam. The Attorney General is arguing <em>res judicata</em>, that is to say, the constitutional issues raised were already decided in previous litigation, and that the instant action is the same as what was previously filed in this court (U.S. District Court for the Eastern District of Virginia). Both of these arguments are disingenuous for the following reasons.<br /><br /> First, nowhere in the present complaint is there an allegation relating to Plaintiff's individual case (as there was prior) and nowhere in the request for relief is Plaintiff requesting the release of his test essays or any kind of individual relief whatsoever. The relief requested is merely to assist all future Virginia bar examinees by striking down a Virginia law that denies FOIA requests for examinees who have a legitimate reason to obtain their essays and protect their interests. This is what the vast majority of the country is already doing given the recent transition to computer-administered testing. The Eastern District Court quickly dismissed the last action <em>without reaching the merits</em> simply because of the individual relief component. Now that this jurisdictional defect has been removed, the requirements for jurisdiction are fully satisfied and the court may now try the case. The Fourth Circuit case law is very clear that a general constitutional policy challenge and an individual as-applied constitutional challenge are two very different things.<br /><br /> Second, the Attorney General exaggerates the review afforded in previous litigation before the Virginia Supreme Court and the Eastern District Court. The Virginia Supreme Court held that as a matter of law it was powerless to compel the release of the test essays, which is in the discretion of the Board, one of its agencies. The dismissal was rendered immediately, without addressing the merits or hearing the expert or eyewitness testimony. Likewise, the Eastern District Court's opinion was made prior to reaching the merits and is very narrow only to effect dismissal. The Eastern District Court held that the individual relief component prevented it from reviewing the matter. Neither the Virginia Supreme Court nor the Eastern District Court state in their opinions that the constitutional matters were addressed. Therefore, the constitutional issues now before the Eastern District Court are as yet undetermined and the court is free to address them.<br /><br /> The evidence in the case is based on eyewitness testimony as to the significant number of Virginia bar examinees requiring hands-on technical assistance and system reboots, symptoms that are particularly localized to one stage of the examination: the crucial saving stage. The AG has admitted to this occurrence in chambers and that this is happening "at every exam." A leading computer forensics expert will testify that the localization of these symptoms to the saving stage indicates a systemic problem and there is no way to rule out corruption of the essays without including the applicant in the process, which comports with a sound IT systems principle. He will also testify that it is misleading for the Board to claim it is offering a remedy by simply comparing the encrypted codes of the essays, which is an exact duplicate of potentially corrupted data. Eric Zeni, an applicant in New York who experienced a need for a reboot during his test in New York, is also willing to testify that the New York Board was at first dismissive of his concerns but he was able to obtain his essays as of right and thereafter was able to prove that the grader was evaluating partially corrupted material. He was immediately sworn in. Mr. Zeni will also authenticate a press release from the New York Board of Law Examiners that confirms that a significant number of software problems and reboots were experienced at the saving stage of the New York exam in 2007 and, consequently, almost 50 essay tests were misscored as a direct result. The evidence also includes research to show that almost all states administer a computer-based bar exam, of which almost all have over 50% taking it on their board's software (Virginia: currently 83% and rising). Furthermore, there are 44 jurisdictions (with the recent addition of Colorado) that have policies in place to allow these applicants rights to the essays following the exam.<br /><br /> Discovery will be necessary to obtain the Engineers' Notes of the technicians on standby who are required to record each and every computer they give hands-on technical assistance at the saving stage of the test. <br /><br /> IN THE UNITED STATES DISTRICT COURT<br /> FOR THE EASTERN DISTRICT OF VIRGINIA<br /> Richmond Division<br /><br />Civil Action No. 3:11cv427<br /><br />JONATHAN BOLLS, <br /><br /> Plaintiff,<br /><br />v. <br /><br />VIRGINIA BOARD OF BAR EXAMINERS,<br /><br /> Defendant.<br /><br /><br />Plaintiff’s Memorandum of Law Opposing Defendant’s Motion to Dismiss<br /><br /> NOW COMES Plaintiff, Jonathan Bolls, pro se, in opposition to the Motion to Dismiss states as follows: <br /><br /> <strong>Introduction</strong><br /> As the nation relies more and more on computer-based testing, one of our western states, the state of Colorado, is the most recent state to afford bar exam applicants rights to the essays following the administration of the bar exam. They are the 44th state to do so. The action before this Court represents a prima facie constitutional challenge to Section 1 of Va. Code §54.1-108 that contains a clause that exempts examination papers from the disclosure provisions of the Virginia Freedom of Information Act (§2.2-3700 et seq.). Because of the far reaching effects of Va. Code §54.1-108(1) the instant case necessarily affects the rights of applicants for other licensing agencies in Virginia who are subject to computer-based testing, not exclusively bar applicants. It further seeks declaratory and injunctive relief with respect to the Board’s unwritten policy, applied uniformly, that no applicant can obtain their essay answers. <br /> <br /> Plaintiff’s previous litigation includes a suit in state court wherein he sought individual relief only in the form of an order releasing test essays following a software system malfunction that affected himself and a substantial number of other applicants at the test site (see Petitioner’s sworn affidavit, App. 9a-10a). As a court of first impression and without reaching the merits, the Virginia Supreme Court ruled as a matter of law that it cannot compel the release of the essays because the underlying decision of the Board on whether to release them is discretionary. See App. 1a. <br /><br /> This is the crux of the due process dilemma faced by Virginia bar examinees. The Attorney General argues that the proper procedure for an applicant who experiences a software crash, on software approved and provided for by the Board, is to appeal without their essays to the Virginia Supreme Court. This rationale fails for two reasons. First, it does not take into account the fact that the Board has effectively circumvented its discretionary authority by making a rule that no one can obtain their essays. See Footnote 2 in Fairfax Circuit Court opinion by Judge Leslie Alden (“this 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.”). Secondly, there are no guidelines or criteria available to the public by which the Board must follow in making such a case-by-case determination, if in fact such guidelines even exist. Such would be necessary in any fair litigation on appeal before the Virginia Supreme Court not just to assess whether there was an abuse of discretion in a particular case but whether the guidelines or criteria themselves have a solid foundation in science given the landmark transition to and high reliance placed upon computer-based testing in Virginia. Such a systemic problem requires a remedy.<br /><br /> Plaintiff is certainly not the only one who had the experiences described in ¶28 of the Complaint while saving his essays, a fact that the Board does not dispute. To the extent that Defendant’s motion leaves the impression that the Board re-evaluated Plaintiff’s essays/ short answers after Plaintiff raised his concerns, Plaintiff emphasizes that any such routine re-evaluations were conducted before the results were released and before Plaintiff raised his concerns. Incredibly, no investigation took place. One is furthermore left to conclude, based on the following statement, that other applicants similarly situated (who experienced the software problems including hands-on technical assistance and system reboots described in ¶28) are all left without a remedy. See Deft. Mot. Dism., p. 18 n. 8 (“[Plaintiff] cannot allege that he has been treated differently than others in the same circumstances”). Previously, the Attorney General’s office has also conceded in chambers that the system reboots and need for hands-on technical assistance during the saving stage of the Virginia Bar Exam are, in fact, occurring “at every exam.” See App. 42a ¶6. <br /><br /> The case at bar constitutes the first cause of action filed by Plaintiff where the jurisdictional bar has been completely removed. Plaintiff’s previous action before this Court (Bolls v. Street, 2010 U.S. Dist. LEXIS 133047 (E.D. Va. Dec. 15, 2010) was a constitutional challenge to the Board’s policies coupled with a request for individual relief. It was found to be nonjusticiable because of the individual relief component and not because the issues were already adjudicated at the state court level. See Prayer for Relief, Deft. Ex. 4. In the complaint in the instant case, this Court will notice that there is no longer a request for individual relief at all whatsoever. Plaintiff is merely acting in the capacity of a concerned citizen of Virginia who is willing to prove that a state law and a corresponding state agency policy are outmoded and technically improper given the recent transition to computer-based testing in Virginia; and they run afoul of the due process clause of the Federal Constitution. <br /><br /> This case can be proven by obtaining a few limited items on discovery. First, Plaintiff is informed by his expert witness that the IT technicians on standby at the Virginia Bar Exam would have “engineers’ notes” recording every computer they put their hands on. Contemporaneous performance and error log reports would be able to confirm the observations that applicants are making following the Virginia Bar Exam. This information can be interpreted by Dr. Castell, the Plaintiff’s expert witness who has over forty years experience in the field of computer forensics. The volume of assistance required, particularly at the saving stage of the test, would be documented by technician notes and staff notes. Staff of the Board are also responsible for matching technicians with individuals who require assistance, and they are witnesses to the high volume of reported problems at the saving stage. Records of written complaints regarding the software performance and any follow-up investigations (or lack thereof) would be relevant and helpful to the Court. Eric Zeni, an eyewitness who experienced a similar software problem in New York’s bar in 2007, is familiar with this case and is willing to testify in reference to how he and others were able to obtain their essays and prove that the graders were assessing incomplete material. Mr. Zeni can also authenticate the press release of the New York Board of Law Examiners, admitting to the software problems, included in App. 23a-24a.<br /> <br /> That there is a liberty interest at stake in having proper procedures following a bar exam dispute is beyond question. See Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim”). The circuits that have addressed the issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant federal court review. See Chaney v. State Bar of California, 386 F.2d 962, 967 (9th Cir. 1967); Feldman v. State Bd. of Bar Exmnrs., 438 F.2d 699, 704 (8th Cir. 1971); Whitfield v. Illinois Bd. of Law Exmnrs., 504 F.2d 474, 478 (7th Cir. 1974); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that the grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest”). Without this rule there would be no remedy for when a state, whether it is for purposes of administrative convenience or any other reason, employs policies that violate due process.<br /><br /> The matter is ripe for review as the technology involved presents a novel issue and extensive research has uncovered no precedent for rights to the essays in the context of a software mishap. <br /><br /> <strong>ARGUMENT</strong><br /><br /><strong>I. The Declaratory Judgment Act (28 U.S.C. §2201) has no prerequisite for class certification for bringing suit in federal court against a state law and a policy of the state board of bar examiners.</strong> <br /> <br /> The Declaratory Judgment Act offers a unique mechanism by which advocates may seek <br />to remedy ongoing violations of statutory or constitutional provisions. 28 U.S.C. §2201 and §2202 (courts’ authority to grant broad relief). The Act may authorize broad, classwide declaratory and injunctive relief without resort to class action procedures. See Gary Smith & Nu Usaha, Dusting Off the Declaratory Judgment Act: A Broad Remedy for Classwide Violations of Federal Law, 32 Clearinghouse Review 112 (July-Aug. 1998). <br /><br /> A number of courts have upheld the issuance, under the Declaratory Judgment Act, of <br />broad injunctive relief directed against a defendant government agency or official to remedy an ongoing violation of federal law even in the absence of a certified class. See, e.g. Evans v. Harnett County Bd. of Educ., 684 F.2d 304, 306(4th Cir. 1982); Sandford v. R.C. Coleman Realty, 573 F.2d 173, 178 (4th Cir. 1978). Over the years legal aid advocates have successfully obtained broad relief under the Declaratory Judgment Act for their clients in cases involving civil rights, public benefits, social security, health care, housing, and labor issues. See, e.g., Harmon v. Thornburgh, 878 F.2d 484, 491-494 (D.C. Cir. 1989)(constitutional challenge to random drug tests of federal employees); Gallinot, 657 F.2d at 1019 (constitutional challenge to state mental health involuntary commitment procedures); Burrell v. Norton, 381 F.Supp. 339, 340 (D. Conn. 1974)(granting declaratory relief to individual plaintiff challenging constitutionality of certain state eligibility standards for emergency assistance welfare payments). The remedies afforded by the Act are particularly suited for attacking and correcting illegal policies, practices, and rules that harm large numbers of persons. There is no doubt that there are a significant number of applicants to the Virginia bar who are continuously being denied their due process rights following the Virginia bar exam. However, this issue transcends the Board of Bar Examiners to include all other state licensing agencies that rely on computer-based testing. Plaintiff is therefore seeking review of Va. Code §54.1-108(1) and relief under the Declaratory Judgment Act on behalf of all applicants for state professional licenses. In the computer-based testing environment, where there have been complaints relating to symptoms associated with data loss in other jurisdictions, the Board of Bar Examiners’ policy that no applicant can obtain their essays likewise must fall.<br /> <br /> Historically, plaintiffs have brought general challenges to board of bar examiners’ policies in federal district court without the need for class action. This Court need look no further than its own 1994 ruling in Clark, where an applicant to the Virginia bar refused to answer question 20(b), relating to mental health treatment, and was subsequently denied admission. Clark v. Virginia Bd. of Bar Exmnrs., 861 F. Supp. 512, 519 (E.D. Va. 1994). She brought suit under the Americans with Disabilities Act challenging the Board’s right to ask question 20(b) in this Court, and this Court ultimately found that the Board’s requirement was indeed a “rule of general application” and under the principles of the landmark U.S. Supreme Court case D.C. Court of Appeals v. Feldman, 460 U.S. 462, it had jurisdiction. Finding violation of the ADA, this Court ordered question 20(b) struck from all applications. <br /><br /> There are plenty of examples of actual policies of the Board of Bar Examiners being challenged under the jurisdiction of federal district court. The Fourth Circuit has dealt specifically with a due process claim relating to the Board of Bar Examiners, overturning this Court in Rogers, stating “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.” Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985). See also Goldfarb v. Supreme Court of Virginia, 766 F.2d 859 (4th Cir. 1985) (rational basis test applied to rule admitting only out-of-state attorneys to the bar without examination who intend to practice full time in Virginia) and Brown v. Supreme Court of Virginia, 359 F. Supp. 549 (1973) (in using rational basis test the court examines the rules of other states and compares them). Cf. Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974) (rational basis test applied to the diploma privilege policy) and Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975) (rational basis test applied to a reciprocity rule). These decisions came down in the 70’s and 80’s, resolving many of the controversies at the time. However, extensive research has uncovered no precedent for the computer software and due process issues raised today, which makes this issue ripe for review. <br /><br /><strong>II. The expert report filed in this case links the software symptoms that are occurring during the saving stage of the Virginia Bar Exam with documented data loss in another jurisdiction.</strong><br /><br /> The Attorney General’s office has conceded that hands-on technical assistance and <br />software system reboots are a recurring problem “at every exam.” App. 42a ¶6. This admission corroborates Plaintiff’s own observations and experience as laid out in his sworn affidavit, reprinted in App. 9a-10a. Common sense would dictate that any request to obtain essay answers, particularly by any of the applicants who personally experienced these problems, should be honored. This is even more true when the General Assembly has a longstanding regulation that is over fifty years older than Va. Code §54.1-108(1) that assures that the essay papers specifically must be preserved for one year. See Va. Code §54.1-3929, reprinted in App. 21a. The evidence of this case will prove that the Board is ignoring the legitimate concerns of its examinees as to misgrading of the essays following a recurring problem in its test taking software.<br /><br /> Dr. Castell does a good job of explaining why it is the prevailing scientific opinion that applicants who take computer-administered essay exams have rights to obtain their essays following the exam. He is well familiar with this case having conducted an extensive interview with Plaintiff and examining the documentation regarding the observations of the software during the saving stage of the Virginia Bar Exam, the documentation of New York’s bar exam software system malfunction in 2007, and a new remedy developed by the National Conference of Bar Examiners specifically tailored to software system malfunctions. In his declaration filed in support of the Complaint, he expresses concern with the policy that prevents applicants in the computer-based test from obtaining their essays. In ¶31 he states as follows: <br /><br /><em>“In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: Mr. Bolls may be said to be a ‘textbook case.’ It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful in improving the accuracy, integrity and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered.” </em> <br /><br /> The software system reboots and hands-on technical assistance as described in ¶28 of the Complaint are occurring only at the end of the test (morning and afternoon sessions), which indicates a systemic problem. See Declaration of Dr. Castell ¶18 (“The fact that others experienced similar problems at the same time suggests a systemic problem”). This is happening at a crucial stage of the test, which is when the essay data is saved for the grading. Plaintiff can testify that a substantial number of applicants had this experience in July 2008 and that a full team of technicians on standby were overwhelmed in both the morning and afternoon sessions of the test. By the Attorney General’s own admission, this is a recurring problem “at every exam.” See App. 42a ¶6<br /> <br /> The law and policy preventing applicants from obtaining their essays is no longer proper because they do not take into account the new technical and scientific issues at play. In ¶38 he states that a “technically sound” policy of disclosing the essays following a computer-based test would then allow applicants to avail themselves of a remedy already in existence in other jurisdictions. In ¶35 he states: <br /><br /><em>“I am therefore concerned and surprised that the board has not allowed [Plaintiff] to obtain his essays to determine if what was graded was exactly what he wrote. It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions.” </em><br /><br /> A committee member of the British Computer Society’s Law Specialist Group, Dr. Castell explains in ¶32 the systemic flaw from a legal standpoint as well: <br /><br /><em>“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.” </em><br /><br /> Plaintiff urges this Court to consider how the advent of computer-based testing represents the kind of changed circumstances of a progressive society that occasionally require federal courts to re-examine state laws and policies to ensure they comport with the due process rights of the individual. Justice Frankfurter in Griffin v. Illinois 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.” 351 U.S. 12 (1956). Va. Code §54.1-108(1) has been the foundational underpinning for policies such as Policy of Nondisclosure that are no longer appropriate in the computer-based testing environment as tested by any scientific standard. <br /><br /><br /><strong>III. Stopping Bar Applicants in a Computer-Based Essay Test From Obtaining Their Essays Acts to Foreclose the Only Available Remedy That Does Exist.</strong><br /><br /> The National Conference of Bar Examiners has developed an efficient, thorough,<br />and nationwide remedy for when a software dispute arises. See Nov. 15, 2007 press release of the New York Board of Law Examiners, App. 24a (top). In order for it to be possible, however, to apply this methodology an applicant with a software dispute must first obtain his/her essays. Such a policy that affords applicants rights to the essays following a bar exam is the choice policy for 43 jurisdictions (now 44 with the recent addition of Colorado). See Charts 19a-20a showing the policies of transparency of the various States and the marked increase in high reliance placed on the software. This remedy has successfully been used to overturn the results of many applicants in New York. New Jersey and Kentucky have openly admitted to having had software problems of their own. Instead of recognizing the problem, and thereby allowing this remedy to take effect, the Board has stubbornly ignored the issue altogether. In doing so, they simply cite to an unwritten policy that no applicant can obtain their essays and to Va. Code §54.1-108(1) as their authority. See Deft. Mot. Dism., p. 10 (top). <br /><br /> Instead, what the Board does do is disappointing and very misleading. Their offer to compare the encrypted code saved on archive with the one saved on the individual’s laptop has been characterized by the Attorney General as their remedy. This is no remedy at all, as Dr. Castell pointedly asserts in ¶¶19-20 of his Declaration:<br /><br /> <em>“This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing <br />more than a duplicate of such (already) deficient, faulty or corrupted essay data.<br />To the extent that the board seeks to ‘review the version on his computer against<br />the one graded,’ this can only merely confirm that the file was written by <br />[the applicant] using the Exam4 software. In no way does it pose a remedy to, or<br />even a sensible investigation of, any potential corruption problem caused by the<br />exam4 software itself, or through other (temporary or permanent) system fault,<br />for which [the applicant] could not have been responsible.”</em> <br /><br /> The Board, for reasons yet undisclosed, persists in following a policy that no longer makes sense despite their knowledge as to the software issues experienced in other jurisdictions, the contents of Dr. Castell’s expert report, and the fact that “the need for a reboot in such circumstances” [circumstances that affect a substantial number at every test, as described in ¶28 of the Complaint] is a “very real cause for concern.” Declaration of Stephen Castell PhD ¶22. Plaintiff has gone to the length of acquiring an expert witness who is willing to testify to this Court on the technical issues involved in computer testing.<br /><br /> Dr. Castell’s opinion has as its foundation the sound IT systems development principle that the only way to check that a computer program is operating correctly is to test it. And actual live operation is as much a test as any other, the cornerstone of which is that you check the actual computer system outputs against the expected correct outputs. It follows that someone with the knowledge of what the output should be must be able to audit what the computer program has produced or recorded as its output. <br /><br /> It should not go without mention that the Board has not asserted a scientific basis in defending its policy; neither have they brought forward an expert witness. <br /> <br /><strong>IV. The Rooker-Feldman Doctrine should not be invoked because there is no state court decision under review.</strong><br /><br /> The Rooker-Feldman Doctrine precludes federal district courts from reviewing state court judgments, an authority vested exclusively in the U.S. Supreme court pursuant to 28 U.S.C. §1257. The Supreme Court of Virginia’s ruling in Plaintiff’s individual case is extremely limited (App. 1a). It holds merely that mandamus does not lie to compel the performance of a discretionary act. By no means did the court reach the technical issues involved. Pet. for Reh’g, App. 7a ¶10 (“Petitioner has an expert witness on computer data loss and retrieval. By not hearing Petitioner, the Court will be depriving itself of the benefit of hearing this important evidence.”). In effect, there was no adjudication because of the state court’s deference to the Board’s discretion. <br /> <br /> The Fourth Circuit, in Adkins v. Rumsfeld, cited by the Attorney General, explains that “the test is not whether the relief sought in the federal suit ‘would certainly upset’ the enforcement of a state court decree, but rather whether the relief would ‘reverse or modify’ the state court decree.” 464 F.3d 456, 464 (4th Cir. 2006). A federal declaration that the Board’s Policy of Nondisclosure and Va. Code §54.1-108(1) are unconstitutional in light of the fact that 83% of Virginia bar applicants rely on the functionality of the testing software certainly would not reverse or modify the Virginia Supreme Court’s opinion on discretion, a matter of state law. The constitutional issues raised were not decided by the Virginia Supreme Court. Further, under the Supremacy Clause, federal law overrides state law whenever there is conflict between the two. See Griffin v. Illinois, 351 U.S. 12 (1956). The due process issues raised by Plaintiff fit squarely within the jurisdiction of this Court. Indeed, a contrary holding would mean that the Fourteenth Amendment’s prohibitions to the States is of no avail. Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897). <br /> <br /> None of the four factors as laid out by the Court in Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005), have been met. The first factor is that the federal court plaintiff lost in state court. Plaintiff did not lose at the Supreme Court of Virginia; the court did not reach any of the questions because of its opinion on discretion and mandamus. The court dismissed without requiring Defendant to answer and without hearing the expert witness. Such a ruling is not unlike a dismissal for lack of standing where there is no adjudication on the merits. The second factor is that plaintiff must complain of injuries caused by a state court judgment. Plaintiff is not complaining to this Court about the Virginia Supreme Court’s ruling. The third factor is that the plaintiff must invite review and rejection of that judgment. Plaintiff is doing neither.<br /> <br /> The fourth factor is that the state court judgment must be rendered before the federal court proceeding began. It was not established at the Virginia Supreme Court level that the unwritten Policy of Nondisclosure was even in existence. This information and the expert testimony of Dr. Castell was not allowed to be developed by the Virginia Supreme Court. Since none of the four factors as laid out in Exxon are met, it is clear the present action is a general challenge to a state law and policy and not an appeal of a state court decision.<br /><br /><strong>V. Res Judicata and Collateral Estoppel cannot apply because no judgment on the merits was rendered and no issues decided in either of the previous state or federal suits. </strong><br /><br /> The Attorney General engages in the use of hyperbole to describe what in actuality is one prior suit in state court and one prior suit in federal court filed by plaintiff (as opposed to five as characterized by the Attorney General). After being dismissed for reasons having to do with jurisdiction and without reaching the merits, they were both appealed as of right on the grounds that jurisdiction should not have been denied. Furthermore, a close look at the opinions will reveal that both the Virginia Supreme Court (as a court of first impression) and this Court dismissed the prior causes of action without reaching the merits of Plaintiff’s claim or the broader constitutional issues raised because of the individual relief component in the prayer for relief. In both instances the individual relief requested was the same: simply that the court order the release of the test essays following the software problems described. The previous cause of action before this Court did also request declaratory relief that the Board’s Policy of Nondisclosure and Policy of Finality be found unconstitutional in light of the transition to computer-administered testing in Virginia, but this Court did not find it necessary to reach the constitutional questions because “the Complaint is based upon the plaintiff’s challenge to the procedures and practices of the Virginia Board of Bar Examiners in reference to the plaintiff’s own bar examination results,” citing to Woodard, 598 F.2d 1345 (4th Cir. 1979) and Judge Hall’s concurrence in Richardson, 563 F.2d 1130 for its basis. See Bolls v. Street, Civil Action No. 3:10cv550, order entered Nov. 5, 2010. <br /><br /> Plaintiff’s mandamus action filed in the Virginia Supreme Court (order of dismissal reprinted App. 1a) was at the recommendation of a state circuit court judge who, although inclined, was ultimately unable to assist plaintiff following an emergency motion filed in Fairfax Circuit Court because the Board is exempt from the application of the state Administrative Process Act. See Va. Code §2.2-4002(A)(2). [Follow-up briefs on the applicability of the A.P.A. filed by the parties available upon request]. See Order of the Circuit Court of Fairfax County, March 16, 2009, reprinted App. 3a-4a (“To the extent 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 §1.”). The Supreme Court of Virginia’s ruling is limited to a very narrow point of Virginia law, viz “mandamus does not lie to compel the performance of a discretionary act.” It does not address any of the constitutional issues. That the decision was made without listening to the evidence is underscored by the fact that the expert testimony had not yet been developed. See Petition for Rehearing, reprinted App. 7a ¶10 (“In order to demonstrate the inadequacy behind the remedy offered by the Board, Petitioner has an expert witness on computer data loss and retrieval. By not hearing Petitioner, the Court will be depriving itself of the benefit of hearing this important evidence”). At no time did any court rule on the issue that is now before this Court- whether Va. Code §54.1-108(1) and its corresponding policies cause an illegal interference with state license examinees’ post examination due process interests following a computer-administered exam. <br /><br /> In Bolls v. Street, this court could have struck the individual relief component and separately considered the remainder policy challenge by examining evidence on the wide scale, recurrent problems experienced at the saving stage of the Virginia Bar Exam, the expert testimony, documentation showing misgrading in other jurisdictions as a result of similar problems, and information collected confirming that the vast majority of jurisdictions (App. 19a) allow applicants rights to the essays following the computer-based test. But this Court chose rather not to reach those issues and dismissed altogether. Therefore, the only matter that was actually resolved by this Court is that an applicant to the bar cannot challenge policies of the state board of bar examiners as applied to a particular individual. This ruling, however, should not be construed as barring any and all challenges to a policy of the state board of bar examiners, as this Court clearly authorizes that in some instances the policies can be challenged. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 515 (E.D. Va. 1994), citing the U.S. Supreme Court in D.C. Court of Appeals v. Feldman, 460 U.S. at 485:<br /><br /><em>“<strong>subtle but fundamental distinction</strong> between two types of claims which a frustrated bar applicant might bring to federal court; the first is a constitutional challenge to the state’s general rules and regulations governing admissions; the second is a claim, based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission . . .” </em>Clark, at 515.<br /><br /><em>“It is now clear to the Court that, rather than attacking the Board’s treatment of<br />Clark in particular, this case challenges the defendants’ right to enforce their <br />rule of general application that all applicants must answer question 20(b).”</em>[Court then strikes the request for an order directing the defendants to grant plaintiff a license]. Id. 518-519.<br /><br />Footnote: Separation of the general challenge to the state bar admissions policy from the individual relief request can be found in the landmark case 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 <em>and</em> 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." <br /><br /> The “subtle but fundamental distinction” referenced above is the very reason why the Attorney General’s contention fails that the “sum and substance” of this action is the same as Bolls v. Street. The previous action before this court was found to be a prohibited as-applied challenge; the present action before this court seeks no application whatsoever to an individual case. The evidence of the case also far surpasses one individual’s experience and establishes a systemic recurring problem that is not being addressed and a problem that the evidence will also show is occurring nationwide. <br /><br /> This “subtle but fundamental distinction” is certainly not a distinction without a difference, as it makes all the difference in the world for jurisdiction. Judge Hall’s concurrence in Richardson, 563 F.2d 1130, 1132-1134 (4th Cir. 1977) (en banc), cited by this Court in dismissing Bolls v. Street, expressly relies on this “subtle but fundamental distinction.” The following year this Court adopted Judge Hall’s opinion on the prohibition of as-applied bar exam challenges. See Woodard, 454 F. Supp. 4, 6 (E.D. Va. 1978), aff’d 598 F.2d 1345 (4th Cir. 1979). A national issue at the time, the U.S. Supreme Court adopted the same language of the “subtle but fundamental distinction” in 1983 in its holding of D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1311 (1983). Plaintiff now relies on this “subtle but fundamental distinction” and the very authorities cited by this Court previously in dismissing Bolls v. Street to establish jurisdiction over the general unwritten policy that no applicant can obtain their essays.<br /><br /> There is no preclusive or precedential effect when in previous actions there was no full and fair opportunity to litigate and any judgments rendered are narrow in scope. In Johnson v. Degrandy, 512 U.S. 997, 1005-06 (1994) the state argued that the claims of the plaintiffs should have been dismissed as res judicata because they had a full and fair opportunity to litigate before the state supreme court. The court disagreed, stating as follows: “[t]he premise, however, is false, exaggerating the review afforded the DeGrandy plaintiffs in the state court and ignoring that court’s own opinion of its judgment’s limited scope.” Similarly, in the instant case, the Attorney General exaggerates the review afforded to plaintiff in the previous suit filed before the Virginia Supreme Court and the one filed before this Court. Both cases were dismissed before reaching the merits and before the discovery process. The narrow scope of the judgments are clearly apparent by the express language used in the opinions, and no fair reading of them would conclude that the constitutional issues were implicated. Thus, any final judgments rendered can only give preclusive effect to what was actually decided in them, which in this case was very little.<br /><br /> Furthermore, it would have been impossible for Plaintiff to have obtained a judgment before the Supreme Court of Virginia. The Attorney General indicates on p. 8 of the brief that Plaintiff could have instead “appealed” to the Supreme Court of Virginia and argued abuse of discretion and raised the constitutional due process arguments in the appeal. First, the Attorney General says nothing here about the initial confusion that the Attorney General experienced when asked by a judge in Fairfax Circuit Court about what process is available to aggrieved bar applicants when a dispute with the Board arises on a software malfunction. The answer that came from an assistant attorney general says it all: “that is an interesting question,” and that perhaps the matter could be likened to a bar disciplinary proceeding, which does fall under the original jurisdiction of the Virginia Supreme Court. This Court should not be left with the impression that this process is clear to the applicants at all, let alone the Attorney General’s office. <br /><br /> Additionally, requiring an aggrieved applicant with a dispute relating to the essays to “appeal” to a state supreme court a decision that was made as a result of an unwritten policy makes no sense. First, no investigation by the Board into the technical issues was ever disclosed to Plaintiff so there is nothing that can be reviewed. Neither was there disclosure of guidelines in applying discretion (if discretion is even applied on a case-by-case basis) nor any stated reasons at all as to why the essays would be withheld in Plaintiff’s instance. Individuals in Plaintiff’s shoes therefore have no record that could be reviewed by a court and no guidelines by which to show that discretion was misapplied in a certain instance. More importantly, given the novel software issues at play, any petition to the Virginia Supreme Court may very well seek to challenge the guidelines themselves as outdated and technically improper give the advent of computer-administered testing. Therefore, no matter how legitimate a claim may be in Virginia, it fails for lack of evidence. See Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (petition before the Arizona supreme court insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading” of a particular set of exam papers). The Commonwealth is perpetuating the same kind of due process dilemma and “logical hiatus” as described in Alaska’s high court in Application of Peterson, where an applicant could petition the board for a review hearing if “serious grounds” are present but afforded no procedural device to enable the applicant to ascertain and demonstrate these grounds. Application of Peterson, 459 P.2d 703, 709 (Alas. 1969). Alaska and the vast majority of state bar examination boards throughout the United States have therefore adopted policies that allow applicants rights to the essays for them to make an informed decision on how to proceed, thereby upholding the integrity of their grading systems. App. 19a (Transparency Policies of State Law Examiner Offices). See also App. 20a (Statistics of the Computer Based Essay Examination). Plaintiff’s pleadings before the Virginia Supreme Court raised the constitutional due process considerations, yet the court simply did not address them because of its holding on a narrow point of Virginia law. App. 1a. <br /><br /> Where a litigant foregoes further optional state court review, particularly when there are allegations of unfairness or inadequacy in the state court procedures, the state cannot then claim in subsequent litigation that the litigant’s mere option to return to state court converts the previous judgment into a judgment following a “full and fair opportunity to litigate.” See Allen v. Curry, 449 U.S. 90, 104, 101 S. Ct. 411, 420, 66 L.Ed. 2d 308 (1980) (“full and fair opportunity to litigate, as res judicata would require”). The “full and fair opportunity to litigate” requirement applies equally to collateral estoppel. “[O]ne general limitation the Court has repeatedly recognized is that the concept of collateral estoppel cannot apply when the party against whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to litigate that issue in the earlier case.” Id., at 95; Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973; Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-329, 91 S. Ct. 1434, 1443. It is the opinion of the Attorney General that the previous action before the Virginia Supreme Court resulted in a valid final judgment. If that is the case then Plaintiff was free to litigate elsewhere, including in the federal courts, and the state decision is necessarily limited to its narrow scope. The opinion reprinted in App. 1a clearly does not reach the constitutional issues that are now before this Court. <br /><br /> Similarly, any preclusive or precedential effect given to this Court’s holding in Bolls v. Street, 2010 U.S. Dist. LEXIS 133047 (E.D. Va. Dec. 15, 2010), 2011 U.S. App. LEXIS 5557 (4th Cir. Mar. 17, 2011), is merely limited to an as-applied challenge to a policy of the Board. It does not preclude an individual from bringing a general attack to the policy, which is an acceptable legal action according to Judge Hall’s concurrence cited in Woodard above. A contrary ruling would certainly extinguish the federal court’s authority to review any Fourteenth Amendment challenges to state law examiner policies. Nevertheless, that is the absurd result that the Attorney General seems to be promoting by objecting to both the present suit and the previous suit Bolls v. Street. This would run contrary to what this Court said in Woodard, 454 F. Supp. 4 (E.D. Va. 1978) (“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 administration of the rules”) (emphasis added). But even the Attorney General concedes that the rules and regulations of the Board are indeed subject to the due process clause of the federal Fourteenth Amendment (brief in support of Mot. to Dism. P. 17, bottom). That the instant case is a bona fide general challenge to the unwritten Policy of Nondisclosure is shown most strongly by the fact that no individual relief is being requested for Plaintiff. The relief sought is prospective, for the benefit of future license examinees for the bar and other state boards or departments. <br /><br /> The personal circumstances of Plaintiff and the procedural history of his case are included as evidence in the Appendix only to assist the court in providing the concreteness it would require in reviewing the constitutional due process issues raised. It need only be one factor in the court’s analysis. However, since Article III courts are forbidden by the Constitution from deciding questions in the abstract, the personal circumstances are needed so the court can resolve cases or controversies. Outside of Plaintiff’s testimony this Court may consider undisputed evidence as to how the process is structured in Virginia (Cmplt ¶8, ¶9), including a state law that denies FOIA requests for exam papers that at times constitute evidence crucial to a case while at the same time vests unfettered discretion in the entity that is the subject of the dispute; an older conflicting law that preserves the bar exam papers for one year following the exam (Va. Code §54.1-3929, reprinted App. 21a); the observations and Engineers’ Notes of the technicians from the saving stage of the examinations (Cmplt ¶28); complaints from the examinees (Complt ¶17); similar observations that led to documented misgrading in other jurisdictions (Cmplt. ¶16); expert testimony on the proper procedures following a computer-administered exam (Cmplt ¶18); the policy, applied uniformly and without the proper guidelines, that no applicant can obtain their essays (Complt ¶¶31-32); eyewitness testimony in another jurisdiction on how obtaining the essays proved vital to protecting his due process interest and where reliance on grader vigilance proved to be futile (Cmplt ¶29); and an overwhelming national trend among bar exam boards towards transparency following the computer-based exam (Cmplt. ¶46). The bottom line is that no expensive forensic analysis is required to prove the case now before this Court. Plaintiff will show that there is no way, following the symptoms described in ¶28 of the Complaint, for the Board to rule out corruption of an applicant’s essays without cooperation with the applicant, the creator of the data. The Board has already admitted that hands-on technical assistance and system reboots are occurring “at every exam.” App. 42a ¶6. They have separately admitted to having knowledge of the misgrading that resulted from the software in New Jersey, New York, and Kentucky. <br /><br /> If this Court finds that such observations are consistent with those associated with data loss in these other jurisdictions, that is to say, if they are localized to a particular stage of the test, like the saving stage as Plaintiff witnessed, then it could conclude that there is a systemic problem that requires a policy change. That is why expert testimony is required. Other boards or departments in Virginia are also making the transition to computer-administered testing, and could conceivably run into similar problems. It is for all of these reasons that Va. Code §54.1-108(1), denying FOIA requests for test papers, and corresponding policies of state agencies, have created an unconstitutional road block and Catch-22 to the applicants’ already established post examination due process rights. For bar applicants, these rights are limited to sending their complaints to the Virginia Supreme Court as a court of first impression. For all other applicants for a license in the Virginia Department of Professional and Occupational Regulation (DPOR) or Department of Health Professions, the proper procedure is to file under the Administrative Process Act. In either case, with software disputes, the essay answers constitute evidence crucial to the case. Without them, one is left to wonder how a claim relating to a software dispute could possibly be successful. <br /><br /> Aside from the challenge to the policy that no applicant can obtain their essays, this case seeks to challenge Va. Code §54.1-108(1) as unconstitutional on its face. The complaint states that §54.1-108(1) “denies all applicants, no matter the profession, the very subject of proof that would be necessary to pursue a right that already exists: due process following a dispute in matters of test taking with any and all boards or departments.” Cmplt., p.1 (bottom). This broadens the issue significantly and has far more reaching implications as it requires a showing of how many of the various state licensing departments have made the transition to computer-based testing and what their policies are following exams. Plaintiff has discovered that a number of them have already made this transition to computer-based testing, and more research will be compiled for this Court on their policies and procedures. <br /><br /> Even if Plaintiff could have brought the challenge to §54.1-108(1) in his previous suit before this Court, there still would be no preclusive or precedential effect. Again, the district court’s opinion in Bolls v. Street, supra was so limited in scope that it neither reached the constitutional due process issue nor the merits of Plaintiff’s individual case. It merely held that it had no jurisdiction over constitutional challenges as applied to an individual’s bar exam. See Bolls v. Street, supra. Had Plaintiff requested declaratory relief against §54.1-108(1) the result of dismissal would have been no different, because of the district court’s finding that the individual component of the Prayer for Relief turned the action into an as-applied as opposed to a prima facie challenge to the Board’s policies. Naturally, it would have found no differently with respect to §54.1-108(1). However, as-applied challenges are fundamentally different than prima facie challenges, and a jurisdictional bar to an as-applied challenge to a law and policy does not give preclusive effect to a prima facie challenge to the same. <br /><br /> Previous litigation may show that the causes of action are closely related, but they are not identical as would be required for preclusive effect. On preclusion, this Court must look to Virginia law for the applicable standard. In Virginia, there is a fine line distinction between suits that are “closely related” and those that are “identical,” as the court in Wright v. Castles stated: <br /><br /><em>“[I]n support of the plea of res judicata in the subsequent law action, the defendants <br />argued that plaintiff’s ‘based [their case] on the identical cause of action which was <br />litigated in the former equity suit.’ We rejected this argument, stating that ‘while the <br />causes of action in the two suits [were] closely related, they [were] not identical.’” </em> <br />Wright v. Castles, 232 Va. 218 (1986) (quoting Worrie v. Boze, 198 Va. 533, 537, 95 <br />S.E. 2d 192, 196 (1956). <br /><br /> In sum, Plaintiff’s former action in Bolls v. Street and the instant action represent both sides of the coin on the “subtle but fundamental distinction” referenced in Judge Hall’s concurrence in Richardson, supra and in Feldman, supra. The instant case represents a prima facie challenge whereas the previous case was found to be an as-applied challenge. This distinction is vital to the jurisdictional question, and it is what makes the instant case not identical to the Bolls v. Street previously brought before this Court.<br /><br /><strong>VI. Denial of Certiorari by the Supreme Court Is Not An Expression on the Merits</strong>.<br /> <br /> Rule 10 of the U.S. Supreme Court lists the considerations governing review on writ of certiorari. These considerations include, inter alia, conflicts among Circuit Courts of Appeals, conflicts between state high courts and Circuit Courts of Appeals, and important federal questions that the Supreme Court must address. Its purpose is solely to induce the high court to hear a case. Only if granted are briefs then taken on the merits. Denial of writ of certiorari by the Federal Supreme Court imports no expression of opinion upon the merits of a case but means only that there were not four members of the Court who thought the case should be heard. Judiciary Act of 1925, 43 Stat. 936. U.S.N.C. 1953. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L.Ed. 469, reh’g denied 73 S. Ct. 827. In his address before the ABA, Chief Justice Vinson states: “During the past term of Court, only about 15% of the petitions for cert were granted, and this figure itself is considerably higher than the average in recent years . . . a great many of the 85% that were denied were far from frivolous.” Work of the Federal Courts p. 236, Address Before the American Bar Association, September 7, 1949. The American bar is very clear on this point. “[A]s we have often said, a denial of certiorari by this Court imports no expression of opinion upon the merits of a case.” House v. Mayo, 324 U.S. 42, 48, 65 S. Ct. 517 (1945). See State of Ohio ex rel. Seney v. Swift & Co., 260 U.S. 146, 151, 43 S. Ct. 22, 24, 67 L. Ed. 176; United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 182, 67 L.Ed. 361 (“as the bar has been told many times”). Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U.S. 251, 258, 36 S. Ct. 269, 271; Atlantic Coast Line R. Co. v. Powe, 283 U.S. 401, 403, 404, 51 S. Ct. 498, 499, 75 L.Ed. 1142. Cf. Ex Parte Abernathy, 320 U.S. 219.<br /> <br /> The Court in Brown explicitly refers to the above legal principle as barring res judicata or any precedential effect in further proceedings. “When on review of the proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement [“imports no expression of opinion on the merits”] is satisfied.” Brown, supra, 344 U.S., at 456. Plaintiff’s application may have been denied for any of the above stated reasons, but inadequacy of the record seems to be a likely possibility. In his dissent in Griffin, supra, 351 U.S., at 29-30 Justice Harlan says he “would decline to decide the constitutional question tendered by petitioners because the record does not present it in that ‘clean-cut,’ ‘concrete,’ and ‘unclouded’ form usually demanded for a decision of constitutional issues.” Again, the Board’s stringent policy that no applicant can obtain their essays prevented a record from being made which could be reviewed by the highest appellate court. It is therefore clear that Plaintiff should be free to pursue a constitutional challenge to the Board’s policies and procedures in federal district court because the merits of his individual case and the constitutional issues raised have not been addressed, even by the U.S. Supreme Court.<br /><br /> <strong>CONCLUSION</strong><br /><br /> A Virginian by choice, Plaintiff has had a longstanding commitment to the Commonwealth. Plaintiff graduated from the College of William & Mary in 2004 and the Marshall Wythe School of Law at William & Mary in 2008. Upon graduation Plaintiff was recognized by the Virginia Bar Association for participating in its Community Service Program, a program which has a broad volunteer base not strictly confined to pro bono work. Plaintiff continues to be active today, as a chief elections officer in Pioneer Precinct in Springfield, VA. <br /><br /> The granting of a motion to dismiss is a harsh remedy. It is without dispute that it must be cautiously studied, both to effectuate the spirit of the liberal rules of the pleading and to protect the interest of justice. Carlson v. United States Postal Service, F. Supp. 2d 1040 (N.D. Okla. 2003); see also Cayman Explor. Co. v. United States Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989). To resolve the motion to dismiss, the court must accept as true all factual allegations in the complaint, construe the record in favor of the plaintiff, and decide whether as a matter of law, the plaintiff could prove no set of facts which would entitle it to relief. Parker v. Wakelin, 882 F. Supp. 1131 (D. Me. 1995); Straka v. Francis, 867 F. Supp. 767 (N.D. Ill. 1994); Bensch v. Metropolitan Dade County, 855 F. Supp. 351 (S.D. Fla. 1994). Plaintiff’s case includes eyewitness testimony from Virginia and another state, published documentation, scientific opinion, compiled research on other state policies and computer statistics, and undisputed facts relating to the law and policy currently under review and the structure of the judicial review process in Virginia.<br /><br /> The Fourteenth Amendment requires that no State shall deprive any person of life, liberty, or property without due process of law. Bar licenses and other licenses are well recognized within the law as a protected liberty interest. See Board of Regents v. Roth, 408 U.S. 564, 572, 92 S. Ct. 2701, 33 L.Ed.2d 548 (1972) (stating that the liberty interest guaranteed by the Fourteenth Amendment includes the right to “engage in any of the common occupations of life”). Currently, the due process accorded to professionals seeking licenses in Virginia is pursuant to the Administrative Process Act, in the case of health and other occupational licenses, and the Virginia Supreme Court, in the case of bar licenses. Nevertheless, this process is vitiated when applicants are stopped from obtaining their essays in the first place, evidence crucial to their cases in a software dispute or otherwise. <br /> <br /> Res Judicata and Collateral estoppel have no preclusive effect over the current proceedings because of the limited scope of the prior litigation. The Virginia Supreme Court’s holding in Plaintiff’s individual case was on a fine point of Virginia law, that mandamus does not lie to compel the performance of a discretionary act on the part of the Board. It would have been impossible for the state court to reach the merits of the technical issues at play because the dismissal took place even before the evidence was presented.<br /> <br /> Following the cause of action in state court, this Court held in Bolls v. Street, supra that Plaintiff’s action was an as-applied challenge, not justiciable in federal district court. Again, a close reading of the opinion will reveal no opinion as to the constitutional issues raised; the court simply found that it had no jurisdiction to decide the merits.<br /> <br /> In contrast, the case at bar seeks no relief for Plaintiff and the allegations of the complaint are different. Rather than speaking to Plaintiff’s individual case as in the prior suit, the allegations rather refer to the software symptoms occurring on a wide scale at the saving stage of the Virginia Bar Exam (see Complaint ¶28) and an expert’s opinion on the likelihood of there being a systemic problem. These technical issues likewise affect all licensing agencies now offering computer-based testing in Virginia. It also refers to an eyewitness, who is willing to testify, from New York who observed similar problems at the saving stage and has personal experience (App. 25a) with having to reboot the software during the test. This witness will testify that the New York board was at first dismissive of his concerns, but the applicants’ right to obtain their essays forced a corrective process not previously in existence. Applicants in New York were discovering that their essays were lost, incomplete, duplicated, etc. App. 28a-29a. Plaintiff merely seeks to assist this Court in identifying the law in Virginia that has led to a systematic denial of due process rights for the individual applicant. Plaintiff’s individual case demonstrates the substantive and procedural flaw, but this Court need not look to his case alone for the reasons stated above. Unlike Bolls v. Street, this is not an as applied challenge; therefore, the jurisdictional bar has been removed completely.<br /> <br /> The Rooker-Feldman Doctrine should not be invoked here as there is no state court decision that is currently under review. This case represents a constitutional challenge to Va. Code §54.1-108(1) and a corresponding policy of the Board that no applicant can obtain their essays, which acts to deter applicants and undermine their efforts to avail themselves of their right to petition the Virginia Supreme Court. <br />Finally, there is no class certification prerequisite under the Declaratory Judgment Act (28 U.S.C. §2201) for bringing a general challenge to a policy of the Board of Bar Examiners or to a standing law of the Commonwealth. There are furthermore plenty of precedents within this Court and other Circuit Courts of Appeals in support of this point as laid out in Part (I) of this brief. <br /><br /> For the foregoing reasons, Plaintiff asks this Court to deny the Motion to Dismiss.<br /><br />Respectfully Submitted,<br /><br /><br />Jonathan Bolls<br />Plaintiff Pro-Se<br /> <br /><br />August 20, 2011Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-80536954914406381182011-07-21T05:29:00.000-07:002011-07-21T09:44:04.872-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 25</strong>: On July 14, 2011 the Virginia Board of Bar Examiners was served with the following complaint returnable to the U.S. District Court for the Eastern District of Virginia. This is a public document (<em>case no</em>. 3:11CV427). Because of my bar results (October 2008) I requested my essay answers from the Virginia Board. All of my attempts to obtain my essays proved to be unfruitful. In December 2008 I had filed an emergency motion in Fairfax Circuit Court as a career position was on the line. It was there, before Judge Alden, that the constitutional dilemma became apparent. Since then, I have been attempting to handle both the due process problem in general and obtain my own essays so that I could receive individual relief. This time no individual relief for myself is being requested at all. I am rather filing this out of a sense of public responsibility given the information I have come across in the course of over two years' litigation in both state and federal court. This action seeks to declare unconstitutional a Virginia law (Va. Code 54.1-108) which dates back to the late 1970's that acts as the premise for state professional testing boards to install their own policies to prevent applicants from obtaining their test essays in the event of a dispute. It is my position that the recent transition to computer-based testing for the Virginia Bar Exam accompanied by the overwhelming reliance on the Board's software system (83% and rising) renders the Board's policy that no one can obtain their essays outmoded and technically improper. This position is backed by expert testimony as well as eyewitness testimony from an applicant from another state who experienced similar problems as what are being observed at every exam in Virginia, and corruption of his essays was found. As one of the largest professional testing boards in Virginia, this controversy surrounding the Board of Bar Examiners is representative of why Va. Code 54.1-108 must be reconsidered. I am also seeking relief for all future applicants to the Virginia bar so that they can obtain their essays, starting with the October 2011 results, just like the 44 other jurisdictions that currently afford such rights (a number that is on the rise).<br /><br />I believe this is a timely and important issue as it addresses the rights of the individual in a system that places a high degree of reliance on computer software. It is a matter of common knowledge that system malfunctions happen. When they do, there needs to be transparency and an avenue of recourse. Even aside from the computer issues, for fairness reasons alone, why wouldn't someone be able to obtain their essays if they feel that the grading was wrong? It is time for a federal court to reexamine Va. Code 54.1-108 given the landmark transition to computer-based testing and uphold the rights of the individual and the principles of due process within the Commonwealth of Virginia. <br /><br />IN THE UNITED STATES DISTRICT COURT<br />FOR THE EASTERN DISTRICT OF VIRGINIA<br /><br />RICHMOND DIVISION<br /><br />No. 3:11CV427<br /> <br />JONATHAN BOLLS, <br /> a resident of the Commonwealth <br /> Plaintiff, <br /><br />v. <br /> <br />VIRGINIA BOARD OF BAR EXAMINERS, <br /> Defendant.<br /><br /><br />COMPLAINT FOR DECLARATORY AND INUNCTIVE RELIEF <br /><br /><br />Plaintiff states as follows:<br /><br />As of 2011, Virginia is the only state with a computer-based bar exam that combines Extegrity’s Exam4 software (software that in Virginia features no online submission capability to retrieve lost data) with a policy that no applicant can obtain their essays, including those who experience problems as described in this Complaint. Virginia bar examinees are therefore the least protected against a wrongful deprivation of their interest among all bar examinees throughout the country. In order to ensure due process, a policy that allows Virginia bar examinees to obtain their essays is technically sound and comports with the requirements of due process given the nature of a computer-based test. However, simply focusing on such a policy pertaining to bar examinees alone is insufficient. In order for due process to be achieved, the first clause of Virginia Code §54.1-108 must be addressed (denying Freedom of Information Act requests for “[e]xamination questions, papers, booklets and answer sheets, which may be disclosed at the discretion of the board administering or causing to be administered such examinations”) because it denies all applicants, no matter the profession, the very subject of proof that would be necessary to pursue a right that already exists: due process following a dispute in matters of test taking with any and all boards or departments. The following is representative.<br /><br /><strong>Introduction</strong><br /><br />1. The Virginia Board of Bar Examiners (hereinafter referred to as “Board”) introduced computer-based testing (CBT) for the essay portion of the exam (weighted 60%) to all candidates for the first time in July 2005. The test is administered with the aid of a security software program which the Board contracts to provide. Since then, the percentage of applicants taking the computer-based essay test has rapidly increased to 83%.<br /> <br />2. The Virginia General Assembly enacted Va. Code §54.1-3929 (reprinted App. 21a), a law that dates back to 1919 for the purpose of ensuring the preservation of the applicants’ essay response to the Virginia Bar Exam for one year. This law continues to the present and was relied on in the past when applicants found it necessary to obtain their essay responses.<br /><br />3. In light of the recent transition to computer-based testing, the overwhelming majority of states have exhibited a strong national trend toward providing bar examinees rights to the essays following the release of test results. See Chart, App. 19a (note: as of 2011, Colorado has recently changed its policy to allow applicants rights to obtain the essays for a $15 fee following the release of test results, which increases the number of jurisdictions that afford their applicants rights to the essays from 43 jurisdictions to 44). This recent change reflects the steady increase in jurisdictions recognizing the need for post-examination due process rights nationwide during the transition to computer-based testing.<br /> <br />4. Such rights in these forty-four (44) jurisdictions exist regardless of whether or not there is an appeals process built into the board structure because the high court of each jurisdiction has the inherent authority to hear petitions from applicants should a dispute arise. As of 2011, even though forty-four (44) jurisdictions ensure rights to the essays after the release of test results, only nine (9) jurisdictions have an appeals process built into their board structure. These are as follows: Alaska, Arizona, District of Columbia, Indiana, Michigan, Mississippi, North Carolina, Rhode Island, and Washington. These states can and regularly do overturn bar exam results via the built-in appeals process. In states that do not have a built-in process, such as New Hampshire, the state supreme court has original jurisdiction over those cases. Aggrieved applicants in New Hampshire who have a dispute with the board after obtaining their test essays petition the Supreme Court of New Hampshire directly. <br /><br />5. Part I of Virginia Code §54.1-108 contains a clause that exempts examination papers from the disclosure provisions of the Virginia Freedom of Information Act (§2.2-3700 et seq.) and vests professional examination boards with discretion in releasing exam papers (see law reprinted in App. 21a). <br /><br />6. During the transition to computer-based testing, the Board has continued to follow an unwritten policy that no applicant can obtain their essays, which policy is premised on Virginia Code §54.1-108(1). This policy is hereinafter referred to as “Policy of Nondisclosure.” In its discretion, the Board has instituted this policy, a blanket rule that acts to bar applicants with a software dispute who seek to bring their claims to the Supreme Court of Virginia. <br /><br />7. There exists no rule of the Supreme Court of Virginia that precludes an applicant from obtaining their essay responses.<br /><br />8. Should a software dispute arise between an applicant and the Board following the administration of the Virginia Bar Exam, the only recourse to be had for an aggrieved applicant is to send their petition to the Supreme Court of Virginia under its inherent authority. See Woodard v. Virginia Bd. of Bar Examiners, 454 F. Supp. 4, 5 (E.D. Va.), aff’d 598 F.2d 1345 (4th Cir. 1979) (“The Supreme Court has no explicit statutory authority to review the Board’s decisions or to reverse its evaluation of a particular candidate. Nonetheless, it is well settled that the Court retains such inherent power.”). As an agency of the Supreme Court of Virginia, the Board is exempt from the application of the Virginia Administrative Process Act (§2.2-4000 et seq.) and state circuit court review. The Board has no built-in appeals process following the release of test results; applicants with disputes are told to send their complaints to the Supreme Court of Virginia directly.<br /><br />9. The FOIA exemption contained in Virginia Code §54.1-108(1) combined with the Board’s Policy of Nondisclosure have created an effective deterrent and substantial obstruction to an applicant’s right to petition the Supreme Court of Virginia to allege reversible error, whether due to software malfunction or for any other reason. The Commonwealth is perpetuating the same kind of due process dilemma and “logical hiatus” as described by Alaska’s high court in Application of Peterson, where an applicant could petition the board for a review hearing if “serious grounds” are present but afforded no procedural device to enable the applicant to ascertain and demonstrate these grounds. Application of Peterson, 459 P.2d 703, 709 (Alas. 1969). As a result, Alaska and the vast majority of state bar examination boards throughout the United States have adopted policies that allow applicants rights to the essays in order to allow applicants to make an informed decision on how to proceed, thereby upholding the integrity of their grading systems. App. 19a (Transparency Policies of State Law Examiner Offices). <br /><br /><strong>Parties & Standing</strong><br /><br />10. Plaintiff, a resident of the Commonwealth of Virginia, took the Virginia Bar Exam in July 2008. After experiencing a software system malfunction that affected himself and others (Affidavit App. 9a-10a) and after receiving notification of a deficient essay score, he sought unsuccessfully after over two years of litigation in state and federal court to obtain his essay responses in order to ascertain the full impact of the software system malfunction and make an informed decision prior to making an actual claim (see his blog, recording each stage of his case at http://jonathanbolls.blogspot.com). To date his essays have been held in secret even though his case has been described by a notable computer forensics expert as a “textbook case” where cooperation with the applicant is “necessary, if not vital.” Declaration of Stephen Castell PhD ¶31 (enclosed with the complaint). His essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service. He subsequently passed the District of Columbia bar exam on his first attempt, handwritten, on the essay section alone, his multiple choice score (weighted 40%) having been waived. He is now gainfully employed and files this action out of a sense of public responsibility.<br /><br />The Board is an agency of the Supreme Court of Virginia based in Richmond, VA whose authority is defined in Va. Code §54.1-3922. The Board is an administrative agency with both judicial and delegated legislative powers.<br /><br /><strong>Jurisdiction and Venue</strong><br /><br />11. This Court has jurisdiction pursuant to 28 U.S.C. §1331, viz the due process clause of the Fourteenth Amendment of the Constitution of the United States. Its authority to enter Declaratory Judgment derives from 28 U.S.C. §2001 et seq. <br /><br />12. The right to practice one’s chosen profession is a well-recognized liberty interest that cannot be taken away without certain due process protections in place. Richardson v. McFadden, 540 F.2d 744, 750 (4th Cir. 1976) (“It is beyond question that the bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties”). See also Whitfield v. Ill. Bd. of Bar Exmnrs., 504 F.2d 474, 478 (1977) (“the due process clause requires the State to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections”) and Application of Peterson, 459 P.2d 703, 710 (Alas. 1969) (bar examinees’ right to 14th Amendment due process is “firmly established”) and Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.”).<br /><br />13. Judge Hall, in his concurrence in Richardson v. McFadden, 563 F.2d 1130, 1133 (4th Cir. 1977), clearly delineates exactly the kind of bar exam related claim which may be brought in federal court: “a constitutional challenge to the state’s general rules and regulations governing admission.” This language on jurisdiction was later affirmed by the Eastern District of Virginia the following year in Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4, 6 (1978). Finally, in 1983 the Supreme Court of the United States adopted this identical language to clarify the only kind of bar admissions related dispute which could be heard in federal district court. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 485, 103 S. Ct. 1303, 1316 (“constitutional challenge to the state’s general rules and regulations governing admission”) and Id., at 483, 103 S. Ct. at 1316 (“to the extent Hickey and Feldman mounted a general challenge to the constitutionality of Rule 46(I)(b)(3), the District Court did have jurisdiction over their complaints.”). <br /><br />14. The circuits that have addressed the issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant federal court review. See Chaney v. State Bar of California, 386 F.2d 962, 967 (9th Cir. 1967); Feldman v. State Bd. of Bar Exmnrs., 438 F.2d 699, 704 (8th Cir. 1971); Whitfield v. Illinois Bd. of Law Exmnrs., 504 F.2d 474, 478 (7th Cir. 1974); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that the grading system is not effective in revealing grading errors or that it inadequately guards against the risk, if any, of an erroneous deprivation of an applicant’s interest”). <br /> <br /><strong>Grounds for Relief</strong><br /><br />15. Since the inception of the computer-based test (CBT) for the essay portion of the Virginia Bar Exam, there have been and there continues to be ongoing observations of the need for hands-on technical assistance and software system reboots for a significant number of applicants during the saving stage of every examination sitting. See admission of the Attorney General, reprinted App. 42a ¶6: when pressed at a pre-trial conference whether symptoms similar to what [Plaintiff] has described have been known to exist, “including the reboot,” [the Assistant Attorney General] responded that, in fact, they do “at every exam.” <br /><br />16. These observations are consistent with Plaintiff’s affidavit, reprinted in App. 9a-10a, and these same symptoms have a proven link to documented data loss and consequent misgrading in other jurisdictions administering the essay portion on computer-based testing software. App. 23a-24a (press release of the New York Board of Law Examiners following the July 2007 computer-based essay exam, ¶5, available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm). Such problems have been recently experienced in states including New York, New Jersey, and Kentucky.<br /><br />17. Despite knowledge of the above facts and incidents and vehement complaints from applicants who believe their scores were negatively impacted, the Board has prevented these applicants from obtaining their essays by Policy of Nondisclosure.<br /><br />18. Stephen Castell, PhD, expert witness in this case, has filed his report (enclosed with the complaint as Declaration of Stephen Castell, PhD) to aid this Court in understanding the scientific and technical reasons for applicants having rights to obtain their essays following the administration of a computer-based test. A leading computer forensics expert in the UK, he has been an expert witness in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communications technology, software systems and services. He files his report for the purpose of showing this Court the following:<br /><br /> a. That the observations described in ¶28 of this Complaint (and reprinted in App. 9a-10a, Plaintiff’s Affidavit) are consistent with the symptoms observed in another jurisdiction’s bar exam, where corruption of the essays was well documented; <br /> b. That the fact that a number of applicants experiencing the same symptoms at the same saving stage indicates the presence of an ongoing system malfunction; <br /> c. When disputes arise following observations described in ¶28 of this Complaint, the Board’s offer to compare the encrypted codes saved on the laptop to that saved on archive “in no way poses a remedy or even a sensible investigation of” the issue. Declaration ¶20.<br /> d. Without an applicant having the right to obtain their essays following a software dispute, this leaves an open question of what the means are of resolving such disputes. Declaration ¶32.<br /><br />Dr. Castell comes highly recommended by a justice of the English High Court, David Richards, who states, “I found Dr. Castell to be an honest and conscientious witness.” English High Court (Chancery Division) [2005] EWHC 749 (Ch). Claim No. HC 04C00702 (testifying for the defense). His clients have included the British Broadcasting Corporation, the European Space Agency, Citibank, Motorola, DirecTV, Her Majesty’s Treasury, among many others (listed on curriculum vitae, attached). He has qualified as an expert in both English High Court and American federal district court for the plaintiff and defense. He is also a medalist recipient of the IT Consultant of the Year award by the British Computer Society.<br /><br />As the expert witness in the instant case, he is acting in a pro bono capacity, and his contact information is included under the signature block of his Declaration.<br />19. During the July 2008 Virginia Bar Exam, there were 24 applicants who were found to have had essay responses misplaced in the system from the three-hour morning session. Affidavit App. 9a-10a ¶2. According to Dr. Castell, this announcement “raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site.” Declaration of Stephen Castell PhD ¶34. <br /><br />20. It cannot be ruled out that the misplacement of these essays directly resulted from a software malfunction. See Declaration of Stephen Castell PhD ¶34 (the announcement regarding the 24 “raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site . . . this could be obviated if applicants could simply obtain their essays”). Neither can the Board be certain there were only 24 as a small staff purportedly rifled through five essays for a thousand applicants (5,000 essays in total) all during a one-hour lunch break.<br /><br />21. The Board affords examinees no opportunity for a review or re-grade of the essays once the applicant receives the results, and no scoring information is made available aside from a numerical score. Any routine re-grades or reviews are conducted internally as a part of an internal control mechanism like any government agency or corporation. However, unlike all other state government agencies and corporations subject to Virginia law and the Virginia Administrative Process Act, the final product in the case of the Board is beyond question. <br /><br />22. When contacted by an applicant who experienced a situation as described in ¶28 of this Complaint, the Board, through its secretary, denies that any problem exists and seeks no further information from the applicant which may be used to identify a software problem or improve the system.<br /><br />23. The Board contracts with Extegrity, Inc. to provide the test taking software. As of 2011, Extegrity was the software provider for eight (8) state bar exams [Arizona, Commonwealth of Virginia, Commonwealth of Kentucky, Louisiana, Maine, Nebraska, Tennessee, and Wisconsin]. The other 37 that administer a computer-based test [not including New Jersey] use ExamSoft Worldwide, Inc., which has an additional safeguard capability that allows applicants to submit their essays online. As of 2011, only four jurisdictions do not yet have a computer-based test [District of Columbia, Indiana, Michigan, and Mississippi]. South Carolina for a number of years has kept its computer-based test under observation, allowing only a limited number of applicants to take it at every exam. This information is easily accessible to the public by contacting the individual state board of law examiner offices. On its website, the National Conference of Bar Examiners provides a link to the websites and phone contact information for each at http://www.ncbex.org/ (click “Bar Admission Offices”). <br /><br />24. Weeks prior to the exam, system checks are conducted to ensure compatibility of the Exam4 software with personal laptops. No personal laptop can be used to take the test without successfully completing a system compatibility check.<br /><br />25. Computer-based testing for the essay portion of the Virginia Bar Exam (weighted 60%) was first offered to applicants as a whole on the July 2005 exam. By July 2008 over half of the applicants opted for it. Today, the number is 83% and rising.<br /><br />26. The essay portion of the Virginia Bar Exam (weighted 60%) is administered on the first day of a two-day exam and consists of a three-hour morning session and a three-hour afternoon session separated by a one-hour lunch break. A large room is reserved for the majority who take the computer-based test (approx. 83%) and a smaller room for the minority of hand writers (approx. 17%). <br /><br />27. When time is called following each three-hour session, the applicants stop their work and enter the saving stage, at which time the proctor directs the room through an approximately ten-step procedure that saves the essays. The last two or three steps consist of transferring the data that has been saved to a USB drive, an external device the size of a thumb which is inserted into the laptop. The applicant returns this USB drive to the proctor’s desk prior to leaving the test site. All data is saved in non-readable, encrypted format. Extegrity, Inc. then decodes the data into readable English for the Board. The Board maintains the readable English format of each test on site in Richmond.<br /><br />28. At every exam, the Virginia Bar Exam is experiencing a software disruption and the need for hands-on technical assistance (and some cases, a system reboot) for a substantial number of applicants during the saving stage of the exam, particularly midway through the ten-step sequence described above. Technicians on standby were, for example, overwhelmed during both sessions of the July 2008 exam. In those cases where hands-on technical assistance is insufficient, the applicant is then instructed to reboot, i.e. turn the computer off and turn it back on, prior to completion of the saving process. On this point Dr. Castell, in his report, states as follows: “the need for a reboot in such circumstances is in my view a very real cause for concern.” Declaration of Stephen Castell PhD ¶22.<br /><br />29. A personal account from the July 2007 New York bar examination demonstrates the vital role that obtaining the essays plays in protecting the applicants’ rights. App. 25a-26a, available at http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html (last visited June 20, 2011). Significantly, the matter of Eric Zeni, whose New York bar exam was corrupted by a software glitch and later resolved, took place after the press release (supra ¶16) was sent out to the applicants along with the final results. Because Mr. Zeni was able to obtain his essays as of right, he was able to personally identify and prove that a significant portion went missing. This error was not caught by the bar examiners. The missing portion was later identified by technicians and graded, and Mr. Zeni was found to have passed and was promptly admitted to the bar. See also App. 38a (Mr. Zeni’s email confirming the veracity of the above characterization). Mr. Zeni has agreed to testify as a witness in the case at bar.<br /><br />30. Policy of Nondisclosure in conjunction with Va. Code § 54.1-108(1) have effectively deprived the Supreme Court of Virginia of its inherent jurisdiction over bar exam related disputes, and in particular software related disputes, by withholding the very subject of proof that would be necessary for an applicant to make an informed decision on how to proceed with a claim or petition as of right to the Supreme Court of Virginia. Here is one aspect of the constitutional problem. The Supreme Court of Virginia has held as a matter of law, prior to hearing the merits or scientific reasons why the essays in the context of the software problems described in ¶28 of this Complaint must be released to the applicant, that it cannot force the release of the essays because the Board’s underlying decision whether or not to do so is discretionary. App. 1a (Order, August 11, 2009). <br /><br />31. The Board, in contravention of the due process clause of the federal Fourteenth Amendment, has utilized its discretion to install Policy of Nondisclosure and has applied it uniformly to applicants, including those who experience software problems as described in ¶28. <br /><br />32. The Board has not installed any written guidelines or criteria by which an exception to Policy of Nondisclosure could occur. If any such guidelines do exist, they are not technically or scientifically sound in the context of a computer-based test (CBT). See Declaration of Stephen Castell PhD ¶29, explaining that the transition to computer-based testing in Virginia is a part of a recent major international transition to such a high level of reliance placed on testing software. <br /><br />33. The Rules of the Supreme Court of Virginia are silent with respect to the post-examination due process rights of candidates for the Virginia Bar. The Board conducts its duties subject to these Rules and the Laws of the Virginia General Assembly. <br /><br />34. The Board has not set forth a remedy or solution (to the software symptoms described in ¶28 of this Complaint). See Declaration of Stephen Castell, PhD ¶19, addressing the issue of duplication/ replication of data: “This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” <br /><br />35. The FOIA exemption contained within Va. Code 54.1-108(1) and Policy of Nondisclosure act to preclude the only true remedy for a software related dispute. The National Conference of Bar Examiners has in 2007 developed an efficient, thorough, and nationwide remedy following New York’s July 2007 bar exam. See press release of the NY Board of Law Examiners, Nov. 15, 2007, reprinted in App. 24a: <br /><em>Fifteen of these candidates passed the examination based on their performance of the examination, with no credit being given for any missing essay. Seventeen candidates failed the examination even when attributed a perfect score on any missing essays. The remaining fifteen candidates were given estimated scores based upon their performance on the balance of the examination, and their probability of passing was computed. The Board worked with researchers at the NCBE to develop and apply this methodology.</em> <br /><br />The Board in Virginia does already have a working relationship with the National Conference of Bar Examiners in administering the Multistate Bar Exam multiple choice test.<br /><br />36. The computer-based tests in New York and Virginia are identical in the mechanism by which the essays are saved onto USB drive. See Declaration of Stephen Castell PhD ¶25 <br /><br />37. The symptoms observed in ¶28 of this Complaint in Virginia are consistent with those observed in New York in July 2007, where essay corruption by the software was documented. See Declaration of Stephen Castell PhD ¶23, ¶35, and ¶37 (“[Plaintiff’s] observations bear remarkable similarities to the software mishap in New York just one year prior”). <br /><br />38. Policy of Nondisclosure in the context of a computer-based essay test is an unusual way to design a system. Declaration of Stephen Castell PhD ¶30 ([Policy of Nondisclosure] “is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking, and difficulties in identifying and assessing any data corruptions or omissions potentially caused by system malfunction or otherwise . . . [w]ithout an allowance for applicants to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it.”).<br /><br />39. A policy that would allow Virginia bar examinees to obtain their essays is technically sound and comports with the requirements of due process given the nature of a computer-based test. See Declaration of Stephen Castell PhD ¶38 (“reasonable, and technically sound policy in place for applicants to obtain and inspect their essays”). See also ¶32 (“I cannot conceive how it would be possible to bring a claim relating to a software malfunction without discovery of the item in question. This leaves the question of what the means are of resolving such disputes”). <br /><br />40. Any petition related to a software dispute with the Board is bound to be dismissed, regardless of how meritorious, because the petitioner can neither make an informed decision on how to proceed nor particularize in the complaint without the very subject of proof necessary to do so: the essays. See Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (petition for review before state supreme court was insufficient where it contained a statistical review of petitioner’s exam results and general claim of unfairness in the manner of grading rather than setting forth exact and complete particulars of alleged unfair or improper grading of a particular set of exam papers).<br /><br />41. As of 2011, Virginia is the only state with a computer-based bar exam that combines Extegrity’s Exam4 software, which features no online submission capability to retrieve lost data, with a policy that no applicant can obtain their essays, including those who experience problems as described in ¶28 of this Complaint. Virginia bar examinees are therefore the least protected among all bar examinees throughout the country.<br /><br /><strong>Constitutional Basis for Relief</strong><br /><br />42. There exists no precedent within published case law for what constitutes due process in the context of a bar exam software dispute. The issue is thus ripe for review.<br /><br />43. The rapid growth of reliance on computer-based testing in Virginia and throughout the country presents new questions on due process that demand the attention of the federal courts. In the landmark case Griffin v. Illinois, Justice Frankfurter states in his concurrence: “ ‘Due Process’ is, perhaps, the least frozen concept of our law- the least confined to history and most absorptive of powerful social standards of a progressive society.” Griffin v. Illinois, 351 U.S. 12 (1956). The meteoric rise in applicants nationwide taking the essay portion of the bar exam on a software program is exhibited on a chart in App. 20a. Since 2009 when this data was compiled the following states have since adopted a computer-based test for the essay portion of the bar exam: Alabama, Connecticut, Hawaii, and Massachusetts (all of which have chosen to contract with ExamSoft Worldwide, Inc. not Extegrity, Inc.). This brings the total number of states that administer a computer-based bar exam to 47 (only Indiana, Michigan, Mississippi, and the District of Columbia do not have such testing software). The shift to computer-based testing is precisely the kind of powerful societal change that demands to be reconciled with the principles of due process.<br /><br />44. Addressing due process requires a scientific approach. “In each case ‘due process of law’ requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims.” Rochin v. California, 342 U.S. 165, 172 (1952). For this reason Plaintiff has acquired the assistance of a leading computer forensics expert to assist the court on the technical issues involved and to interpret for the Court materials obtained on discovery.<br /><br />45. It is a fundamental tenet of due process that where a right is granted there may be other rights needed in order to make such right meaningful. Va. Code §54.1-108(1) and Policy of Nondisclosure together act to vitiate an applicant’s right to petition the Supreme Court of Virginia by withholding essays in the context of observations as described in ¶28 of this Complaint, which constitute evidence crucial to any software dispute. Without the essays, an aggrieved applicant is denied the fundamental liberty to state a claim upon which relief can be granted.<br /><br />46. No harm would occur to the Board or to the Supreme Court of Virginia if applicants could obtain their essays. This represents the policy of the overwhelming majority of state bar examination boards, most of whom do not have a built-in appeals process anyway. App. 19a (Chart, Transparency Policies of State Law Examiner Offices) and ¶4 supra (listing states that currently have a built-in appeals process available to the applicants). Releasing the essays would not add one penny to the cost, which is typically borne by the applicant for a small fee. For example, the Florida bar examiners charge $50 and North Carolina charges $20 for the service. <br /><br />47. On the other hand, the private interest of the applicant is great. Many applicants have secured positions prior to taking the bar exam. Those in public service are particularly vulnerable because some would end up losing their jobs wrongfully if the proper due process procedures are denied. If essays could be obtained as of right, like Eric Zeni and others in New York (¶29), it may very well be determined by a court of law that a system software malfunction was in fact the cause of data alteration, omission, or corruption that negatively impacted grading. See Declaration of Stephen Castell PhD ¶30: <br />Virginia is an unusual way to design a system and immediately gives rise to concerns over validity and completeness checking, and difficulties in identifying and assessing any data corruptions or omissions potentially caused by system malfunction or otherwise.<br /><br />48. Policy of Nondisclosure, an unwritten policy, acts to defeat the ultimate appellate authority of the Supreme Court of the United States. Jurisdiction of the Supreme Court over adverse decisions on individual applications to the state bar arises under 28 U.S.C. §1257(a). Under the Rooker-Feldman Doctrine, federal district courts have no jurisdiction over individual bar exam disputes. By withholding essays in a software dispute, the Board forecloses the possibility of a record being made at the state supreme court level which could then be reviewed by the Supreme Court of the United States.<br /><br />49. The elements of federal due process cannot be limited by legislative action or defined with finality by a state court. It is meant to act as a prohibition upon the states to protect an individual’s federal rights which would otherwise be encroached upon by a state in the name of administrative convenience or expediency. Griffin v. Illinois, 351 U.S. 12 (1956). <br /><br />50. As the U.S. Supreme Court has often said:<br /><em>A State acts by its legislative, executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name of the State, and is clothed with the State’s power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or evade it.</em>Ex Parte Virginia, 100 U.S. 339, 347 (1879).<br /><br />WHEREFORE, Jonathan Bolls prays this Court to declare that Va. Code §54.1-108(1) is unconstitutional because it privileges documents that applicants need at times should a dispute arise and places sole discretion in state testing boards to unilaterally decide which complaints can and cannot proceed against themselves. It also lays the groundwork for state professional examination boards to install blanket policies, such as Policy of Nondisclosure, which counteract their own power of discretion and thwart efforts to obtain post examination due process pursuant to the Administrative Process Act or, in the case of disputes with the Board, the Virginia Supreme Court. This is a clear violation of due process. Jonathan Bolls additionally prays the Court to declare the unwritten Policy of Nondisclosure of the Virginia Board of Bar Examiners unconstitutional in light of the high reliance recently placed on the computer-based testing system in Virginia. Jonathan Bolls prays the Court to grant such further and additional relief as the ends of justice may require, including an injunction against the enforcement of Policy of Nondisclosure beginning as early as the upcoming release of the Virginia Bar Exam results in October 2011and for every succeeding bar exam thereafter. <br /><br />Respectfully Submitted,<br /><br />___________________<br />Jonathan Bolls<br />Plaintiff Pro-Se<br />June 24, 2011Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-71628286459027885502011-05-14T04:52:00.000-07:002011-05-15T10:03:13.213-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<strong>Update 24</strong>: On May 12, 2011 the Fourth Circuit filed an order denying the petition for rehearing en banc on the grounds that it was not timely filed. As every litigator knows, American courts have traditionally accorded <em>pro se </em>plaintiffs more flexibility on matters of court procedure in order to achieve the ends of justice. This decision comes after a motion for reconsideration on this point where I cite to Federal Rule of Appellate Procedure 25: "Filing, Methods and Timeliness," stating that a brief is timely if mailed to the clerk on or before the last day of filing (which it was). I also explained to the court that I was unaware of a local rule of the Fourth Circuit which treats the petition for rehearing as a "document" and not a "brief," which means it has to be actually received and filed by the clerk by the deadline. I am also informed that although the papers were accepted by the court from the post office on the morning of April 1st they were not actually filed until April 4th. This places litigants, particularly <em>pro se </em>litigants, at a distinct disadvantage to attorneys who are now required to file electronically and would not have to cut their response times short in order to allow for mailing time plus an apparent three-day delay at the Fourth Circuit's intake. In other words, a fourteen-day deadline could easily become a ten-day deadline for <em>pro se</em> litigants. Although I requested the court to invoke the traditional leniency for <em>pro se </em>litigants on matters of court procedure, the court at the direction of Judge Diana Motz refused to do so.<br /><br />I have contacted Assistant Attorney General Catherine Hill with a request to preserve the essays and short answers while this litigation proceeds, and she has agreed.Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-86096140789895344052011-04-05T09:27:00.000-07:002011-04-17T08:11:48.724-07:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY Petition for Rehearing En Banc<strong>Update 23</strong>: On March 17th the Fourth Circuit affirmed the district court's dismissal of this case for lack of subject-matter jurisdiction. It was decided by a three-judge panel including Judge Diana Motz, Judge James Wynn, Jr., and Senior Judge Clyde Hamilton. Because this controversy far surpasses the dispute of a single individual, I have prepared a Petition for Rehearing En Banc before the Fourth Circuit. En Banc, "in the bench," is where the entire membership of the court is called on to decide especially important questions of law as opposed to the usual three-judge panels. The question of what constitutes due process given the recent transition to computer-based testing is one that now affects thousands of Virginia bar applicants every year (currently 83% of test takers and rising). The vast majority of other states (42 plus the District of Columbia) have adopted policies of transparency already. <br /><br />Following is the Petition for Rehearing En Banc, filed with the court on March 31st.<br /><br /> IN THE<br /> UNITED STATES COURT OF APPEALS<br /> FOURTH CIRCUIT<br /><br />JONATHAN BOLLS,<br /> Appellant,<br />v. No. 10-2361<br /><br />W. SCOTT STREET, III, Secretary<br />of the Virginia Board of Bar Examiners,<br /> Appellee.<br /><br /> <strong>Appellant’s Petition for Rehearing En Banc</strong><br /> COMES NOW Appellant, Jonathan Bolls, pro-se, in support of his petition for rehearing en banc states as follows:<br /><br /> The dismissal of this case for lack of subject-matter jurisdiction is problematic because it stands for the proposition that an individual cannot bring both a constitutional challenge to certain policies of a state agency while also requesting individual relief. See Order of Dismissal, Nov. 5, 2010 (the court lacks subject-matter jurisdiction because “the Complaint is based upon the plaintiff’s challenge to the procedures and practices of the Virginia Board of Bar Examiners in reference to the plaintiff’s own bar examination results”). Since this case is supported by strong scientific opinion about the technical impropriety of the Board’s continued enforcement of the unwritten Policy of Nondisclosure and Policy of Finality in the new computer-based testing environment, dismissing this case altogether would work an injustice for future bar examinees who will inevitably experience similar problems with the Board’s software. Appellant therefore requests rehearing en banc under the fourth prong of re-consideration, that the case involves a question of exceptional importance, and the third prong, namely that there is a conflicting U.S. Supreme Court precedent that was not addressed. Appellant believes an en banc panel is warranted in this instance because the two policies in question are of statewide significance and directly impact the rights of thousands of bar examinees each year.<br /> <br />Prong 4: The Question of What Constitutes Due Process in Light of the Problems Experienced with Computer-Based Testing in Virginia is a Question of Exceptional Importance.<br /><br /> This case far transcends an individual dispute. It calls into question the adequacy of the post-examination review process already set in place for thousands of bar examinees every year, namely the right to petition the Virginia Supreme Court. This right becomes illusory in the context of a software dispute if an applicant is required to petition the court without the essays. What Appellant observed in July of 2008 (see Affidavit reprinted in App. 9a-10a) both with respect to himself and others was not an isolated incident. See Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment: [at the pre-trial conference] “When pressed [by the judge] whether symptoms similar to what [Appellant] described have been known to exist, ‘including the reboot,’ [counsel for the Attorney General] responded that, in fact, they do at every exam.” The expert report filed in support of the complaint confirms that such a reboot is “a very real cause for concern.” Declaration of Stephen Castell PhD ¶22. The evidence and testimony of this case (which have yet to be heard by any forum) strongly suggest that Virginia is experiencing the same technical problems that New York experienced in July of 2007. See App. 23a-24a, press release of the NY Bd. of Law Exmnrs., dated Nov. 15, 2007 (“one or more of the essay answers for 47 candidates could not be recovered”). <br /><br /> The similarity between what occurred in New York in July of 2007 and the observations made in reference to the Virginia July 2008 exam is striking. Both experienced problems during the saving stage of the test. See App. 30a, New York Law Journal, July 26, 2007, <em>Software Snafus Upset Test Takers During First Day of State Bar Exam</em>: “Test takers who typed the essays on the New York state bar examination into their laptop computers this week experienced problems saving their work and uploading the files for transfer to graders.” In both cases, exam essays were found to have been misplaced in the system. App. 29a-30a (entries recorded on a New York Personal Injury Law Blog); compare with Defendant’s Answer ¶25, which attempts to explain away how there were 24 known applicants with essays mysteriously misplaced in the software. Somehow, in a one-hour lunch recess, a small staff purportedly went through five essays for a thousand applicants (5,000 essays total) and then quickly signed off on the matter without further investigation. This occurred even though the Board was well aware of the software problems documented in other states and the similar symptoms observed in those states. See Answer ¶27. Mr. Zeni, witness in the instant case, experienced a software glitch in New York’s July 2007 exam and after examining his essays discovered that a significant portion was missing. This error was not caught by the bar examiners. He subsequently passed and was promptly admitted to the bar. App. 38a. Mr. Zeni can also provide testimony that in New York there exists a right to obtain the essays, and it was this very right that allowed the applicants to force a corrective process not previously in existence. See App. 25a-26a. This alone is compelling evidence that blind reliance on the software by the bar examiners, especially now that almost everyone is taking the test on laptop, undermines the overriding objective of accurate test results. The fact should also not be overlooked that recent law school graduates are accustomed to being able to obtain test essays following their law school exams and they take the Virginia Bar Exam unwittingly- Policy of Nondisclosure is unwritten.<br /><br /> The Board forecloses the only available remedy that does exist by preventing applicants who are experiencing these software related problems from obtaining their essays. Appellant obtained the assistance of a leading UK computer forensics expert who has testified in high profile cases in American federal court for both the plaintiff and defense. Dr. Castell was provided with Appellant’s affidavit dated August 25, 2009 (App. 9a-10a), the setup instructions provided to the applicants at the exam, the Board’s offer to compare the encrypted files, and the charts of state bar exam boards showing an overwhelming national trend toward transparency now that over 50% of state bar applicants rely on the test taking software (App. 19a-20a). First, Dr. Castell concluded, “Clearly something went wrong with the software while [Appellant’s] essays were being saved. The fact that others experienced similar problems at the same time suggests a systemic problem.” Declaration of Stephen Castell PhD ¶18. Dr. Castell was also able to conclude that the Board’s offer to compare the encrypted files “in no way addresses the matter at hand, and 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.” Declaration of Stephen Castell, PhD ¶2. The reason for this is that “if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” Id. ¶19. This opinion is shared by the only other two experts that Appellant has spoken with over the phone. Furthermore, Dr. Castell states: <br />“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.”<br />Id. ¶30.<br /><br /> If this court were to simply strike down the policy that no one can obtain their essays following an exam then a perfectly logical remedy presents itself. An alternative grading methodology developed by the National Conference of Bar Examiners and the New York Board of Law Examiners following the New York July 2007 software crash required first and foremost cooperation with the applicants to identify essays that had been corrupted. App. 24a (press release of the New York Board of Law Examiners, Nov. 15, 2007). Dr. Castell states in his report that from his experience “[t]he need for a reboot in such circumstances is in my view a very real cause for concern.” Declaration of Stephen Castell PhD ¶22. He furthermore states that if Virginia adopted the “technically sound” policy of applicants in the computer-based test being able to obtain their essays then the door would be open for the “obvious and sensible” remedy available that does exist: the alternative grading methodology developed by the National Conference. Id. ¶¶38,33. His report and his testimony are crystal clear that there is no other remedy that is available. Id. ¶¶20, 36, 19, 2. <br /><br />Prong 3: The Affirmance of the Dismissal Does Not Address the Direct Conflict with the Jurisdictional rule in <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462 (1983). <br /><br /> In Feldman, the question presented for the court was as follows: “Where the D.C. Court of Appeals has promulgated a rule regarding bar admissions, may respondent bring suit in federal district court challenging that rule’s constitutionality after he has requested the District of Columbia Court of Appeals to waive the operation of the rule in an exercise of its administrative discretion?” The majority agreed that he may. After close examination of the pleadings, the justices “refuse to accept the [Board’s] argument that ‘the sum and substance of respondents’ federal court actions were to obtain review of prior adverse decisions of the D.C. Court of Appeals in their individual cases’ . . . a close reading of the complaints discloses that the respondents mounted a general challenge to the constitutionality of the rule <em><strong>and</strong></em> sought review of the District of Columbia Court of Appeals’ decisions in their particular cases.” Feldman, at 1317 (Footnote 18)(emphasis in original). The court found that in promulgating its policy, the D.C. Court of Appeals had acted legislatively not judicially, and the federal court may indeed be asked to assess the validity of such a rule:<br /> “Challenges to the constitutionality of state bar rules do not necessarily require a United States district court to review a final state-court judgment in a judicial proceeding. Instead, the district court may simply be asked to assess the validity of a rule promulgated in a nonjudicial proceeding. If this is the case, the district court is not reviewing a state court judicial decision. In this regard 28 U.S.C. §1257 does not act as a bar to the district court’s consideration of the case and because the proceedings giving rise to the rule are<br />non judicial the policies prohibiting United States district court review of final state-court judgments are not implicated. 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.”<br /><em>Feldman</em>, at 486, 103 S. Ct. at 1317.<br /><br /> The case at bar likewise entails a constitutional challenge to two specific policies of the Board coupled with a request for individual relief. The first policy (unwritten) is that no applicant can obtain copies of their essays following an examination (Answer ¶13 “applied uniformly”), and the second is that all results are final once posted electronically (Answer ¶14) (which occurs before the results are mailed out). In the Initial Brief on appeal, Appellant highlights in Section I of the Argument fifty paragraphs in the pleadings that relate only to the policy challenge and could not be considered as pertaining to individual relief. Furthermore, the Prayer for Relief clearly and succinctly sets forth first a general policy challenge “to protect the rights of all future applicants to the Virginia Bar” even before it requests an order of release of test essays. <em>Feldman</em> is strangely left out of the opinion of the Eastern District Court and the Fourth Circuit, although it was raised as the controlling precedent on jurisdiction when a policy challenge is coupled with a request for individual relief. It postdates both the <em>Richardson</em> and <em>Woodard</em> cases relied on by the court below. Had either the Eastern District or the Fourth Circuit properly applied the rule as laid out in <em>Feldman</em>, jurisdiction would have been established.<br /> <br />The need for a policy change is manifest now that the transition to computer-based testing is well underway.<br /><br /> Forty-two (42) states plus the District of Columbia now have in place policies that ensure applicants’ rights to the essays after an examination. App. 19a. The number of applicants who rely on the software functionality in Virginia are 83% and rising, according to the Board’s own admission. Answer ¶37. This represents a meteoric rise from when the Board first provided all applicants the option to take the essay test on the software in July 2005. Id. Part of Appellant’s case includes expert testimony that according to the best practices, the technicians on standby during a computer-based test should be making note in their Engineers’ Notes of every computer that required hands-on technical assistance and system reboots. Had that been occurring, Appellee would not now be able to claim “without sufficient knowledge to admit or deny whether Plaintiff experienced a problem saving his essay answers…” Answer ¶26. Rather than denying that any such problems occurred, Appellee simply takes issue that there were “numerous” others who experienced such problems. Id. This is far from a flat denial and certainly contradicts an earlier statement by Appellee to Appellant in a letter dated Nov. 17, 2008 which states: “Your assertion that there was some problem with ‘the Extegrity computer system’ is without basis. There was none.” After consulting with experts and others who took the exam, Appellant has confirmed that there was indeed a widescale problem, a problem that continues to persist “at every exam” according to the Attorney General’s office. See Declaration of Jonathan Bolls ¶6, recounting pre-trial conference in chambers, attached to the Motion to Alter Judgment.<br /> <br />Conclusion <br /><br /> This case is premised on the due process clause of the Fourteenth Amendment of the Constitution of the United States. “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 clause of the Fourteenth Amendment.” <em>Schware</em>, 353 U.S. at 238-239, 77 S. Ct. at 756. State control of the practice of law is subject to the restraints imposed by the Fourteenth Amendment. There are plenty of examples of constitutional policy challenges in federal court to state bar exam policies coupled with an individual request for relief. See <em>Clark v. Virginia Board of Bar Examiners</em>, 861 F. Supp. 512, 518 (E.D. Va. 1994) (relies on the rule in Feldman, supra); <em>Keenan v. Bd. of Law Exmnrs. of North Carolina</em>, 317 F. Supp. 1350 (1970); <em>Huffman v. Montana Supreme Court</em>, 372 F. Supp. 1175 (1974), aff’d 419 U.S. 955. Appellant’s case should have been no different.<br /> If district courts make it a habit of dismissing challenges to state agency policies on the grounds that they are brought in reference to an underlying individual dispute then the Fourteenth Amendment’s prohibition (“no state shall…deprive any person of life, liberty, or property without due process of law”) will be gradually eroded as a chilling effect will be placed on individuals otherwise inclined to bring such policy challenges in the first place. It is well established that Article III courts cannot try cases or controversies in the abstract, so the circumstances of an individual case could be considered essential to the policy challenge. When a state supreme court, as here, acts as a court of first impression, then a legal remedy must exist at the federal level when allegations are raised regarding a flaw in the judicial procedures of the state supreme court. A contrary holding is an affront to our federalist system of government because it leaves to the state exclusive jurisdiction over a federally protected right, which may very well conflict with the state’s interests in expediency or convenience. Federal courts must protect the right to due process with zeal and allow open argument where necessary. This is one of those necessary cases. <br /><br />Respectfully Submitted,<br /><br />Jonathan Bolls<br />Appellant Pro-Se<br /><br />March 31, 2011Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-90598269237685885902011-01-23T14:00:00.000-08:002011-02-07T18:10:53.277-08:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY Initial Brief on Appeal<strong>Update(22):</strong> February 2, 2011. Two weeks ago I filed the appellate brief (reprinted below) in the U.S. Court of Appeals for the 4th Circuit. This federal court is responsible for overseeing the region encompassing Virginia, Maryland, West Virginia, North Carolina, and South Carolina.<br /> <br /> The argument is straightforward- the federal district court below should not have dismissed for lack of jurisdiction because two specific policies of the Board of Bar Examiners are being challenged as they create an ongoing due process violation for all Virginia bar examinees. In the first part, I list 50 paragraphs in the pleadings where I made my intent crystal clear that I am seeking to correct a systemic flaw for the benefit of all future examinees, not just myself. The first policy, an unwritten one, is that no applicant may obtain their essays, and the second is that all results are final once posted electronically (which occurs before the mail-outs). They effectively prevent anyone from exercising their established right to petition the Virginia Supreme Court for manifest error in the essay grading (due to software malfunction or otherwise). <br /><br /> Because the burden of proof rests on the applicant, no petition can possibly be successful without evidence crucial to these cases, i.e. the essays themselves. This same problem has been recognized in another jurisdiction which called it a "logical hiatus" to require proof to substantiate a claim but withhold the very evidence where such proof would be located. Individual relief to myself in the form of a court order releasing my essays is derivative, i.e. retroactively applied based on the court's finding on the constitutionality of these two policies. <br /><br /> I have spoken with three and only three computer forensic experts over the phone about this matter and all three agreed that having a policy of nondisclosure and a policy of finality is no longer appropriate now that the bar is administered on computer testing software. The Virginia Attorney General has not filed an expert report. Even though they claim "lack of sufficient knowledge" as to my software problem/ need for reboot, they admitted that such reboots and similar observations are in fact occurring "at every exam." The only expert testimony filed in this case unequivocally confirms that with the new computer-based testing environment where the number of applicants relying on the software is rapidly approaching 90% does mean that Virginia must change its policies. <br /><br /> It is time for Virginia to be in line with the transparency shown throughout the rest of the country. <br /><br /> IN THE<br /> UNITED STATES COURT OF APPEALS<br /> FOURTH CIRCUIT<br /> 2010-2011 TERM<br /> No. 10-2361<br /><br /><br />JONATHAN BOLLS, <br />APPELLANT<br /><br />v.<br /><br />W. SCOTT STREET III, SECRETARY OF THE<br />VIRGINIA BOARD OF BAR EXAMINERS,<br />APPELLEE<br /> <br /><br />On appeal from the<br />United States District Court for the <br />Eastern District of Virginia<br /><br />INITIAL BRIEF FOR THE APPELLANT<br /><br /><br /><br /> Jonathan B. Bolls<br /> Pro-Se<br /> <br /> <br /> <br />QUESTION PRESENTED FOR REVIEW<br /><br />1. In light of a system malfunction experienced by a number of bar examinees with the Board of Bar Examiners’ testing software, whether a federal district court has jurisdiction over a Fourteenth Amendment due process challenge to two policies of the Virginia Board of Bar Examiners, under <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462, brought by an aggrieved bar examinee who: <br />(a) Seeks the permanent removal of these policies; and<br />(b) Seeks individual relief to protect his own interest as well.<br /><br /> <br />TABLE OF CONTENTS<br /><br />Opinion Below<br />Jurisdiction <br />Preliminary Statement <br />Statement of the Case <br />Argument <br /><br />I. IN ALL FEDERAL PLEADINGS AND THE PRE-TRIAL CONFERENCE, APPELLANT MADE HIS INTENTION CLEAR THAT HE IS CHALLENGING THE TWO POLICIES IN ORDER TO FIX A SYSTEMIC PROBLEM THAT DIRECTLY AFFECTS THE POST-EXAMINATION DUE PROCESS RIGHTS OF ALL APPLICANTS TO THE VIRGINIA BAR. <br /><br />A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.<br />B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.<br />C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers.<br />D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.<br /><br />II. AS A CITIZEN, AN AGGRIEVED BAR EXAMINEE HAS A RIGHT TO BRING A CONSTITUTIONAL CHALLENGE IN FEDERAL DISTRICT COURT TO THE BOARD OF BAR EXAMINERS’ POLICY OF NONDISCLOSURE AND POLICY OF FINALITY.<br /><br />A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462 (1983).<br />B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions.<br />C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level. <br />D. Broad Injunctive Relief Can Be Directed Against a Defendant Government Agency or Official to Remedy an Ongoing Violation of Federal Law Even in the Absence of a Certified Class.<br /><br />III. COMPUTER-BASED TESTING IN VIRGINIA HAS EXHIBITED SYMPTOMS ASSOCIATED WITH DATA LOSS IN OTHER JURISDICTIONS, WHICH RAISES NEW QUESTIONS ON WHAT CONSTITUTES DUE PROCESS THAT ARE RIPE FOR REVIEW.<br /><br />A. Due Process of Law Analysis Requires a Scientific Approach and the Science Demands the Removal of the Policy of Nondisclosure and Policy of Finality.<br />B. The Two Policies in Question Fall Under the Rational Basis Test Because There is No Legitimate State Goal and No Harm to the Board or to the Virginia Supreme Court That Outweighs the Applicant’s Due Process<br />Interest.<br /><br /> 1. No Legitimate State Goal Exists for the Two Policies in Question.<br /><br /> 2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies.<br /><br />IV. APPELLANT’S PRAYER FOR INDIVIDUAL RELIEF IS NOT BARRED BECAUSE THE TWO POLICIES IN QUESTION PREVENTED HIS CASE FROM BEING HEARD AT THE STATE LEVEL.<br /><br />A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.<br />B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level.<br />C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.<br />D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.<br /><br />V. APPELLANT REQUESTS ORAL ARGUMENT.<br /><br />Conclusion<br /><br />.....................................................................................<br /><br /><br /> OPINION BELOW<br /><br /> The opinion of the United States District Court for the Eastern District of Virginia appears in its order of dismissal, Civil Action No. 3:10cv550 (November 5, 2010), and in its order denying the motion to alter judgment (December 16, 2010). <br /> <br /> JURISDICTION<br /><br /> The United States Court of Appeals for the Fourth Circuit has jurisdiction to hear this appeal pursuant to the due process clause of the Fourteenth Amendment of the Constitution of the United States.<br /><br /> PRELIMINARY STATEMENT<br /><br /> The appellant, Mr. Jonathan Bolls, brought this declaratory judgment action in federal district court in reference to two policies of the Virginia Board of Bar Examiners (hereinafter referred to as “Board”), a policy that no applicant can receive copies of their test essays (hereinafter referred to as “Policy of Nondisclosure”) and a policy that all results are final once posted electronically (hereinafter referred to as “Policy of Finality”). These policies he alleges are technically improper in the new computer-based testing environment and directly undermine the right of applicants to bring a valid claim to the Virginia Supreme Court pursuant to its inherent authority over bar exam disputes. They run contrary to the overwhelming national trend toward disclosing the essays during the national transition to computer-based testing for the bar exam (charts, App. 19a-20a, showing how 42 states plus the District have since adopted disclosure policies) and ignore the fact that the number of applicants in Virginia relying on the software is 83% and rising (Answer ¶37). The Eastern District Court dismissed for want of jurisdiction on the premise that Mr. Bolls challenged the policies with reference to his own exam (which Mr. Bolls adamantly disputes), referencing the Virginia Supreme Court’s past refusal to order the release of his essays. Mr. Bolls now appeals this decision based on the fact that he is challenging these two policies for the first time in federal court for the sake of all applicants who sit for the computer-based bar exam. <br /><br /> STATEMENT OF THE CASE<br /><br /> The larger question of the propriety of having these two policies in place in a computer-based testing environment is what Appellant was asking the district court to evaluate. Such would involve declaratory judgment and broad injunctive relief. (Prayer for Relief, Part One: “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.” Whether or not Appellant qualifies for individual relief in the form of an order releasing his test essays is secondary to the larger issues involved. (Prayer for Relief, Parts Two and Three). Nonetheless, Appellant’s individual case furnishes the court with the “concreteness” needed to understand this controversy. (Declaratory Judgment ¶6: “The personal circumstances merely furnish concreteness to an action attacking general rules as facially unconstitutional”). The following facts are recounted in order to show why Appellant is the right person to bring this policy challenge.<br /><br /> Appellant took the July 2008 Virginia Bar Examination in Roanoke and was one of a number of applicants who experienced a malfunction in the Board’s software system which required hands-on technical assistance and system reboots. (Affidavit of Jonathan Bolls, Appendix 9a-10a ¶3, speaking in reference to a “dialog box wherein the program refused to proceed despite my following the instructions exactly” and “on at least one of these occurrences I was instructed to reboot my computer and resubmit the essays” and ¶9: “After the oral instructions were read at the saving stage, a proctor then asked for a show of hands if there were any problems. There were quite a few hands that immediately went up in both sessions of the test, which visibly overwhelmed a full team of technicians on standby. My hand was raised for ten to fifteen minutes both times before someone could come to my aid.”) (Declaration of Jonathan Bolls regarding pre-trial conference, attached to Motion to Alter Judgment ¶6: “When pressed [by the judge] whether symptoms similar to what I described have been known to exist, ‘including the reboot,’ [counsel for the Attorney General] responded that, in fact, they do at every exam. ”). [FOOTNOTE: Dr. Castell, a computer forensics expert, infers from these facts that "Clearly something went wrong with the software while Mr. Bolls' essays were being saved. The fact that others experienced similar problems at the same time suggests a systemic problem." Declaration of Stephen Castell, PhD Par. 18]. 72%, approximately 1,000 applicants, took the bar exam on special software the Board contracts with Extegrity, Inc. to provide. (Answer, ¶37). At the exam, the Secretary of the Board made an announcement following the morning session that 24 applicants were found to have had entire answers incorrectly positioned, an occurrence he conveniently concludes is a result of human error. (Answer, ¶25). This means that a small staff must have perused all 1,000 exams during a one-hour lunch break, 5,000 essays in entirety, and concluded that the matter was properly disposed of. Just one year prior in New York, where the Board’s secretary commenced an investigation into similar software glitches observed also during the saving stage of the exam, the same symptom of mispositioning of the essays was discovered. App. 28a-29a (website featuring statements of bar applicants who received their essays finding portions missing, duplicated, or magically appearing in a blank answer). See also New York Law Journal article, App. 30a. <br /> <br /> In October 2008 Mr. Bolls was informed that he had failed the exam. Recognizing that his essay score was “surprisingly deficient,” he immediately contacted the Board for assistance. App. 13a (initial letter to the board). Mr. Bolls was told that the “grades are final and non-appealable” (which is the crux of the due process question before this court) and “no copies of answers are provided to any applicant.” App. 17a. The policy that no copies of answers are provided to any applicant is unwritten. When Mr. Bolls reminded Secretary Scott Street about the 24, he was simply told that his assertion that there was some problem with the Extegrity computer system is without basis and that if he had any complaints he could present those to the Supreme Court of Virginia. <em>Id</em>. <br /><br /> After careful research following New York’s software mishap in 2007 (also during the saving stage), the National Conference of Bar Examiners invented a remedy. This includes, first, that applicants obtain their essays, and second, if the essays are found to have been altered in any way, then such essay responses are either thrown out, given perfect scores, or the overall probability of passing was computed based on the balance of the examination. (Press Release, New York Board of Law Examiners, Nov. 15, 2007, reprinted top of App. 24a; available at http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm). This is described as the “obvious and sensible remedy” by Dr. Castell in the final sentence of his report which can only exist if “there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays…” Declaration of Stephen Castell. On the other hand, the offer by the Board to Mr. Bolls (and presumably others similarly situated) is for Mr. Bolls to send the encrypted files saved on his laptop to the Board for the purpose of comparison, as the Board states: “We will review the version on your computer against the one graded.” App. 15a (November 3, 2008 email from the Board). Mr. Bolls immediately rejected this offer on November 4th as it is not applicable to the situation. As Dr. Castell states in his expert report: “This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” Declaration of Stephen Castell, PhD ¶19. See also ¶20: “To the extent that the board seeks to ‘review the version on his computer against the one graded,’ <em>this can only merely confirm that the file was written by Mr. Bolls using the Exam4 software </em>(emphasis in original). 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 Mr. Bolls could not have been responsible.” <br /><br /> With a job at a local prosecutor’s office on the line, Mr. Bolls applied for an emergency mandamus order from the Fairfax Circuit Court to compel the release of the essays. The Board was represented at the hearing by an attorney from the Virginia Attorney General’s office who, when asked by the judge what process was available to aggrieved bar examinees, stated “That is an interesting question” and suggested that one way to possibly obtain the original jurisdiction of the state supreme court would be to liken it to a disciplinary matter. (Affidavit of Carol Ann Bolls, witness to the hearing, Exhibit A of the response to the motion to dismiss). The matter was taken under advisement while the judge requested Mr. Bolls to file a supplemental brief on the Virginia Administrative Process Act (Exhibit C of the response to the motion to dismiss). Both parties agreed that as an agency of the Virginia Supreme Court, the Board is exempt from the Act. Three months later, the court denied mandamus for lack of jurisdiction and expressly left open the question of “whether the Board has abused its discretion by adopting a policy to never release bar exam answers to applicants.” Order of the Fairfax Circuit Court, n. 1, March 16, 2009, reprinted in App. 3a-4a. Because of the basic requirement to plead with the kind of particularity to make a cognizable claim, Mr. Bolls, rather than simply “appealing” his grade without his essays, instead applied for a mandamus from the Virginia Supreme Court to obtain the evidence necessary to his case (essays and short answers) and to make an informed decision on how to proceed. (Prayer for Relief before the Va. Supreme Court requesting first that the court order the immediate production of the essays and, second, “in the event that a claim is made, this Court bifurcate the proceedings to allow for an expedited second hearing specifically with reference to reviewing Plaintiff’s essays.”). Without a hearing on the merits or even requiring an answer, the court narrowed its two-sentence ruling to a limited point of Virginia law regarding discretion, more particularly that “mandamus does not lie to compel the performance of a discretionary act…” (Dismissal of mandamus, Supreme Court of Virginia opinion, August 11, 2009, reprinted in App. 1a). Nowhere in the opinion does the court explain how it would be possible for Mr. Bolls to present a viable claim without the item in question, i.e. the essay responses, or make an informed decision on how to proceed. Mr. Bolls then filed a mandamus and certiorari petition with the Supreme Court of the United States, which was docketed on December 23, 2009. Certiorari was denied on February 22, 2010. <br /><br /> Mr. Bolls now brings a fundamentally different action to test the policies of the Board that handicap software or any such similar disputes from having their day in court. He has since taken the bar exam in the District of Columbia (handwritten), an exam with a significantly higher rate of failure, and passed on his first attempt. The facts and procedural history of his case are being used to demonstrate the flaw in the state process and to obtain broad injunctive relief for all applicants. If the court so chooses, he seeks individual relief of which he believes he is still entitled. <br /><br /> Prior to initiating action in federal court, he performed his due diligence by contacting three and only three software experts over the phone. All three agreed that Policy of Nondisclosure and Policy of Finality are technically improper in the computer-based testing environment and that the symptoms observed by Mr. Bolls and others are a serious cause for concern. Dr. Stephen Castell, a leading UK computer forensics expert who has testified in American federal court and the English High Court, offered his services pro bono. He filed a declaration in support of Mr. Bolls’ policy challenge based on Mr. Bolls’ affidavit and similar symptoms observed in another jurisdiction where there is well-documented evidence of the correlation between these symptoms observed and misgrading. Such was corrected only once applicants could obtain their essays. He comes well-recommended by English High Justice David Richards who said “I found Dr. Castell to be an honest and conscientious witness.” English High Court (Chancery Division) [2005] EWHC 749 (Ch). Claim Number HC04C00702 (testifying for the defense). Similarly, as shown in his curriculum vitae, he has extensive experience in American federal court. Appellee has not filed an expert report. This report discusses the system as a whole, not just with reference to Mr. Bolls’ exam, and has been offered to the federal district court only; neither the Virginia Supreme Court nor U.S. Supreme Court had it. See, for example, ¶31: “In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: Mr. Bolls may be said to be a ‘textbook case’. It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered.”<br /> <br /> During the initial disclosure phase at the district court, Appellant listed two witnesses, Mr. Eric Zeni, who would be recounting his software problem in New York and how obtaining his essays proved vital to his case; and Dr. Stephen Castell, who would be testifying on the technical issues involved and interpreting material obtained on discovery. (Oct. 28, 2010 email to AG’s office). Prior to the pre-trial conference held in chambers, Mr. Bolls sent a letter to Assistant Attorney General Catherine Hill listing fourteen items he would be requesting for discovery, among which are included Engineers’ Notes of the technicians at the exam (not just for himself but for all), performance evaluation reports on the Extegrity software, and documentation regarding the 24 applicants with mispositioned essays. (Email to Catherine Hill, Esq. October 18, 2010). At the end of the pre-trial conference, Mr. Bolls reminded the judge in front of the Assistant Attorney General and the judge’s assistant, that the technical matters involved are all explained in the expert report. The judge responded that he does not care about the expert report. (Declaration of Jonathan Bolls ¶9, attached to Motion to Alter Judgment). The judge dismissed the case on November 5, 2010; Mr. Bolls’ motion to alter judgment, which listed the reasons why he brought action in federal court, was denied on December 15, 2010. Mr. Bolls now files this brief for review by this court on appeal.<br /><br /> <strong>ARGUMENT</strong><br /><br />I. <strong>IN ALL FEDERAL PLEADINGS AND THE PRE-TRIAL CONFERENCE, APPELLANT MADE HIS INTENTION CLEAR THAT HE IS CHALLENGING THE TWO POLICIES IN ORDER TO FIX A SYSTEMIC PROBLEM THAT DIRECTLY AFFECTS THE POST-EXAMINATION DUE PROCESS RIGHTS OF ALL APPLICANTS TO THE VIRGINIA BAR.</strong> <br /><br /> Mr. Bolls not only made his intentions clear orally and in writing, but the supporting declaration of his expert witness speaks directly to the system as a whole, not just to Mr. Bolls’ exam. The excerpts listed below are to show the Fourth Circuit that the district judge’s conclusion is unfounded that Mr. Bolls brought this case to challenge Policy of Nondisclosure and Policy of Finality only with reference to his own exam.<br /><br />A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.<br /><br />1. Prayer for Relief: “(1) 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.” <br /><br />2. “Policy of Nondisclosure renders the right of every bar exam applicant to petition the Supreme Court of Virginia defective and illusory in violation of the due process clause of the 14th Amendment of the Federal Constitution.” ¶17.<br /><br />3. “On July 29, 2008 Petitioner was one of a significant number of applicants who experienced an apparent crash in the Board’s software system while the essays were being saved onto the laptop.” ¶9.<br /><br />4. “Policy of Finality will from time to time come into direct conflict with Respondent’s ministerial duty that the examination be scored properly and scoring information be made available upon request where there are instances where error is possible.” ¶19.<br /><br />5. “For the sake of convenience and in violation of his duty, Respondent has applied the Policy of Finality to applicants including Petitioner who experienced problems with the Board’s testing software during the saving stage of the July 29, 2008 bar examination sitting.” ¶20.<br /><br />6. “On July 29, 2008 Petitioner was one of numerous applicants who experienced problems saving the essays.” ¶26.<br /><br />7. “Rendering the foregoing right to petition the state’s highest court meaningless, Policy of Nondisclosure acts to defeat the ultimate appellate authority of the Supreme Court of the United States.” ¶21.<br /><br />8. “Policy of Nondisclosure and Policy of Finality have allowed Respondent to usurp the judicial power of the Supreme Court of Virginia and the Supreme Court of the United States.” ¶22.<br />9. “As it stands now, the judicial system in Virginia hinders any and all aggrieved bar exam applicants from bringing a complaint against the Board, no matter how legitimate he complaint may be.” ¶23.<br /><br />10. “During the afternoon session of the Essay/ Short Answer examination, an announcement was made by microphone that there were approximately 24 applicants who had answers that were misplaced in the system from the morning session.” ¶25.<br /><br />11. “Software malfunctions of the nature experienced by Petitioner have caused data loss and, consequently, misgrading in other jurisdictions.” ¶27.<br /><br />12. “Not acting within his duty, Respondent is guilty of the following careless and negligent acts or omissions:<br /> a. Failure to install criteria by which an exception to Policy of Nondisclosure or Policy of Finality could be made.<br /> b. Failure to adequately investigate the consequences of a major technical irregularity.<br /> c. Failure to employ alternative grading methodology developed for system wide software mishaps of this nature by the National Conference of Bar Examiners.<br /> d. Failure to require standby technicians to record applicant identification numbers of all applicants who required hands-on technical assistance.<br /> e. Failure to address Petitioner’s concerns or cooperate in any meaningful way.”<br /><br />13. “Nationwide, there has been a near uniform transition to a more open and transparent essay grading system now that most applicants to the state bars are taking the examination on laptop. Only Virginia and seven other states continue to operate a closed licensing process.” ¶36.<br /><br />14. “The constitutional infirmity of Policy of Nondisclosure and Policy of Finality is overinclusion.” ¶43.<br /><br />15. “Policy of Nondisclosure has the improper effect of quashing even the most legitimate complaints against the Board or Respondent even before the Supreme Court of Virginia has an opportunity to listen to them.” ¶44.<br /><br />16. “No harm would occur to the Board or to the Supreme Court of Virginia if applicants can obtain their essays.” ¶51.<br /><br />17. Footnote 2, Page 22 (in reference to no harm to the Board in releasing essays): “[t]he Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service.”<br /><br />18. “The Supreme Court of Virginia and its Board have created an unconstitutional roadblock for bar examinees: a right exists to petition the Supreme Court of Virginia but no petition can ever be successful without the evidence needed.” ¶55.<br /><br />19. “As the sole mechanism by which reversible error can be corrected, an applicant’s right to petition the Supreme Court of Virginia must be a meaningful one for compliance with the due process clause of the 14th Amendment of the Federal Constitution.” ¶59.<br /><br />20. “In the simplest terms, this case demonstrates that the policies surrounding the Virginia Bar Exam violate a fundamental requisite of due process, specifically the opportunity to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice.” ¶60.<br /><br />21. “Policy of Nondisclosure is not technically sound given the current realities of computer-based testing for bar examinations.” ¶63.<br /><br />22. “Policy of Nondisclosure acts to preclude the only available remedy, a remedy which was developed by the National Conference of Bar Examiners just one year prior to the July 29, 2008 Virginia Bar Exam.” ¶64.<br /><br />B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.<br /><br />1. “The heart of this matter involves the absence of needed rights to make an applicant’s right to petition the Virginia Supreme Court meaningful, in light of the new computer-based essay exam.” Introduction Paragraph.<br /><br />2. “[T]he action before this Court represents a prima facie constitutional challenge to two policies that the Board has not until recently admitted to having: Policy of Finality and Policy of Nondisclosure.” Page 1. <br /><br />3. “[T]he procedural history of Plaintiff’s case demonstrates an ongoing flaw in the process by which an aggrieved bar examinee presents their complaint to the Supreme Court of Virginia. The facts of his case provide the court with the ‘concreteness’ required in order to decide the constitutional question before it.” Page 1. <br /><br />4. “[T]he matter is ripe as extensive research has uncovered no precedent for rights to the essays in the context of a software mishap.” Page 2.<br /><br />5. “At issue here is whether the right to petition the Virginia Supreme Court is vitiated by Policy of Nondisclosure and Policy of Finality, whereby no applicant can obtain their essays and all results are final once posted electronically. This court is simply being asked to assess the validity of these rules, which Plaintiff claims handicapped his petition from the start and continues to do so for any applicant who has a similar experience.” Page 4.<br /><br />6. “It was not established at the Virginia Supreme Court level that the unwritten Policy of Nondisclosure was even in existence. Only in Defendant’s recent Answer before [the federal district court] does he admit to having that policy.” Page 6.<br /><br />7. “[T]his court is now being asked to review the constitutional questions for the purpose of correcting a substantial flaw in the post-examination process available to examinees in light of the less-than-perfect transition to computer-based testing.” Page 6.<br /><br />8. “Applicants such as Plaintiff do not have a full and fair opportunity to litigate their cases before the Virginia Supreme Court, because the essays are unfairly withheld. The essays are withheld because of longstanding policies that no longer make sense in the computer-based testing environment.” Page 7.<br /><br />9. “This and other evidence obtained on discovery is being compiled to hopefully effect a systemic remedy, not just an individual one for Plaintiff . . . if Plaintiff’s case is successful, it will revive the post examination due process rights of all future Virginia bar examinees.” Page 9. <br /><br />10. “Such a systemic problem requires a remedy.” Page 1.<br /><br />11. [Speaking directly the transition of Mr. Bolls’ individual case into a general policy challenge]: “The procedural history of Plaintiff’s case says more about the flaw in the system than about the merits of his case. Now Plaintiff is bringing a constitutional challenge to the policies that appear to be at the root cause of the problem in Virginia.” Page 10.<br /><br />12. “Plaintiff has acquired for this Court the assistance of a leading UK forensic computer expert. Dr. Castell’s expertise is important in explaining why the finality and nondisclosure policies are no longer advisable now that the number of applicants who take the exam on software is 83% and rising.” Page 13.<br /><br />13. “Although this right exists [right to petition the Supreme Court of Virginia], it is not apparent to the Attorney General’s office, let alone the examinees.” Page 13.<br /><br />14. “In short, Plaintiff’s case, and all other cases like it, are handicapped from the outset.” Page 16.<br /><br />15. “ ‘The court has held that 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.’ D. C. Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 1316 (1983). Plaintiff is doing just that, by challenging the validity of Policy of Nondisclosure and Policy of Finality in the new computer-based testing environment. His individual relief is derivative of this action.” Page 18.<br /><br />16. “The issue is squarely presented whether a state system which purports to accord due process to bar examinees is really doing so when it withholds the subject of proof (i.e. the essays/ short answers).” Page 19.<br /><br />17. “Plaintiff’s cause of action before this court is designed to attack the longstanding policies that are even now creating an ongoing due process violation for applicants, such as Plaintiff, who have a legitimate reason to bring their petitions to the Virginia Supreme Court. Given the circumstances, without an informed decision, it is impossible to bring a petition.” Page 19.<br /><br />18. Plaintiff “requests discovery to get a better sense of the facts and allow the expert to interpret for this court what the implications are of keeping these two policies in place.” Page 21.<br /><br />C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers. <br /><br /> When asked by the judge whether he would be willing to swear in open court as to not just his own experience with the software but with respect to others, Mr. Bolls said that he would. After being asked to recount in detail his own experience, Mr. Bolls stated clearly that there is a larger component to this case, that he is above all else challenging these two policies which he perceives as no longer tenable given the less-than-perfect transition to computer-based testing. (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment ¶8). When asked how many other states have policies allowing disclosure of the test essays, Mr. Bolls responded that there are 42 states plus the District of Columbia that have such policies. Id ¶7. <br /><br />D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.<br /><br />1. “Plaintiff re-emphasizes that his purpose in bringing this case is, above all else even including individual relief to himself, to stop the Board of Bar Examiners from enforcing Policy of Nondisclosure and Policy of Finality for all subsequent bar examinations.” Page 1.<br /><br />2. “He has undertaken this case for several reasons. First, Plaintiff is interested in protecting others who in their plain everyday common sense will be making the same request that he did to obtain their essays so that they can make an informed decision whether to bring a claim before the Virginia Supreme Court. Second, the transition to the computer-based test (CBT) now affects approximately 83% of the applicants. Third, Defendant appears to be conveniently concluding on the spot at the test site that system reboots and error boxes are all human errors even though [as Dr. Castell states] ‘it seems clear that [Mr. Bolls’] experience and observations at the exam are consistent with the same symptoms associated with data loss in other jurisdictions.’ Fourth, there have been incidences of data loss in other states that were not readily obvious to the graders, only to be later proven by an applicant who obtained his/her essays pursuant to a state disclosure policy. Fifth, the overwhelming majority of States have adopted transparent policies of disclosure.”<br /><br />3. “[N]ew information has been disclosed [at the pre-trial conference in chambers] that software glitches that require hands-on technical assistance, and even system reboots, are occurring at the saving stage at every [Virginia bar] exam.” Page 2. <br /><br />4. “Now Plaintiff is turning to a federal district court to strike these policies down once and for all.” Page 2.<br /><br />5. “The ‘necessary steps’ that Plaintiff is referring to in his Prayer for Relief is just that: broad injunctive relief.” Page 4.<br /><br />6. “Plaintiff is seeking relief under the Declaratory Judgment Act on behalf of all future bar examinees who seek to exercise their right to petition the Virginia Supreme Court.” Page 4. <br /><br />7. “For the foregoing reasons, Plaintiff respectfully asks this Court to alter its judgment by recognizing the fact that Plaintiff’s true intent is to correct a systemic flaw in the petitioning process in Virginia, which he believes is far more important than any one case including his own.” Page 4.<br /> <br /><strong>II. AS A CITIZEN, AN AGGRIEVED BAR EXAMINEE HAS A RIGHT TO BRING A CONSTITUTIONAL CHALLENGE IN FEDERAL DISTRICT COURT TO THE BOARD OF BAR EXAMINERS’ POLICY OF NONDISCLOSURE AND POLICY OF FINALITY.</strong><br /> Appellant wishes to make it clear at the outset that he is not claiming that applicants have a constitutional right to appeal under the Virginia Constitution or the Constitution of the United States. The essential issue at bar is confined to the vital claim that any applicant who has reason to believe the essay score was misreported (by software problem or otherwise) is being denied due process of the law contrary to the Constitution of the United States by being denied the right to make an informed decision and to seek review by the Virginia Supreme Court of their examination which they claim was had by manifest error that deprived them of a fair test. Appellant’s individual case at the state level is representative, i.e. a “textbook case” of a software issue (as stated by Dr. Castell in his declaration ¶31) and its repeated dismissals reflect not on its merits (which were never heard) but rather on a substantive and procedural flaw that exists within the state system. Policy of Finality and the unwritten Policy of Nondisclosure are the root cause. This issue is ripe for review because there exists no precedent in published case law on what rights applicants have to their essays following software problems requiring hands-on technical assistance and a system reboot. Furthermore, the 50% threshold for applicants typing rather than handwriting has recently been exceeded in the vast majority of jurisdictions. App. 20a. This is a compelling reason for a policy change at this time.<br /><br /> It is firmly established that bar examinees have a constitutionally protected interest following the release of the results. “Bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties.” <em>Richardson v. McFadden</em>, 540 F.2d 744 (4th Cir. 1976). It was not until a 1957 U.S. Supreme Court decision, Schware v. Board of Bar Examiners of New Mexico, that law admissions became a right not a privilege, as the court succinctly stated: “Certainly the practice of law is not a matter of the state’s grace.” 353 U.S. 232 (1957). The Fourth Circuit has subsequently applied this principle to the bar exam specifically by acknowledging how important it is for the very first exam to be scored accurately: “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 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.” <em>Richardson</em>, at 752. This could not be more true than with an individual like Mr. Bolls who had a public service job on the line, where unlike a private law firm the job would be lost (and in fact was in his case) if the bar exam is not passed.<br /><br />A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462 (1983). <br /><br /> The Supreme Court in <em>Feldman</em> held that United States district courts have subject-matter jurisdiction over general challenge as to state bar rules, promulgated by state courts in non- judicial proceedings, which “do not require review of final state court judgment in a particular case.” 460 U.S. 462, 486-487, 103 S. Ct. 1303, 1317. Appellant is now for the first time, and with the support of an expert witness, bringing a constitutional challenge to Policy of Nondisclosure and Policy of Finality in federal court, both of which arose from non-judicial proceedings. As he has stated to the court below, any individual relief that the court may also accord to Appellant is derivative, i.e. retroactively applied based on the constitutionality of the two policies. (Response to the Motion to Dismiss, top of p. 18). <br /> <br /> The cases relied on by the court below for its dismissal for lack of subject-matter jurisdiction include <em>Woodard v. Virginia Bd. of Bar Examiners</em>, 598 F.2d 1345 (4th Cir. 1979) and <em>Richardson v. McFadden</em>, 563 F.2d 1130 (4th Cir. 1977), both of which are civil suits for racial discrimination. No policy was identified as being challenged in either case; rather, to the extent that the court in <em>Woodard</em> is referring to policies being challenged with respect to an individual case, the court is speaking of the bar exam in general and no specific policy in particular. Appellant’s case is different in that his challenge arises under the due process clause not the equal protection clause, and he is in fact challenging two specific policies of the Board.<br /><br /> In resolving the subject-matter jurisdiction issue, the U.S. Supreme Court in <em>Feldman </em>(1983) underscored the 10th Circuit’s reasoning in <em>Doe v. Pringle</em>, 550 F.2d 596, 597 (1976) in declaring that there is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court: <strong>“the first is a constitutional challenge to the state’s general rules and regulations governing admission; the second is a claim based on constitutional or other grounds, that the state has unlawfully denied a particular applicant admission.”</strong> <em>Feldman</em>, at 1316 (citing to <em>Doe</em>, at 597). This goes directly to the subject-matter jurisdiction question at hand. Here the court correctly references Judge Hall’s concurrence in <em>Richardson v. McFadden</em>, 563 F.2d 1130 (4th Cir. 1977), which cited to the same exact <em>Doe</em> language even before <em>Feldman</em> made it national law. <em>Richardson</em>, at 1133 (Hall, J. concurring). In 1979, in <em>Woodard v. Virginia Bd. of Bar Examiners</em>, 598 F.2d 1345 (4th Circuit 1979), the other case relied on by the court below, the 4th Circuit affirmed Judge Hall’s concurrence and use of the subject-matter jurisdiction language in <em>Doe</em> (highlighted in bold above). Since the Supreme Court’s <em>Feldman</em> decision in 1983, it is well-settled national law that constitutional challenges to specific policies fall squarely within federal district court jurisdiction. [FOOTNOTE: This language (in bold) continues to be applied in more recent decisions within the 4th Circuit such as, for example, <em>Clark v. Va. Bd. of Bar Exmnrs., </em>861 F. Supp. 512, 519]. <br /> <br /> Article III courts are forbidden by the Constitution from deciding questions in the abstract, and the personal circumstances are needed so the court can resolve cases or controversies. On the subtle but fundamental distinction highlighted above, the Feldman court answers the question of who might bring either such claim: “[T]here is a subtle but fundamental distinction between two types of claims which a frustrated bar applicant might bring to federal court . . .” <em>Feldman</em>, at 1316 (quoting <em>Doe v. Pringle</em>, supra). In either case, it is a “frustrated bar applicant” bringing the claim. Appellant, not a law professor or law school dean for example, is thus qualified to bring a general policy challenge. The next question then becomes whether the action he is bringing is a general policy challenge or a review of a particular application. It could not be the latter for a couple reasons.<br /><br /> First, Appellant explicitly stated everywhere possible that his intent in bringing a policy challenge to federal court was to protect the due process rights of all future examinees whose claims will be similarly undercut by the two policies in question. (See Argument Part I <em>supra</em>). Second, he has gathered evidence that is more pertinent to a large scale policy challenge than to a mere individual dispute. See charts, reprinted App. 19a-20a entitled “Transparency Policies of State Law Examiner Offices” and “Statistics of the Computer Based Bar Essay Examination,” which show a strong national trend toward openness and transparency. He has two witnesses, Eric Zeni and Stephen Castell, the former showing how the applicant’s right to obtain the essays proved vital in a software mishap in New York; and the latter offering expertise on the technical propriety of Policy of Nondisclosure and Policy of Finality in a computer-based test. (Initial Disclosures, email to the Attorney General, October 28, 2010). <br /> <br /> Challenges to the constitutionality of state bar rules do not necessarily require a United States district court to review a final state court judgment in a judicial proceeding. <em>Feldman</em>, at 1316-1317. This is because, as the court says, “state supreme courts may act in a nonjudicial capacity in promulgating rules regulating the bar.” <em>Id</em>., at 1316. The 4th Circuit has held that the Board as an agency of the Virginia Supreme Court acts administratively when it installs post examination review policies. In reversing <em>Rogers v. Supreme Court of Virginia</em>, 590 F. Supp. 102 (1984) (E.D. Va. 1984), the 4th Circuit stated: “We do not agree with the district court’s characterization of Rogers’ petition as an appeal. Because the Virginia Supreme Court has the ultimate responsibility for determining admission to the Virginia bar, we think that, when that 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.” 772 F.2d 900 (4th Cir. 1985) (Unpub. No. 84-1746, Page 4). Again, jurisdiction was found under <em>District of Columbia Court of Appeals v. Feldman</em>, 460 U.S. 462 (1983). Id., Page 3. In the case at bar, Appellant is similarly asking the 4th Circuit to view the Board and the state supreme court together and assess the two policies in question in light of the recurring computer problems and technical objections raised.<br /><br />B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions. <br /><br /> In these cases individual relief stands or falls based on the court’s finding on the constitutionality of the bar examiner policy or rule identified for review. <em>See Brown v. Supreme Court of Virginia</em>, 359 F. Supp. 549 (1973) (two applicants previously denied by the Supreme Court of Virginia because of a residency requirement brought an equal protection challenge to Rule 1A:1 residency requirement. In its analysis, the court examined the rules of other states and compared them to Virginia’s on stringency); <em>Goldsmith v. Pringle</em>, 399 F. Supp. 620 (D. Colo. 1975) (equal protection challenge to reciprocity Rule 202(7). The court conducted a rational basis test). <em>Huffman v. Montana Supreme Court</em>, 372 F. Supp. 1175 (1974), <em>aff’d</em> 419 U.S. 955 (equal protection challenge to the diploma privilege, and rational basis test applied). In each of these cases the declaratory judgment and broad injunctive relief was also accompanied by a petition for individual relief by the plaintiff. <br /><br /> <em>Keenan v. Bd. of Law Examiners of North Carolina</em>, 317 F. Supp. 1350 (1977), involved an equal protection challenge to Rule VI(6), which required a person to have been a bona fide citizen and resident of North Carolina for twelve months before taking the bar exam. Relief sought included declaratory judgment declaring the rule unconstitutional and injunction preventing enforcement of the rule. Individual relief was sought as well. The court held that the “familiar rule” that final judgment of a state court is reviewable by the Supreme Court of the United States not the federal courts does not apply here: “These plaintiffs do not challenge a state court’s disposition of an individual case . . . their personal circumstances merely furnish concreteness to a class action attacking a general rule as facially unconstitutional.” <em>Id</em>. Upon finding that the rule is unconstitutional as imposing a burden on interstate travel without being necessary to promote a compelling state interest and as denying equal protection of the laws, it enjoined the Board from giving Rule VI(6) any force or effect. <em>Id</em>., at 1361. The court also provided individual relief. Having passed, the two plaintiffs were ordered to be licensed. Interestingly, as a corollary to the instant case, the Board argued undue expense and burden. But the court points out a better alternative given the existence of an efficient and widely used nationwide investigatory service operated by the National Conference of Bar Examiners. “Furthermore, any reasonable expense above and beyond that normally required to investigate a resident bar applicant might, perhaps, be charged to the out-of-state applicant under scrutiny.” <em>Id., </em>at 1360. Likewise, Appellant points to the National Conference of Bar Examiners as being the source of a sensible remedy for software mishaps and has indicated that in other jurisdictions the cost of photocopying the exam papers is negligible and typically borne by the applicant in the other jurisdictions. <br /><br /> A more recent successful challenge to a bar examiner policy brought by an aggrieved bar applicant in federal court highlights the distinction between a policy challenge and review of an individual case. In <em>Clark v. Virginia Board of Bar Examiners</em>, 861 F. Supp. 512, 515 (E.D. Va. 1994), an applicant for the Virginia Bar brought action under the Americans with Disabilities Act against the Board for requiring applicants to answer a mental health question, which she refused to answer. At first, the district court, in alluding to the language in <em>Doe, supra</em>, found that “Clark does not challenge the state’s general rules and regulations. The Board has no rule or regulation that prohibits a person with a mental disability from obtaining a license to practice law. Each application is decided individually on its own merit.” <em>Clark</em>, at 516. The court, however, rethought this point and on a motion to alter judgment stated: “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 <em>Feldman</em>, it has jurisdiction over this case.” <em>Clark</em>, at 519. Ultimately, the district court held that Question 20(b) violated the ADA and ordered it to be sliced out of the character and fitness questionnaire. <em>Clark v. Virginia Board of Bar Examiners</em>, Civ. A. No. 94-211-A (E.D. Va. Feb. 23, 1995). Like Clark, Appellant is challenging a specific policy that is “applied uniformly” (Answer ¶13) as well as its accompanying policy of finality that “all scores are final and not appealable” (Answer ¶14). That the case was meant to challenge the defendant’s right to enforce these policies against all future applicants was not only the exact wording of the first part of the Prayer for Relief but is made crystal clear throughout the complaint, the response brief to the motion to dismiss, and the motion to alter judgment. Furthermore, the expert’s declaration speaks at length on the wisdom of having such policies in place in a computer-based test that exhibits the same signs as led to grading errors in other jurisdictions where applicants had the right to obtain the essays. Appellant, like Clark, is merely regarded as a “textbook case,” all the more reason for him to be the one to bring the policy challenge. (¶31 Declaration of Stephen Castell, PhD).<br /><br />C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level. <br /><br /> The rule in <em>Wright v. Castles</em>, 232 Va. 218 (1986) is that there is no res judicata where the causes of action or the remedies sought are not identical. In that case the court found that the same evidence will not support both actions since the evidence necessary to obtain an injunction differs from the evidence necessary to prove slander of title and interference with contractual relations. <em>Wright</em>, at 219. The case at bar similarly represents a fundamentally distinct declaratory judgment action under the Declaratory Judgment Act, whereas previous litigation at the state level was always in the form of a mandamus petition. Secondly, the relief is different. The two policies in question are only now for the first time being challenged to effect broad injunctive relief. The existence of the unwritten Policy of Nondisclosure was established only in federal court once Appellee was required to answer. And finally, the evidence is different. Dr. Castell’s declaration addresses the systemic problem and is filed in support of the policy challenge. The Virginia Supreme Court did not have this evidence. [FOOTNOTE: Dr. Castell, in Par. 35, states: "I am therefore concerned and surprised that the board has not allowed Mr. Bolls to obtain his essays to determine if what was graded was exactly what he wrote. It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions. At the same time, he vehemently disputes the accuracy of the essay assessment."] See also <em>Worrie v. Boze</em>, 198 Va. 533, 538 (even if the causes of action are considered to be “closely related,” there is no res judicata unless they are identical). Neither Appellant’s Declaratory Judgment action nor his Prayer for Relief are identical so res judicata should not apply. [FOOTNOTE: The district judge also concluded orally at the end of the pre-trial conference in chambers that the Rooker-Feldman Doctrine "probably does not apply" because the policies are being challenged.] <br /><br />D. Broad Injunctive Relief Can Be Directed Against a Defendant Government Agency or Official to Remedy an Ongoing Violation of Federal Law Even in the Absence of a Certified Class.<br /><br /> A number of courts upheld the issuance, under the Declaratory Judgment Act, of broad injunctive relief directed against a defendant government agency or official to remedy an ongoing violation of federal law even in the absence of a certified class. <em>See Evans v. Hartnett County Bd. of Educ., </em>684 F.2d 304, 306 (4th Cir. 1982); <em>Sandford v. R.C. Coleman Realty</em>, 573 F.2d 173, 178 (4th Cir. 1978). Thus, broad injunctive relief can be brought by a single individual. <br /><br /> The “necessary steps” that Appellant refers to in his Prayer for Relief is just that: broad injunctive relief. Over the years legal aid advocates have successfully obtained broad relief under the Declaratory Judgment Act for their clients in cases involving civil rights, public benefits, social security, health care, housing, and labor issues. <em>Cf. Burrell v. Norton</em>, 381 F. Supp. 339, 340 (D. Conn. 1974) (granting declaratory relief to individual plaintiff challenging constitutionality of certain state eligibility standards for emergency assistance welfare payments); <em>Harmon v. Thornburgh</em>, 878 F.2d 484, 491-494 (D.C. Cir. 1989) (constitutional challenge to random drug tests of federal employees); and <em>Gallinot</em>, 657 F.2d at 1019 (constitutional challenge to state mental health involuntary commitment procedures). The remedies afforded by the Act are particularly suited for attacking and correcting illegal policies, practices, and rules that harm large numbers of persons. Appellant is seeking relief under the Declaratory Judgment Act on behalf of all future bar examinees who seek to exercise their right to petition the Virginia Supreme Court. <br /> <br /><strong>III. COMPUTER-BASED TESTING IN VIRGINIA HAS EXHIBITED SYMPTOMS ASSOCIATED WITH DATA LOSS IN OTHER JURISDICTIONS, WHICH RAISES NEW QUESTIONS ON WHAT CONSTITUTES DUE PROCESS THAT ARE RIPE FOR REVIEW.</strong> <br /> The right to practice one’s chosen profession is a well-recognized liberty interest that cannot be taken away without certain due process protections in place. <em>Whitfield v. Illinois Bd. of Bar Exmnrs., </em>504 F.2d 477 (1974) (“the due process clause requires the state to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections”). See also the Fourth Circuit’s per curiam opinion in <em>Richardson</em>: “Before turning to the factual basis of their claims, we stress that our function . . . is to determine if there has been a denial of due process or of equal protection.” 563 F.2d 1130. Appellant alleges that the unwritten Policy of Nondisclosure and the Policy of Finality directly undermine the only available post examination right for applicants, which is to petition the Supreme Court of Virginia under its inherent authority over the bar exam. Where there is good reason to believe that error has occurred as a result of problems with the test software (Declaration of Stephen Castell ¶25: “Mr. Bolls’ concerns about corruption of his essays are well founded”), without discovery of the item in question, there cannot be a full and fair hearing on the merits.<br /><br />A. Due Process of Law Analysis Requires a Scientific Approach and the Science Demands the Removal of the Policy of Nondisclosure and Policy of Finality. <br /><br /> The Supreme Court in <em>Rochin v. California</em>, 342 U.S. 165, 172 (1952) states: “In each case ‘due process of law’ requires an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims.” See also J. Frankfurter’s concurrence in <em>Griffin v. Illinois</em>, 351 U.S. 12 (“ ‘due process’ is, perhaps, the least frozen concept of our law- the least confined to history and the most absorptive of powerful social standards of a progressive society”). The introduction of the computer-based test is an aspect of society’s progression that must be reconciled with due process. It is also clear the Commonwealth of Virginia may not make anything due process of law, either through its legislature or high court. When addressing whether a state can make anything due process of law that it chooses to declare, the Supreme Court clearly rejects such notion: “ ‘To affirm this is to hold that the prohibition to the states is of no avail’. . . the same question could be propounded, and the same answer should be made, in reference to judicial proceedings inconsistent with the requirements of due process of law.” <em>Chicago B&Q R.R. v. Chicago</em>, 166 U.S. 226 (1897). Therefore, the federal district court does have jurisdiction to evaluate state procedures and policies, and in applying due process to the technical matters of the instant case, the court must seriously consider the expert testimony. <br />[FOOTNOTE: The district judge, rather than adopting a scientific approach which is essential in this case, handled the only expert report filed in the case with blatant disregard. Declaration of Jonathan Bolls Par. 9, attached to the Motion to Alter Judgment. The judge states that he does not care about the expert report.] <br /><br /> Dr. Castell’s over forty-year successful career as an information technology consultant and law specialist would be invaluable to the court in addressing the constitutional questions before it. He has examined hard copies of the evidence, including Appellant’s affidavit (App. 9a-10a), setup instructions provided to applicants at the exam, the Board’s 11/3/08 email to Appellant requesting he send the encrypted file of his essay responses to compare against the one graded, and charts Appellant compiled from personal phone calls he made to each state bar examination board in the country. (Declaration of Stephen Castell, PhD ¶16). He states his opinion that not only are “Mr. Bolls’ concerns about the corruption of his essays well founded” (¶25) but “[t]he fact that others experienced similar problems at the same time suggests a systemic problem.” (¶18). This information contradicts the apparent conclusion drawn by Appellee, as represented at the pre-trial conference in chambers, that the error boxes, hands-on technical assistance, and, when that fails, the system reboots, are all a result of human errors. (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment ¶6, stating a recurring problem ). Appellant is without a doubt that his was not a result of human error, as he stated in his affidavit that the software “halted and displayed a dialogue box wherein the program refused to proceed despite [his] following the instructions exactly.” App. 9a-10a, Affidavit of Jonathan Bolls ¶3. Arriving at the self-serving conclusion that such problems are a result of simple human errors is to ignore some very important questions that go to protecting the applicant’s interest. [FOOTNOTE: Dr. Castell also proceeds to list twenty technical questions regarding the announcement about the 24 who had answers mispositioned, which questions are "obviated if applicants could simply obtain their essays." Declaration of Stephen Castell, PhD Par. 34]. As Dr. Castell states, “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, even to the circumstances of Mr. Bolls’ case, 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.” (Declaration of Stephen Castell, PhD ¶30).<br /> <br /> The alternative to having a policy of disclosure is prohibitively costly. As Dr. Castell states, “In order to determine whether or not data was in fact lost, corrupted or altered in some fashion, a thorough forensic analysis would be required. In my experience, such an analysis is likely to be complex and prohibitively costly. It would and should include examining not just the executable code (whether encrypted or not) but the full source code, together with all documentation and logs relating to the conception, build, testing, sale, deployment, and maintenance, of the Exam4 software. There would also need to be disclosure of all relevant computer material such as navigation/file mapping material, which may indicate what data is missing or corrupted. This should all be provided unencrypted/able, so that it may be openly inspected.” ¶21. See also ¶30: “[F]orcing the applicant to take expensive steps simply to identify whether a malignant software malfunction, or other (temporary or permanent) system fault, existed, even before any decision is technically unsound and strikes me as wholly unreasonable and unfair. Clearly the state of New York addresses such concerns by having a policy by which Mr. Zeni was able to obtain his essays.” When the computer-based test was introduced to all examinees in July 2005 (Answer ¶37) the Board should have considered the applicants’ interests and done away with Policy of Nondisclosure and Policy of Finality.<br /><br /> The Board’s offer to Appellant (and presumably all others similarly situated) of comparing the encrypted file saved on his laptop to the one held in archive does not apply to the corruption concerns raised. As Dr. Castell states in his summary opinion: “(i) comparing Mr. Bolls’ encrypted file against the one graded does not in any way address the matter at hand, and (ii) 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.” ¶2. That is because if there is corruption, it will not be detected in this way: “the data on the USB drive will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” ¶19. Rather, should there be a policy in place that allows applicants to obtain their essays as of right, Dr. Castell endorses the remedy developed in 2007 by the National Conference of Bar Examiners. ¶38. However, this remedy is foreclosed as long as Policy of Nondisclosure and Policy of Finality are in place.<br />The reboot, which the Board concedes occurs with a number of applicants at the saving stage of every exam following hands-on technical assistance (Declaration of Jonathan Bolls, attached to the Motion to Alter Judgment, ¶6), is described by Dr. Castell as a “very real cause for concern.” Declaration of Stephen Castell, PhD ¶22. Using Appellant’s circumstances as a case-in-point, Dr. Castell explains Appellant’s observations in the following way: as an Extegrity technician’s unsuccessful attempt to operate Extegrity’s software before Appellant was told to reboot as a last resort. <em>Id</em>. Again, this does not appear to be human error.<br /><br />B. The Two Policies in Question Fall Under the Rational Basis Test Because There is No Legitimate State Goal and No Harm to the Board or to the Virginia Supreme Court That Outweighs the Applicant’s Due Process Interest.<br /><br /> The due process interest of applicants is substantial. Without a right to obtain the essays in the computer-based test, an applicant who experiences a software glitch who subsequently observes a scoring discrepancy has no way to substantiate the claim without discovery of the item in question. Hence, the right to petition the Virginia Supreme Court becomes meaningless. This procedural and substantive flaw was encountered in Alaska in <em>Application of Peterson</em>, 459 P.2d 703, 39 A.L.R. 3d 708 (1969) where the board allowed a bar examinee to petition under certain substantive grounds to have a hearing in which a score can be changed. The court referred to it as a “logical hiatus,” however, for the Board to require such a showing without a procedural device to enable the applicant to ascertain and demonstrate these grounds. Holding that such was a “denial of fair process,” the court decided that fair process required that Peterson receive his examination questions and answers. Consequently, in Alaska today applicants have a right to obtain their essay answers. (Chart, App. 19a). This right has been very beneficial especially in the new computer-based testing environment. The case of Eric Zeni in New York is proof that a right to obtain the essays does protect against an erroneous deprivation of an applicant’s interest in the computer-based test- indeed, his situation would have gone uncorrected had it not been for New York’s disclosure policy. (see App. 38a, May 11, 2010 email from witness Eric Zeni confirming the veracity of this characterization). The applicants’ interest in the accuracy of exam grading is substantial because of what is at stake: livelihoods, and the integrity of bar admissions, upon which the public relies. <br /> <br /> 1. No Legitimate State Goal Exists for the Two Policies in Question.<br /><br /> The 4th Circuit applied a rational basis test when a due process challenge was brought against a rule that admitted out-of-state attorneys without examination only if they intend to practice full time in Virginia. <em>Goldfarb v. Supreme Court of Virginia</em>, 766 F.2d 859 (4th Cir. 1985). The court upheld the rule, finding that the requirement rationally served the interest of Virginia in insuring the competence of attorneys practicing in the Commonwealth. The case at bar involves two policies, the purpose of which remains unclear. In the Declaratory Judgment action, ¶15, Appellant alleges that Policy of Nondisclosure exists to further the objective of Policy of Finality. In the Answer, Appellee states that he is “without sufficient knowledge” as to this point. Neither ¶13 nor ¶14 of the Answer provide a reason for having the unwritten Policy of Nondisclosure and Policy of Finality respectively, which Appellant alleges works an ongoing due process violation for the applicants. Regardless of what the state goal may be, it is not a legitimate one. Administrative inconvenience, for example, cannot be a reason, as the court in <em>Keenan v. Bd. of Law Exmnrs. of North Carolina</em>, 317 F. Supp. 1350 (1970) clearly states, “Administrative inconvenience is insufficient justification for an arbitrary, overinclusive regulatory classification.” Appellant has alleged in ¶43 that the constitutional infirmity of the two policies in question is overinclusion. A true scientific approach reveals that there will be some instances where the scope of inquiry demands at the very least that the essays be released to the applicant so that the applicant can present a viable claim to the state supreme court.<br /><br /> 2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies. <br /><br /> The vast majority of jurisdictions, both small and large, wealthy or not, have in place policies of disclosure. (App. 19a, listing 42 jurisdictions plus the District as having policies of disclosure). This strong national trend has not been reversed for the simple reason that it works well. The Board does not have to institute an appeal, formal or informal. Releasing the essays would also not add one penny to the cost, which is typically borne by the applicant for a small fee in other jurisdictions. A simple disclosure of the essay responses is not time consuming, does not prejudice the Board, and not to allow such would create a substantial injustice to the applicant. <br /><br /><strong>IV. APPELLANT’S PRAYER FOR INDIVIDUAL RELIEF IS NOT BARRED BECAUSE THE TWO POLICIES IN QUESTION PREVENTED HIS CASE FROM BEING HEARD AT THE STATE LEVEL.</strong> <br /><br /> The second and third parts of the Prayer for Relief have to do with Appellant’s individual case, a separate request from the primary one for injunctive and declaratory relief for all future applicants to the Virginia Bar. Appellant never had an opportunity to obtain a full and fair hearing on its merits because the essays, the subject of proof, were withheld. Appellant is not now seeking a second opinion from federal court. A second opinion has already been provided by the D.C. Bar. Instead, he seeks to obtain his essays in order to make an informed decision on how to proceed and, if he so chooses, to bring a claim. Absent the essays, the claim cannot be formulated or substantiated. <br /><br />A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.<br /><br /> Rejecting the contention that plaintiffs were accorded a full and fair opportunity to litigate a vote dilution claim, the Supreme Court in <em>Johnson v. De Grandy</em>, 512 U.S. 997, 1005-1006 held that the state was “exaggerating the review afforded the De Grandy plaintiffs and ignoring the court’s own opinion of its judgment’s limited scope.” Likewise in Appellant’s individual case- the Virginia Supreme Court’s dismissal included a two-sentence opinion which held that mandamus does not lie to compel the performance of a discretionary act. App. 1a. Without hearing the expert testimony and without requiring the Board to answer and without providing an alternative avenue by which Appellant could bring a valid claim without the item in question, this ruling has to be limited to a narrow point of Virginia law on discretion. It is certainly not a dismissal on the merits. Rather, it is more like a dismissal for lack of standing.<br /> <br />B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level. <br /><br /> Since Appellant’s case was dismissed purely on a point of state law, not reaching the federal constitutional questions involved or the merits of the case, Appellant is within his rights to have the federal constitutional questions decided by a federal district court that does have jurisdiction. See <em>Johnson v. Degrandy</em>, at 1005: “the State balks at recognizing this express reservation by blaming the De Grandy plaintiffs for not returning to the state supreme court with the Section 2 claims. But the plaintiffs are free to litigate in any court with jurisdiction, and their choice to forego further, optional state review hardly converted the state constitutional judgment into a decision following a full and fair opportunity to litigate.” Appellant is therefore free to apply for individual relief separate and distinct from the general policy challenge and petition for broad injunctive relief.<br /><br />C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.<br /><br /> Denial of writ of certiorari by the Federal Supreme Court imports no expression of opinion upon the merits of a case but means only that there were not four members of the Court who thought the case should be heard. <em>Brown v. Allen</em>, 344 U.S. 443, 73 S. Ct. 397, 97 L.Ed. 469, <em>reh’g denied</em> 73 S. Ct. 827. Furthermore, the two policies in question act to undermine individual cases seeking the Supreme Court’s ultimate appellate review because they act to prevent a record that could be reviewed. Its ultimate appellate authority over individual bar exam disputes arises under 28 U.S.C. §1257(a) and 28 U.S.C. §1651(a). <em>See also Theard v. United States</em>, 354 U.S. 278. Inadequacy of the record may be a reason for why certiorari was denied in Appellant’s individual case, as the dissent in the landmark <em>Griffin</em> case states, he would “decline to decide the constitutional question tendered by petitioners because the record does not present it in that ‘clean-cut,’ ‘concrete,’ and ‘unclouded’ form usually demanded for a decision of constitutional issues.” <em>Griffin v. Illinois</em>, 351 U.S. 12 (1956). The two policies thus create an unconstitutional roadblock with very far reaching effects.<br /> <br />D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.<br /><br /> 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. <em>See Chaney v. State Bar of California</em>, 386 F.2d 962, 967 (9th Cir. 1967); <em>Feldman v. State Bd. of Bar Exmnrs.</em>, 438 F.2d 699, 704 (8th cir. 1971); <em>Whitfield v. Illinois Bd. of Law Exmnrs</em>., 504 F.2d 474, 478 (7th Cir. 1974); <em>Cf. Scinto v. Stamm</em>, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that 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”). The unfairness of not releasing the essays to Appellant after experiencing a problem with the Board’s testing software, especially when there is a Virginia law that preserves the essays [FOOTNOTE: Va. Code Section 54.1-3922.] presumably for such a dispute, is manifestly unfair. Therefore, the federal district court, or the 4th Circuit, has the authority to award individual relief to Appellant as well.<br /><br /><strong>V. APPELLANT REQUESTS ORAL ARGUMENT</strong>.<br /><br /> Appellant respectfully requests oral argument. He is well-practiced in oral argument before three-judge panels (mock) and has tried cases under supervision for different state prosecutor’s offices. He also has hundreds of hours of courtroom observation time. Please see attached a bench trial critique of his courtroom demeanor and performance in law school. <br /> <br />CONCLUSION<br /><br /> Federal district court does have subject-matter jurisdiction over the policy challenge/ broad injunctive relief for all applicants as well as individual relief for Appellant. The court below states that there is no misunderstanding whatsoever about Appellant’s reasons for bringing the case. Since it does not dispute these reasons clearly articulated in the Motion to Alter Judgment, the district judge thus draws an impermissible inference that the individual relief component of the Prayer for Relief acts to somehow disqualify the policy challenge. This is not a fair reading of Feldman, which remanded the case back to the district court for similar reasons. For the foregoing reasons, the dismissal of the Eastern District Court should be reversed. <br /><br /><br /> Respectfully Submitted,<br /><br /> Jonathan Bolls<br /> Pro-Se<br /> <br />January 18, 2011<br /> <br /><br /><br /><br /><br /><br /><br /><br /><br /> <br /><strong></strong>Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com0tag:blogger.com,1999:blog-611225343433444182.post-79985291059205763512009-01-26T19:07:00.000-08:002010-12-21T19:18:11.283-08:00VIRGINIA BAR EXAM: LACK OF TRANSPARENCY<span style="font-size:130%;"><strong>Update (21): </strong>On December 16, 2010 Judge Payne denied the motion to alter judgment. In so doing, the court relies on 1970's cases that were overruled by a U.S. Supreme Court decision in the 80's that does allow an individual applicant who suffered injury by a state bar examiner policy to challenge that policy in federal court. <em>D.C. Court of Appeals v. Feldman</em>, 460 U.S. 462, 103 S. Ct. 1303 (1983). Furthermore, a Fourth Circuit case in the 1980's, <em>Rogers v. Supreme Court of Virginia</em>, is red flagged in Westlaw because of similar faulty reasoning at the district court level. The facts of my case are both relevant and necessary for consideration, as stated in my brief: "Since Article III courts are forbidden by the Constitution from deciding questions in the abstract, the personal circumstances are needed so the court can resolve cases or controversies." The case is therefore now on appeal, and all papers, including the expert report, are being forwarded to the Fourth Circuit Court of Appeals in Richmond.</span>
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<br /><span style="font-size:130%;"><strong>Update (20): </strong>November 12, 2010. On November 5th Judge Payne ordered dismissal of the case on the grounds that the unwritten policy of nondisclosure and policy of finality are being challenged with respect to my own exam. This is untrue and was made clear at the discovery conference after repeated questioning that my intent is to stop the enforcement of these policies because they are no longer defensible given the less-than-perfect transition to computer-based testing. The relief I have requested makes this crystal clear: "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." There is no bar to also asking for individual relief as well. Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 518. </span>
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<br /><span style="font-size:130%;">In case this is a matter of simple misunderstanding by Judge Payne, I have prepared a Rule 59(e) Motion to Alter Judgment. I reiterate the fact that my "purpose in bringing this case is, above all else even including individual relief to [myself], to stop the Board of Bar Examiners from enforcing Policy of Nondisclosure and Policy of Finality for all subsequent bar examinations." </span>
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<br /><span style="font-size:130%;">Accompanying this motion is the following written declaration by myself (reprinted below). In this declaration I state specific facts, including new information that Assistant AG Catherine Hill provided that confirms that applicants require hands-on technical assistance and even system reboots "at every exam." </span>
<br />
<br />IN THE UNITED STATES DISTRICT COURT
<br />FOR THE EASTERN DISTRICT OF VIRGINIA
<br />Richmond Division
<br />
<br />JONATHAN BOLLS,
<br />Plaintiff,
<br />
<br />v. Civil Action No. 3:10-cv-550-REP
<br />
<br />W. SCOTT STREET, III, Secretary
<br />of the Virginia Board of Bar Examiners,
<br />Defendant
<br />
<br />DECLARATION OF JONATHAN BOLLS
<br />
<br />1. My name is Jonathan Bolls. I am the plaintiff in this case. I make this declaration based on my personal knowledge.
<br />
<br />2. On October 20, 2010 Judge Robert Payne met with myself and Assistant Attorney General Catherine Hill in a pre-trial conference held in chambers. Also in attendance was the judge's assistant.
<br />
<br />3. At this conference the judge asked me if I was willing to swear in open court to the software mishap that I experienced at the bar examination and that this occurred in other cases as well. I said that I would.
<br />
<br />4. When asked what evidence I could use to prove this case I said that my expert has informed me that the technicians at the exam are required according to the best practices to keep Engineers' Notes of everything they observe. A record of hands-on assistance for each computer I said would necessarily be included.
<br />
<br />5. I have provided regular notices to the registered agent of Extegrity, Inc. for each stage of this case and a request that the essays and other evidence be preserved.
<br />
<br />6. When pressed whether symptoms similar to what I described have been known to exist, "including the reboot," Catherine Hill responded that, in fact, they do at every exam.
<br />
<br />7. When asked how many other states have policies allowing disclosure of test essays, I responded that there are 42 states plus the District of Columbia that have policies of disclosure.
<br />
<br />8. When asked repeatedly whether it is my intent to challenge the policies of nondisclosure and finality, I stated that I am above all else challenging these policies, which I perceive to be no longer defensible given the less-than-perfect transition to computer-based testing.
<br />
<br />9. At the conclusion of the meeting, as the four of us were walking out of the judge's office, I reminded Judge Payne and the others that the technical issues involved were all explained in the expert's report filed with the court. Judge Payne responded that he did not care about the expert report.
<br />
<br />I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed in Springfield, VA on this 11th day of November, 2010.
<br />
<br />Jonathan Bolls
<br />Plaintiff Pro-Se
<br />
<br /><span style="font-size:130%;"></span>
<br /><span style="font-size:130%;"><strong></strong></span>
<br /><span style="font-size:130%;"><strong></strong></span>
<br /><span style="font-size:130%;"><strong>Update (19): </strong>October 11, 2010. The Attorney General, representing Secretary Scott Street, filed both their motion to dismiss and an answer on September 29th. In his answer, Mr. Street states that he lacks sufficient knowledge as to my experiences with the Extegrity technicians and their software on July 29, 2008. Had there been the sensible policy in place that technicians record the applicant ID numbers of all examinees who required hands-on technical assistance then he would not now be able to claim lack of sufficient knowledge. Secondly, Mr. Street admits that (i) other states have experienced recent problems with their bar exam software; (ii) there exists in Virginia an unwritten policy of nondisclosure of essays that has been applied uniformly since 1972 when he started; and (iii) the proportion of applicants taking the Virginia Bar Exam is 83% and rising. The court has called for a Rule 26(f) discovery conference to be held in-person in Richmond on October 20th. Meanwhile, my response to the motion to dismiss is due October 19th. </span>
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<br /><span style="font-size:130%;"><strong>Update (18):</strong> September 3, 2010. On September 1st the court <u>sua sponte</u> (of its own volition) ordered the preservation of "all documents, either electronic or physical form, pertinent to the dispute raised." The order further stated that this decision may be revisited if the defendant shows cause why it should be amended.</span>
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<br /><span style="font-size:130%;"><span style="FONT-WEIGHT: bold">Update (17): </span>August 31, 2010. The case was filed on August 5th with the U.S. District Court for the Eastern District of Virginia Richmond Division (also known throughout the country as the "Rocket Docket"). It is a public document; the case number is 3:10cv550. Enclosed with the complaint is an expert witness declaration by Stephen Castell, PhD who is from the UK and has kindly agreed to submit his report on my behalf in a <span style="FONT-STYLE: italic">pro bono</span> capacity. His extensive experience in both English and American cases appears in the introduction of his declaration <span style="FONT-WEIGHT: bold">reprinted below</span>. Following Dr. Castell's report is the complaint/prayer for relief, reprinted below. The thrust of the complaint is simple: a right exists to petition the Virginia Supreme Court in cases of "manifest unfairness." The Virginia Supreme Court and its bar examination board have systematically squelched this right by enacting a policy of nondisclosure and a policy of finality once the results are posted. An applicant with a legitimate complaint could therefore not in good faith petition the state's highest court because the subject of proof has been withheld (also the court is not willing to compel their release). The fact that most applicants now rely on this software in taking the exam as well as the near uniform transition to more open and transparent policies nationwide make these policies no longer tenable in Virginia. Therefore, the apparent software crash experienced by myself and others in July 2008 clearly constitute the kind of "manifest unfairness" that makes further procedural protections necessary. These two state policies therefore create an unconstitutional interference with an applicant's right to due process of law guaranteed by the Federal Constitution.
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<br /><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">No. 3:10cv550<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">IN THE UNITED STATES DISTRICT COURT<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">FOR THE EASTERN DISTRICT OF VIRGINIA<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><?xml:namespace prefix = st1 /><st1:city st="on"><st1:place st="on"><b><span style="font-family:'Times New Roman','serif';font-size:12;">RICHMOND</span></b></st1:place></st1:city><b><span style="font-family:'Times New Roman','serif';font-size:12;"> DIVISION<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: normal" class="MsoNormal" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></b></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">JONATHAN BOLLS,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Petitioner,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span><b><o:p></o:p></b></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><b><span style="font-size:0;"></span><o:p></o:p></b></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">v.<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><st1:street st="on"><st1:address st="on"><span style="font-family:'Times New Roman','serif';font-size:12;">W. SCOTT STREET</span></st1:address></st1:street><span style="font-family:'Times New Roman','serif';font-size:12;"> III,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">SECRETARY OF THE <st1:state st="on"><st1:place st="on">VIRGINIA</st1:place></st1:state> </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">BOARD OF BAR EXAMINERS,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Respondent<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><o:p></o:p></p><p class="MsoNoSpacing"><o:p></o:p></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: 200%" class="MsoNoSpacing" align="center"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >DECLARATION OF STEPHEN CASTELL, PhD<o:p></o:p></span></b></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >I, <st1:personname st="on">Dr Stephen Castell</st1:personname>, under oath, state as follows:<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >1. I am chairman of Castell Consulting, my own computer, telecommunications and digital media professional management and expert consulting company based in <st1:place st="on"><st1:city st="on">Essex</st1:city>, <st1:country-region st="on">UK</st1:country-region></st1:place>.<span style="font-size:0;"> </span>I submit this declaration on behalf of Jonathan Bolls in <st1:personname st="on">support</st1:personname> of his complaint.<span style="font-size:0;"> </span>The statements and information contained herein are based upon my near 40 years experience in software and systems technologies, computer law and evidence issues.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.25in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">2. </span>For the reasons set forth below, it is my opinion that (i) comparing Mr. Bolls’ encrypted file against the one graded does not in any way address the matter at hand, and (ii) 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.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing" align="center"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >BACKGROUND AND QUALIFICATIONS<o:p></o:p></span></b></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">3. </span>I received my Bachelor of Science, First Class, in Mathematics, Physics, and Psychology in 1968 from the <st1:place st="on"><st1:placetype st="on">University</st1:placetype> of <st1:placename st="on">London</st1:placename></st1:place>, my Master of Science in Mathematics, specializing in Computer Science and Fluid Mechanics, from the <st1:place st="on"><st1:placetype st="on">University</st1:placetype> of <st1:placename st="on">Nottingham</st1:placename></st1:place> in 1969, and my PhD in Mathematics from the <st1:place st="on"><st1:placetype st="on">University</st1:placetype> of <st1:placename st="on">Nottingham</st1:placename></st1:place> in 1972, where I was a postgraduate prizewinner.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.25in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">4. </span>From 1971 – 1973 I worked as an applied mathematician for <i>British Aluminium Company,</i> the <st1:country-region st="on"><st1:place st="on">UK</st1:place></st1:country-region>’s primary aluminum manufacturer, at its Chalfont Park Research Laboratories.<span style="font-size:0;"> </span>From 1973 – 1974 I was Senior Mathematician at the Bearing Research Centre for <i>RHP</i>,<i> </i>the <st1:country-region st="on"><st1:place st="on">UK</st1:place></st1:country-region>’s primary ball and roller bearing manufacturer.<span style="font-size:0;"> </span>From 1974 – 1975 I was a Management Consultant with <i>Touche Ross & Co</i>, the international management consultant and accounting firm.<span style="font-size:0;"> </span>Then from 1975 – 1978 I was Manager, Group Management Services, for <i>Bremar Holdings Ltd</i>, international merchant bankers, in charge of computer financial and trading modeling, online trade capture, dealing and banking systems (equivalent to CIO/IT Director).<span style="font-size:0;"> </span>In 1978 I founded Castell Consulting, comprised of a network of experts that specialize in, among other things, IT and communications software/systems procurement, development, management, strategy and, in particular, dispute resolution, utilizing my rigorous <i>Forensic Systems Analysis</i> techniques developed over the past twenty years.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">5. </span>My clients have included both government and private entities, such as Her Majesty’s Treasury, European Space Agency, London Ambulance Service, United Arab Shipping Company, Motorola, Citibank, etc.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">6. </span>I developed the techniques of <i>Forensic Systems Analysis</i> for software litigation disputes, which is achieving a growing recognition internationally for its thoroughness and fairness to both parties.<span style="font-size:0;"> </span>See Par. 14.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">7. </span>My past projects include, among many others, work for the following solicitors/attorneys:<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Simmons & Simmons</u>, Claim No. HT-05-366 (expert examination of the functional and performance deficiencies in the software supplied to a major city metals trader); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Lax O’Sullivan Scott</u>, in re a Canadian Arbitration (testifying expert in a CAN $10M+ dispute over a systems contract project failure, between a leading banking group’s Lending Division and one of the world’s principal software and systems suppliers in the financial and banking solutions and applications sector); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Wragge & Co.</u>, resolution by mediation of an IT Systems Dispute (testifying expert for a leading international publicly-quoted software, systems and IT services company as Defendant in a systems design and implementation contractual dispute); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Hiscox Insurers</u>, Part 20 Defendant in leading 2003-2004 English High Court case, for tens of millions of pounds, of <i>Cable & Wireless v. IBM </i>(expert on behalf of Compass Consulting in regard to allegations of faults with a Benchmarking Exercise performed within the major IT Outsourcing Agreement made between this international telecommunications operator and global IT solutions and services supplier); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>BT Wholesale, British Telecommunications plc.</u>, Claim No. HQ 0101509.<span style="font-size:0;"> </span>English High Court, Queen’s Bench Division (testifying expert at trial on operating software and assessment of the validity of telecom CLI data generated operationally via the many complex BT CSS billing and other software and systems); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Irwin Mitchell</u>, Claim No. HC04C00702, English High Court Chancery Division (testifying expert for individual Defendant where I carried out technical investigations and gave evidence in court concerning software for a telecom reseller’s switch system and the inferences to be drawn from, and evidential reliability of, data stored in the switch); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Addleshaw Goddard</u>, Claim No. HT00/000305, English High Court (five-person Castell Consulting team provided expert report and real-time system function and performance test in the largest computer software and outsourcing contract action ever to come to trial in the English High Court:<span style="font-size:0;"> </span><i>Airtours v. Electronic Data Systems Ltd</i>); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Minter Ellison</u> (expert investigator for <i>In re Variation No. 19, </i>of <st1:country-region st="on"><st1:place st="on">Australia</st1:place></st1:country-region>’s largest infrastructure project ($A3bn), the <st1:city st="on"><st1:place st="on">Melbourne</st1:place></st1:city> <i>CityLink</i> toll-motorway construction project.<span style="font-size:0;"> </span>This used sophisticated electronic passive-tagging/tolling and computer information systems for tariffing, marketing interfaces and financial control and management functions.<span style="font-size:0;"> </span>Settlement reached in 2001); <o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span><span style="font-size:0;"></span><u>Simmons & Simmons</u> (Investigating expert for an international financial institution defending allegations of software copying on the part of one of the bank’s programmers.<span style="font-size:0;"> </span>The disputed software consisted of several hundred thousand lines of code written in C and C++.<span style="font-size:0;"> </span>My expert team provided a preliminary report on the key questions of what code, if any, was (near) identical; if so, how much, and where; could this have been copied and/or was there some other technical explanation.<span style="font-size:0;"> </span>Settlement reached shortly after production of my Expert Report).<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >All of these projects involved analyzing the performance and fitness for purpose of software systems/models.<span style="font-size:0;"> </span>In addition:<o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">• <span style="font-size:0;"></span>As external independent advisor for Harvard Securities plc between 1978 – 1983 I assisted in launching the professional Over-the-Counter (OTC) share market in the <st1:country-region st="on"><st1:place st="on">UK</st1:place></st1:country-region>.<span style="font-size:0;"> </span>At my own initiative I identified, contacted, and evaluated over 400 smaller high-tech companies and their business/sales plans.<span style="font-size:0;"> </span>The introduction of the OTC in the <st1:country-region st="on"><st1:place st="on">UK</st1:place></st1:country-region> led to the development by the London Stock Exchange (LSE) of the USM and then Third Market.<span style="font-size:0;"> </span>This was followed by for example OFEX, the ‘import’ of the US OTC Nasdaq System, and its European version Easdaq, and a planned merger of the LSE and the Frankfurt Stock Exchange.<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">8. </span>I have recently been retained as expert in a case involving the failed Transportation Card Project of the New South Wales Government’s Metropolitan Transport Plan, a $A270m claim that is currently before the Sydney Supreme Court in <st1:country-region st="on"><st1:place st="on">Australia</st1:place></st1:country-region>.<span style="font-size:0;"> </span>For further information on this, please visit for example: <span style="color:black;"><a href="http://www.intellectualpropertylawyers.com.au/news/2010/2/24/nsw-ticketing-fiasco-a-winner-for-lawyers/"><span style="color:black;">http://www.intellectualpropertylawyers.com.au/news/2010/2/24/nsw-ticketing-fiasco-a-winner-for-lawyers/</span></a><o:p></o:p></span></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;color:black;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">9. </span>I am a Medalist, IT Consultant of the Year, in the 2004 Professional Awards of the British Computer Society.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.25in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">10. </span>In addition to work for clients, and instructing lawyers, I have served as an Arbitrator in an ICC Arbitral Tribunal and as a CEDR-trained Mediator.<span style="font-size:0;"> </span><o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">11. </span>I am regularly involved in bringing my expertise to the legal community with regard to questions of information and communications technology.<span style="font-size:0;"> </span>I serve as a Committee Member of the British Computer Society’s <i>Law Specialist Group</i> (LSG) where my focus centers on computer law and evidentiary issues, and IT professional development.<span style="font-size:0;"> </span>I have served as a Correspondent Panel Member for the <i>Computer Law and Security Report</i>.<span style="font-size:0;"> </span>I am also a member of the Expert Witness Institute (MEWI).<span style="font-size:0;"> </span><o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">12. </span>My curriculum vitae is attached as Exhibit A.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">13. </span>In addition to qualifying as an expert witness in cases for the English High Court and other courts, I have qualified in American federal district court as well:<o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><st1:country-region st="on"><st1:place st="on"><u><span style="font-family:'Times New Roman','serif';font-size:12;">United States</span></u></st1:place></st1:country-region><u><span style="font-family:'Times New Roman','serif';font-size:12;"> District Court, Eastern District of Texas <st1:city st="on"><st1:place st="on">Beaumont</st1:place></st1:city> Division<o:p></o:p></span></u></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Civil Action No. 1:05-cv-0264 (2005 ff.)<o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Jones Day (<st1:place st="on"><st1:city st="on">Los Angeles</st1:city>, <st1:state st="on">CA</st1:state></st1:place>), Attorneys.<span style="font-size:0;"> </span>I am appointed consulting expert on behalf of DirecTV in re defending a patent infringement action, providing expert investigations on development of digital television systems and design techniques.<o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-INDENT: -0.5in; MARGIN-LEFT: 1.5in" class="MsoNoSpacing"><u><span style="font-family:'Times New Roman','serif';font-size:12;">United States District Court, District of Colorado<o:p></o:p></span></u></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Civil Action No. 01-WY-2201-AJ (BNB)<o:p></o:p></span></p><p style="MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Morrison & Foerster (<st1:place st="on"><st1:city st="on">San Diego</st1:city>, <st1:state st="on">CA</st1:state></st1:place>), Attorneys.<span style="font-size:0;"> </span>I am appointed testifying expert on behalf of EchoStar (and Hughes, DirecTV, and Thomson) in re defending a patent infringement action, providing expert investigations and opinion on the provenance, invention and development of databroadcasting and digital television systems and design techniques..<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">14. </span>My recent publications include the following:<o:p></o:p></span></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span>Paper: “Forensic Systems Analysis: A Methodology for Assessment and Avoidance of IT Disasters and Disputes” (March 8, 2006) published as a <i>Cutter Consortium Executive Report</i>, Vol. 3, No. 2, in their Enterprise Risk Management & Governance Advisory Service series.<span style="font-size:0;"> </span>See <u>http://www.cutter.com/offers/forensicsystems.html</u><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span>Author and Presenter of “Avoiding IT Disasters – the Expert Way” Course, first held in Nice, France, March 2005.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span>Numerous letters published in e.g. <i>The Times</i> and <i>Financial Times</i> on business, finance, technology, communications, science and law topics.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">•<span style="font-size:0;"> </span>Many papers presented at International Conferences on information services, software, data broadcasting, satellite business services, digital television, computer evidence, venture capital, enterprise management, litigation and ADR.<span style="font-size:0;"> </span>I was chair of the <st1:city st="on"><st1:place st="on">London</st1:place></st1:city> <i>IT Planning for Avian Flu Summit</i>, <st1:date st="on" year="2006" day="30" month="3">March 30, 2006</st1:date> – for more information, please see: <o:p></o:p></span></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;color:black;"><a href="http://www.computerweekly.com/Articles/2006/04/11/215298/ExpertswarnofbirdfluITcrisis.htm#ContentContinues"><span style="color:black;">http://www.computerweekly.com/Articles/2006/04/11/215298/ExpertswarnofbirdfluITcrisis.htm#ContentContinues</span></a><o:p></o:p></span></p><p class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p class="MsoNoSpacing"><em><span style="LETTER-SPACING: 0pt;font-family:'Calibri','sans-serif';" ><o:p></o:p></span></em></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p style="MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><em><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></em></p><p style="TEXT-ALIGN: center; MARGIN-LEFT: 0.5in" class="MsoNoSpacing" align="center"><em><b><span style="font-family:'Times New Roman','serif';font-size:12;"></span></b></em></p><p style="TEXT-ALIGN: center; MARGIN-LEFT: 0.5in" class="MsoNoSpacing" align="center"><em><b><span style="font-family:'Times New Roman','serif';font-size:12;"></span></b></em></p><p style="TEXT-ALIGN: center; MARGIN-LEFT: 0.5in" class="MsoNoSpacing" align="center"><em><b><span style="font-family:'Times New Roman','serif';font-size:12;">PROJECT BACKGROUND AND SCOPE OF WORK<o:p></o:p></span></b></em></p><p style="TEXT-ALIGN: center; MARGIN-LEFT: 0.5in" class="MsoNoSpacing" align="center"><em><b><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></b></em></p><p class="MsoNoSpacing"><em><span style="LETTER-SPACING: 0pt;font-family:'Calibri','sans-serif';" ><o:p></o:p></span></em></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">15. </span>I have prepared this opinion in <st1:personname st="on">support</st1:personname> of Mr. Bolls as an expert witness <i>pro bono</i>.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">16. </span>Mr. Bolls has asked me to consider and provide my independent expert opinion on Paragraphs 34, 32, and 29 of his complaint before this court.<span style="font-size:0;"> </span>He has explained his case to me and I am in possession of his affidavit dated <st1:date st="on" year="2009" day="25" month="8">August 25, 2009</st1:date> as well as the setup instructions that were provided to the applicants at the exam.<span style="font-size:0;"> </span>I am also in possession of the board’s 11/3/08 email to Mr. Bolls requesting he send the encrypted file of his essay responses to compare it against the one graded.<span style="font-size:0;"> </span>Aside from other documents pertinent to this matter, I have the charts Mr. Bolls is providing to the court illustrating the data he collected from state bar exam boards throughout the United States.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">17. </span>The thrust of <b>Paragraph 34</b> of the complaint is that when a software malfunction happens the board does not provide a remedy or solution.<span style="font-size:0;"> </span>Before I address the observations Mr. Bolls made concerning the July 2008 Virginia Bar Exam, I must first speak to the laptop program itself.<span style="font-size:0;"> </span>I have not myself directly examined or operated this program.<span style="font-size:0;"> </span>However, I have learned that applicants who take the exam on laptop are provided with Exam4, a software program with a storing feature that saves and encrypts the essay responses.<span style="font-size:0;"> </span>I understand that compatibility checks are completed at the time the software is installed onto the applicant’s laptop, weeks before the exam.<span style="font-size:0;"> </span>Applicants are encouraged to take practice exams to ensure functionality is operating satisfactorily and familiarize themselves with the software.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">18. </span>I will now turn to the particulars of Mr. Bolls’ affidavit, which I am told will become page 9a and 10a of the appendix.<span style="font-size:0;"> </span>Of all ten paragraphs, Part 3 concerns me most.<span style="font-size:0;"> </span>Clearly something went wrong with the software while Mr. Bolls’ essays were being saved.<span style="font-size:0;"> </span>The fact that others experienced similar problems at the same time suggests a systemic problem (referring to Part 9).<span style="font-size:0;"> </span>Technicians were called to his laptop twice, in both morning and afternoon sessions of the test, for apparently the same reason and during the same sequence of saving instructions.<span style="font-size:0;"> </span>I understand that the process of saving the essays consists largely of two steps: first, saving the essays onto the laptop in the form of an encrypted file; and then, second, saving the essays onto a USB stick for submission to the graders.<span style="font-size:0;"> </span>Part 5 of the affidavit suggests that the seven or eight steps which comprise the bulk of the instruction sequence fall under the first step.<span style="font-size:0;"> </span>In my view this is a reasonable deduction because, as Mr. Bolls states “… the last remaining two or three steps are very straightforward and consisted of inserting the USB drive into the laptop and clicking on the icon that says ‘Save to USB Drive’”.<span style="font-size:0;"> </span>I conclude that the USB stick was not involved until after the problems Mr. Bolls experienced.<span style="font-size:0;"> </span>By design therefore the USB simply replicates the data that is already saved on the applicant’s laptop.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">19. </span>This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">20. </span>To the extent that the board seeks to “review the version on his computer against the one graded,” this can only merely confirm that <i>the file was written by Mr. Bolls using the Exam4 software</i>.<span style="font-size:0;"> </span>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 Mr. Bolls could not have been responsible.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">21. </span>In order to determine whether or not data was in fact lost, corrupted or altered in some fashion, a thorough forensic analysis would be required.<span style="font-size:0;"> </span>In my experience, such an analysis is likely to be complex and prohibitively costly.<span style="font-size:0;"> </span>It would and should include examining not just the executable code (whether encrypted or not) but the full source code, together with all documentation and logs relating to the conception, build, testing, sale, deployment, and maintenance, of the Exam4 software.<span style="font-size:0;"> </span>There would also need to be disclosure of all relevant computer material such as navigation/file mapping material, which may indicate what data is missing or corrupted.<span style="font-size:0;"> </span>This should all be provided unencrypted/able, so that it may be openly inspected.<span style="font-size:0;"> </span>Any statements that the technicians at the exam made in their Engineer’s Notebooks would be helpful.<span style="font-size:0;"> </span>For these reasons Mr. Bolls was in my opinion correct in cautiously refraining from sending his encrypted file to the board.<span style="font-size:0;"> </span>This is especially so since there was a dispute with the very entity that purports to undertake the comparison without that entity including him or an independent third party expert in the comparison exercise.<span style="font-size:0;"> </span>In my experience I would expect that any well-respected law firm would have advised him to do the same.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">22. </span>The questions of whether data was in fact corrupted or lost, on the one hand, or may have been corrupted or lost, on the other, are in my view two separate questions.<span style="font-size:0;"> </span>Even in the absence of forensic analysis, certain conclusions can be drawn given Mr. Bolls’ observations.<span style="font-size:0;"> </span>Referring to Part 3 of the affidavit, Mr. Bolls essentially describes an Extegrity technician’s unsuccessful attempt to operate Extegrity’s software before he told Mr. Bolls to reboot as a last resort.<span style="font-size:0;"> </span>The reboot entailed shutting the computer down completely, which occurred “midway” through the instruction sequence.<span style="font-size:0;"> </span>The need for a reboot in such circumstances is in my view a very real cause for concern.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><ol style="MARGIN-TOP: 0in" type="1" start="23"><li style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%" class="MsoNormal"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >I understand that similar symptoms were observed just one year prior in the New York Bar Exam in July of 2007, where data loss was documented.<span style="font-size:0;"> </span>On <st1:date st="on" year="2007" day="26" month="7">July 26, 2007</st1:date>, in Joel Stashenko’s article in the New York Law Journal, <i>Software Snafus Upset Test Takers During First Day of State Bar Exam</i>, it was reported that “test takers who typed the essays on the <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> state bar examination into their laptop computers this week experienced problems saving and uploading the files for transfer to graders”.<o:p></o:p></span></li></ol><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">24. </span>I note that Mr. Bolls, and numerous others, also had problems saving the files for transfer to graders.<span style="font-size:0;"> </span>The word “uploading” however would be inapplicable for the <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state> bar applicants for two reasons.<span style="font-size:0;"> </span>First, unlike <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state>, I understand that <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state>’s system involves no internet connection (I refer to the setup instructions provided to the applicants at the July 2008 <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state> exam).<span style="font-size:0;"> </span>Secondly, once the test-taking Exam4 software is installed onto the individual’s laptop, I understand that there need be no connection to the test site whatsoever (I am informed that in order to avoid the possibility of a laptop battery running out, each applicant may choose to plug the laptop into a mains electricity supply socket).<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">25. </span>However, what appears to me to be identical between the two exams is how the essay responses were saved on USB stick.<span style="font-size:0;"> </span>Again, the New York Law Journal reports, “People using laptops were also required to use a USB Key on their computers to store copies of the essays as a backup.<span style="font-size:0;"> </span>Proctors collected those keys…”.<span style="font-size:0;"> </span>I understand that New York’s electronic uploading mechanism, that provided a means to “go back and retrieve” lost material, could only pertain to the electronic submission component that Virginia’s system does not have (I refer to Eric Zeni’s blog discussed below).<span style="font-size:0;"> </span>But I note that even that feature did not work for the 47 New York applicants whose essays still could not be recovered (and I refer to the press release accompanying the results of the New York July 2007 exam which will be appendix 23a and 24a).<span style="font-size:0;"> </span>Presumably, these 47 applicants in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> submitted their essays on USB stick, unsuccessfully.<span style="font-size:0;"> </span>Based on Mr. Bolls’ affidavit, it is apparent that the backup saving mechanism in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> is identical to the primary one in <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state>.<span style="font-size:0;"> </span>The fact that the backup system in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> did not work <st1:personname st="on">support</st1:personname>s my conclusion and view that Mr. Bolls’ concerns about corruption of his essays are well founded.<span style="font-size:0;"> </span>Furthermore, had there been an electronic uploading feature in <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state>, there would have been an avenue to retrieve lost data.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">26. </span>The personal account of Eric Zeni regarding <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state>’s July 2007 exam, contained in <b>Paragraph 29</b> of Mr. Bolls’ complaint, is interesting and relevant.<span style="font-size:0;"> </span>Without knowing more about the software malfunction which happened twice in the middle of one of his responses, I cannot speak with certainty to facts that could only be revealed in a forensic analysis.<span style="font-size:0;"> </span>Mr. Zeni’s personal account does show that the confirmation of receipt of all essay responses by the board was proven to be inaccurate.<span style="font-size:0;"> </span>I am also informed that Mr. Zeni obtained his essays as of right, and, through his assistance, he was able to identify for the board <i>two separate essays</i> where portions of his essays were missing, not just the one question where the crash occurred.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><ol style="MARGIN-TOP: 0in" type="1" start="27"><li style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%" class="MsoNormal"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >In my view, this provides a good example to demonstrate the important role the applicant plays in obtaining the essays.<span style="font-size:0;"> </span>Any forensic analysis would have been a needless waste of time and expense for Mr. Zeni.<span style="font-size:0;"> </span>Likewise for Mr. Bolls – forcing the applicant to take expensive steps simply to identify whether a malignant software malfunction, or other (temporary or permanent) system fault, existed, even before any decision is made on what to do in the event that data is found corrupted or missing, is technically unsound and strikes me as wholly unreasonable and unfair.<span style="font-size:0;"> </span>Clearly the state of <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> addresses such concerns by having a policy by which Mr. Zeni was able to obtain his essays.<span style="font-size:0;"> </span>In hindsight, in my view the New York Board of Law Examiners made the correct decision in changing its initial position in being “adamant there was no appeal” because Mr. Zeni, and probably a number of others, were proven to be right in their concerns.<span style="font-size:0;"> </span>After all, accuracy and fairness are surely the overriding objectives.<o:p></o:p></span></li></ol><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">28. </span>Furthermore, Mr. Bolls has informed me that <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> is not an isolated incident: it seems that other states, like <st1:state st="on"><st1:place st="on">New Jersey</st1:place></st1:state> and <st1:state st="on"><st1:place st="on">Kentucky</st1:place></st1:state>, have admitted over the phone to having had similar software problems as <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state>.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">29. </span>The data collected by Mr. Bolls on the other state agency boards demonstrates in any event a marked increase in reliance on software technology in administering the bar exam.<span style="font-size:0;"> </span>Speaking to <b>Paragraph 32</b> of Mr. Bolls’ complaint I refer to the chart listing the states and corresponding proportions of applicants now taking the exam on software that is installed on their laptops for the purpose of administering the test (which I am told will be Appendix 20a).<span style="font-size:0;"> </span>A majority of states offer a laptop program.<span style="font-size:0;"> </span>Of these, the overwhelming majority have over 50% of bar examinees now taking the test on laptop (and well over half, for a number of them).<span style="font-size:0;"> </span>In my view and experience this is an unusually high level of trust to place in a system that is still, as I understand it, in its nascent stage.<span style="font-size:0;"> </span>The move towards computer-based testing is a major transition, as was identified and discussed at the 10<sup>th</sup> CAA International Computer Assisted Assessment Conference, <st1:date st="on" year="2006" day="4" month="7">July 4-5 2006</st1:date>, held at <st1:place st="on"><st1:placename st="on">Loughborough</st1:placename> <st1:placetype st="on">University</st1:placetype></st1:place> here in the <st1:country-region st="on"><st1:place st="on">UK</st1:place></st1:country-region>.<span style="font-size:0;"> </span><o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><st1:state st="on"><st1:place st="on"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">30. </span>Virginia</span></st1:place></st1:state><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >, as I understand it, does not allow applicants to obtain their essays.<span style="font-size:0;"> </span>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, even to the circumstances of Mr. Bolls’ case, is to overlook the possibilities of systemic error and to have no objective and evenhanded methodology of investigation in regard to ruling out such possibilities.<span style="font-size:0;"> </span>Mr. Bolls knows what he wrote and, with his input, it may be discovered that software malfunction was the cause of the discrepancy.<span style="font-size:0;"> </span>Without an allowance for applicants such as Mr. Bolls to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">31. </span>In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: Mr. Bolls may be said to be a ‘textbook case’.<span style="font-size:0;"> </span>It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity and reliability of systems if, like Eric Zeni, corruption of the essay responses is discovered. <o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">32. </span>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.<span style="font-size:0;"> </span>I turn now to Mr. Bolls’ chart showing the various state boards’ policies (Appendix 19a) which places <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state> in the small minority of states that do not allow applicants rights to the essays.<span style="font-size:0;"> </span>As of February 2009, when Mr. Bolls made the phone calls, 43 of the 50 states afforded these rights.<span style="font-size:0;"> </span>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.<span style="font-size:0;"> </span>This leaves the question of what the means are of resolving such disputes.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">33. </span>Since Exam4 has no automatic uploading capability, there is no safeguard or alternative avenue to retrieve lost or corrupted information.<span style="font-size:0;"> </span>Once again, <st1:state st="on"><st1:place st="on">Virginia</st1:place></st1:state> stands in the small minority – the great majority of states use ExamSoft, which I believe does have this capability.<span style="font-size:0;"> </span>Here is where in my view the approach developed by the National Conference of Bar Examiners and New York Board of Law Examiners should come into play (referring to Appendix 23a and 24a, the press release of 11/07 to applicants of the New York bar exam).<span style="font-size:0;"> </span>In the approach followed by these Examiners candidates whose essays had been corrupted and were 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.<span style="font-size:0;"> </span>I refer also to comments by the applicants posted well after this methodology was applied (in appendix 28a and 29a), once applicants received their essays as of right.<span style="font-size:0;"> </span>Eric Zeni is a case in point.<span style="font-size:0;"> </span>The outrage that ensued once applicants in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state>’s July 2007 exam obtained their essays, and saw that what the graders graded was not everything that the applicants had written, forced a corrective process that was not previously in existence.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">34. </span>Furthermore, the announcement at the July 29, 2008 Virginia bar exam raises additional substantive issues that would in my view be of concern to everyone operating the Exam4 software at the exam site.<span style="font-size:0;"> </span>I refer to Mr. Bolls’ affidavit, Part 2:<span style="font-size:0;"> </span>“During the afternoon session of the essay/short answer portion, an announcement was made by microphone that there were approximately 24 students who had answers that were misplaced in the system from the morning session”.<span style="font-size:0;"> </span>In my opinion this raises some significant questions.<span style="font-size:0;"> </span>Who made the announcement?<span style="font-size:0;"> </span>How did he or she know that a) answers had been “misplaced”; b) this “misplacement” had affected a certain number of students?<span style="font-size:0;"> </span>What exactly was this person looking at or being given (by a human? By a system, perhaps in real-time?<span style="font-size:0;"> </span>By phone/test? Or how?) to be able to make this announcement with confidence?<span style="font-size:0;"> </span>On what was this person relying?<span style="font-size:0;"> </span>Can whatever it was be reproduced/re-run for inspection and testing?<span style="font-size:0;"> </span>Were the “misplaced” questions ever found again?<span style="font-size:0;"> </span>If so: How? When? Where? What was done about that?<span style="font-size:0;"> </span>Have the causes been determined, with confidence?<span style="font-size:0;"> </span>Was it human error, system malfunction, a combination…?<span style="font-size:0;"> </span>Or what?<span style="font-size:0;"> </span>What has been done, by whom, when, about understanding exactly what went wrong, and ensuring it cannot happen again?<span style="font-size:0;"> </span>To begin to arrive at answers to these significant questions, inspection of any/all pertinent documentation would be necessary.<span style="font-size:0;"> </span>This could be obviated if applicants could simply obtain their essays.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">35. </span>I am therefore concerned and surprised that the board has not allowed Mr. Bolls to obtain his essays to determine if what was graded was exactly what he wrote.<span style="font-size:0;"> </span>It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions.<span style="font-size:0;"> </span>At the same time, he vehemently disputes the accuracy of the essay assessment.<span style="font-size:0;"> </span>I am also informed that Mr. Bolls has taken and passed the bar exam in the District of Columbia on the first try, handwritten not typed, on the essay part alone, and has not taken any other bar exams.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">36. </span>It is my opinion that the board’s offer to compare Mr. Bolls’ encrypted file against the one graded does not in any way address the matter at hand.<span style="font-size:0;"> </span>That is to say, an exact match between the two does not inform the board or the Supreme Court of Virginia that there was no data corruption in this instance.<span style="font-size:0;"> </span>It merely confirms that the work is that of Mr. Bolls, without providing any illumination as to whether or not the work itself had been corrupted.<span style="font-size:0;"> </span>The only way that I can see that this can be reasonably resolved is for there to be a policy in place for applicants to obtain their essays. <o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">37. </span>Mr. Bolls’ observations bear remarkable similarities to the software mishap in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> just the year prior, where the causes at least at the time were uncertain.<span style="font-size:0;"> </span>I refer to Winneg (<span style="color:black;"><a href="http://www.law.com/jsp/article.jsp?id=1186089398538"><span style="color:black;">http://www.law.com/jsp/article.jsp?id=1186089398538</span></a>)</span> : “at this point, we are not sure what the underlying cause is”.<span style="font-size:0;"> </span>I note that this article was written soon after the occurrence in <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state>, <i>before</i> a full review had been completed: subsequently, it was determined that backup systems DID NOT avert loss in every instance.<span style="font-size:0;"> </span>I also note that <st1:state st="on"><st1:place st="on">New York</st1:place></st1:state> no longer uses the same software company for administering its laptop test.<o:p></o:p></span></p><p class="MsoListParagraph"><span style="LINE-HEIGHT: 115%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">38. </span>Like Mr. Zeni, applicants such as Mr. Bolls would and in my view should then have the opportunity to identify places where portions of the essays went missing or were corrupted in some way.<span style="font-size:0;"> </span>If, as is 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, <i>viz</i>, to employ the alternative grading methodology developed by the National Conference of Bar Examiners.<span style="font-size:0;"> </span></span><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >SIGNED UNDER THE PAINS AND PENALTIES OF PERJURY THIS 17th </span><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >DAY OF JULY, 2010.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span>__________________________<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span>Stephen Castell, PhD<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-ALIGN: right; 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<br /></span></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><span style="font-family:'Times New Roman','serif';font-size:12;">APPENDIX<o:p></o:p></span></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Opinion of the Supreme Court of Virginia<span style="font-size:0;"> </span></span><span style="font-family:'Times New Roman','serif';font-size:12;">(Aug. 11, 2009).............1a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Denial of Petition for Rehearing, Supreme Court of </span><span style="font-family:'Times New Roman','serif';font-size:12;">Virginia (Sep. 23, 2009)…………………........2a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Order of the Circuit Court of Fairfax County </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">(March 16, 2009)...................3a-4a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Petition for Rehearing before Supreme Court of Virginia…..............................5a-8a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Affidavit on Software Malfunction…………..........9a-10a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Fourteenth Amendment, </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Section1…………...............11a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Bar Examination Results……………….........12a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Initial Request to the Board </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">(Oct. 21, 2008)............……13a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Response on Policy of Finality (Oct. 30, 2008)………........14a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Respondent’s Request for Encrypted File </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">(Nov. 3, 2008).....................15a</span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Response to Respondent’s Request (Nov. 4, 2008)………....….16a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Final Denial of Petitioner’s Requests and Reference to <o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Policy of Nondisclosure </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">(Nov. 7, 2008)….........……17a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Response to Final Denial……………………..18a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Chart, Transparency of States’ Law Examiner Offices……..…...19a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Chart, Percentages of Applicants Taking State Bar <o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Examinations on Laptop……………………20a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Virginia Code:<span style="font-size:0;"> </span>Powers, Rules, and Regulations </span><span style="font-family:'Times New Roman','serif';font-size:12;">of the Board……………….........21a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Virginia Code:<span style="font-size:0;"> </span>Preservation of Examination Papers…………................21a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Virginia Code:<span style="font-size:0;"> </span>Discretion of Professional Testing <o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Boards in Releasing Test Papers…………………….21a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Agreement to Preserve Essay Responses and Short Answers….........................22a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Press Release, New York Board of Law </span><span style="font-family:'Times New Roman','serif';font-size:12;">Examiners (Nov. 15, 2007)………………………23a-24a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">New York Personal Injury Law Blog, Eric </span><span style="font-family:'Times New Roman','serif';font-size:12;">Turkewitz, Esq., The Turkewitz Law Firm, </span><span style="font-family:'Times New Roman','serif';font-size:12;">New York, NY…………………..25a-29a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">New York Law Journal.<span style="font-size:0;"> </span>“Software Snafus Upset Test<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>Takers.”<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">(July 26, 2007)…….....30a-32a<span style="font-size:0;"> </span><span style="font-size:0;">
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<br /><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span><span style="font-size:0;"></span>Denial of Certiorari, Supreme Court of the United States<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span>(February 22, 2010)……...33a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Petitioner’s Letter to Respondent (April 7, 2009)……….......34a<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Board’s Signature Confirmation Receipt of </span><span style="font-family:'Times New Roman','serif';font-size:12;">April 7, 2009 Letter.<span style="font-size:0;"> </span>U.S. Postal Service……………………35a<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Petitioner’s Letter to Respondent (March 22, 2010)…………36a</span></p><p class="MsoNoSpacing"></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Delivery Confirmation Receipt of March 22, 2010 </span><span style="font-family:'Times New Roman','serif';font-size:12;">Letter.<span style="font-size:0;"> </span>U.S. Postal Service………………........37a
<br /></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Email from Eric Zeni to Petitioner Confirming what are </span><span style="font-family:'Times New Roman','serif';font-size:12;">Now Paragraphs 29 and 50 of this Complaint (May 11, 2010)..38a<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">IslandPacket.com. “Court’s Actions Bring on Call for </span><span style="font-family:'Times New Roman','serif';font-size:12;">More Oversight.” (December 11, 2007)……………………….39a-40a</span></p><p class="MsoNoSpacing"></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Exam4 Setup Instructions for the Exam (July 29, 2008)….....41a</span></p><p style="TEXT-INDENT: 0.5in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing">
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<br /><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">No. 3:10cv550<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">IN THE UNITED STATES DISTRICT COURT<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">FOR THE EASTERN DISTRICT OF VIRGINIA<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center" class="MsoNoSpacing" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;">RICHMOND DIVISION<o:p></o:p></span></b></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: normal" class="MsoNormal" align="center"><b><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></b></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">JONATHAN BOLLS,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Petitioner,<span style="font-size:0;"> </span></span></p><p style="TEXT-INDENT: 0.5in; MARGIN-LEFT: 3in" class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">v.<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">W. SCOTT STREET III,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">SECRETARY OF THE VIRGINIA </span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">BOARD OF BAR EXAMINERS,<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">Respondent<span style="font-size:0;"> </span></span></p><p class="MsoNoSpacing"><span style="font-family:Times New Roman;font-size:78%;"></span></p><p class="MsoNoSpacing"><span style="font-family:Times New Roman;font-size:78%;"></span></p><p class="MsoNoSpacing"><o:p></o:p></p><p class="MsoNoSpacing"><o:p></o:p></p><p class="MsoNoSpacing"><span style="font-size:12;"><span style="font-size:0;"></span></span><span style="font-family:'Times New Roman','serif';font-size:12;"><strong>DECLARATORY JUDGMENT</strong></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;">The petitioner, Jonathan Bolls, complaining of the Respondent, avers:<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><p style="TEXT-ALIGN: center; TEXT-INDENT: -0.5in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing" align="center"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"><strong><u></u></strong></span><strong><u>PARTIES<o:p></o:p></u></strong></span></p><p class="MsoNoSpacing"><b><u><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p><span style="TEXT-DECORATION: none"></span></o:p></span></u></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">1. </span>Petitioner is a citizen of the United States and a resident of the Commonwealth of Virginia where he resides in the City of Springfield, Fairfax County, Virginia.<span style="font-size:0;"> </span>The Virginia Board of Bar Examiners (hereinafter referred to as “Board”) is an agency of the Supreme Court of Virginia based in Richmond, VA whose authority is defined in Va. Code §54.1-3922.<span style="font-size:0;"> </span>The Board is an administrative agency with both judicial and delegated legislative powers.<o:p></o:p></span></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: 200%; TEXT-INDENT: -0.5in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing" align="center"><b><u><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >JURISDICTION AND VENUE<o:p></o:p></span></u></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">2. </span>The complaint arises as a result of policies set forth and followed by Respondent in regards to an examination administered on July 29, 2008 within the City of Roanoke, VA and subsequent refusal to perform his duty because of those policies within the City of Richmond, VA. <o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">3. </span>The complaint is grounded in the due process clause of the Fourteenth Amendment of the Federal Constitution on the principle that “a state may not deny a person a license to practice law in a manner that contravenes the due process clause.”<span style="font-size:0;"> </span><i>Schware v. Board of Bar Examiners of New Mexico</i>, 353 U.S. 232, 238-239 (1957).<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">4. </span>The complaint represents a constitutional challenge to certain of the Board’s general rules and regulations, which is reviewable by this court.<span style="font-size:0;"> </span>See per curiam opinion in <i>Richardson v. McFadden</i>, 563 F.2d 1130 (4<sup>th</sup> Cir. 1977) (“Before turning to the factual basis of their claims, we stress that our function is not just to determine if the bar examiners made a mistake in one or more individual cases, it is to determine if there has been a denial of due process or of equal protection.”).<span style="font-size:0;"> </span>For challenges to administration of state bar examination agency rules in federal court, see also <i>Keenan v. Board of Law Examiners of North Carolina</i>, 317 F. Supp. 1350 (E.D.N.C. 1970); <i>Goldsmith v. Pringle</i>, 399 F. Supp. 620 (D. Colo. 1975); <i>Huffman v. Montana Supreme Court</i>, 372 F. Supp. 1175 (D Mont. 1974), <i>aff’d</i> 419 U.S. 955, 92 S. Ct. 216 (1974); <i>Brown v. Supreme Court of Virginia</i>, 359 F. Supp. 549 (E.D. Va. 1973), <i>aff’d</i> 414 U.S. 1034, 94 S. Ct. 533 (1974).<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">5. </span>Jurisdiction is found in the appropriate district court where the Board’s procedures are called into question because they represent a “non-judicial proceeding.”<span style="font-size:0;"> </span><i>Rogers v. Sup. Ct. of Va.</i>, 772 F.2d 900 (4<sup>th</sup> Cir. 1985).<span style="font-size:0;"> </span>That court stated: “We do not agree with the district court’s characterization of Rogers’ petition as an appeal.<span style="font-size:0;"> </span>Because the Virginia Supreme Court has the ultimate responsibility for determining admission to the Virginia bar, <i>Woodard v. Virginia Board of Bar Examiners</i>, 454 F. Supp. 4 (E.D. Va.), <i>aff’d</i>, 598 F.2d 1345 (4<sup>th</sup> Cir. 1979), we think that, when that 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.<span style="font-size:0;"> </span>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.”<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">6. </span>Jurisdiction exists because Petitioner is not challenging a state court’s disposition of an individual case.<span style="font-size:0;"> </span>Petitioner’s case has yet to be heard because the subject of proof has been unfairly withheld.<span style="font-size:0;"> </span>The personal circumstances merely furnish concreteness to an action attacking general rules as facially unconstitutional.<span style="font-size:0;"> </span><i>Brown v. Supreme Court of Virginia</i>, 359 F. Supp. 549 (1973); <i>Keenan v. Bd. of Law Examiners of North Carolina</i>, 317 F. Supp. 1350 (1970); <i>Goldsmith v. Pringle</i>, 399 F. Supp. 620 (D. Colo. 1975); <i>Huffman v. Montana Supreme Court</i>, 372 F. Supp. 1175 (1974), <i>aff’d</i> 419 U.S. 955.<span style="font-size:0;"> </span>See also <i>Woodard v. Virginia Board of Bar Examiners</i>, 454 F. Supp. 4 (E.D. Va. 1978) (“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 administration of the rules”).<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">7. </span>The circuits and state supreme courts 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 review.<span style="font-size:0;"> </span><i>Chaney v. State Bar of California</i>, 386 F.2d 962 (9<sup>th</sup> Cir. 1967); <i>Feldman v. State Bd. of Bar Examiners</i>, 438 F.2d 699, 704 (8<sup>th</sup> Cir. 1971); <i>Tyler v. Vickery</i>, 517 F.2d 1089 (5<sup>th</sup> Cir. 1975); <i>Whitfield v. Illinois Board of Law Examiners</i>, 504 F.2d 474 (7<sup>th</sup> Cir. 1974); <i>Poats v. Givan</i>, 651 F.2d 495 (7<sup>th</sup> Cir. 1981).<span style="font-size:0;"> </span>See also <i>Applicant No. 26 v. Bd. of Bar Examiners of Delaware</i>, 780 A.2d 252 (Del. 2001); <i>In re Thorne</i>, 635 P.2d 22,23 (Utah 1981); <i>Petition of Pacheco</i>, 85 N.M. 600, 514 P.2d 1297 (1973); <i>In re Monaghan</i>, 126 Vt. 193, 225 A.2d 387 (1967); <i>Staley v. State Bar of California</i>, 17 Cal. 2d 119, 121, 109 P.2d 667 (1941); <i>Application of Heaney</i>, 106 Ariz. 391, 476 P.2d 846 (1970) (“treated unfairly or unjustly”); <i>Application of Peterson</i>, 459 P.2d 703, 39 ALR 3d 708 (Alaska 1969)(“other serious grounds or circumstances”); <i>Cf</i>. <i>Scinto v. Stamm</i>, 224 Conn. 524, 620 A. 2d 99 (1993)(“evidence that 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”).<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: 200%; TEXT-INDENT: -0.5in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing" align="center"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >PROCEDURAL HISTORY<o:p></o:p></span></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">8. </span>Petitioner took the July 2008 Virginia Bar Examination in Roanoke and was one of a number of applicants who experienced an apparent crash in the Board’s software system during the saving stage of the examination.<span style="font-size:0;"> </span>He was subsequently informed that his performance was found to be unsatisfactory.<span style="font-size:0;"> </span>Based on his experience at the examination and the facts set forth below, Petitioner acting pro-se brought a mandamus action before the Fairfax Circuit Court on December 5, 2008 to compel discovery of the essays and short answers.<span style="font-size:0;"> </span>The Board was represented at the hearing by an attorney from the Virginia Attorney General’s office.<span style="font-size:0;"> </span>The case was taken under advisement while both sides filed supplemental briefs on the applicability of the Virginia Administrative Process Act.<span style="font-size:0;"> </span>Both sides concluded that, as an agency of the Supreme Court of Virginia, the Board was exempt from that Act.<span style="font-size:0;"> </span>Three months later the motion was denied for lack of jurisdiction and Petitioner was directed to bring his action to the Supreme Court of Virginia pursuant to its inherent supervisory authority over the bar examination.<span style="font-size:0;"> </span>See order, App. 3a-4a.<span style="font-size:0;"> </span>Because of the basic requirement to plead with the kind of particularity to make a cognizable claim, Petitioner, rather than simply “appealing” his grade, instead applied for a mandamus to obtain the necessary evidence, i.e the essays and short answers that are preserved by law.<span style="font-size:0;"> </span>On August 11, 2009 the Supreme Court of Virginia dismissed the case.<span style="font-size:0;"> </span>See opinion, App. 1a.<span style="font-size:0;"> </span>His petition for rehearing was denied without comment, setting forth no alternative roadmap for Petitioner to protect his rights.<span style="font-size:0;"> </span>App. 2a.<span style="font-size:0;"> </span>Petitioner then filed a mandamus and certiorari petition with the Supreme Court of the United States, which was docketed on December 23, 2009.<span style="font-size:0;"> </span>Certiorari was denied on February 22, 2010.<span style="font-size:0;"> </span>App. 33a.<span style="font-size:0;"> </span>Respondent and Board have agreed to preserve the essays and short answers while this litigation continues (App. 22a) and were informed on March 22, 2010 of the pending action in federal district court (App. 36a-37a).<span style="font-size:0;"></span></span><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" > </span></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ></span></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >FACTUAL BASIS FOR RELIEF<o:p></o:p></span></b></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">9. </span>On July 29, 2008 Petitioner was one of a significant number of applicants who experienced an apparent crash in the Board’s software system while the essays were being saved onto his laptop.<span style="font-size:0;"> </span>Ex. G, App. 9a-10a (Petitioner’s affidavit detailing his experience at the examination).<span style="font-size:0;"> </span><i>See also </i>Declaration of Stephen Castell, PhD. <o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">10. </span>After receiving the results, Petitioner immediately recognized a wide discrepancy between his performance and his essay/short answer score.<span style="font-size:0;"> </span>See Ex. F, App. 13a (Petitioner’s letter of October 21, 2008 to the Board).<o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">11. </span>Petitioner’s score on the Multistate Bar Examination (MBE), a lesser weighted multiple choice test, was approximately what Petitioner expected and was never in question.<span style="font-size:0;"> </span>It is good enough to be waived into other jurisdictions, including Washington D.C.<span style="font-size:0;"> </span>App. 12a (bar examination results, October 16, 2008).<o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">12. </span>Respondent’s reply to Petitioner’s concerns articulated a policy of finality:<span style="font-size:0;"> </span>“After the results are released, there is no appeal or re-evaluation process…”<span style="font-size:0;"> </span>App. 14a, Respondent’s letter to Petitioner of October 21, 2008.<span style="font-size:0;"> </span>After Petitioner’s subsequent requests to obtain copies of his essay answers, Respondent again wrote Petitioner on October 30<sup>th</sup> underscoring that the results are final.<span style="font-size:0;"> </span>App. 14a.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">13. </span>Respondent relies on an internal and apparently unwritten policy of nondisclosure (hereinafter referred to as “<b>Policy of Nondisclosure</b>”) to justify not releasing the essays.<span style="font-size:0;"> </span>App. 17a ¶1.<span style="font-size:0;"> </span>After repeated requests by Petitioner to obtain the essays Respondent finally responded in his letter of November 7, 2008 stating: “This will confirm that no copies of answers are provided to any applicant.”<span style="font-size:0;"> </span>App. 17a.<span style="font-size:0;"> </span>That this policy exists and was the principal reason for the lack of cooperation in this instance is further compounded by Petitioner’s phone conversation with Respondent on April 6, 2009, several months following the oral argument in the Fairfax Circuit Court.<span style="font-size:0;"> </span>In that conversation Petitioner specifically requested any rules of the Supreme Court of Virginia that preclude an applicant from obtaining the essays.<span style="font-size:0;"> </span>Respondent said that he did not recall any but the Board has followed a policy since 1973 that no applicant can obtain their essays, which policy he recalled sending to Petitioner.<span style="font-size:0;"> </span>Afterwards, Petitioner sent a letter requesting that if this policy was reduced to writing that it be sent to him.<span style="font-size:0;"> </span>No written policy was sent.<span style="font-size:0;"> </span>App. 34a-35a (Petitioner’s follow-up letter to Respondent of April 7, 2009 and accompanying signature confirmation of receipt).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">14. </span>Respondent relies on an internal and apparently unwritten policy of finality (hereinafter referred to as “<b>Policy of Finality</b>”) to justify his lack of cooperation.<span style="font-size:0;"> </span>Respondent’s letter to Petitioner of October 30, 2008 states as follows: “<u>The results are final</u>.”<span style="font-size:0;"> </span>App. 14a.<span style="font-size:0;"> </span>That this rule exists and was applied in this case is again underscored by Petitioner’s phone conversation with Respondent on April 6, 2009.<span style="font-size:0;"> </span>In that conversation Respondent informed Petitioner that the results are final once posted electronically (which occurs before applicants receive their results in the mail).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">15. </span>Policy of Nondisclosure exists to further the objective of Policy of Finality.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">16. </span>Applicants who took the Virginia Bar Examination have a right to petition the Supreme Court of Virginia directly in the absence of a controlling statute providing a separate process of review.<span style="font-size:0;"> </span><i>Woodard v. Virginia Board of Bar Examiners</i>, 454 F. Supp. 4,6 (E.D. Va.), <i>aff’d</i> 598 F.2d 1345 (4<sup>th</sup> Cir. 1979)(“The [Va.] Supreme Court has no explicit <i>statutory</i> authority to review the Board’s decisions or to reverse its evaluation of a particular candidate.<span style="font-size:0;"> </span>Nonetheless, it is well settled that the Court retains such inherent power.”).<span style="font-size:0;"> </span>It was upon this precedent that the Fairfax Circuit Court relied in foregoing a mandamus order to Respondent.<span style="font-size:0;"> </span>See order, App. 3a-4a.<span style="font-size:0;"> </span>See also <i>Rogers v. Supreme Court of Virginia</i>, 590 F. Supp. 102 (1984)(“the right not to be heard by the supreme court but to petition it for a hearing and to have the petition considered”).<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">17. </span>Policy of Nondisclosure renders the right of every bar examination applicant to petition the Supreme Court of Virginia defective and illusory in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution.<span style="font-size:0;"> </span>Petitioner could not in good faith petition the Supreme Court of Virginia because the evidence necessary to do so (i.e. the essays and short answers) are being unfairly withheld.<span style="font-size:0;"> </span>This runs against one of the most fundamental and basic tenets of due process that where a right is granted, certain additional rights must be provided to make that right meaningful.<span style="font-size:0;"> </span>See <i>Application of Heaney</i>, 106 Ariz. 391, 476 P. 2d 846 (1970), where an Arizona bar applicant petitioned the state supreme court for review of his bar examination papers.<span style="font-size:0;"> </span>In that case, the petition was found to be insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading” and consequently was dismissed.<span style="font-size:0;"> </span>See also <i>Application of Peterson</i>, 459 P.2d 703, 39 ALR 3d 708 (Alaska, 1969), where the Alaska Supreme Court called the board’s 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.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">18. </span>The opinion of the Supreme Court of Virginia (App. 1a, August 11, 2009) constituted final state action and complete exhaustion of all remedies at the state level.<span style="font-size:0;"> </span>The Fairfax Circuit Court found that there was no remedy in the Administrative Process Act and denied mandamus to release the essays/short answers because of lack of jurisdiction.<span style="font-size:0;"> </span>The Supreme Court of Virginia dismissed without even requiring Respondent to answer.<span style="font-size:0;"> </span>In his petition for rehearing, Petitioner provided his affidavit (App. 9a-10a) confirming paragraphs already stated in his complaint.<span style="font-size:0;"> </span>He also informed the court that an expert witness on data loss and retrieval was prepared to testify on his behalf. <span style="font-size:0;"></span>¶9, Petition for Rehearing, reprinted in App. 7a.<span style="font-size:0;"> </span>He furthermore set up and claimed his right to petition the Virginia Supreme Court and explained why the Board’s current policies prevented him from doing so. ¶¶2,3, and 4, Petition for Rehearing, reprinted in App. 5a-6a.<span style="font-size:0;"> </span>Finally, he informed the Virginia Supreme Court of the federal constitutional due process considerations at play.<span style="font-size:0;"> </span>¶1 and ¶6.<span style="font-size:0;"> </span>The two-sentence opinion failed to explain the mechanics by which a valid complaint could be initiated and substantiated without discovery of the only relevant evidence in the matter [i.e. the essays and short answers].<span style="font-size:0;"> </span>Order of Dismissal and Denial of Rehearing, App. 1a-2a.<span style="font-size:0;"> </span>The Commonwealth of Virginia provided Petitioner with no alternative avenue to present his case by which his rights would be adequately protected.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">19. </span>Policy of Finality will from time to time come into direct conflict with Respondent’s ministerial duty that the examination be scored properly and scoring information be made available upon request where there are instances where error is possible, which duty continues beyond the electronic posting of the final results.<span style="font-size:0;"> </span>This duty arises by custom from the special relationship of trust and confidence between examiner and examinee.<span style="font-size:0;"> </span>An election contest in Florida raises an interesting parallel on the ministerial duty to ensure accuracy.<span style="font-size:0;"> </span>In <i>Ex Parte Beattie</i>, 98 Fla. 785, 124 So. 273 (1929), there was question as to whether all of the ballots for sheriff were counted in every precinct, which constituted a ministerial duty on the part of the canvassing board.<span style="font-size:0;"> </span>The respondent contended that a statutory remedy for contesting the election existed, which the court found <i>did not specifically address</i> the duty that needed to be performed.<span style="font-size:0;"> </span>The court reasoned that this action was not to contest the election but to “require performance of a ministerial duty on the part of the canvassing board or returning officers such as to <b>correctly and accurately</b> count and make due return of votes cast at the election.”<span style="font-size:0;"> </span><i>Id</i>.<span style="font-size:0;"> </span>Presumably, if the mandamus led to a different result in the count, this candidate for sheriff would want to use that evidence to contest.<span style="font-size:0;"> </span>Until that point, however, it would make no sense to contest without the only evidence that mattered: the ballot count.<span style="font-size:0;"> </span>Like election officers, Respondent and the graders are sworn in before the examinations to uphold the integrity of the process, placing the burden on Respondent to employ corrective measures and policies wherever necessary and possible to ensure accuracy.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">20. </span>For the sake of convenience and in violation of his duty, Respondent has applied the Policy of Finality to applicants including Petitioner who experienced problems with the Board’s testing software during the saving stage of the July 29, 2008 bar examination sitting.<span style="font-size:0;"> </span>See affidavit, App. 9a-10a.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">21. </span>Rendering the foregoing right to petition the state’s highest court meaningless, Policy of Nondisclosure acts to defeat the ultimate appellate authority of the Supreme Court of the United States.<span style="font-size:0;"> </span>In <i>Ex Parte United States</i>, 287 U.S. 241 (1932), the Supreme Court of the United States issued a writ of mandamus directly to a district judge who had refused to issue a bench warrant for the arrest of a person indicted by a grand jury.<span style="font-size:0;"> </span>The refusal to issue the warrant, which prevented the case from being tried, defeated the eventual exercise of the Supreme Court’s appellate jurisdiction.<span style="font-size:0;"> </span>Likewise here with the essays- Policy of Nondisclosure has prevented Petitioner from being able to send a cognizable petition to the Virginia Supreme Court, which is a court of first impression, because all of the relevant evidence (the essays and short answers) is withheld.<span style="font-size:0;"> </span>The petition for certiorari before the U.S. Supreme Court in this case sought a mandamus to compel the essays’ release.<span style="font-size:0;"> </span>Because all the evidence upon which Petitioner could rely was unfairly withheld from the outset, the Supreme Court simply had no way to review the adverse determination.<span style="font-size:0;"> </span>Jurisdiction of the Supreme Court over adverse decisions on individual applicants to the state bar arises under 28 U.S.C. §1257(a).<span style="font-size:0;"> </span>See <i>District of Columbia Court of Appeals v. Feldman</i>, 460 U.S. 462 (1983) (state court proceedings relating to admissions to the bar are subject to the jurisdiction of the Supreme Court of the United States under §1257). <span style="font-size:0;"></span>See also <i>Schware v. Bd. of Bar Exmnrs. of New Mexico</i>, 353 U.S. 232; <i>Theard v. United States</i>, 354 U.S. 278.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">22. </span>Policy of Nondisclosure and Policy of Finality have allowed Respondent to usurp the judicial power of the Supreme Court of Virginia and the Supreme Court of the United States.<span style="font-size:0;"> </span>Usurpation of judicial power is a qualifying factor for the mandamus remedy.<span style="font-size:0;"> </span><i>De Beers Consolidated Mines, Ltd. v. United States</i>, 325 U.S. 212 (1945).<span style="font-size:0;"> </span>In preparation of this complaint, I have acquired the assistance of an expert witness on software systems.<span style="font-size:0;"> </span>Dr. Castell states in his declaration as follows: “it is my opinion that the board’s offer to compare [Petitioner’s] encrypted file against the one graded does not in any way address the matter at hand.<span style="font-size:0;"> </span>That is to say, an exact match between the two does not inform the board or the Supreme Court of Virginia that there was no data corruption in this instance.”<span style="font-size:0;"> </span>Declaration of Stephen Castell, PhD ¶36.<span style="font-size:0;"> </span>He crystallizes the issue as follows:<span style="font-size:0;"> </span>“This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty or corrupted essay data.” ¶19.<span style="font-size:0;"> </span>He furthermore states: “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 [portions that “went missing” or were “corrupted in some way”] it seems to me there would then be an obvious and sensible remedy, <i>viz, </i>to employ the alternative grading methodology developed by the National Conference of Bar Examiners.”<span style="font-size:0;"> </span>See last sentence of Declaration of Stephen Castell, PhD.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">23. </span>As it stands now, the judicial system in Virginia hinders any and all aggrieved bar examination applicants from bringing a complaint against the Board, no matter how legitimate the complaint may be.<span style="font-size:0;"> </span>At the conclusion of the December 5, 2008 hearing before the Fairfax Circuit Court, Judge Alden asked counsel for the Attorney General if it was the Attorney General’s position that the court could not mandamus the essays.<span style="font-size:0;"> </span>When she said that it was, the judge then asked what remedies are available to an aggrieved applicant.<span style="font-size:0;"> </span>Counsel responded:<span style="font-size:0;"> </span>“That is an interesting question.”<span style="font-size:0;"> </span>The Fairfax Circuit Court found that the Board is exempt from the state administrative process act and there is no remedy under the Freedom of Information Act.<span style="font-size:0;"> </span>See order of March 16, 2009, App. 3a-4a.<span style="font-size:0;"> </span>Unlike bar disciplinary proceedings, the Supreme Court of Virginia does not have original jurisdiction over bar examination disputes.<span style="font-size:0;"> </span>Furthermore, its inherent authority is totally undermined by the Board’s Policy of Nondisclosure and Policy of Finality.<span style="font-size:0;"> </span><i>Supra</i> ¶17 and ¶19.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">24. </span>The Board contracts with Extegrity, Inc., a California corporation, to provide test taking software.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">25. </span>During the afternoon session of the Essay/ Short Answer examination, an announcement was made by microphone that there were approximately 24 applicants who had answers that were misplaced in the system from the morning session. Affidavit ¶2.<span style="font-size:0;"> </span>Within a one-hour time period, the Board was able to identify as many as 24 tests with answers that were mispositioned.<b><u> <o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">26. </span>On July 29, 2008 Petitioner was one of numerous applicants who experienced problems saving the essays.<span style="font-size:0;"> </span>Affidavit, App. 9a-10a.<span style="font-size:0;"> </span>According to Dr. Castell, “the fact that others experienced similar problems at the same time suggests a systemic problem.”<span style="font-size:0;"> </span>Declaration of Stephen Castell, PhD ¶18.<span style="font-size:0;"> </span>In ¶30 he states: “without an allowance for applicants such as [Petitioner] to obtain their essays, in my opinion the board may very well have a serious problem on its hands and not even know it.”<span style="font-size:0;"> </span>He furthermore states in ¶31: “In my view and experience the nature of computer-based testing systems is that there will inevitably be instances where cooperation with the applicant, the key creator of the critical data involved, is necessary, if not vital: <b>[Petitioner] may be said to be a ‘textbook case’</b>.<span style="font-size:0;"> </span>It is as important also to remember that Mr. Bolls was not the only one affected, and his case may prove helpful to improving the accuracy, integrity and reliability of systems if corruption of the essay responses is discovered.”<span style="font-size:0;"> </span>In ¶35 he states: “It seems clear that his experience and observations at the exam are consistent with the same symptoms associated with data corruption in other jurisdictions.”<span style="font-size:0;"> </span>In ¶25 he draws upon a similar software mishap in New York one year prior to come to the “conclusion and view that [Petitioner’s] concerns about corruption of his essays are well founded.”<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">27. </span>Software malfunctions of the nature experienced by Petitioner have caused data loss and, consequently, misgrading in other jurisdictions.<span style="font-size:0;"> </span>Recently it occurred in the July 2007 bar examination sitting in New York.<span style="font-size:0;"> </span>See New York Law Journal publication, reprinted in App. 30a ¶1 and top of App. 31a where it confirms that USB drives were used to transfer the data to graders just like in Virginia.<span style="font-size:0;"> </span>See also the subsequent press release sent out by the New York Board of Law Examiners, App. 23a-24a (November 15, 2007, <i>available on archive at </i></span><a href="http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm"><span style="LINE-HEIGHT: 200%;font-size:12;color:black;" >http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm</span></a><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" > (last visited on May 11, 2010) (specifically ¶5 which reads “one or more of the essay answers for 47 candidates could not be recovered”). <b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">28. </span>Petitioner’s observations at the examination both with respect to himself and others were improperly disregarded by Respondent.<span style="font-size:0;"> </span>On this point New York’s July 2007 bar examination is instructive.<span style="font-size:0;"> </span>The New York Law Journal reported that (unlike Virginia) a thorough investigation was commenced immediately.<span style="font-size:0;"> </span>While the examination was still underway, the Chairwoman of the New York Board of Law Examiners stated:<span style="font-size:0;"> </span>“the board suspects that a flaw in the [software company’s] software provided to test takers by [the software company] is responsible for the computer glitches.”<span style="font-size:0;"> </span>App. 30a ¶2.<span style="font-size:0;"> </span>New York no longer uses the same software provider.<span style="font-size:0;"> </span>Other states, like Kentucky for example, admitted to having had similar software problems as New York.<span style="font-size:0;"> </span>Petitioner’s phone conversation with the Kentucky bar examiner’s office, February 9, 2009.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">29. </span>A personal account from the July 2007 New York bar examination demonstrates the vital role that obtaining the essays plays in protecting the applicants’ rights.<span style="font-size:0;"> </span>App. 25a-26a, <i>available at</i> </span><a href="http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html"><span style="LINE-HEIGHT: 200%;font-size:12;color:black;" >http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-the-new-york-bar-exam.html</span></a><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" > (last visited June 2, 2010).<span style="font-size:0;"> </span>Significantly, the matter of Eric Zeni, whose New York bar exam was corrupted by a software glitch and later resolved, took place <i>after</i> the press release (<i>supra</i> ¶27) was sent out to the applicants along with the final results.<span style="font-size:0;"> </span>Because Mr. Zeni was able to obtain his essays as of right, he was able to personally identify and prove that a significant portion went missing.<span style="font-size:0;"> </span>This error was not caught by the bar examiners.<span style="font-size:0;"> </span>The missing portion was later identified by technicians and graded, and Mr. Zeni was found to have passed and was promptly admitted to the bar.<span style="font-size:0;"> </span>See also App. 38a (Mr. Zeni’s email confirming the veracity of the above characterization).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">30. </span>After a ten-week postgraduate fellowship, Petitioner was precluded from taking an opening that was available at the Arlington Commonwealth Attorney’s Office because he did not have a license to practice law.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">31. </span>The essays/ short answers are not just evidence crucial to Petitioner’s case; they represent the entire case itself.<span style="font-size:0;"> </span>They must be allowed to stand on their own.<span style="font-size:0;"> </span>To deny them to Petitioner is tantamount to denying Petitioner the liberty to prove the facts upon which a claim for relief can be granted.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">32. </span>In violation of his duty (see complaint ¶19), Respondent has not installed any guidelines or criteria by which exceptions to the Policy of Nondisclosure could occur.<span style="font-size:0;"> </span>This is true because Petitioner’s circumstances would most certainly qualify for such an exception by any standard.<span style="font-size:0;"> </span>It is further corroborated by the fact that at the Fairfax Circuit Court hearing, Respondent’s counsel made no reference to the software defect but alluded only to an 80% quota and the integrity of the examination as the justification for not disclosing the essays/short answers.<span style="font-size:0;"> </span>When asked by the judge if the internal re-grades or review took place before or after Petitioner raised his concerns, counsel for the Attorney General responded: “I believe, before.”<span style="font-size:0;"> </span>The argument regarding integrity was dropped in subsequent proceedings once evidence as to what the rest of the country’s state bar examination boards were doing was disclosed.<span style="font-size:0;"> </span>See chart, App. 19a (Transparency Policies of State Law Examiner Offices).<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">33. </span>Respondent was present in the examination room when he personally observed how his team of technicians on standby was visibly overwhelmed by software malfunctions occurring at the saving stage as described in Petitioner’s affidavit (App. 10a ¶9).<span style="font-size:0;"> </span>At no time has Respondent requested an affidavit from Petitioner as to what he observed, which is what is done in some jurisdictions.<span style="font-size:0;"> </span>Petitioner rather voluntarily attached his sworn affidavit to his Petition for Rehearing before the Supreme Court of Virginia.<span style="font-size:0;"> </span>App. 9a-10a.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">34. </span>Respondent has not set forth a remedy or solution.<span style="font-size:0;"> </span>He has instead offered to confirm that the work that was graded was connected to Petitioner.<span style="font-size:0;"> </span>The Board seeks to do that by comparing the encrypted code still saved on Petitioner’s laptop with the encrypted code held in archive (see email correspondence in App. 15a and 16a).<span style="font-size:0;"> </span>This method avoids the fundamental question as to data loss or corruption.<span style="font-size:0;"> </span><i>See</i> Declaration of Stephen Castell, PhD, addressing the issue of duplication/ replication of data in ¶¶19-20.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">35. </span>Not acting within his duty, Respondent is guilty of the following careless and negligent acts or omissions<b>:<u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">a. </span>Failure to install criteria by which an exception to Policy of Nondisclosure or Policy of Finality could be made.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">b. </span>Failure to adequately investigate the consequences of a major technical irregularity.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">c. </span>Failure to employ alternative grading methodology developed for system wide software mishaps of this nature by the National Conference of Bar Examiners and New York Board of Law Examiners.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">d. </span>Failure to require standby technicians to record applicant identification numbers of all applicants who required hands-on technical assistance.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 1in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">e. </span>Failure to address Petitioner’s concerns or cooperate in any meaningful way. <b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">36. </span>Nationwide, there has been a near uniform transition to a more open and transparent essay grading system now that most applicants to the state bars are taking the examination on laptop.<span style="font-size:0;"> </span>See App. 19a (Chart, Transparency Policies of State Law Examiner Offices) and App. 20a (Chart, Statistics of the Computer Based Bar Essay Examination).<span style="font-size:0;"> </span>Only Virginia and seven other states continue to operate a closed licensing process.<span style="font-size:0;"> </span>App. 19a. [FN 1]</span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">37. </span>Upon information and belief, well more than half type the examination on laptop for the Virginia Bar Examination’s July and February sittings.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">38. </span>Declaratory Judgment is necessary because the Supreme Court of Virginia has shown, as demonstrated by this case, that it does not order the release of the essays/short answers to applicants even under the most compelling of circumstances (complaint ¶18).<span style="font-size:0;"> </span>This begs the question of how can an aggrieved applicant, who bears the burden of proof, possibly state in his/her petition to the Virginia Supreme Court a claim upon which relief can be granted.<span style="font-size:0;"> </span>Chief Justice Marshall in <i>Marbury for Madison</i> crystallizes the underlying issue:<span style="font-size:0;"> </span>“can it be imagined that the law furnishes to the injured person no remedy?<span style="font-size:0;"> </span>It is not believed that any person whatever would attempt to maintain such a proposition.”<span style="font-size:0;"> </span>5 U.S. 137.<span style="font-size:0;"> </span>That Court went on to identify the kind of act which could be reviewable in a court of justice:<span style="font-size:0;"> </span>“<b>when the rights of individuals are dependent on the performance of those acts</b>; he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others.”<span style="font-size:0;"> </span><i>See</i> <i>also</i> 52 Am. Jur. 2d §31 (“[T]he plaintiff need not pursue other remedies if they are effectively unavailable <b>or if the agency to which an appeal must be brought is failing to act or frustrating plaintiff’s ability to obtain relief</b>.”).<span style="font-size:0;"> </span>This kind of situation was encountered by the Fourth Circuit in 1999 in <i>U.S. ex rel. Rahman v. Oncology Associates</i>, P.C., 198 F.3d 502, 65 Soc. Sec. Resp. Serv. 573 (4<sup>th</sup> Circuit 1999).<span style="font-size:0;"> </span>201 F.3d 277, 66 Soc. Sec. Resp. Serv. 171 (4<sup>th</sup> Circuit 1999).<span style="font-size:0;"> </span><i>See also </i>52 Am. Jur. 2d §32 (“An appeal is not an alternate remedy to mandamus if it would be <b>meaningless</b> . . . <b>or the party can show some special reason why it is inadequate</b>.”).<span style="font-size:0;"> </span>Section 32 continues: “some courts hold that because of the sensitive nature of erroneous discovery orders an appeal may not be viable, because the appellate court is not able to cure the trial court’s error nor the <b>compromising of the party’s ability to present a viable claim</b>, nor make the missing discovery material part of the appellate record.<span style="font-size:0;"> </span>This is particularly the case when the trial court has disallowed discovery and refuses to make the missing discovery material part of the record . . . [i]n such cases the party’s only remedy is by way of mandamus.”<span style="font-size:0;"> </span><i>Id</i>.<span style="font-size:0;"> </span>Lastly and most importantly, “a technically available remedy will not preclude mandamus when the other relief is uncertain, tedious, burdensome, slow, inconvenient, inappropriate, or ineffective.<span style="font-size:0;"> </span>Therefore, to prevent mandamus from issuing, the other available remedy must be specific and adequate and be equally as beneficial, convenient, and effective as mandamus.”<span style="font-size:0;"> </span>52 Am. Jur. 2d §34.<span style="font-size:0;"> </span>Dr. Castell’s opinion as expressed in his declaration corroborates that all of the issues laid out above pertain to this case.<span style="font-size:0;"> </span>Petitioner’s unqualified right to retake the examination in no way addresses the software malfunction; neither does it make meaningful an applicant’s unqualified right to present his complaint to the Supreme Court of Virginia.<span style="font-size:0;"> </span><span style="font-size:0;"></span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">39. </span>Respondent chose not to apply the proper remedy that does exist because of Policy of Nondisclosure and Policy of Finality.<span style="font-size:0;"> </span>Following New York’s July 2007 software mishap, the National Conference of Bar Examiners developed a methodology for grading test papers that were affected.<span style="font-size:0;"> </span>Press Release, App. 23a-24a ¶5.<span style="font-size:0;"> </span>Respondent and Board already do have a working relationship with the National Conference of Bar Examiners.<span style="font-size:0;"> </span>The Assistant Attorney General confirmed at the oral argument in Fairfax that Respondent did not undertake to review Petitioner’s essays even after Petitioner raised his concerns.<span style="font-size:0;"> </span>App. 13a (Ex. F., Petitioner’s initial correspondence with the Board).<span style="font-size:0;"> </span><i>Supra</i> ¶32.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">40. </span>Petitioner cannot and will not petition the Supreme Court of Virginia without the very evidence that would be necessary in doing so, i.e. the essays and short answers.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">41. </span>The Board’s rule making power delegated by the Virginia General Assembly (App. 21a, Powers, Rules, and Regulations) is broad but that authority is nevertheless constrained by the Federal Constitution.<span style="font-size:0;"> </span>The U.S. Supreme Court has made it clear that “a state cannot exclude a person from the practice of law…in a manner or for reasons that contravene the due process…clause of the Fourteenth Amendment.”<span style="font-size:0;"> </span><i>Schware v. Board of Bar Examiners</i>, 353 U.S. 232 (1957).<span style="font-size:0;"> </span>Cf. <i>Richardson v. McFadden</i>, 540 F.2d 744 (4<sup>th</sup> Cir. 1976) (“bar examiners are subject to the requirements of due process and equal protection in the conduct of their duties.”).<span style="font-size:0;"> </span>See also <i>Whitfield v. Illinois Board of Bar Examiners</i>, 504 F.2d 477 (1974)(“the due process clause requires the state to employ fair procedures in processing applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is entitled to some procedural protections” <i>and</i> “there may be situations in which a capricious denial by state officials may give rise to a federal remedy.”).<span style="font-size:0;"> </span>Cf. <i>Hooban v. Board of Governors of Washington State Bar Assoc.</i>, 85 Wash. 2d 774, 539 P.2d 686 (1975), where the court stated in dicta that it could be argued that denial of access to bar exam answers is a due process violation (which issue has become moot in Washington because applicants can now obtain their essays as of right, App. 19a).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">42. </span>Where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.<span style="font-size:0;"> </span><i>Greene v. McElroy</i>, 360 U.S. 474, 496 (1959); quoted with approval in <i>Goldberg v. Kelly</i>, 397 U.S. 254 (1970).<span style="font-size:0;"> </span>In the instant case, such fact findings pertain to the software malfunction which was never investigated notwithstanding a vehement dispute as to the reported essay/short answer score.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">43. </span>The constitutional infirmity of Policy of Nondisclosure and Policy of Finality is overinclusion.<span style="font-size:0;"> </span>There have been and there will be some instances, as in the present case, where the scope of inquiry demands at the very least that the essays be released to the applicant; nevertheless they are not disclosed in order to uphold Policy of Finality which, in turn, promotes administrative convenience.<span style="font-size:0;"> </span>“Administrative inconvenience is insufficient justification for an arbitrary, overinclusive regulatory classification.”<span style="font-size:0;"> </span><i>Keenan v. Bd. of Law Examiners of North Carolina</i>, 317 F. Supp. 1350 (1970).<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">44. </span>Policy of Nondisclosure has the improper effect of quashing even the most legitimate complaints against the Board or Respondent even before the Supreme Court of Virginia has an opportunity to listen to them.<span style="font-size:0;"> </span>See App. 3a-4a (Order of the Fairfax Circuit Court, even with the facts of the software malfunction disclosed, the complaint fails to plead “any clearly identifiable, non-hypothetical damages”).<span style="font-size:0;"> </span>Logically, Supreme Court of Virginia would have arrived at the same conclusion had Petitioner “appealed” without the essays and short answers.<span style="font-size:0;"> </span>This is not by lack of merit but because the essays are unfairly withheld.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">45. </span>Refusing to investigate the effects of a software malfunction and withholding crucial evidence on the question constitutes a form of “manifest unfairness,” one of the substantive grounds for review in the circuit courts of appeals.<span style="font-size:0;"> </span><i>Supra</i> ¶7.<span style="font-size:0;"> </span>See <i>Parrish v. Board of Commissioners of the Alabama State Bar</i>, 533 F.2d 942 (5<sup>th</sup> Cir. 1976)(plaintiff’s motion to compel production of the examination papers was granted because “access to the bar examination papers was crucial to the plaintiff’s case”).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">46. </span>Petitioner does not at this point in the proceedings have a duty to bring the pertinent facts forward to establish a claim against the Board.<span style="font-size:0;"> </span>Because he lacks “the means (access to the examination papers)” he is thus “not saddled with the duty to bring the pertinent facts forward.”<span style="font-size:0;"> </span><i>Id</i>.<span style="font-size:0;"> </span><span style="font-size:0;"></span><span style="font-size:0;"></span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">47. </span>Mere denial of improper conduct is not enough to support a refusal to compel discovery.<span style="font-size:0;"> </span>This is especially true when the applicant furnishes a specific affidavit.<span style="font-size:0;"> </span>A contrary rule would “frustrate the discovery process” and erect an “unreasonably protective shield around parties possessing material relevant and necessary to fair litigation.”<span style="font-size:0;"> </span><i>Id</i>.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">48. </span>When additional procedural requirements are sought (as here, the applicant’s right to obtain the essays), the U.S. Supreme Court sets forth three factors for consideration:<span style="font-size:0;"> </span>1) private interest affected by the action; 2) risk of erroneous deprivation of such interest, through procedures used, and the probable value, if any, of additional or substitute procedural safeguards; 3) government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.<span style="font-size:0;"> </span><i>Matthews v. Eldridge</i>, 424 U.S. 319, 96 S. Ct. 893 (1976).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">49. </span>The private interest affected by the action is significant.<span style="font-size:0;"> </span>If essays can be obtained then the right to petition the Supreme Court of Virginia under one of the substantive grounds of review (<i>supra</i> ¶7) will suddenly become a meaningful one.<span style="font-size:0;"> </span>If substantiated, these complaints could potentially lead to reversible error.<span style="font-size:0;"> </span>Applicants with a job on the line, like Petitioner, will at the very least have their issues addressed, and not ignored, by Respondent.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">50. </span>Eric Zeni’s personal account in New York’s July 2007 bar examination is proof of the high risk of erroneous deprivation without applicants being able to obtain their essays in the new computer based testing environment.<span style="font-size:0;"> </span><i>Supra</i> ¶29.<span style="font-size:0;"> </span>Indeed, his situation would have gone uncorrected had it not been for New York’s disclosure policy.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">51. </span>No harm would occur to the Board or to the Supreme Court of Virginia if applicants can obtain their essays.<span style="font-size:0;"> </span>This represents the policy of the overwhelming majority of jurisdictions.<span style="font-size:0;"> </span>App. 19a. <span style="font-size:0;"></span>The Board does not have to institute an appeal, formal or informal.<span style="font-size:0;"> </span>Furthermore, releasing essays would not add one penny to the cost, which is typically borne by the applicant for a small fee. [FN 2].<span style="font-size:78%;"> </span>The Supreme Court of Virginia can and regularly does dismiss petitions with relative ease, according to its discretion.<span style="font-size:0;"> </span>However, if an applicant had the essays in hand that proved unfairness, then they would be remiss in dismissing that case.<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">52. </span>Policy of Nondisclosure and Policy of Finality have led to abuse in at least one other jurisdiction within the Fourth Circuit.<span style="font-size:0;"> </span>On December 11, 2007 it was reported that South Carolina House Speaker Bobby Harrell called for independent oversight of the South Carolina Supreme Court following its mishandling of complaints relating to a bar examination score reporting error.<span style="font-size:0;"> </span>App. 39a-40a, <i>Court’s Actions Bring on Call for More Oversight, </i>published by IslandPacket.com, available at </span><a href="http://www.lawschool.com/screwup.htm"><span style="LINE-HEIGHT: 200%;font-size:12;color:black;" >http://www.lawschool.com/screwup.htm</span></a> (<span style="font-family:'Times New Roman','serif';">last visited May 11, 2010)</span><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >.<span style="font-size:0;"> </span>To view the situation in South Carolina in the proper context, see <i>Richardson v. McFadden</i>, 540 F.2d 744 (4<sup>th</sup> Cir. 1976), where the court found that the district court properly deferred action on the claim that the bar examiners’ failure to provide procedure for review of failing scores constituted denial of due process of law until the question was presented to the South Carolina Supreme Court on what review, if any, was available and appropriate under state law.<span style="font-size:0;"> </span>That question having been submitted, the state supreme court then voluntarily established by rule procedures for the review of failing papers.<span style="font-size:0;"> </span>See Judge Hall’s concurrence in <i>Richardson v. McFadden</i>, 563 F.2d 1130 (1977), specifically the reference to Rule 11 (effective date: 2/10/1975).<span style="font-size:0;"> </span>All of the applicants who experienced the July 2007 bar examination mishap would have been able to benefit from this rule except that on June 1, 2007 the South Carolina Supreme Court again amended the rule to delete provisions allowing applicants to review and seek re-grading of their examinations.<span style="font-size:0;"> </span>See South Carolina Supreme Court website, <i>Supreme Court Amends Rule 402, SCACR</i>, available at </span><a href="http://www.sccourts.org/bar/index.cfm"><span style="LINE-HEIGHT: 200%;font-size:12;color:black;" >http://www.sccourts.org/bar/index.cfm</span></a> <span style="font-family:'Times New Roman','serif';">(last visited May 7, 2010)</span><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >.<span style="font-size:0;"> </span>Rule 402(i)(5) now reads as follows:<span style="font-size:0;"> </span>“No applicant shall be given access to the answers the applicant submitted during the examination.<span style="font-size:0;"> </span>The results reported by the Board of Law Examiners are final, and no applicant shall be allowed to seek re-grading or any other review of the results of the examination.”<span style="font-size:0;"> </span>Later that year when the court was called upon to explain why it would not change the scores of all affected, it responded: “because (the scores) had already been posted.”<span style="font-size:0;"> </span><i>Court’s Actions Bring on Call for More Oversight</i>, December 11, 2007, published by IslandPacket.com, available at </span><a href="http://www.lawschool.com/screwup.htm"><span style="LINE-HEIGHT: 200%;font-size:12;color:black;" >http://www.lawschool.com/screwup.htm</span></a> <span style="LINE-HEIGHT: 200%;font-size:12;" >(</span><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >last visited May 11, 2010)<span style="color:black;">.</span><span style="font-size:0;"> </span><span style="font-size:0;"></span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">53. </span>Petitioner applied to the Supreme Court of Virginia for a Writ of Mandamus not by choice but by necessity.<span style="font-size:0;"> </span>The Supreme Court of Virginia was aware that he applied for it for no other reason than to protect his rights:<span style="font-size:0;"> </span>“Once (he) obtains his essays he can make an informed decision as to how to proceed.<span style="font-size:0;"> </span>This is a tedious, multi-step process only because (Respondent), and the Board collectively, have made it so.”<span style="font-size:0;"> </span>Mem. of Law in Opp. To Resp’t Mot. To Dismiss ¶38.<span style="font-size:0;"> </span><i>See also</i> Petition for Rehearing, App. 5a-8a.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">54. </span>Respondent, the Board, and the Supreme Court of Virginia have collectively agreed, in violation of the due process clause of the Fourteenth Amendment of the Federal Constitution, to install Policy of Nondisclosure and Policy of Finality.<span style="font-size:0;"> </span>Without providing the means for Petitioner to present a cognizable claim, the Virginia Supreme Court’s dismissal constituted final state action.<span style="font-size:0;"> </span>This is a clear violation of the intendment of U.S.C.A. Const. Amend. 14 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”).<span style="font-size:0;"> </span>See deposition of J. Means McFadden, Executive Director of the South Carolina Board of Law Examiners, <i>Richardson v. McFadden</i>, 563 F.2d 1130 n.1.<span style="font-size:0;"> </span>“[W]e [law examiners] are subject to the control of the Supreme Court, and we take no action of an affirmative nature without first conferring with the Supreme Court and getting their approval of it…we are subject to their supervision in everything we do.”<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">55. </span>The Supreme Court of Virginia and its Board have created an unconstitutional roadblock for bar examinees: a right exists to petition the Supreme Court of Virginia but no petition can ever be successful without the evidence needed.<span style="font-size:0;"> </span>The Board, in order to uphold Policy of Finality by way of Policy of Nondisclosure, withholds the subject of proof (i.e. the essays and short answers). <span style="font-size:0;"></span><i>Chicago B&Q R.R. v. Chicago</i>, 166 U.S. 226 (1897) still puts it best: <b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; MARGIN-LEFT: 0.75in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >“A state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment.<span style="font-size:0;"> </span>Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment.<span style="font-size:0;"> </span>In determining what is due process of law, regard must be had to substance, not to form.<span style="font-size:0;"> </span>This Court, referring to the 14<sup>th</sup> Amendment, has said: ‘Can a state make anything due process of law which, by its own Legislation, it chooses to declare such?<span style="font-size:0;"> </span>To affirm that is to hold that the prohibition to the states is of no avail’…the same question could be propounded, and the same answer should be made, in reference to <b>judicial proceedings inconsistent with the requirements of due process of law</b>.”<span style="font-size:0;"> </span><span style="font-size:0;"></span><o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span><i>Chicago B&Q R.R. v. Chicago</i>, 166 U.S. 226 (1897).<b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">56. </span>Petitioner filed a timely motion for rehearing before the Supreme Court of Virginia, citing a fundamental flaw in the administrative procedures of the Virginia Bar Examination and invoking his rights under the due process clause of the Fourteenth Amendment of the Constitution of the United States.<span style="font-size:0;"> </span>Pet. For Reh’g ¶1, reprinted in App. 5a.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">57. </span>There exists no precedent in published case law for this case, which makes the issue ripe for review.<span style="font-size:0;"> </span>The question of what constitutes due process within the context of a software malfunction at a bar examination has yet to be answered by this court or any court.<span style="font-size:0;"> </span>The issue is conspicuously absent from the <i>Bar Examiner</i> publication notwithstanding the major technical difficulties documented in New York in July of 2007.<span style="font-size:0;"> </span>Given the novelty of Computer Based Testing (CBT) and the overwhelming reliance on its integrity by bar admissions offices, it is proper for this court to rethink and define what constitutes post examination due process for bar examinees.<span style="font-size:0;"> </span>The law requires that the content of due process varies with each factual context.<span style="font-size:0;"> </span><i>Hannah v. Larche</i>, 363 U.S. 420 (1960).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">58. </span>Respondent and the Board have agreed to preserve the essays and short answers while the mandamus action is pending.<span style="font-size:0;"> </span>Letter from the Attorney General’s office, App. 22a.<span style="font-size:0;"> </span>Following the denial of certiorari by the U.S. Supreme Court, Petitioner notified Respondent of the pending action before this court and the need to ensure that the essays continue to be preserved.<span style="font-size:0;"> </span>See App. 36a (Petitioner’s March 22, 2010 letter to Respondent) and App. 37a (U.S. Postal Service Delivery Confirmation Receipt).<span style="font-size:0;"> </span><span style="font-size:0;"></span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">59. </span>As the sole mechanism by which reversible error can be corrected, an applicant’s right to petition the Supreme Court of Virginia must be a meaningful one for compliance with the due process clause of the Fourteenth Amendment of the Federal Constitution. <span style="font-size:0;"></span>“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.<span style="font-size:0;"> </span>We are not persuaded.”<span style="font-size:0;"> </span><i>Richardson v. McFadden</i>, 540 F.2d 744 (4<sup>th</sup> Cir. 1976).<span style="font-size:0;"> </span><span style="font-size:0;"></span>The court furthermore explained its reasoning: “To our knowledge, a person is not required by any state to repeatedly demonstrate his competence to practice law.<span style="font-size:0;"> </span>The rule is: once is enough.<span style="font-size:0;"> </span>And the reason for the rule is that it takes work, effort, and nowadays, money to prepare for a bar examination.<span style="font-size:0;"> </span>Moreover, the license is deemed of sufficient value that delay in getting it is an injury.”<span style="font-size:0;"> </span><i>Id</i>.<span style="font-size:0;"> </span>This could not be more true than where there is a job on the line.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">60. </span>In the simplest terms, this case demonstrates that the policies surrounding the Virginia Bar Examination violate a fundamental requisite of due process, specifically the opportunity to make an informed choice whether to acquiesce or contest, and to assert before the appropriate decision-making body the reasons for such choice.<span style="font-size:0;"> </span><i>Trinity Episcopal Corp. v. Romney</i>, D.C.N.Y., 387 F.Supp. 1044, 1084.<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">61. </span>Computer Based Testing (CBT) for the bar examination is in its nascent stage.<span style="font-size:0;"> </span>Since the July 2008 bar examination, Extegrity continues to make regular improvements every few months to its software.<span style="font-size:0;"> </span>The Board has conceded that the system has only been employed in Virginia “for several years.”<span style="font-size:0;"> </span>Mem. of Law in Resp. to Pet. Supp. Br. on the Application of the Administrative Process Act, In the Circuit Court of Fairfax County, 6.<span style="font-size:0;"> </span>Other states have adopted a more cautious approach, waiting until jurisdictions like Virginia work out the “kinks” in their computer based tests.<span style="font-size:0;"> </span>Petitioner’s phone conversation with West Virginia’s bar examination office, February 19, 2009.<span style="font-size:0;"> </span>South Carolina continues to monitor the program closely by maintaining an artificially low number of CBT applicants, chosen by lottery.<span style="font-size:0;"> </span>Boards in Massachusetts, Indiana, Connecticut, and West Virginia are considering the program but have not approved it as of 2009.<span style="font-size:0;"> </span>Petitioner’s phone conversation with Connecticut and Massachusetts bar examiners’ offices on 1/15/09.<span style="font-size:0;"> </span>Phone conversation with the Indiana office on 1/16/09.<span style="font-size:0;"> </span>Phone conversation with the West Virginia office on 2/19/09.<span style="font-size:0;"> </span>A number of states have observed it as a pilot program and are only just recently making the laptop option available to all applicants.<span style="font-size:0;"> </span>Ohio and Tennessee have made this transition as recently as the February 2009 bar exam.<span style="font-size:0;"> </span>Phone conversations on 1/15/09 and 2/10/09 respectively.<span style="font-size:0;"> </span>As of February of 2009, Kansas’ laptop option has only been available to all for the last couple of tests.<span style="font-size:0;"> </span>Conversation with the Kansas office, 2/6/09.<span style="font-size:0;"> </span><span style="font-size:0;"></span>Furthermore, of those jurisdictions that do offer the computer based test, almost all say the numbers of applicants taking the CBT are on the rise.<span style="font-size:0;"> </span><i>See</i> chart, App. 20a.<span style="font-size:0;"> </span><span style="font-size:0;"></span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">62. </span>Examination board policies violate due process where there is evidence that they are “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.”<span style="font-size:0;"> </span><i>Scinto v. Stamm</i>, 224 Conn. 524, 620 A.2d 99 (1993).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">63. </span>Policy of Nondisclosure is not technically sound given the current realities of computer based testing for bar examinations.<span style="font-size:0;"> </span>See Declaration of Stephen Castell, PhD, and in particular ¶¶ 28-31.<span style="font-size:0;"> </span>For example, in ¶31 describes Petitioner’s case as a “textbook case” requiring the cooperation of the Board.<span style="font-size:0;"> </span>In ¶30 he states that not allowing applicants to obtain their essays after a computer based test “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.<span style="font-size:0;"> </span>Clearly, to apply such a policy, even to the circumstances of [Petitioner’s] case, is to overlook the possibilities of systemic error and to have no objective and evenhanded methodology of investigation in regard to ruling out such possibilities.”<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">64. </span>Policy of Nondisclosure acts to preclude the only available remedy, a remedy which was developed by the National Conference of Bar Examiners just one year prior to the July 2008 Virginia Bar Exam.<span style="font-size:0;"> </span>App. 24a (press release of the New York Board of Law Examiners that accompanied the release of the results of the July 2007 bar examination).<span style="font-size:0;"> </span><b><u><o:p></o:p></u></b></span></p><p style="TEXT-ALIGN: center; LINE-HEIGHT: 200%; TEXT-INDENT: -0.5in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing" align="center"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >PRAYER FOR RELIEF<u><o:p></o:p></u></span></b></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >WHEREFORE</span></b><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >, Petitioner prays:<o:p></o:p></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">1. </span>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.<u><o:p></o:p></u></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">2. </span>The Court compel Respondent to send Petitioner his essays/ short answers from the July 2008 bar examination.<span style="font-size:0;"> </span><u><o:p></o:p></u></span></p><p style="TEXT-ALIGN: justify; LINE-HEIGHT: 200%; TEXT-INDENT: -0.25in; MARGIN-LEFT: 0.75in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-family:Calibri;">3. </span>And that this Court compel Respondent to send Petitioner the key so that Petitioner can decode the essays saved on his laptop.<u><o:p></o:p></u></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" >RESPECTFULLY SUBMITTED this 3rd day of August 2010.<o:p></o:p></span></p><p style="LINE-HEIGHT: 200%; MARGIN-LEFT: 0.5in" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><o:p></o:p></span></p><p style="LINE-HEIGHT: 200%" class="MsoNoSpacing"><span style="LINE-HEIGHT: 200%;font-family:'Times New Roman','serif';font-size:12;" ><span style="font-size:0;"></span>_____________________<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span><span style="font-size:0;"></span>Jonathan Bolls, Pro-Se<o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><span style="font-size:0;"></span><o:p></o:p></span></p><p class="MsoNoSpacing"><span style="font-family:'Times New Roman','serif';font-size:12;"><o:p></o:p></span></p><hr align="left" width="33%" style="font-size:78;">
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<br /><div id="ftn1"><p class="MsoFootnoteText">FOOTNOTE 1: <span style="font-family:'Times New Roman','serif';">The charts reprinted in App. 19a-20a represent information that can be easily accessed by the public by contacting the individual state board of law examiner offices.<span style="font-size:0;"> </span>On its website, the National Conference of Bar Examiners provides a link to the websites and phone contact information for each at </span><a href="http://www.ncbex.org/"><span style="TEXT-DECORATION: none;font-family:'Times New Roman','serif';color:black;" >http://www.ncbex.org/</span></a><span style="font-family:'Times New Roman','serif';"> (click “Bar Admission Offices”).<span style="font-size:0;"> </span></span></p><p class="MsoFootnoteText"><span style="font-family:'Times New Roman','serif';"><span style="font-size:78%;"></span><o:p></o:p></span></p></div><div id="ftn2"><p class="MsoFootnoteText"><span style="font-family:'Times New Roman','serif';"></span></p><p class="MsoFootnoteText"><span style="font-family:'Times New Roman','serif';"></span></p><p class="MsoFootnoteText"><span style="font-family:'Times New Roman','serif';">FOOTNOTE 2: For example, the Florida bar examiners charge $50 and the Alaska bar examiners charge $10 for the service.<span style="font-size:0;"> </span>Petitioner’s phone conversations January 15, 2009 and February 10, 2009 respectively. <o:p></o:p></span></p></div>
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<br />Update (16): </span><span style="font-size:0;"><span style="font-size:85%;">July 6, 2010. Before I serve Secretary Scott Street, I have taken the time to write a brief recap (see below) of all the events relating to this matter, beginning with my initial request to the Board to obtain the essays/short answers and proceeding through each stage of the case. It is being sent separately to all Virginia law school newspapers . . .
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<br /><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:12;" ><o:p></o:p></span></p></div><meta content="text/html; charset=utf-8" equiv="Content-Type"><meta name="ProgId" content="Word.Document"><meta name="Generator" content="Microsoft Word 12"><meta name="Originator" content="Microsoft Word 12"><link rel="File-List" href="file:///C:%5CDOCUME%7E1%5CBolls%5CLOCALS%7E1%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_filelist.xml"><link rel="themeData" href="file:///C:%5CDOCUME%7E1%5CBolls%5CLOCALS%7E1%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_themedata.thmx"><link rel="colorSchemeMapping" href="file:///C:%5CDOCUME%7E1%5CBolls%5CLOCALS%7E1%5CTemp%5Cmsohtmlclip1%5C01%5Cclip_colorschememapping.xml"><style> <!-- /* Font Definitions */ @font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:roman; mso-font-pitch:variable; mso-font-signature:-1610611985 1107304683 0 0 159 0;} @font-face {font-family:Calibri; panose-1:2 15 5 2 2 2 4 3 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:-1610611985 1073750139 0 0 159 0;} /* Style Definitions */ p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin-top:0in; margin-right:0in; margin-bottom:10.0pt; margin-left:0in; line-height:115%; mso-pagination:widow-orphan; font-size:11.0pt; font-family:"Calibri","sans-serif"; mso-fareast-font-family:Calibri; mso-bidi-font-family:"Times New Roman";} .MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; font-size:10.0pt; mso-ansi-font-size:10.0pt; mso-bidi-font-size:10.0pt; mso-ascii-font-family:Calibri; mso-fareast-font-family:Calibri; mso-hansi-font-family:Calibri;} @page WordSection1 {size:8.5in 11.0in; margin:1.0in 1.0in 1.0in 1.0in; mso-header-margin:.5in; mso-footer-margin:.5in; mso-paper-source:0;} div.WordSection1 {page:WordSection1;} --> </style>
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<br /><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >On July 29, 2008 approximately 1500 law student applicants for the Virginia Bar, including myself, began the long and grueling process of a two-day, 6-hour a day exam at Roanoke, VA. The overwhelming majority took the exam on special software the Board of Bar Examiners contracted to provide. Right from Day 1, it became apparent that the new computer based essay test had some serious flaws.</span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >Following the three-hour morning session, while applicants were saving their essays, the software displayed error messages and halted the saving process for many applicants.<span style="font-size:0;"> </span>A team of several technicians that was on standby was so overwhelmed by the sheer number of problems that it took 10-15 minutes for one of them to come to my assistance, even after one of the staff members saw my hand go up immediately.<span style="font-size:0;"> </span>The technician read the error message and began working on my computer hands-on.<span style="font-size:0;"> </span>Once he determined that the problem, whatever it was, could not be resolved he then instructed me to turn the computer off and then on again, known as a “reboot,” and then save.<span style="font-size:0;"> </span>Across the room similar problems were experienced, and reactions in the room were varied.<span style="font-size:0;"> </span>All of the time, effort, and money invested into this caused people to react out of complete frustration, such as the female test taker assigned to sit across from me who got up and went straight to one of the technicians, or panic and tears in the case of another who was in the process of rebooting with another technician.<span style="font-size:0;"> </span>Some, like myself, simply slipped up our hands to request assistance as we were told to do if anything technical were to go wrong.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >After lunch, at the beginning of the afternoon session, Scott Street, longtime secretary of the board (nearly 40 years), made an announcement that 24 applicants had answers that were misplaced in the system, and these people would find out who they were by enclosures in their afternoon test booklets, with instructions on how to go back and correct the problem.<span style="font-size:0;"> </span>A world renown software expert would later question how it would be possible to obtain this information in such a short period of time where there is no internet connection, let alone for it to be a comprehensive and 100% accurate number.<span style="font-size:0;"> </span>The afternoon session was no better: the exact same problem occurred at the saving stage, once again on a mass scale.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >The Computer Based Test is a relatively new phenomenon in the United States and in Virginia, having started just several years prior to the administration of this exam.<span style="font-size:0;"> </span>It has not been a very smooth transition:<span style="font-size:0;"> </span>states like New York, Kentucky, and New Jersey have documented cases of misgraded exams because of software failures.<span style="font-size:0;"> </span>These errors have led to outrage by the applicants, and the boards ultimately securing different software companies for subsequent exams.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >Key to understanding the unique constitutionality of this case is the fact that the Virginia Board of Bar Examiners is an arm or agency of the Virginia Supreme Court, which makes the Board positioned differently than all other boards and agencies within the Commonwealth.<span style="font-size:0;"> </span>Its actions are reviewable by the Virginia Supreme Court only, of which it is a part.<span style="font-size:0;"> </span>In other words, if a dispute should arise, the Virginia Supreme Court claims to be the only tribunal where it could be heard.<span style="font-size:0;"> </span>When there is reason to believe that error has occurred in the evaluation, as here, an applicant has a right to a responsible determination of the facts.<span style="font-size:0;"> </span>As it turns out, the state’s highest court is systematically ignoring this right.<span style="font-size:0;"> </span>Allow me to tell my story.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >Ten weeks after the test I discovered that my essay score was surprisingly low.<span style="font-size:0;"> </span>Like any concerned person, I requested to obtain my essays.<span style="font-size:0;"> </span>Scott Street, in his office as secretary, stonewalled me in every attempt.<span style="font-size:0;"> </span>I was reasonable in all my requests, but when it became apparent that Mr. Street would not cooperate I had no choice but to bring an emergency court order in Fairfax Circuit Court to compel the essays’ release by writ of mandamus, a judicial order that forces a public official to do his public duty.<span style="font-size:0;"> </span>That court, represented by Judge Alden on December 5, 2008, heard the merits of the case, including the details of the software glitch.<span style="font-size:0;"> </span>My argument was simple:<span style="font-size:0;"> </span>the Virginia General Assembly requires by law that the Board preserve the essays for a year, a law that was created for a reason.<span style="font-size:0;"> </span>Secondly, it constitutes an abuse of discretion for Scott Street to be following an unwritten “policy” against any applicant obtaining their essays.<span style="font-size:0;"> </span>The Attorney General’s argument was flimsy, referring to a quota and the integrity of the exam as reasons for the absurd lack of cooperation in this instance.<span style="font-size:0;"> </span>When asked by the judge whether it was the Attorney General’s position that mandamus could not be issued, counsel for the Attorney General (which represents state entities named as defendants in legal actions) responded that it was because the Board is an agency of the Virginia Supreme Court.<span style="font-size:0;"> </span>When then asked by the judge if the Virginia Supreme Court has original jurisdiction over such a dispute (that is, whether the high court reserves the exclusive right to such cases) the Assistant Attorney General (AGA) said that it did not.<span style="font-size:0;"> </span>The judge paused, probably because of what this actually meant:<span style="font-size:0;"> </span>the high court wants jurisdiction but provides no process for applicants with disputes to present their grievances. <span style="font-size:0;"></span>Getting to the heart of the matter, Judge Alden then asked the AGA what process was afforded to aggrieved applicants.<span style="font-size:0;"> </span>AGA Catherine Hill responded candidly:<span style="font-size:0;"> </span>“that is an interesting question.”<span style="font-size:0;"> </span>In this way, a constitutional case was born.<span style="font-size:0;"> </span>I became my own client.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >After the hearing, the judge asked me to file a supplemental brief on the applicability of the state administrative process act.<span style="font-size:0;"> </span>If this were the examination of another profession like a medical test for example, such would be resolved in this way.<span style="font-size:0;"> </span>But my research at the Library of Congress’ law library brought me a swift answer: it did not apply because the Board was specifically excluded.<span style="font-size:0;"> </span>This only further bolstered the constitutional dilemma.<span style="font-size:0;"> </span>Three and a half months later, the Fairfax Court denied mandamus for lack of jurisdiction, directing me to the Supreme Court of Virginia.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >In February 2009 I undertook the project of calling each of the 50 states’ bar examination boards to find out what rights applicants have to the essays.<span style="font-size:0;"> </span>What I would discover was very interesting:<span style="font-size:0;"> </span>almost all of them give applicants rights to the essays.<span style="font-size:0;"> </span>Only eight states, Virginia included, do not.<span style="font-size:0;"> </span>When this evidence was later presented in subsequent proceedings, the Board’s former argument as to the integrity of the test as a premise for not releasing the essays was entirely dropped.<span style="font-size:0;"> </span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >In April 6, 2009 I called the Virginia Board of Bar Examiners to find out if there are any rules of the Supreme Court of Virginia that prohibited Scott Street from releasing the essays.<span style="font-size:0;"> </span>This time, instead of being handled by staff, I was directed to Scott Street, who was impossible to get a hold of before.<span style="font-size:0;"> </span>When I asked him about the rules, he said he was not aware of any but that the Board has been following a policy of nondisclosure since 1973 along with a policy that all results are final once released.<span style="font-size:0;"> </span>I informed him that I have contacted the offices of the secretaries in all 49 states plus the District of Columbia, and I found it to be commonplace for them to post the rights of applicants up on their websites, which they can review before as well as after the exam.<span style="font-size:0;"> </span>The Virginia Board of Bar Examiners has no such posting.<span style="font-size:0;"> </span>When there was no response to that, I thanked him for the information, and began preparing the paperwork to bring the matter before the Supreme Court of Virginia.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >In May 4, 2009 I met with my state senator to discuss this issue and the lack of cooperation by the board.<span style="font-size:0;"> </span>His name is Senator George Barker, representing part of Fairfax County and part of Prince William County.<span style="font-size:0;"> </span>Mr. Barker and I discussed the issue in detail at a Starbucks near my home in Springfield.<span style="font-size:0;"> </span>I explained that the reason why I met with him was to seek a small change in the law, i.e. a one sentence addition to the very law that already preserves the essays for one year (Va. Code §54.1-3929).<span style="font-size:0;"> </span>The amendment would read as follows:<span style="font-size:0;"> </span>“An applicant may request in writing from the Board, within thirty (30) days after the results of the examination have been made public, copies of the questions and his essay answers and two representative answers to each such question which shall be provided to the applicant at his expense.”<span style="font-size:0;"> </span>This would allow applicants to obtain their essays, as is done in the other states, upon request after receiving the results.<span style="font-size:0;"> </span>Though he agreed with my concerns at the time, I have yet to hear from him.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >From what I have been able to uncover, the Virginia Supreme Court has since the 1970’s been dismissing all bar exam disputes that have come before it.<span style="font-size:0;"> </span>Part of the reason likely has to do with plausible deniability:<span style="font-size:0;"> </span>without the evidence to send a petition there is no way for the court to review the matter.<span style="font-size:0;"> </span>The court defers to Scott Street in his decision not to release essays.<span style="font-size:0;"> </span>Street, as Secretary of the Board, is part of the Virginia Supreme Court.<span style="font-size:0;"> </span>It is an entirely contained process, a classic Catch-22 for any applicant with a legitimate dispute with the Board.<span style="font-size:0;"> </span>This paradox laid the foundation for building my argument on a due process theory, that before I petition the Virginia Supreme Court I need the Virginia Supreme Court to first order the release of the essays and short answers.<span style="font-size:0;"> </span>Once again, rather than “appeal” without the evidence, I sought a writ of mandamus.<span style="font-size:0;"> </span>In my complaint, I informed the court of my phone conversation with Street, the Board’s silence on the software failure at oral argument in Fairfax, and the Assistant Attorney General’s response to the judge’s question as to what process is due aggrieved applicants with “that is an interesting question.”<span style="font-size:0;"> </span>Secondly, I was prepared to produce an expert witness on software technology, and informed the court of such.<span style="font-size:0;"> </span>Significantly, the new issues raised in this case relating to software failures and rights of the applicants to obtain essays are ripe for review, especially when the overwhelming majority of the state bar examination boards allow applicants to obtain their essays as a matter of right.<span style="font-size:0;"> Extensive research has uncovered absolutely no precedent for a case with similar circumstances as this one. </span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >While the case was pending before the Supreme Court of Virginia, the one-year mark came up which was the cut-off date for how long the General Assembly requires the Board to preserve the essays (presumably for such a dispute as this one).<span style="font-size:0;"> </span>As I brought a motion to preserve the evidence for the pending case, even this ended up being a fight as the Board wanted to twist the wording from “all essay responses and short answers” to “all answers in question.”<span style="font-size:0;"> </span>Wording in the law is of the utmost importance- the Board’s attempt could have allowed it improper wiggle room in exploiting the situation at a later point, once again reserving to itself more “discretion” to be the one to decide which essays are in question.<span style="font-size:0;"> </span>Finally, they conceded the point.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >The Virginia Supreme Court ended up prematurely dismissing the case, without even requiring Street to answer the complaint.<span style="font-size:0;"> </span>It did this after being informed that I had an expert witness on software technology who was willing to testify that the Board’s procedures were not technically sound and that my concerns as to the accuracy of the grade were well founded.<span style="font-size:0;"> </span>I brought a timely motion for rehearing, attaching a sworn affidavit confirming what was already stated in the complaint about the software failure, the rebooting at the saving stage, and the numerous others who experienced similar problems.<span style="font-size:0;"> </span>I also set up and claimed my right under the due process clause of the 14<sup>th</sup> Amendment of the Federal Constitution.<span style="font-size:0;"> </span>That was dismissed without comment.<span style="font-size:0;"> </span>The court set forth <u>no </u>alternative avenue by which I could possibly bring this matter to its attention and survive a motion to dismiss for lack of evidence.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >At this point the Virginia Supreme Court might have expected that I would do what most applicants already do:<span style="font-size:0;"> </span>petition it or appeal the grade without the very evidence in hand needed to do so.<span style="font-size:0;"> </span>That is like putting the cart before the horse.<span style="font-size:0;"> </span>Not only would that be incredible but it would be a waste of time.<span style="font-size:0;"> </span>Courts cannot make decisions without evidence, and the complainant is the one responsible for bringing the evidence to the court.<span style="font-size:0;"> </span>That this Catch-22 has never come to the attention of the Virginia Supreme Court struck me as unbelievable.<span style="font-size:0;"> </span>The simple fact of the matter was that the Virginia Supreme Court was not willing to do its job by supervising Scott Street.<span style="font-size:0;"> </span>That having been the highest court in the state and only court that could hear the case, Virginia has just ignored a legitimate complaint.<span style="font-size:0;"> </span>It was exactly what the Federal Constitution prohibits in the 14<sup>th</sup> Amendment when it states: “nor shall any State deprive a person of life, <i>liberty</i>, or property without due process of law.”<span style="font-size:0;"> </span>A professional license is a well recognized liberty interest.<span style="font-size:0;"> </span><span style="font-size:0;"></span><o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >I then sent a petition for certiorari to the United States Supreme Court on December 23, 2009.<span style="font-size:0;"> </span>The U.S. Supreme Court bears the ultimate authority over the constitutionality of bar exam proceedings.<span style="font-size:0;"> </span>Though it was a snowy day, and the metro was closed in previous days, I was able to get it in just in time before the closing of my 90-day window for submitting the case.<span style="font-size:0;"> </span>This was a forty page brief with an appendix of documents that included, among other things, charts that compared Virginia’s nondisclosure policy with the more transparent policies of the rest of the country as well as documented incidents in other jurisdictions where software malfunctions led to data loss.<span style="font-size:0;"> </span>Such data loss was only correctable once applicants were able to obtain their essays and pinpoint the problems.<span style="font-size:0;"> </span>In the course of my research, I discovered that the National Conference of Bar Examiners has an established alternative grading methodology for when situations of software data loss arise.<span style="font-size:0;"> </span>Because Street works with the National Conference of Bar Examiners in administering Virginia’s exam, this was both relevant and important.<span style="font-size:0;"> </span>I also included a personal account of an applicant for New York’s July 2007 exam who experienced a software glitch and, once he received the results, requested the essays.<span style="font-size:0;"> </span>Upon discovering that portions of his essays were missing, he hired an attorney and confronted the board.<span style="font-size:0;"> </span>Even though the Board initially took the position that his essays were submitted in full and it had a policy of finality with no appeal, a secret appeal was instituted and he was subsequently sworn-in when it turned out he was right after all.<span style="font-size:0;"> </span>He was able to do this because of his right to obtain the essays.<o:p></o:p></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >In February 2010 the U.S. Supreme Court denied cert without explanation.<span style="font-size:0;"> </span>This was no surprise, given the magnitude of cases on the court’s docket; nevertheless they should have taken it because the issue will by no means go away and is not limited to just myself.<span style="font-size:0;"> </span>There are eight states that continue to operate behind closed doors, with no recourse for an aggrieved applicant.<span style="font-size:0;"> </span>In any case, a cert denial is not an opinion.<span style="font-size:0;"> </span>In other words, even after all of this, I still had not had my day in court.<span style="font-size:0;"> </span>I then informed Street’s office that the essays needed to be preserved for when it is brought before the appropriate committee of the Va. General Assembly.<span style="font-size:0;"> </span>Before referring this matter to the legislature, I found that because of the constitutional considerations at play I still had a federal remedy in the federal courts.
<br /></span></p><p style="TEXT-INDENT: 0.5in" class="MsoNormal"><span style="LINE-HEIGHT: 115%;font-family:';font-size:100%;" >Federal court is my last legal resort. Before sending the complaint this time, I have acquired the assistance of a highly credentialed expert witness on data loss and software technology. Dr. Stephen Castell, from the UK, has testified before the English High Court and multiple American federal courts in high profile cases for many well respected law firms. When he reviewed my affidavit, he agreed that not only was the Board wrong to deny me the essays but he could see no other way for such a dispute as this one to be resolved than for the essays to be released to me. This turns the tide. Because the only relief I am seeking at this point is for the essays' release, if the Board does not bring forth an expert to counter this point, then I will be positioned to bring a summary judgment motion which requests the judge to decide in my favor even before trial because Scott Street and the Board are clearly in the wrong. Shortly Dr. Castell's opinion will be reduced to wring at which time the complaint will be filed in federal court.</span></p><span style="FONT-WEIGHT: bold">
<br />Update (15):</span> <span style="font-size:85%;">March 22, 2010</span>. <span style="font-size:85%;">Today I notified Scott Street, Secretary of the Virginia Board of Bar Examiners, that I will now commence litigation of this case in federal court. </span>
<br />
<br /><span style="font-size:0;"><span style="font-size:85%;"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">Update (14): </span></span></span></span></span></span></span></span></span><span style="font-size:85%;">February 23, 2010. The Court entered its order denying certiorari. Without further explanation it is difficult to know the reasoning. However, this is not a ruling on the merits of this case. Neither have the merits been addressed thus far. While there are many questions about this exam that may never be answered, what I find most interesting about this is that there was always a law that specifically required the board to preserve the essays after the exam. Sixteen months later, my essays continue to be cloaked in secrecy.
<br />
<br />As I informed the Supreme Court, I will not appeal the exam results to the Virginia Supreme Court without the essays, which are crucial to any case ever being successful. The Va. Attorney General's office was informed prior to the filing of this petition that this was likely to become a political question for the General Assembly in Richmond. I will now look into what further steps are appropriate at this time.
<br />
<br />South Carolina, one of the eight so-called "nontransparent" state bar exams, demonstrated in 2007 the unreasonableness of not having a corrective process in place and the need for proper oversight of the state supreme court. http://www.lawschool.com/screwup.htm [December, 2007].
<br />
<br /></span><span style="font-size:85%;">Bar examination boards are agencies of their respective states, and every applicant throughout the country has a right to petition the state supreme court. </span><span style="font-size:85%;">The following is a list of the States and the procedural protections for the applicants:
<br />
<br /><span style="FONT-WEIGHT: bold">No Transparency
<br /><span style="FONT-WEIGHT: bold"></span></span></span><span style="font-size:85%;">Virginia
<br />South Carolina
<br />Georgia
<br />Colorado
<br />South Dakota
<br />Hawaii
<br />Arkansas
<br />Missouri
<br />
<br /></span><span style="font-size:85%;"><span style="FONT-WEIGHT: bold">Right to Review the Essays
<br /></span></span><span style="font-size:85%;">Illinois
<br />Nebraska
<br />Wyomina
<br />Kentucky
<br />Louisiana
<br />West Virginia
<br /></span><span style="font-size:85%;"><span style="FONT-WEIGHT: bold">
<br />Right to Obtain the Essays</span>
<br />Maine
<br />Vermont
<br />New Hampshire
<br />Massachusetts
<br />New Jersey
<br />Rhode Island
<br />Connecticut
<br />New York
<br />Pennsylvania
<br />Maryland
<br />District of Columbia
<br />North Carolina
<br />Florida
<br />Washington
<br />Ohio
<br />Indiana
<br />Michigan
<br />Iowa
<br />Texas
<br />Montana
<br />Wisconsin
<br />Kansas
<br />New Mexico
<br />Minnesota
<br />Alaska
<br />Tennessee
<br />Alabama
<br />Oklahoma
<br />North Dakota
<br />Utah
<br />Oregon
<br />Arizona
<br />California
<br />Delaware
<br />Idaho
<br />Nevada
<br />Mississippi </span>
<br /><span style="font-size:0;"><span style="font-size:85%;"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">
<br />Update (13): </span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">Jan. 14, 2010. The Virginia Attorney General's Office, representing Mr. Street, has decided to waive its right to file a brief in opposition. </span></span></span></span></span></span><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">
<br />
<br />Update (12): </span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;">December 28, 2009. The case was filed with the U.S. Supreme Court on December 22, 2009 and docketed the following day. Mr. Street has the right to respond by January 22nd. The case number is 09-8199. My certiorari brief is reprinted as follows:</span></span>
<br />
<br />No. 09-8199
<br />▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
<br />In the Supreme Court of the United States
<br />▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
<br />
<br />JONATHAN BOLLS,
<br />
<br />Petitioner,
<br />
<br />v.
<br />
<br />
<br />W. SCOTT STREET III, SECRETARY OF THE VIRGINIA BOARD OF BAR EXAMINERS,
<br />
<br />Respondent.
<br />
<br />
<br />On Petition for Writ of Certiorari and/or Writ of Mandamus to the Supreme Court of Virginia
<br />▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
<br />PETITION FOR WRIT OF CERTIORARI AND/OR MANDAMUS
<br />▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬▬
<br />
<br />Jonathan B. Bolls
<br />Pro-Se
<br />
<br />
<br />
<br />
<br /><span style="FONT-WEIGHT: bold">QUESTIONS PRESENTED</span>
<br />
<br />1.) As the nation undergoes a transition to computer based testing for bar examinations, was due process under the Fourteenth Amendment violated by the bar admission agency of the Virginia Supreme Court when it refused to release essay responses, the very evidence needed to determine what happened, when an applicant for the bar experienced a crash in the agency's software while uploading his answers and the agency continued to deprive the applicant of any remedy?
<br />
<br />2.) Did the Virginia Supreme Court, in its administrative oversight capacity, in conflict with 42 state supreme courts and the D.C. Court of Appeals, violate due process under the Fourteenth Amendment when it refused to force its bar admission agency to release essay responses, the very evidence needed to petition itself for relief, after the bar applicant experienced a crash in the agency's software during the essay exam and that agency closes the case without proper inquiry?
<br />
<br /><span style="FONT-WEIGHT: bold">TABLE OF CONTENTS</span>
<br />
<br />
<br />QUESTIONS PRESENTED ………………………… i
<br />
<br />TABLE OF AUTHORITIES ……………………….. vi
<br />
<br />DECISIONS BELOW ………………………………. 1
<br />
<br />JURISDICTION …………………………………….. 1
<br />
<br />INTRODUCTION …………………………………... 1
<br />
<br />STATEMENT OF THE CASE …………………….. 10
<br />1. Jurisdiction in the Virginia Supreme Court . 10
<br />2. Course of the Proceedings ………………... 10
<br />a.) Fairfax Circuit Court …………….. 10
<br />b.) Virginia Supreme Court and the
<br />Federal Question …………….. 11
<br />Finality of the Opinion of the
<br />Virginia Supreme Court …….. 13
<br />
<br />REASONS FOR GRANTING THE WRIT …..……. 15
<br />
<br />THE RECENT TRANSITION TO COMPUTER BASED TESTING NOW AFFECTS MOST APPLICANTS TO THE STATE BARS, MAKING THE ISSUE OF WHAT CONSTITUTES MINIMAL DUE PROCESS PROTECTION RIPE FOR REVIEW …………………………………… 15
<br />
<br />THE RULING OF THE SUPREME COURT OF VIRGINIA CONFLICTS WITH THE SUBSTANTIVE GROUNDS RULE OF REVIEW PREVAILING IN MOST OTHER JURISDICTIONS ………………………….. 25
<br />
<br />NO REAL REMEDY IS BEING OFFERED BY THE BOARD TO IDENTIFY OR CORRECT SOFTWARE ERROR ………. 30
<br />
<br />THROUGH ITS POLICIES THE BOARD IS USURPING JUDICIAL POWER MAKING MANDAMUS THE ONLY AVAILABLE REMEDY ………………………………….. 31
<br />
<br />THROUGH DISMISSAL, THE VIRGINIA SUPREME COURT IGNORED THIS COURT’S FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE UNDER <span style="FONT-STYLE: italic">MATTHEWS v. ELDRIDGE</span>, 424 U.S. 319 …………………. 35
<br />
<br />A. NO CORRECTIVE PROCESS ……….. 35
<br />B. FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE
<br />PROCEDURE …………………..……... 37
<br />1. Private interest affected by the action …………….…………………….. 37
<br />2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards … 37
<br />3. Government’s interest............................................................38
<br />
<br />CONCLUSION ……………………………………. 40
<br />
<br />
<br />
<br />APPENDIX
<br />
<br />Opinion of the Supreme Court of Virginia
<br />(Aug. 11, 2009) ……………...……...……………… 1a
<br />
<br />Denial of Petition for Rehearing, Supreme Court of
<br />Virginia (Sep. 23, 2009) ……………………………. 2a
<br />
<br />Order of the Circuit Court of Fairfax County
<br />(March 16, 2009) ………………………………... 3a-4a
<br />
<br />Petition for Rehearing …………………………... 5a-8a
<br />
<br />Sworn Affidavit on Software Malfunction ……. 9a-10a
<br />
<br />Fourteenth Amendment, Section 1 ………….…….. 11a
<br />
<br />Bar Examination Results ………………………….. 12a
<br />
<br />Initial Request to the Board (Oct. 21, 2008) …...…. 13a
<br />
<br />Response to Petitioner’s Request (Oct. 21, 2008) … 14a
<br />
<br />Respondent’s Request for Encrypted File
<br />(Nov. 3, 2008) ………………………………….…. 15a
<br />
<br />Response to Respondent’s Request
<br />(Nov. 4, 2008) …………………………………….. 16a
<br />
<br />Final Denial of Petitioner’s Requests
<br />(Nov. 7, 2008) …………………………………….. 17a
<br />
<br />Response to Final Denial …………………………. 18a
<br />
<br />Chart, Transparency of States’ Law Examiner
<br />Offices …………………………………………….. 19a
<br />
<br />Chart, Percentages of Applicants Taking State Bar
<br />Examinations on Laptop ………………………….. 20a
<br />
<br />Virginia Code: Powers, Rules, and Regulations
<br />of the Board ……………………………………….. 21a
<br />
<br />Virginia Code: Preservation of Examination
<br />Papers …………………………………………...… 21a
<br />
<br />Virginia Code: Discretion of Professional Testing
<br />Boards in Releasing Test Papers ………………….. 21a
<br />
<br />Agreement to Preserve Essay Responses and
<br />Short Answers …………………………………….. 22a
<br />
<br />Press Release, New York Board of Law
<br />Examiners (Nov. 15, 2007) ………………...… 23a-24a
<br />
<br />New York Personal Injury Law Blog, Eric
<br />Turkewitz, Esq., The Turkewitz Law Firm,
<br />New York, NY ……………………………..… 25a-29a
<br />
<br />New York Law Journal. “Software Snafus Upset
<br />Test Takers.” (July 26, 2007) ………………... 30a-32a
<br />TABLE OF AUTHORITIES
<br />
<br /><span style="FONT-WEIGHT: bold">Cases</span>
<br />Applicant No. 26 v. Bd. of Bar Examiners of
<br />Delaware, 780 A.2d 252 (Del. 2001) ……… 26, 29
<br />Application of Heaney, 106 Ariz. 391 (1970) .. 7, 26, 32
<br />Application of Peterson, 459 P.2d 703
<br />(1969) …………………………………...7,8, 26, 27
<br />Bankers Life & Casualty Co. v. Holland,
<br />346 U.S. 379 (1953) ……………………………. 34
<br />Chaney v. State Bar of California, 386 F.2d 962
<br />(9th Cir. 1967) ………………………………….. 26
<br />Chicago B&Q R.R. v. Chicago, 166 U.S. 226
<br />(1897) …………………………………………... 28
<br />De Beers Consolidated Mines, Ltd. v. United
<br />States, 325 U.S. 212 (1945) ……………………. 34
<br />Enterprise Irrigation Dist. v. Farmers Mutual
<br />Canal Co., 243 U.S. 157 (1917) ……………….. 14
<br />Ex Parte Beattie, 98 Fla. 785 (1929) ………………. 31
<br />Feldman v. State Bd. of Bar Examiners,
<br />438 F.2d 699 (8th Cir. 1971) …………………… 26
<br />Goldberg v. Kelly, 397 U.S. 254 (1970) …….………. 7
<br />Greene v. McElroy, 360 U.S. 474 (1959) ………….... 7
<br />Griffin v. Illinois, 351 U.S. 12 (1956) …………....… 41
<br />In re Monaghan, 126 Vt. 193 (1967) …………….… 26
<br />In re Thorne, 635 P.2d 22 (Utah 1981) ………….… 26
<br />Parrish v. Bd. of Commsnrs. of Al. State
<br />Bar, 533 F.2d 942 (5th Cir. 1976) …...…. 18, 28, 29
<br />Petition of Pacheco, 85 N.M. 600 (1973) ……… 26, 29
<br />Poats v. Givan, 651 F.2d 495 (7th Cir. 1981) …….… 26
<br />Richardson v. McFadden, 563 F.2d 1130
<br />(4th Cir. 1977) ……………………………...…… 33
<br />Rogers v. Supreme Court of Virginia,
<br />590 F. Supp. 102 (1984) …………………..…… 31
<br />Rogers v. Supreme Court of Virginia,
<br />772 F.2d 900 (4th Cir. 1985) (Unpub. 84-1746) .. 27
<br />Schware v. Board of Bar Examiners of New Mex.,
<br />353 U.S. 232 (1957) ……………………...…… 1, 6
<br />Scinto v. Stamm, 224 Conn. 524 (1993) ……..… 18, 26
<br />Staley v. State Bar of California,
<br />17 Cal. 2d 119 (1941) ………………………….. 26
<br />Taylor v. Saftly, 276 Ark. 541 (1982) …………….... 30
<br />Theard v. United States, 354 U.S. 278 (1957) ………. 1
<br />Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975),
<br />cert. denied, 426 U.S. 940 (1976) ………….. 19, 26
<br />White v. Ragen, 324 U.S. 760 (1945) ……………… 19
<br />Whitfield v. Illinois Board of Bar Examiners,
<br />504 F.2d 477 (7th Cir. 1974) ……………..….. 6, 26
<br />Willner v. Committee on Character,
<br />373 U.S. 96 (1963) ………………………...…… 15
<br />Woodard v. Virginia Board of Bar Examiners,
<br />454 F. Supp. 4, aff’d 598 F.2d 1345
<br />(4th Cir. 1979) ………………………………... 5, 35
<br />
<br />Constitutions and Statutes:
<br />U.S. Const. amend. XIV ………………………….…. 9
<br />28 U.S.C. §1257(a) ………………………………….. 1
<br />28 U.S.C. §1651(a) ………………………………….. 1
<br />Va. Const. art. VI, §1 ………………………………. 10
<br />
<br />Other Materials:
<br />American Jurisprudence ………...………...…… 12, 17
<br />Black’s Law Dictionary, 5th ed. ……………………. 41
<br />Corpus Juris Secundum ………...………………….. 12
<br />Joel Stashenko and Mark Fass, Software Snafus
<br />Upset Test Takers During First Day of State
<br />Bar Exam, New York Law Journal,
<br />July 26, 2007 …………………………..…… 21, 38
<br />Press Release, New York Bd. of Law Exmnrs.,
<br />Nov. 15, 2007, available at
<br />http://web.archive.org/web/20071123015445/www.nybarexam.org/press.htm ............................... 21, 22
<br />Thomas Pobjecky, The Demands of Due
<br />Process in Bar Admissions Proceedings, Bar
<br />Examiner, Feb. 1996 …………………………….15
<br />
<br />
<br />
<br />DECISIONS BELOW
<br />
<br />The opinion of the Virginia Supreme Court is unreported and reprinted in Appendix (App.) 1a. The decision on petition for rehearing is reprinted in 2a. The order of the Circuit Court of Fairfax County is reprinted in 3a-4a.
<br />
<br />JURISDICTION
<br />
<br />The Virginia Supreme Court, as a court of first impression and acting in its administrative capacity, issued its decision on August 11, 2009 and its decision on rehearing the petition on September 23, 2009. This Court has jurisdiction under 28 U.S.C. § 1257(a), 28 U.S.C. § 1651(a), and its ultimate appellate authority in reviewing adverse decisions on applications to the state bar. Schware v. Bd. of Bar Exmnrs. of New Mexico, 353 U.S. 232; Theard v. United States, 354 U.S. 278.
<br />
<br />INTRODUCTION
<br />
<br />This Court is faced with a situation in which an applicant for the Virginia Bar experienced more than one software malfunction in the software of the Virginia Board of Bar Examiners’ servicing company during the essay portion of the examination. Upon receiving the results he perceived a wide discrepancy between his performance and the reported score for the essay portion. Despite repeated requests, no investigation has been made into what damage may have been caused and no remedy set forth albeit one exists and has been proven to work in other jurisdictions. Without proper inquiry, Petitioner was informed that all results are final, there is no appeal, and the case was closed. Petitioner now seeks his essays so that he can make an informed decision on whether to contest and, if necessary, send his petition to the Virginia Supreme Court, which is responsible for overseeing the activities of its agency, the Board. Extensive research has revealed no authority within published case law for an applicant’s right to obtain essays within the context of a software malfunction.
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<br />The computer based bar examination is a relatively new phenomenon now being utilized on a wide scale by 42 jurisdictions and rapidly growing in popularity among applicants nationwide. See App. 20a (chart showing the percentages of applicants writing their essays on laptop). Bar examination boards contract with software companies to provide the service.
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<br />The facts in this case are not in dispute. Petitioner took the Virginia Bar Exam in July 2008 and experienced a software malfunction that caused him to have to seek hands-on technical assistance from one of the software company's technicians who, after making an attempt, instructed him to turn his computer off and turn it on during an approximately ten step process of saving the essay responses onto his laptop. This happened twice. Ex. G, reprinted in App. 9a-10a (sworn affidavit). [Footnote: he definitely recalls one of these times being instructed to turn his computer off and turn it on somewhere in the middle of the ten steps when the first attempt by the technician was made, although it may very well have occurred both times]. He had no choice but to copy his answers onto a USB drive and hand that in without seeing what was submitted. Upon receiving the results, Petitioner observed a significant scoring discrepancy on his performance of the essay portion. See App. 13a (initial correspondence with the Virginia Board of Bar Examiners, hereinafter referred to as "Board”), in which Petitioner immediately requested assistance in determining "some other fathomable explanation for the scoring discrepancy [he] believe[s] exists." See also App. 14a (response, written immediately thereafter by the Respondent Secretary of the Board, stating: "After the results are released, there is no appeal or re-evaluation process for candidates who do not successfully pass").
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<br />Software malfunctions of this nature have led to data loss in several state bar examinations and the National Conference of Bar Examiners has workable grading methods for when data is lost by the software. See eg., App. 23a-24a (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 Oct. 30, 2009). The Board has maintained that all results are final once posted, repeatedly turned down Petitioner’s appeals, and refused to allow him to obtain his essays.
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<br />Petitioner then brought an emergency motion in state circuit court to compel the essays' release, which was taken under advisement for three months and ultimately denied for lack of jurisdiction. He then brought a mandamus action under the original jurisdiction of the Virginia Supreme Court, which was dismissed on the grounds that Respondent’s decision to not release the essays was discretionary.
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<br />In his petition for rehearing, ultimately denied, he stated that it was impossible for him to have this matter properly reviewed by the court without him first obtaining the essays to personally determine what, if anything, happened to the answers he wrote. This is the procedure that is done in the vast majority of jurisdictions. Attached to his petition was his sworn affidavit (App. 9a-10a) of what occurred. This statement had been reviewed by an expert witness who was prepared to testify as to the inadequacy of the Board's current procedures. See App. 5a-8a, Pet. for Rh’g. ¶10.
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<br />The Multistate Bar Exam (MBE), a multiple choice lesser weighted component, was never at issue in this case. Petitioner's score is approximately what he expected and is good enough to be waived into other jurisdictions. See App. 12a (bar exam results, Oct. 16, 2008).
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<br />The Virginia Supreme Court was notified that Petitioner sought the information necessary to make an informed decision and, if necessary, to make a cognizable petition to that court. See Replacement Pet. for Mandamus, Prayer for Relief (“That, in the interests of judicial economy, in the event that a claim is made, [the Virginia Supreme Court] bifurcate the proceedings to allow for an expedited second hearing specifically with reference to reviewing [Petitioner’s] essays”).
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<br />Although applicants have been known to request model answers and other graded test papers along with their own in order to contest a grader's assessment, Petitioner has only requested <span style="FONT-STYLE: italic">his</span> essays. Petitioner argued that the Virginia Supreme Court, through its Board, has vitiated his right to bring the matter before itself by withholding necessary evidence:
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<br />"The Supreme Court of Virginia pursuant to its inherent supervisory authority over the bar admission process has the discretion whether to hear an applicant’s complaint or appeal; however, without the possibility of obtaining the essays, any appeal to this Court is rendered defective and illusory because the underlying petition or appeal fails to ‘plead any clearly identifiable, non-hypothetical damages.’ This is not out of lack of merit but because of the erroneous withholding of evidence."
<br />Pet. for Reh’g ¶7.
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<br />42 states and the District of Columbia disclose essays to bar applicants upon written request after the results are released. See Ex. A, reprinted in App. 19a (chart showing state board of law examiner office policies). [Footnote: the charts reprinted in App. 19a-20a represent information that can be easily accessed by the public by contacting the individual state board of law examiner offices. On its website, the National Conference of Bar Examiners provides a link to the websites and phone contact information for each at http://www.ncbex.org/ (click "Bar Admission Offices"). Most states release the essays in the mail for a small fee.
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<br />Virginia is one of eight hold-out states in which applicants have no access to the essays. Id. However, where there is reason to believe that a reported score is substantially incorrect, an applicant in Virginia does have a right to petition the Virginia Supreme Court within its inherent supervisory power. Woodard v. Virginia Board of Bar Examiners, 454 F. Supp. 4,6 (E.D. Va.), aff'd 598 F.2d 1345 (4th Cir. 1979) ("The [Va.] Supreme Court has no explicit statutory authority to review the Board's decisions or to reverse its evaluation of a particular candidate. Nonetheless, it is well settled that the Court retains such inherent power."). The Virginia General Assembly also has a law that preserves the essays for one year (App. 21a) presumably for such a dispute as the instant case. Unfortunately, this law has been of no help to Petitioner. Nevertheless, the essays continue to be preserved for this litigation. App. 22a (agreement to preserve the test papers while the case is pending before this Court).
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<br />Not only has the Board repeatedly refused to look into the software issue, it has simultaneously deprived Petitioner of his right to petition the Virginia Supreme Court by denying, under the auspices of discretion, his repeated requests to obtain the only evidence that he could use to prove his case: his essay responses. <span style="FONT-WEIGHT: bold">At no time has the Board informed Petitioner that the software malfunction was benign</span>.
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<br />Despite the presence of a sworn affidavit and an expert witness, the Virginia Supreme Court hastily ruled that it cannot compel the release of the essays and dismissed the case. Whether Respondent is delinquent in not releasing the essays or the Virginia Supreme Court is delinquent in not properly exercising its supervisory powers, Petitioner's case demonstrates a fundamental flaw in the administrative procedures of the Virginia Bar Exam.
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<br />While the Board may not afford a corrective process to an aggrieved bar applicant, Petitioner nonetheless has recourse to the Virginia Supreme Court where there is reason to believe error has occurred and no other recourse is available. The problem is that Petitioner has no way of making an informed decision on whether to contest or present a valid petition should he choose to do so, because the essays are being unfairly withheld.
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<br />This Court has made it clear that "a state cannot exclude a person from the practice of law...in a manner or for reasons that contravene the due process...clause of the 14th Amendment." Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). See also Whitfield v. Illinois Board of Bar Examiners, 504 F.2d 477 (1974) ("the due process clause requires the state to employ <span style="FONT-WEIGHT: bold">fair procedures in processing</span> applications for admission to the bar and, therefore, that an applicant who has failed the bar exam is <span style="FONT-WEIGHT: bold">entitled to some procedural protections.</span>"). Furthermore, based upon an application to take the bar examination there exists a special relationship wherein a duty does exist that the examination be scored properly and scoring information be made available upon request where there are instances where error is possible.
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<br />To ignore Petitioner's concerns, particularly where there was a flaw in the software utilized by the Board, is to disregard Petitioner's rights. As the court in Schware puts it: "Certainly the practice of law is not a matter of the state's grace." Cf. Greene v. McElroy, 360 U.S. 474, 496 (1959); quoted with approval in Goldberg v. Kelly, 397 U.S. 254 (1970) ("certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."). In the instant case, such fact findings pertain to the software malfunction and the perceived discrepancy in the reported score.
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<br />The Virginia Supreme Court, and its Board, would have to be fully aware that Petitioner and other similarly situated applicants who fall prey to a software glitch could never plead with the kind of particularity that would be able to survive a motion to dismiss. The entire system in Virginia contravenes due process when a legitimate complaint arises and there is no way for the Virginia Supreme Court to make an informed decision on whether to grant review in the first place. A case in Arizona well demonstrates the problem where a petition to the state supreme court to review bar examination papers was dismissed because it failed to set forth “exact and complete particulars of alleged unfair or improper grading…” Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970).
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<br />The court below's ruling conflicts with the common sense approach adopted by the Alaska Supreme Court in Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (1969), a state that allows the applicant to petition the board for a hearing which the board may grant according to its discretion. When the board denied a hearing, the court stated: "[the board's argument] left unexplained the mechanics by which the rejected applicant could demonstrate that his failure was caused by fraud, imposition, or other serious grounds." Id. (emphasis added). Citing to the minimum standards of basic procedural fairness, the court stated: "inaccessibility of these documents [graded essays] precluded the possibility of obtaining an appellate hearing on the merits consonant with the requirements of a fair hearing." In Virginia, and the seven other states still operating a closed licensing process (App. 19a), there exists no right to petition the board for a hearing but there does exist a right to petition the state supreme court under its inherent supervisory authority over bar admissions. In either case, withholding essays while requiring the applicant to demonstrate substantive grounds for review such as (inter alia) manifest unfairness (See Infra §1) constitutes the same logical “hiatus” that the Alaska court said denies “fair process.” Id.
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<br />As the nation undergoes the transition to computer based testing for the bar examination, testing boards must change in like measure. Of the 42 states that offer a computer based test, 30 of them have over half of the applicants now typing their essays on computer. See chart, App. 20a. The reasons for that are plain. Today, law students primarily take their notes and exams on laptop. There are significant advantages in typing speed and a way to go back and delete and insert information into the paragraphs. As a result, the computer based test has become practically an established institution. But like every established institution, it is by no means perfect. Bar examination boards concede that software malfunctions have occurred midway through the essay test and particularly at the end during the saving stage of the examination. Consequently data has been lost. Ex. B, See App. 25a-27a (personal account of an applicant for the New York bar in 2007 who experienced a software crash and despite being reassured by the Board that no material was lost he still requested his essays and discovered that material was lost. After failing he was provided an ad hoc appeal despite a standing finality policy), available at http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-new-york-bar-exam.html (last visited Oct. 30, 2009).
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<br />The Board has conceded that its so-called "remedy" has nothing to do with ruling out the effects of a software glitch but is designed rather for the purpose of authentication: "the only way to authenticate [Petitioner’s] answers is to compare the encrypted file on his computer to the encrypted file held by the Board." See Mem. of Law in Support of Mot. To Dismiss at 7. <span style="FONT-WEIGHT: bold">The case at bar involves no question of authentication</span>.
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<br />Disposition of the present case is therefore straightforward: the essays must be released so Petitioner can decide whether or not to contest. The Commonwealth of Virginia, whether by means of discretion or otherwise, cannot "deprive any person of...liberty...without due process of law." U.S. Const. amend. 14, §1. The right to pursue one’s profession is well recognized to be within the confines of this amendment. The Virginia Supreme Court, through the omission of its Board and its own refusal to exercise supervisory authority with respect to Petitioner's application, has unduly incapacitated Petitioner's right to petition itself, rendering it impossible for Petitioner to seek a proper review of his examination.
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<br />This Court should therefore grant review.
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<br />STATEMENT OF THE CASE
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<br />1. Jurisdiction in the Supreme Court of Virginia
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<br />The mandamus petition in this case invoked the original jurisdiction of the Supreme Court of Virginia. Va. Const. art. VI, §1.
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<br />2. Course of the Proceedings
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<br />a.) State Circuit Court
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<br />Petitioner filed for an emergency court order in Fairfax County Circuit Court to compel the Board's Secretary to release his essays. On December 5, 2008 Petitioner was heard on the merits, including details of the software malfunction. He presented a "case in point," see Ex. B, App. 25a-27a, where a software malfunction of a similar type led to significant misgrading in another jurisdiction, identified and corrected only once the applicant obtained his essays. Arguments were heard on discretion and abuse of discretion. When asked why comparing the encrypted codes was an inadequate remedy, Petitioner responded that the "code saved on [his] computer may have been corrupted," rendering the method of no value. The judge took the case under advisement while both parties prepared supplemental briefs on the applicability of the state Administrative Process Act. Both parties concluded that the Board was exempt from the APA and there was no remedy under the Freedom of Information Act. On March 16, 2009 the court determined that it was without jurisdiction.
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<br />b.) Supreme Court of Virginia and the Federal Question
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<br />Unable to send a valid petition to the Virginia Supreme Court without his essays, Petitioner applied for a Writ of Mandamus to compel their release. In his Prayer for Relief, he reserved the right to petition the court once he obtained his essays: "in the interests of judicial economy, in the event that a claim is made, this Court bifurcate the proceedings to allow for an expedited second hearing with reference to reviewing Petitioner's essays." Replacement Pet. for Mand.
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<br />In response to the motion to dismiss, Petitioner stated: "the essay answers themselves represent the single most important piece of evidence, without which a claim or appeal could not be made." Mem. of Law in Opp. To Resp’t Mot. to Dismiss ¶1. In ¶21, Petitioner stated as follows: "in order to uphold this erroneous position [that all results are final and there is no review], Mr. Street is systematically squelching all complaints to [the Virginia Supreme Court] by denying all applicants their answers as a blanket rule." Id. The quandary was further underscored in ¶32: "Petitioner merely reserves the right to send his complaint to [the Virginia Supreme Court] but the one piece of evidence upon which he could rely is being withheld."
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<br />Entitled “Writ of Mandamus is necessary to prevent a procedural due process violation,” Id. ¶¶ 33-38, Petitioner explains more fully:
<br />"Petitioner has applied for a Writ of Mandamus not out of choice but necessity. Mandamus will allow Petitioner to obtain his essays and then decide at that point if he has any legitimate matters to present to [the Virginia Supreme Court]. If there are not, then Petitioner will not bring a claim...however [he] is convinced that the essay score is completely inaccurate. To deny Petitioner the very evidence he would need to present the matter to [the Virginia Supreme Court], which has the power to correct, would cause any recourse he has to [the Virginia Supreme Court] to become illusory."
<br />Id. ¶35.
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<br />The court below refused separately to consider any of Petitioner's claims regarding abuse of discretion and procedural due process and asked only whether it had the power to compel an act of discretion (in not releasing essays). It then issued a two-sentence opinion on discretion. See App. 1a. In its analysis of the legality behind compelling a discretionary act, the court also failed to consider under what circumstances mandamus <span style="FONT-STYLE: italic">can</span> be a remedy for an act of discretion. Choosing to dismiss rather than to hear the case, the court did not even require Respondent to answer or make a showing as to how discretion was utilized in this instance.
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<br />The court ignored ¶14 of Petitioner's Response to Mot. to Dismiss, citing to the relevant legal principle that an official acting in disregard of evidence pointing to a contrary result may not deny Petitioner the right to resort to mandamus. "An official may not act arbitrarily and unwarrantably or in disregard of evidence clearly and unmistakenly pointing to a contrary result and yet deny the right to resort to mandamus to compel proper action on his part." 34 Am. Jur. Mandamus §69. Cf. C.J.S. Mandamus §83 (“it may also be employed to correct an arbitrary action which does not amount to the exercise of discretion”).
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<br />The Board concedes that its "remedy" was for authentication purposes, which in no way addresses the computer glitch. Nevertheless the court’s opinion fails to take into account that "[t]he writ will not be denied...because of the existence of another remedy which is inadequate, or which serves another function." Am. Jur. 2d Mandamus §31.
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<br /><span style="FONT-WEIGHT: bold">Discretion is meaningless unless it is exercised on a case by case basis. Here there is every indication that it was not.</span>
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<br />Petitioner filed a timely motion for rehearing, citing a fundamental flaw in the administrative procedures of the Virginia Bar Exam and invoking his rights under the “due process clause of the Fourteenth Amendment of the Constitution of the United States.” Pet. for Reh’g ¶1, reprinted in App. 5a.
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<br />Petitioner voluntarily attached a sworn affidavit to the petition for rehearing which confirms and restates several paragraphs of the mandamus petition that pertain to the software malfunction and his other observations during the examination. Ex. G, App. 9a-10a. He also notified the court that he had an expert witness on computer software who read the sworn statement and was prepared to explain the inadequacy of the Board's procedures. Pet. for Reh’g ¶10, reprinted in App. 5a-8a.
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<br />The petition for rehearing was denied without opinion on September 23, 2009. Conspicuously absent was any suggested alternative roadmap to how it would be possible to have this matter properly reviewed.
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<br />c.) Finality of the Opinion of the Supreme Court of Virginia
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<br />The opinion of the court reads: “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.” App. 1a.
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<br />Without the essays it is impossible to plead this case before the Virginia Supreme Court. See Pet. for Reh’g ¶4, reprinted in App. 5a-8a (“Petitioner assigns as error the exclusion of evidence required to make an informed decision to contest the assessment of his bar candidacy. No scoring information was provided to Petitioner except a simple numeric score; therefore, the only relevant piece of evidence, i.e. the essay responses and short answers, has been unfairly withheld.”) and ¶ 5 (“Given the circumstances of the software malfunction and the proposal of an inadequate remedy, the scope of inquiry commands at the very least the release of the essays and short answers.”).
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<br />Petitioner cannot and will not petition the Virginia Supreme Court without his essays. When the court denied the motion for rehearing without opinion, it necessarily held adversely to these specially set up claims of federal right. Such claims went to the very foundation of the whole proceeding.
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<br />If recognized and enforced, this matter would not have been dismissed. Since they were not, the effect was to end this case at the state level.
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<br />This Court’s jurisdiction is plain because the issue of Respondent’s discretion is inextricably intertwined with the federal question of what rights a bar applicant who experiences software failure has to their essays before petitioning the state supreme court. See Enterprise Irrigation Dist. v. Farmers Mutual Canal Co., 243 U.S. 157 (1917) (jurisdiction is plain where non-federal ground is “so interwoven as not to be an independent matter,” which is also true “where non-federal ground is so certainly unfounded that it properly may be regarded as essentially arbitrary or mere device to prevent review of the decision upon the federal question.”).
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<br /><span style="FONT-WEIGHT: bold">REASONS FOR GRANTING THE WRIT</span>
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<br /><span style="FONT-WEIGHT: bold">I. THE RECENT TRANSITION TO SOFTWARE TESTING NOW AFFECTS MOST APPLICANTS TO THE STATE BARS, MAKING THE ISSUE OF WHAT CONSTITUTES MINIMAL DUE PROCESS PROTECTION RIPE FOR REVIEW</span>
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<br />In the past, bar examination boards have been notorious about depriving their applicants of due process protections, particularly in the character and fitness evaluation. See Willner v. Committee on Character, 373 U.S. 96 (1963). The advent of computer based testing in the 21st century necessarily extends due process scrutiny to the examination itself. Thomas Pobjecky, in the Feb. 1996 edition of Bar Examiner magazine states: “it is recommended that bar examiners simply ask themselves the following question: are our procedures fair? If bar examiners cannot answer such question in the affirmative without any hesitation, then an evaluation of their procedures should be undertaken.” [Footnote: Thomas Pobjecky. The Demands of Due Process in Bar Admissions Proceedings. Bar Examiner. February, 1996]. Unfortunately, it has been the case that law students have been struggling for decades to secure fair treatment from bar examination boards. Most of the states have rectified their policies as shown by the near uniform transition to a more open and transparent essay grading system. App. 19a.
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<br />As of September 2009, 42 states currently offer a computer based essay exam, 30 of which have over half now take it on laptop. See App. 20a (Chart, Percentages of Applicants Taking State Bars on Laptop). A number of states are now as high as 70% and 80% and rising. Id. Some states, eg. New Jersey and South Carolina, maintain an artificially low proportion to take the examination on computer software, chosen by lottery [Footnote: Phone conv. N.J. bar examiners' office. Jan. 9, 2009. S.C. bar examiners' office. October 8, 2009]. Others, like Tennessee, Missouri, Wisconsin, Montana, New Hampshire, Rhode Island, and Texas have recently implemented the computer based test in the last 2-3 years [Footnote: phone conv. with respective bar examiners' offices. Aug. 27, Aug. 31, Sep. 2, Sep. 3, and Sep. 15, 2009]. Tennessee and New Jersey began just this past year. Id.
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<br />Other states, like Massachusetts, have judicially decided to adopt a waiting period before implementing a computer based test. [Footnote: phone conv. MA bar examiners' office. Jan. 15, 2009]. See App. 20a (“no computer based test”). As early as January, 2009 Indiana was considering it but to date has not yet approved it [Footnote: Phone conv. IN bar examiners' office. Jan. 16, 2009]. Kentucky concedes that it has had similar software problems as New York. [Footnote: Phone conv. KY bar examiners' office. Feb. 9, 2009].
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<br /><span style="FONT-WEIGHT: bold">Central to this matter is an allowance to test the integrity of the computer based test, which now directly affects most newly admitted attorneys in the United States</span>. 36 states plus D.C. have adopted policies that allow applicants to obtain their essays upon written request <span style="FONT-STYLE: italic">whether or not </span>there is reason to believe error occurred. See Ex. A, App. 19a (Chart, Transparency of States’ Law Examiner Offices). 13 of these have implemented administrative appeals, id., which sometimes involve an informal first step. Another six ensure a right of review. Id.
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<br />Eight states, including Virginia, operate a closed bar examination. Id., see column for “non- transparent states.” These eight states, with the exception of Hawaii, operate a computer based test that affects a significant number of applicants. Incidentally, Virginia is the only one of these eight "non-transparent" states that has no backup system whereby lost data can be retrieved. See App. 20a (view “backup system” column and compare with list of “non-transparent” states cited in App. 19a). Of the states that do not have a backup system, all except for Virginia allow applicants access to their essays. See App. 19a and 20a, specifically Arizona, Kentucky, Louisiana, Maine, Nebraska, Tennessee, Wisconsin.
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<br />Therefore, an applicant who takes the bar examination in Virginia on laptop places himself or herself in the highest degree of jeopardy among all bar applicants in the country. The Board neither releases the essays if a software malfunction occurs nor looks into the matter, stating merely that all results are final once posted. App. 17a ¶1. The Virginia Supreme Court, in lockstep, denies the very means by which an applicant can bring even a legitimate case before itself. In so doing, the Virginia Supreme Court and its Board have created a <span style="FONT-WEIGHT: bold">Catch-22</span> for bar examinees: a right exists to petition the Virginia Supreme Court but no petition can ever be successful without the evidence needed. The Board as a blanket rule withholds the evidence.
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<br />Prior to the advent of computer based testing, the rule was that the state supreme courts would review bar examinations where certain substantive grounds for review were present, including “fraud or coercion, or the result of unfair, arbitrary, unreasonable, or other similar conduct on the part of the bar examiners.” 7 Am. Jur. Attorneys at Law §20. Circuit courts which have dealt with this issue are in agreement that these are the factors which warrant review. See Infra §3.
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<br />This rule is still the same today but some state supreme courts continue to counteract it by depriving an aggrieved applicant the means by which to prove the substantive grounds which would warrant a hearing. Just as analysis of other applicant test papers was necessary to discover alleged racial discriminatory grading practices, Parrish v. Bd. of Commsnrs. of Al. State Bar, 533 F.2d 942 (5th Cir. 1976), so too is it necessary for an applicant who suspects misgrading due to a software crash or some other reason to be able to obtain the essays.
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<br />Along with its conveniences, the advent of computer based technology has raised significant questions as to what procedural protections constitute the bare bones of due process protection, especially in a state that does not have a controlling statute. This is no more true than for Virginia and the seven other states that operate closed licensing processes with broad, seemingly limitless authority granted by the legislatures. See, eg. App. 21a, Powers, Rules, and Regulations of the Board.
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<br />Computer based testing thus brings new consideration to the meaning of "manifest unfairness" as a substantive ground for review. As the court in Scinto v. Stamm, 224 Conn. 524 puts it: “grading procedures violate due process where [there is] evidence that they result in gross grading errors.” <span style="FONT-WEIGHT: bold">The present case is not so much concerned with the procedures that are in place as it is with what is not in place: a bona fide corrective process, or in the absence of that full disclosure of the essays to guard the right to petition the state supreme court if necessary</span>. This is absolutely essential given the recent, less-than-perfect transition to computer based testing in Virginia and throughout the country. We must now ask whether withholding crucial evidence in an environment where additional procedures and safeguards for the computer based test are nonexistent can constitute another form of manifest unfairness rising to the level of a due process violation.
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<br />By showing a prima facie violation in a state's corrective process and subsequent dismissal by a state supreme court without requiring a respondent to answer, this Court can assume upon review that the allegations of the petitioner are true. White v. Ragen, 324 U.S. 760 (1945) (an inmate's conviction subsequently shown to have been secured by perjured testimony was later dismissed by the Illinois Supreme Court without opinion not having appointed counsel for the defendant or requesting an answer from the warden). Of course, the criminal trial was heard on its merits, but the issue as to whether the process had been corrupted was never addressed on its merits. The U.S. Supreme Court assumed therefore that the facts contained in a sworn affidavit as to the perjured testimony of a key witness were true. This Court granted certiorari "in order to consider whether the State of Illinois affords corrective process for such violations of constitutional right." Id.
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<br />The unqualified right to take the examination again is meant to remedy an entirely different situation than the one present. In bar examination disputes, where the issue centers on the opinion of a grader, courts have generally held that the opportunity for reexamination provides an adequate means of exposing grading errors. See Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976). This case rather involves a software malfunction. To the extent that Petitioner seeks to obtain his essays, he seeks to protect his interests in correcting error in a way that the Board is sadly not willing to do because of its finality policy. The case is fundamentally different that the typical grading dispute because the essays are sought principally to determine the extent of the effect of a software malfunction. While the effect still remains uncertain, that there was a malfunction in the software has never been disputed. If the essays manifest substantial or intentional misgrading, Petitioner also reserves the right to make that case to the Virginia Supreme Court.
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<br />Over the past few years in which computer based testing has been employed, bar examination software malfunctions have been unpredictable [Footnote: According to an article in the New York Law Journal, reprinted in App. 30a-32a, the Board of Law Examiners never experienced a problem with the software even after using it for several years prior to the July 2007 software mishap. See Par. 13] and have led to substantial misgrading in multiple jurisdictions. In his conversations with state bar admission offices, Petitioner has discovered that several other states have experienced software glitches that have led to data loss during the essay examination. New York has received the most publicity after its infamous problem in July of 2007. See App. 23a-24a (press release, NY Bd. of Law Exmnrs., Nov. 15, 2007).
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<br />What happened in New York is strikingly similar to what Petitioner experienced and observed. See App. 9a-10a (sworn affidavit regarding software malfunction). The day after the examination, it was reported that "test takers who typed the essays on the New York state bar examination into their laptop computers this week experienced problems saving their work and uploading the files for transfer to graders, the chair of the Board of Law Examiners acknowledged yesterday." App. 30a ¶1. Immediately suspecting a flaw in the software company's software provided to test takers, the chairwoman of the Board of Law Examiners stated: "the board suspects that a flaw in the [software company's] software provided to test takers by [the software company] is responsible for the computer glitches." Id. ¶2. The article explains that the investigation commenced even before the examination was completed: "Even as the board was administering the second day of the two-day bar exam yesterday, officials were trying to determine how many test takers were affected by the software problems and whether any of their essays would be lost." Id. (emphasis added). The article further explained that the software malfunction affected some and not others and described the problem, in part, as having "difficulty" "uploading(ing) their essays." Id. ¶¶ 6,7. See also further discussion on this point on page 24, where New York’s resolution is highlighted in the case of Eric Zeni.
<br />
<br />A follow-up article a week after the test provided a hopeful statement by the software company's president that backup systems had succeeded. Joel Stashenko, Backup Systems Avert Loss of N.Y. Bar Exam Essays, New York Law Journal, Aug. 3, 2007, available at http://www.law.com/jsp/article.jsp?id=1186089398538 (last visited Nov. 5, 2009). In fact, it turns out they did not for 47 candidates out of the 5,000 who took the test on laptop. In a press release issued on Nov. 15, 2007 along with the final results, the board stated: "one or more of the essay answers for 47 candidates could not be recovered." App. 23a-24a ¶5. Recovery efforts necessarily involved examining the files saved on USB drives, which constitute Virginia’s primary method for saving (See App. 30a-32a ¶10. Cf. App. 9a-10a, Petitioner’s sworn affidavit), which apparently did not work either.
<br />
<br />In its press release, The New York board proceeded to explain an ad hoc procedure it adopted to handle those 47 applications:
<br />"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. The Board worked with researchers at the National Conference of Bar Examiners to develop and apply this methodology, which resulted in nine of the remaining 15 candidates passing and six failing the examination. Candidates with missing essays who were unsuccessful on the examination have been notified by the Board as to how their results were determined."
<br />App. 23a-24a ¶5.
<br />
<br />This information directly undercuts the Virginia Attorney General’s position that even if discretion was abused, “ordering [Respondent] to release copies of [Petitioner’s] bar exam answers to him would serve no useful purpose.” Mem. of Law in Supp. of Mot. to Dismiss at 6. Petitioner’s experience and observations of Virginia’s July 2008 examination (App. 9a-10a) tightly correspond to what was observed in New York’s July 2007 examination, albeit handled differently. Both states have policies of finality once results are posted but only Virginia has a policy of nondisclosure. Without proper disclosure (or at least the exercise of true discretion on a case by case basis), the incentive is all too high for bar examiners to arrive at the convenient conclusion that any incomplete or missing answers is attributable to an applicant simply running out of time. In his Brief in Opposition to the Motion to Dismiss, Petitioner stated:
<br />"Curiously [Respondent] has taken no interest whatsoever in what Petitioner has had to say about the software glitch. He could have requested a sworn affidavit detailing the event, if for no other reason than to improve the system for the next examination. Rather, when Petitioner initially reminded him of the announcement about the 24 [Footnote: Ex. G (Sworn Affidavit), reprinted App. 9a-10a Par. 2. Somehow this was determined to be a comprehensive number in a one-hour lunch break for approximately 1,000 USB drives] he merely defended the system: '[y]our assertion that there was some problem with the 'Extegrity computer system' is without basis. There was none.' "
<br />Mem. of Law in Opp. to Mot. to Dismiss ¶16.
<br />
<br />Circumstances strongly suggest there was <span style="FONT-WEIGHT: bold">never </span>any intention of the Board to consider the computer glitch issue or exercise the careful judgment of discretion in releasing essays. At the hearing in the Fairfax Circuit Court, counsel for the Attorney General stated two reasons in its rationale for not releasing essays: 1) "integrity" of the exam; and 2) an 80% quota. There was absolutely no comment in regards to the software issue, even when the matter was laid out in detail. The Assistant Attorney General also confirmed that any internal regrades were conducted prior to when the results were posted and not in response to Petitioner's request that "some fathomable explanation" for the perceived scoring discrepancy be explored. Ex. F, reprinted in App. 13a (Initial Request to the Board). Months later, the matter was apparently still being ignored. [Footnote: On April 6, 2009 Petitioner spoke over the phone with Respondent Scott Street requesting any rules of the Virginia Supreme Court that preclude an applicant from obtaining essays. He said he did not recall any but the Board has followed a policy since 1973 that no applicant can obtain their essays, which policy he recalled sending to Petitioner. Afterwards, Petitioner sent a letter requesting that if this policy was reduced to writing, that it be sent to him. No written policy was sent].
<br />
<br />The Virginia Supreme Court was provided with a case on point in a different jurisdiction. Eric Zeni, a laptop applicant from the New York July 2007 examination shares his experience in rectifying a software malfunction on his attorney's blog. App. 25a-29a. The software failed midway through one of his questions. After being assured that his essays were received in full, he nonetheless requested copies of his essays. He discovered that a portion of one of his essays was still missing: the same essay in which the software malfunction occurred. Zeni states: "In my request [for essays to be reviewed for the effects of a software glitch], I explained what occurred on the day of the exam, and I attached copies of emails that I had received from the software company which confirmed that my exam had been uploaded and also from [the board] stating that they were in receipt of all my printed and handwritten essay responses. Despite those assurances, I explained, I discovered that my essay was still missing." Id. ¶2 (emphasis added). The board's executive director informed him that they were able to go back to the software company's archives and retrieve the missing essay. He passed and was promptly admitted to the bar. Id. ¶4.
<br />
<br />This occurrence in New York sheds light on two things. First, there is a backup system employed by most states, not including Virginia. App. 20a (view column for “Backup System”). Secondly, it shows how dependent boards are on their software company's assessment of any problems with their own software. A week after the above referenced examination it was reported that the software company's president said that backup systems "appear to have prevented the loss of any test takers' answers." Joel Stashenko, Backup Systems Avert Loss of N.Y. Bar Exam Essays, New York Law Journal, Aug. 3, 2007, available at http://www.law.com/jsp/article.jsp?id=1186089398538 (last visited Nov. 5, 2009). On the very same day, the chairwoman of the board stated: "we are advised that no problems have been detected." Id. ¶21 (emphasis added). This turned out to be mere wishful thinking as many applicants would soon point out once they obtained their essay responses.
<br />
<br />Eric Zeni's attorney posted comments by affected test takers on his website that demonstrate how vital it is for applicants to obtain their essays. App. 28a-29a (view the second comment: "portions of two of my essays are incomplete and missing. [The board] <span style="FONT-WEIGHT: bold">admitted that whatever they sent me was all they had and all they graded, thus graders did not have the benefit of my complete responses</span>." Note that these observations were made after the press release and when the final results were posted.
<br />
<br />Weeks prior to the exam, all laptops must pass extensive checks with the software company to ensure compatibility with the software before they are approved. Petitioner's laptop was approved in this way.
<br />
<br /><span style="FONT-WEIGHT: bold">II. THE RULING OF THE SUPREME COURT OF VIRGINIA CONFLICTS WITH THE SUBSTANTIVE GROUNDS RULE OF REVIEW PREVAILING IN MOST OTHER JURISDICTIONS</span>
<br />
<br />On August 11, 2009 the Virginia Supreme Court dismissed this case on the grounds it could not compel a discretionary act. By preventing an applicant from obtaining their essays, the Virginia Supreme Court has made it impossible for an applicant to prove any substantive ground for review.
<br />
<br />It is for the jurisdictions to determine what constitutes the substantive grounds for review, but the circuits and state supreme courts that have addressed this issue are in agreement that aside from fraud and coercion, probative facts that point to manifest unfairness and other serious grounds or circumstances warrant review. Chaney v. State Bar of California, 386 F.2d 962 (9th Cir. 1967); Feldman v. State Bd. Of Bar Examiners, 438 F.2d 699, 704 (8th Cir. 1971); Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974); Poats v. Givan, 651 F.2d 495 (7th Cir. 1981). See also Applicant No. 26 v. Bd. of Bar Examiners of Delaware, 780 A.2d 252 (Del. 2001); In re Thorne, 635 P.2d 22, 23 (Utah 1981); Petition of Pacheco, 85 N.M. 600, 514 P.2d 1297 (1973); In re Monaghan, 126 Vt. 193, 225 A.2d 387 (1967); Staley v. State Bar of California, 17 Cal. 2d 119, 121, 109 P.2d 667 (1941); Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970) (“treated unfairly or unjustly”); Application of Peterson, 459 P.2d 703, 39 ALR 3d 708 (1969 Alaska)(“other serious grounds or circumstances”); Cf. Scinto v. Stamm, 224 Conn. 524, 620 A. 2d 99 (1993) (“evidence that 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”).
<br />
<br />What this Court is being asked to decide is, first of all, whether lack of a corrective process and a strict adherence to policies of nondisclosure and finality in the context of a software failure constitutes the kind of manifest unfairness or other serious grounds which warrant review. If so, does due process require at a minimum that an applicant whose case bears facts on one of the substantive grounds be furnished with copies of their essays prior to petitioning the state supreme court.
<br />
<br />When reviewing or declining to review petitions regarding bar examinations, the Virginia Supreme Court acts “as an administrative agency rather than as a court of appeals. Rogers v. Sup. Ct. of Va., 772 F.2d 900 (4th Cir. 1985) (Unpub. No. 84-1746). Therefore, a proper question looks into the review procedures of the court <span style="FONT-WEIGHT: bold">and</span> the board collectively. Id. The charts reprinted in 19a (Transparency of States’ Law Examiner Offices) and 20a (Percentages of Applicants Taking State Bars on Laptop) show how markedly different Virginia’s policies are than the rest of the country, particularly when it comes to releasing the essays.
<br />
<br />The Board of Governors of the Alaska Bar Association argued that as a precondition to the exercise of review, the bar applicant must have demonstrated that his failing grade was a product of "fraud, imposition, <span style="FONT-WEIGHT: bold">or other serious grounds</span>." Application of Peterson, 459 P.2d 703 (1969). Rejecting this contention, the Alaska Supreme Court held that it "left unexplained the mechanics by which the rejected applicant could demonstrate that his failure was caused by fraud, imposition, or other serious grounds or circumstances." Id. In order to comply with "basic concepts of fair procedure" the court ordered that the applicant be furnished with copies of his essay questions and answers. Id. Today, applicants to the Alaska Bar can obtain their essays by written request. App. 19a.
<br />
<br />The basic concept of fair procedure is precisely what is lacking in Virginia and other states that follow a similar model. These states may decide as a matter of public policy not to install an administrative appeal as Alaska does, but where no statutory protections are in place the Federal Constitution guarantees that certain minimal due process protections still must exist, particularly for when the Board, and by extension the state supreme court, is at fault. Otherwise, the 14th Amendment prohibition on the states is of no effect. This Court, in Chicago B&Q R.R. v. Chicago, 166 U.S. 226 (1897) put it well:
<br />"A state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, <span style="FONT-STYLE: italic">regard must be had to substance, not to form</span>."
<br />Id. (emphasis added).
<br />
<br />The Fifth Circuit, in overruling a summary judgment in a suit alleging racial discriminatory grading practices by the Alabama State Bar came to the conclusion that "access to the bar examination papers was <span style="FONT-WEIGHT: bold">crucial</span> to Plaintiff's case." Parrish, 533 F.2d 942. Rejecting the argument of the Alabama bar that its denial of improper conduct is adequate to support a refusal to compel discovery, the court explained that such a rule would "erect an unreasonably protective shield around parties possessing material relevant and necessary to fair litigation." Id. Similarly, in the case at bar, discretion has become an unreasonably protective shield, especially since the issue upon which discretion should have been based (the software glitch) was ignored. The Virginia Supreme Court then refuses to step in on any matters discretionary.
<br />
<br />As in Parrish, Petitioner simply needs the evidence: "With the essays in front of him [he] will finally have an opportunity to determine if his answers were altered by the Exam4 software or an opportunity to demonstrate substantial misgrading of his answers." Mem. Law in Opp. to Mot. to Dismiss ¶2. Furthermore, he "cannot in good faith send a complaint to the (Virginia) Supreme Court because of a public official's inaction (refusal to release essays)." Id. ¶6.
<br />
<br />The Supreme Court of Delaware maintains that applicants are not entitled to discovery "absent prima facie showing of impropriety." Applicant No. 26 to the 2000 Delaware Bar Examination (No. 529, 2000) available at http://www.courts.delaware.gov/bbe/scdecisions.pdf (last visited Nov. 6, 2009) Today, Delaware allows their applicants to obtain their essays (Ex. A, App. 19a).
<br />
<br />The Supreme Court of New Mexico listed the factors to consider in whether a hearing should be granted to a bar applicant: allegations of fraud, coercion, imposition, misconduct on the part of the bar examiners, or absence of an "appropriate and properly administered bar examination." Petition of Pacheco, 85 N.M. 600, 514 P.2d 1297 (1973). Because no such allegations were made there, the essays were withheld from the applicant. Today, New Mexico has changed its policy to allow all applicants to obtain their essays as a matter of right. Ex. A, App. 19a.
<br />
<br />One state supreme court was unwilling to exercise its inherent supervisory authority, setting forth suggestions that in the end proved toothless. Rather than exercise its inherent supervisory authority it instead posed a suggestion to create more transparency: "it offends a sense of fairness for an applicant to invest the time and effort needed to make it through law school and to prepare for and undergo a rigorous bar exam, only to fail it, and be told he is not entitled to know how or why he failed. The court's own view was that the added burden would be outweighed by the benefits inherent in a fairer, more open system." Taylor v. Saftly, 276 Ark. 541, 637 S.W.2d 578 (1982). Despite the exception of its supreme court, the Arkansas board continues to operate a closed licensing process. Ex. A, App. 19a.
<br />
<br />It may be the case that the Virginia Supreme Court is likewise taking a passive role. Regardless, the effect is identical and no state can infringe upon the minimal procedural due process protections accorded to bar applicants by the Federal Constitution.
<br />
<br /><span style="FONT-WEIGHT: bold">III. NO REAL REMEDY IS BEING OFFERED BY THE BOARD TO IDENTIFY OR CORRECT SOFTWARE ERROR</span>
<br />
<br />In Virginia, the Board's cooperation extends only insofar as it will cover their own tracks. Comparing the encoded examination file on Petitioner's computer with the encoded file saved on archive serves one purpose: authentication. Mem. of Law in Supp. of Mot. to Dismiss, at 7. <span style="FONT-WEIGHT: bold">Authentication never was an issue</span>. If the Board ever had reason to believe that the answers were switched with that of another applicant, Petitioner was certainly never informed of that. Petitioner, however, has insinuated that he would be willing to send that information once the essays are released. App. 16a (Response to Respondent’s Request).
<br />
<br />The issue at hand rather has to do with two software glitches that required hands-on technical assistance, at least one of which caused him to have to turn his computer off and turn it on again during the saving stage of the exam. App. 9a-10a (sworn affidavit). The fact that this occurred before the data was saved to the USB drive is significant because any damage that would have occurred was localized to the file on his laptop before it was saved onto the USB drive for the Board. Therefore, <span style="FONT-WEIGHT: bold">comparing the encoded file held by the Board with Petitioner's is futile; it is merely a duplication</span>. If Question 4 and Question 7 were cut short (as has been known to happen) then both Petitioner's file and the Board's file would necessarily reflect these two responses being cut short. To classify this as a remedy is misleading.
<br />
<br /><span style="FONT-WEIGHT: bold">IV. THROUGH ITS POLICIES THE BOARD IS USURPING JUDICIAL POWER, MAKING MANDAMUS THE ONLY AVAILABLE REMEDY</span>
<br />
<br />Both parties agree that Petitioner has a right to petition the Virginia Supreme Court to have a hearing, i.e. “the right not to be heard by the supreme court but to petition it for a hearing and have the petition considered.” Rogers v. Supreme Court of Virginia, 590 F. Supp. 102 (1984). What they disagree on is whether he can obtain his essays in order to undergo this process. To ask this question is very nearly to answer it. It would be impossible for someone to make a successful petition based on an occurrence at the examination if he is deprived of the only evidence that could bear on the issue.
<br />
<br />An election contest in Florida raises an interesting parallel on the <span style="FONT-WEIGHT: bold">ministerial duty</span> <span style="FONT-WEIGHT: bold">to ensure accuracy</span>. In Ex Parte Beattie, 98 Fla. 785, 124 So. 273 (1929), there was question as to whether all of the ballots for sheriff were counted in every precinct, which constituted a ministerial duty on the part of the canvassing board. The respondent contended that a statutory remedy for contesting the election existed, which the court found did not specifically address the duty that needed to be performed. The court reasoned that this action was not to contest the election but to “require performance of a ministerial duty on the part of the canvassing board or returning officers such as to correctly and accurately count and make due return of votes cast at the election.” Id. Presumably, if the mandamus led to a different result in the count, this candidate for sheriff would want to use that evidence to contest. Until that point, however, it would make no sense to contest without the only evidence that mattered: the ballot count.
<br />
<br />Respondent has been made aware of two important facts: 1) Petitioner has observed a significant discrepancy between the reported essay score and his performance on this section; and 2) Petitioner experienced a crash in the Board's software while saving his essays (an incident that occurred twice). See Ex. G, App. 9a-10a ¶¶3-4(sworn affidavit). The underlying reason for any petition regarding a bar examination is to present specifics as to why it was incorrectly graded. Petitioner clearly has one plausible explanation but no way of proving it without his essays. The essentials of being able to plead with particularity in bar examination disputes is discussed in an Arizona case where a petition was insufficient where it failed to set forth “exact and complete particulars of alleged unfair or improper grading.” Application of Heaney, 106 Ariz. 391, 476 P.2d 846 (1970).
<br />
<br />The Board's notion of discretion in not releasing essays is best summed up in its response brief in state circuit court: <span style="FONT-WEIGHT: bold">"in its discretion, the Board does not provide copies of bar exam answers to any applicant, including petitioner." </span>Mem. of Points and Authorities in Opp. to Pet. for Emerg. Inj. Relief at 3 (December 2, 2008). See also App. 17a ¶1 (“This will confirm that no copies of answers are provided to any applicant”). Remarkably, Petitioner never received any indication that real discretion was exercised in regards to his case.
<br />
<br />Without considering any of the evidence regarding the reasons for releasing the essays, the Virginia Supreme Court dismissed the mandamus altogether. App. 1a. The court decided not to address Petitioner's contention that the "inherent authority of (the) court is undermined and effectively neutralized where essay answers, which constitute the heart of the matter, are withheld." Mem. of Law in Opp. to Resp’t Mot. to Dismiss ¶35.
<br />
<br />Applying for a writ of mandamus was the only recourse available under the circumstances, as Petitioner made clear to the court below that he "applied for a writ of mandamus not out of choice but necessity." Id. ¶35. The court below was also aware that he applied for it for no other reason than to protect his interests: "Once [he] obtains his essays he can make an informed decision as to how to proceed. This is a tedious, multi-step process only because [Respondent], and the Board collectively, have made it so." Id. ¶38.
<br />
<br />A deposition of the Executive Director of the South Carolina Board of Law Examiners sheds further light on the relationship between the Board and its supreme court in a closed licensing process:
<br />"[W]e [law examiners] are subject to the control of the Supreme Court, and we take no action of an affirmative nature without first conferring with the Supreme Court and getting their approval of it…we are subject to their supervision in everything we do.”
<br />Dep. of J. Means McFadden. Richardson v. McFadden, 563 F.2d 1130 n.1.
<br />
<br />Assuming that Virginia is similar to South Carolina, another one of the so-called "non-transparent" states (see App. 19a), one could infer that the Virginia Supreme Court is actually responsible for its Board’s policies of finality and of applicants not being able to obtain their essays, even when there are probative facts left unexplored. See Ex. G, App. 9a-10a (sworn affidavit). If such is the case, the Board is not so much usurping authority with the Virginia Supreme Court as is the Virginia Supreme Court engaging in plausible deniability. [Footnote: Recall, however, that in Taylor, 276 Ark. 541 (1982), the supreme court recognized the unfairness of a closed licensing process and made suggestions to increase transparency, which represents a passive approach to the problem]. Once again, this is a <span style="FONT-WEIGHT: bold">Catch-22</span> for any applicant with a legitimate dispute.
<br />
<br />The U.S. Supreme Court has the power, in a proper case, to issue writs of mandamus where appeal is a clearly inadequate remedy. 28 U.S.C.A. S 1651(a). To qualify for mandamus, this Court has "required that petitioners demonstrate clear abuse of discretion" Bankers Life & Casualty Co. v. Holland, 346 U.S. 379 (1953) or conduct amounting to "usurpation of judicial power" De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212 (1945). See supplementary review power conferred by the All Writs Act, 28 U.S.C.A. § 1651(a). For all of the above reasons, both are shown.
<br />
<br />The other requirement for mandamus is that there be a showing that there are no adequate alternative means to obtain the relief sought. Here the relief sought is the essays themselves. At state circuit court both parties filed briefs on the applicability of the state Administrative Process Act, and both concluded that the Board is exempt to that as well as the Freedom of Information Act. In fact, even if the circumstances warranted issuance [Footnote: At the conclusion of the Dec. 5th 2008 hearing before the Fairfax Circuit Court, Judge Alden asked counsel for the Attorney General if it was the Attorney General's position that the court could not mandamus the essays. When she said that it was, the judge asked what remedies are then available to an aggrieved applicant. Counsel responded: "that is an interesting question."], the state circuit court is without jurisdiction to compel the release of the essays. App. 3a-4a (Order of the Fairfax Circuit Court) (Alden, J).
<br />
<br />Without the essays, Petitioner will never be able to petition the Virginia Supreme Court, which likewise defeats the eventual exercise of the U.S. Supreme Court's appellate jurisdiction over his case.
<br />
<br /><span style="FONT-WEIGHT: bold">V. THROUGH ITS DISMISSAL, THE VIRGINIA SUPREME COURT IGNORED THIS COURT’S FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE UNDER <span style="FONT-STYLE: italic">MATTHEWS v. ELDRIDGE</span>, 424 U.S. 319</span>
<br />
<br />The decision not to compel the release of the essays while there is an open question as to whether the essays had been corrupted or not by a software crash contravenes this Court's due process jurisprudence as discussed below.
<br />
<br />The Virginia Supreme Court exercises inherent supervisory authority over its bar examination board. Woodard at 5. This Court should not tolerate the court below's decision to place its supervisory power into the hands of the very organization (the Board) it is supposed to supervise. Since an act of discretion was in dispute, the Virginia Supreme Court should have construed all evidence that pointed to arbitrariness, capriciousness, or abuse of discretion in Petitioner’s favor. The alternative acts to deny him his day in court.
<br />
<br />A. NO CORRECTIVE PROCESS
<br />
<br />This Court held in Goldberg v. Kelly, 397 U.S. 254 (1970) that due process may not require a full blown hearing but there must at least be a "responsible determination of the issues present.” To date, the Board refuses to acknowledge that there is a problem with their software system notwithstanding what Petitioner experienced, implying that there could be no injury. Doubtless this is the ground on which the Board has chosen not to investigate. Furthermore, Respondent incapacitates the minimal due process protection afforded to applicants to petition the Virginia Supreme Court by making a blanket rule against any applicant obtaining their essays. Respondent’s only action is to offer to compare the code the Board has on archive to the one saved on Petitioner’s computer. Petitioner rejected this offer for the following reasons as laid out to the Virginia Supreme Court:
<br />"Herein lies the problem. Nothing in the facts indicates that there is a possibility that Petitioner's answers were switched with that of another applicant. Rather, the facts do point to the very real possibility that the answers themselves were corrupted in some way before they were saved. If there was corruption, such would simply have been duplicated [onto the USB drive]."
<br />Mem. of Law in Opp. to Resp’t Mot. to Dismiss ¶18.
<br />
<br /><span style="FONT-WEIGHT: bold">In other words, an exact match of Petitioner’s encrypted file to the one saved on archive does not rule out the possibility of software corruption of the essays</span>. If the court below would not have dismissed the case, a highly credentialed expert witness would have confirmed this.
<br />
<br />As demonstrated in the case of Eric Zeni, no amount of internal checks and procedures can substitute for an applicant being able to obtain their essays. App. 25a-27a; see also comments in App. 28a-29a.
<br />
<br />
<br />B. FACTORS IN ANALYZING JUDICIAL OR ADMINISTRATIVE PROCEDURE
<br />
<br />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.
<br />
<br />1. Private interested affected by the action
<br />
<br />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. [Footnote: After a ten-week fellowship, Petitioner was precluded from taking an opening that was available at the Arlington Commonwealth Attorney's Office]. Without a corrective process in place, all applicants who should have been corrected are effectively penalized for six months. If they work for a public service organization they will in all likelihood lose their job.
<br />
<br />2. Risk of erroneous deprivation of such interest, through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards
<br />
<br />The flaws inherent in the software used for the bar examination demonstrate this risk. This is a risk (unbeknownst to them) now undertaken by over 50% of bar applicants throughout the country. App. 20a. Essay answers have been known to be partially or totally missing after software problems of the exact same nature experienced by Petitioner. App. 30a-32a (New York Law Journal report on New York July 2007 software mishap). Obviously, no credit can be given for what is not there.
<br />
<br />The value of releasing essays to applicants who take the computer based test is fundamental and safeguards the integrity of the bar examination. 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, because if they do not then the applicants themselves will. App. 28a-29a. Grading any of these responses leads to inaccuracy, which ironically defeats the underlying purpose behind having a proficiency test.
<br />
<br />In the absence of a corrective process on the part of the Board when the performance of its software is in question, applicants do have a right to petition the Virginia Supreme Court. However, without the essays this right is of no meaningful value. Even legitimate complaints are doomed from the outset. See App. 3a-4a (Order of the Fairfax Circuit Court, even with the facts of the software malfunction, the complaint fails to plead “any clearly identifiable, non-hypothetical damages”). There is no reason to believe that without the essays the Virginia Supreme Court will not come to the same conclusion. This is not out of lack of merit but because the essays are erroneously withheld.
<br />
<br />3. Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail
<br />
<br />Neither the Virginia Supreme Court nor its Board have identified an interest or harm that would occur if an applicant could obtain his/her essays. [Footnote: Respondent did refer at the December 5, 2008 hearing at the state circuit court to an 80% quota and the integrity of the exam, but these concerns were dropped at the supreme court level once evidence as to what the other states were doing was disclosed]. The Board maintains that all results, once posted, are final and there is no appeal. App. 17a (Final Denial of Petitioner’s Requests). In so doing, it forestalls any costs after that point. However, 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. Phone conversations January 15, 2009 and February 10, 2009 respectively].
<br />
<br />Should the Board recognize the flaws inherent in the software and decide to adopt a corrective measure, the process need not be a formal one. In North Carolina, a state that allows applicants to obtain their essays (App. 19a), the board suggests that an applicant write to the chair about significant flaws in the grading by pointing out where points should have been awarded. [Footnote: Phone conversation. January 9, 2009].
<br />
<br />Without employing any such measure, a right to obtain essay answers would add nothing to the cost. In each of these eight so-called "non-transparent" states (App. 19a) applicants already do have a right to petition the state supreme court. These state courts can dismiss cases, and regularly do with relative ease, according to their discretion. State supreme court justices are, of course, sworn to uphold the law. If an applicant had the essays in hand that proved fraud, arbitrariness, mistake, coercion, <span style="FONT-WEIGHT: bold">manifest unfairness, or other serious grounds</span> for reversal, then they would be remiss in dismissing that case.
<br />
<br />CONCLUSION
<br />
<br />Without the intervention of this Court, applicants will have vastly different constitutional rights based on where in the country they are located. When a software glitch of a nature known to result in inaccurate grading (as in the Eric Zeni case) has occurred, due process demands that there be a means to rectify. In Virginia the corrective process is not only inadequate; it is nonexistent. This issue directly bears on the bar admission processes of eight States.
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<br />Given what occurred, the present case should never have been dismissed. Petitioner has sought nothing more than the evidence that is absolutely essential if he finds it necessary to petition the Virginia Supreme Court.
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<br />The Board has violated its duty, arisen through custom between examiner and examinee, to make scoring information available when error is possible. This duty is ministerial and exists notwithstanding any policy of nondisclosure or finality. In lockstep, the Virginia Supreme Court says it cannot compel the release of the essays, ignoring its own inherent supervisory authority. Petitioner is thereby caught in a classic Catch -22.
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<br />Assuming that portions of Petitioner’s essays were lost by the software malfunction, there would be no way for him to substantiate his petition under the current system unless he was to affirm personal knowledge that portions were in fact missing. Without the essays, such an affirmation would compromise his integrity because he would be attesting to something he could not possibly know. As an aspiring attorney, Petitioner holds himself to the same standards of honesty and candor that is expected in the legal profession.
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<br />Black’s Law Dictionary, 5th ed. defines “due process rights” as: “All rights which are of such fundamental importance as to require compliance with due process standards of fairness and justice.” This Court has struck down legislation which denied trial transcripts and hence in effect access to appellate review of their criminal convictions. Griffin v. Illinois, 351 U.S. 12, 19 (1956). Like a trial transcript in a criminal appeal, the essays are essential to a bar examination petition to the state supreme court. Without a corrective process by the Board, without judicial review under the state Administrative Process Act, and without the essays to present a petition to the Virginia Supreme Court, Petitioner simply has nowhere else to go but here.
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<br />This Court should grant review.
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<br />Respectfully Submitted,
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<br />JONATHAN BOLLS
<br />Pro-Se
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<br />December 22, 2009
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<br />Update (11): </span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">November 30, 2009. The cert brief is completed and will be posted in a couple weeks after Scott Street, Secretary of the Virginia Board of Bar Examiners, has been served. The following is a follow-up to the article published last spring, and is currently running in the most recent issue of Washington & Lee School of Law's "The Law News" and George Mason University Law School's "Docket."
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<br /></span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"></span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"></span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"></span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"></span></span></span></span></span></span></span></span><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"></span></span></span></span></span></span></span><div style="TEXT-ALIGN: center"><span style="font-size:0;"><span style="font-size:85%;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="FONT-WEIGHT: bold">A LEGAL CATCH 22</span></span></span></span></span></span></span></span>
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<br />Over the past year I have decided to represent myself in an interesting legal case against the Virginia Board of Bar Examiners. First, a quick review of my background. I graduated from law school in May 2008 and took the Virginia Bar Exam in July. At the test I experienced a software malfunction that caused me to have to seek hands-on technical assistance during the saving stage of the exam. In October, when the results came out, my essay score appeared to be significantly underreported, and I requested my essays. After being denied from obtaining my essays, I filed for an emergency court order in the Fairfax Circuit Court in November. That court took the matter under advisement and ultimately denied relief for lack of jurisdiction in mid-March.
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<br />The Fairfax Circuit Court, in considering what remedies are available to an aggrieved test taker, requested supplemental briefs on the applicability of the state Administrative Process Act. It turns out the Board is both exempt from that as well as the Freedom of Information Act. Without the essays, it was impossible to make an informed decision as to whether to petition the Virginia Supreme Court under one of the substantive grounds of review for a bar exam (substantial misgrading, manifest unfairness, fraud, imposition, or coercion). Even if one of the above occurred, it would be impossible to prove it without the only evidence in which it could be proved. Despite repeated requests, I was completely thwarted in all my attempts to obtain the essays.
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<br />In order to get perspective on Virginia's nondisclosure policy, I phoned each bar examiner office in the country (contract info. easily accessble off of the National Conference of Bar Examiners' website) to find out what rights applicants in those jurisdictions have to their essays. It turns out 43 jurisdictions allow some form of access, most of which simply send the essays in the mail for a small fee. I also discovered that many of these states, like New Hampshire and Tennessee, just recently instituted the computer based test in the last year or so. Some, like Connecticut, Massachusetts, and Indiana have been considering it for some time but have decided against it for one reason or another.
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<br />On April 6th, I called Scott Street, Secretary of the Board, and asked if there was any rule of the Virginia Supreme Court that precludes an applicant from obtaining their essays. He said he was not aware of any but the Board has been following a policy of nondisclosure since 1973. Furthermore, he said that once the results are posted they are final, which policy he recalled sending to me. I informed him that other state bar examiners' offices are posting all such policies on their websites and there is a strong national trend towards an open grading system. In a follow-up letter I inquired as to whether the policy of nondisclosure is a written or informal policy and if written that it be sent to me. No written policy was ever sent. There was also never any mention that my concern about the software glitch was even considered.
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<br />Having every indication that no real discretion in releasing essays was exercised, I had no choice but to petition the Virginia Supreme Court for mandamus under its original jurisdiction to compel the secretary to release the essays. Mandamus is a court order to compel a public officer to do his duty, in this case disclosing essays where error is possible. I also reserved the right to petition for a second hearing for the purpose of reviewing these essays if it turns out to be a case of substantial misgrading or the software glitch caused data loss. My argument was straightforward: discretion in releasing essays was abused because the issue present, i.e. the potential impact of the software crash, was never looked into and no remedy was set forth. Furthermore, the Board has unduly incapacitated my petition to the Virginia Supreme Court by withholding the only evidence in which I could present a valid petition with the kind of particularity necessary to withstand a motion to dismiss. Representing the Board, the Assistant Attorney General argued that even if discretion was abused, nothing could be done about it now.
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<br />While the court was considering, the July 29 one year mark was fast approaching. According to law, the Board is required to preserve the essays for one year following the test, presumably for disputes like this one that arise. I brought a motion for protective order to ensure that the Board does not destroy the test papers while the litigation is underway, since they represent not just a significant part of my case but the entire case itself, "upon which all of my rights rely." In response, the AG's office filed an informal letter on behalf of the secretary and the Board agreeing to protect the "answers in question." When asked by the clerk if that would suffice, I responded by letter that it did not because the glitch covered the entire exam; therefore, all of it is in question. The language, I argued, could be exploited at a later date. Despite my objections, the AG did not change the letter. The court then denied relief. When I asked if the judges had my letter in front of them, the clerk's office could not confirm this although, strangely enough, they could confirm that the AG's letter was there.
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<br />One week away from the one year mark, I brought an emergency motion for reconsideration on the ground that my letter and reasons for objecting to the AG's letter was probably not considered. This time the Assistant Attorney General revised the letter to use the same language I used in my motion: "all essay responses and short answers."
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<br />Finally, on August 11th, in a two-sentence opinion that was significantly shorter than the Fairfax Circuit Court, the court found that it could not compel a discretionary act, dismissing the case altogether. This dismissal came as a surprise, especially since the court was informed in detail about the software glitch on both my computer as well as a number of others. They were also made aware that other jurisdictions have experienced loss of essays and portions of essays due to software malfunctions just like mine. In New York's July 2007 test, for example, alternative grading methods approved by the National Conference of Bar Examiners went into effect (See the board's press release, fifth paragraph down, http://web.archive.org/web/20071118141039/www.nybarexam.org/PRESS.HTM). After retrieving lost data on hundreds of test takers who experienced software malfunctions at the saving stage, 47 could still not be found despite a USB backup. Dismissals act to deny a person their day in court, which is why every allegation is supposed to be taken as true as well as any fair inferences that could be drawn. My case easily satisfied this standard.
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<br />According to the rules of the Virginia Supreme Court, you have thirty days to petition for rehearing. I seized this opportunity to inform the court that there was no other way for me to petition it without the essays in hand, making any bar applicant's right not to a hearing but to petition for one completely illusory. In other words, the court itself is prevented from making an informed decision on whether to hear the case. I set up my rights specifically under the due process clause of the Fourteenth Amendment of the Constitution of the United States. In addition, I voluntarily attached a sworn affidavit and notified the court that I had an expert witness to address the inadequacy of the Board's procedures. On September 23rd this was denied without opinion. Conspicuously absent was any alternative roadmap to resolve this issue.
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<br />At the Library of Congress I began reading Gressman's Supreme Court Practice, where I learned everything I needed to know about how to file a petition for certiorari to the U.S. Supreme Court as a pro-se plaintiff. I also got on the phone with each jurisdiction's bar examiner office again and discovered that over half of bar applicants nationwide are now taking the bar exam on laptop. It's now firmly established, which means the time is ripe for Virginia to join the other states in implementing more open and transparent policies in regards to the essays. I have three months from September 23rd to timely file this and I am currently in the middle of preparing the cert brief. Until then, I remain in my Catch-22.
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<br />Update (10): </span></span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">October 10, 2009. In my research for the cert petition, I have discovered that 42 jurisdictions have a laptop essay exam. Out of the 42, 30 of these jurisdictions now have over 50% of their candidates taking it on laptop. This number appears to be rising as applicants like myself who are accustomed to taking law school exams on laptop sign up thinking all the same safeguards of full disclosure would be in place. While I agree that it is a good thing for us to be making a transition to computer based testing, it is no longer appropriate to be cloaking these tests in secrecy. I have confirmed that several other states besides Virginia have had problems with the software. In the brief it submitted to the Virginia Supreme Court concerning my case, the AG's office argued that even if there was abuse of discretion by not releasing essay answers, nothing can be done about it now. The National Conference of Bar Examiners does indeed have an established protocol for when data is lost in a software malfunction (see website below). I commend states like New York whose bar examiners are open about problems that occur and give a good faith effort at resolving them. Let me remind you that at two separate sessions during the July 2008 bar exam an entire team of technicians was overwhelmed by the sheer number of applicants who experienced problems saving and uploading their essays. Unless I obtain my essays, which constitute the only evidence that could determine what occurred, this question will always be an open one.
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<br />Update (9): </span></span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">On September 23rd the Supreme Court of Virginia denied the petition for rehearing without opinion. Included in that petition was a sworn statement by myself detailing the Exam4 software malfunction which required me to reboot my computer at the saving & uploading stage of the essay portion and how the computer technicians on standby were overwhelmed by the sheer number of applicants who experienced other similar problems at this point of the exam. The Court was also informed that I have an expert witness on data loss and retrieval. By utilizing the ever helpful Internet Archives I have been able to locate a press release which has since been taken down from the New York Board of Law Examiners website that went out with the results from the July 2007 test. http://web.archive.org/web/20071118141039/www.nybarexam.org/PRESS.HTM. See the fifth paragraph down, where it discusses that after retrieving lost essay data on hundreds of laptop test takers, essays of 47 applicants never could be found. Unfortunately in Virginia there does not seem to be a capacity to retrieve lost data at all; nevertheless we will not know the extent of this problem in Virginia until it adopts the generally accepted approach of 43 US jurisdictions in disclosing the essays upon written request. If it turns out that data was indeed lost then I myself can still be made whole by pursuing several methods. I am now prepared, as I have continued from Day 1 to pursue this on my own, to proceed with this case to the U.S. Supreme Court.
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<br />Update (8): </span></span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">Yesterday, August 24th, while at the Library of Congress, I discovered that the first question that the U.S. Supreme Court will ask is whether the federal question was sufficiently argued at the state level so as to put the state's "court of last resort" on notice that a federal question is involved. The federal question must either be raised or addressed in the opinion of the Virginia Supreme Court, and because the court did not address the matter in its opinion I need to ensure that it was at least raised properly. Arguing due process at the state level can be construed as applying to a state constitution's due process clause, which would be cause for dismissal at the Supreme Court of the United States. In Virginia, I have a right to petition for rehearing within two weeks of the court's decision. I am now preparing this petition to clarify my rights under the fourteenth amendment of the Constitution of the United States. </span></span></span></span><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">
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<br />Update (7): </span></span></span></span><span style="font-size:0;"><span style="font-size:0;"><span style="font-size:0;">Yesterday, August 20th, I was doing research at the Library of Congress and I came across a very interesting article. It turns out Eric Zeni (mentioned below and included as evidence in my case) was only one of hundreds of applicants who experienced a software malfunction during New York's July 2007 bar examination. Refer to ABA Journal, "Law News Now," July 26, 2007. Most remarkable about the problem was how it was characterized: "problems saving and uploading their essays." Mind you, this is about 400 candidates whose scoring was under question. Refer to New York Law Journal, September 15, 2007. Another article in the New York Law Journal confirmed that software problems have led to many scoring inaccuracies over the years.</span></span></span><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">
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<br />Update (6): </span></span></span><span style="font-size:0;"><span style="font-size:0;">Today is August 13th. On the afternoon of August 12th I received a letter from the Supreme Court of Virginia dismissing my complaint altogether in an opinion that was significantly shorter than the circuit court opinion. Disposing of the case in just one sentence the court states: "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." As a concerned citizen of Virginia I believe it is now my duty to send my petition for mandamus to the United States Supreme Court. Below is a letter to the Virginia Board of Bar Examiners faxed to their office this morning:
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<br />"Mr. Street:
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<br />I am in receipt of a letter from the Supreme Court of Virginia dated August 11th indicating that my petition for mandamus was dismissed. As you are aware from my complaint and argumentation in response to the motion to dismiss, there are due process considerations involved in this matter which can only be resolved once I obtain the evidence, namely my essay responses and short answers. Furthermore, my research demonstrates that the Commonwealth of Virginia is one of a select few states whose bar exam policies run contrary to the national trend to adhere to an open and transparent essay grading system in light of the ever increasing dependency on computer based testing. Consequently, I have decided to send my petition for mandamus to the United States Supreme Court.
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<br />While my mandamus petition goes forward I will be seeking an order of protection for all evidence in relation to my bar exam, especially the bar exam essay responses and short answers which your office has already set aside to preserve beyond the one year required by law.
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<br />Enclosed is a $50 check for attorney's fees as ordered by the Supreme Court of Virginia.
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<br />Regards,
<br />Jonathan Bolls
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<br />cc: Assistant Attorney General Catherine Hill"</span></span><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">
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<br />Update (5): </span></span><span style="font-size:0;">On July 7th the motion was denied I suspect because the judges were unaware of my reasons for pursuing the motion. I filed another emergency motion for reconsideration for that reason. On July 22nd I received a copy of a letter sent to the court by the Attorney General's office agreeing to preserve all "essay responses and short answers." </span><span style="FONT-WEIGHT: bold">
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<br />Update (4): </span><span style="font-size:0;">The case is at the pleading stage. Since the July 29 cutoff date is fast approaching whereby the Board is no longer required by law to preserve the essays, I brought an emergency motion to protect all "essay responses and short answers." The Board informed the court that it will preserve the "bar exam answers in question." I have informed the court that because of the vagueness of this response, I wish to pursue the motion. I would not want to be in a situation where, after all of this, the Board feels at liberty to be destroying particular essays or short answers that they feel are "not in question." Because of the nature of the Board's software glitch at the saving stage, <span style="FONT-WEIGHT: bold">all</span> <span style="FONT-WEIGHT: bold">of it </span>is in question.
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<br />Update (3): </span><span style="font-size:0;">On April 22nd I sent ten copies of my complaint to the clerk of the Supreme Court of Virginia requesting mandamus relief. I will be representing myself, pro-se. </span><span style="FONT-WEIGHT: bold">
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<br />Update (2): </span><span style="font-size:0;">On April 6th I called the Virginia Board of Bar Examiners and requested the Rules of the Virginia Supreme Court that prohibit applicants from obtaining their essays. Scott Street, Secretary-Treasurer, informed me that he was not aware of any and that this has been a policy of the Board since 1973. I explained to him that other jurisdictions often put up any rules that pertain to obtaining answers, review, and appeal on their websites.
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<br />Update (1): </span>On March 16th the Fairfax Circuit court denied the motion to compel the Board of Bar Examiners to release my essays for lack of jurisdiction. "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 (Virginia) Supreme Court." Additionally, "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." </span></span><span style="FONT-STYLE: italic"><span style="font-size:85%;">
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<br />George Mason School of Law's Docket, Feb. 12, 2009
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<br />William & Mary School of Law's Marshall-Wythe Press, March 5, 2009
<br />Washington & Lee School of Law's The Law News, early March 2009
<br />(expected to be published on-line as well by the end of the year)</span>
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<br />For those of us who want to go on to practice law after graduating from law school, the bar exam represents that final hurdle that must be overcome. After graduation there is a grueling 10-week study streak before the exam. When taking a bar review course students are advised to tell all family members and friends that they will be temporarily hard to reach for at least a while. It is here where the ambiguities and open ended questions we wrestle with in law school are set aside while the black letter law is clearly laid out. But what happens if something goes wrong during that "final hurdle"?
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<br />As a recent graduate of William & Mary School of Law, I took the Virginia Bar on July 29th and 30th last summer. The first day entailed a six-hour essay examination made up of nine essay questions and one short answer section. I spotted all the legal issues and applied the facts to the relevant law. In fact, not one question threw me despite the fact that my law school class was told by a representative from the bar examiners that we would probably be clueless on one of the essays given the sheer volume of information we would be taking in over the next ten weeks. We were reminded that this was just a test of minimum competency, so if you don't know the answer then reason like lawyers do and use legal terminology profusely in the essays and, by all means, come to a conclusion. None of this was a problem for me as I knew the material like the back of my hand. After the test was completed I felt supremely confident that my essay performance was well above the curve.
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<br />I was one of a growing number of students who opted to take the exam on laptop through Exam4 software, a service the Board contracts for with Extegrity, a security software company based out of California. This is a new way of testing that is being employed throughout the country and remains a pilot program for further observation by a number of states. Although I would have preferred a hand written test, the fact that there is an option to type the exam on laptop affords an obvious advantage over the handwriters because of the typing speed- I have never heard of a fast handwriter being able to even come close to a fast typer. Even more significantly, the graders probably favor the laptop system since it saves them the hassle of having to read through and decipher pages and pages of handwritten material. One could say they have a vested interest in perpetuating an illusion of perfection so that more and more applicants take it by laptop every year. I am sure that you will all be told, as I was last year, that there are no problems with this system. But don't believe everything you hear, and consider my story.
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<br />I experienced serious technical difficulties with the Exam4 software during the very crucial saving stage of the exam. When time was called, a person on the microphone led us through a ten step process that was given orally and only once (which is strange considering that a step by step procedure for setting up the Exam4 software was given to us in writing before taking the test). I followed the instructions exactly as stated. About halfway through these oral instructions an error message came up on my screen. Just as we were instructed to do if there was a problem, I put my hand up to request technical assistance. After the last instruction for saving was given, the person on the microphone asked for a show of hands for any problems. Many hands went up. In fact, there were so many hands that went up at that point that despite a sizable team of technicians on standby no one could get to me for about ten or fifteen minutes. I do not remember exactly how many test takers with problems there were but I can safely say that there wasn't nearly enough of the technical staff to go around. When someone finally came over to help me amidst the noise and confusion of everyone lining up to hand in their USB drives and rushing to get out for the one-hour lunch break, the technician had to begin working on my computer hands-on. As I recall, I was even instructed to reboot my computer and then undergo the process of saving again. At no time did the technician tell me that I did something wrong or that my laptop was at fault or make mention of what the problem actually was. If there was a camera monitoring the room it would further show that the same exact thing happened in the afternoon. That time I was so frustrated I actually got up from my seat and stood by a technician until he came to my computer. The young lady sitting across from me experienced a problem as well and, looking at me in an exasperated way as if to say "you too?!" she got up to get a technician. Once again, the technician had to work on my computer "hands on", once again, without explanation. I was so delayed in the afternoon session that in fact I was the last applicant to leave the room out of approximately 1,000 people.
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<br />The reoccurring computer difficulties could be an explanation for the discrepancy between the reported score and how I believe I performed. Of course, this could still be a case of significant oversight in the analysis of my answers. I remain confident that once my answers are revealed, and if they are intact, they will be shown to have clearly passed. In order to pass, you need a Combined Weighted Total of 140, and my Multistate Score was 137.5, right around where I expected it to be since I spent less than half of my time preparing for a section that was lesser weighted. To obtain a license in Washington D.C. all you need is a Multistate score of 133. In order to pass the test, all I needed was a 141.5 on the essay portion. The essays are entirely knowledge based and I strongly felt that I hit that out of the park. To see a grade in the mid 120's told me immediately that something was amiss. Practically speaking, there is only one question concerning my admission to the bar. Are my essays deficient, or not?
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<br />Looking back on that day, I also recall another interesting occurrence during the test. Shortly before the afternoon session, an announcement was made to everyone in the laptop room that 24 applicants were found to have had answers misplaced in the system. I remember well the looks of concern on people's faces that resulted from this announcement. Nobody knew who they were. These 24 would know once they received a note along with their afternoon test booklet instructing them on how to reposition their answers. Clearly the system had problems. On October 21st, following the notice that I did not pass, I sent a letter to the Board requesting a review of my essays. In my letter I cited "one of the most fundamental concepts of the law...that of appeal." The Board responded that the essays were regraded since the overall grade was close, and that there is no review or appeal process available. On October 28th I reminded the Board of the technical mishap with the 24 and requested an immediate appointment to review my essays in Richmond, a ninety minute drive from my house, to rule out the possibility of a computer mishap. I stated: "Is it unreasonable to question the system in light of this error? My own case may be an example where the translation of the essay responses is left incomplete, partly translated, or perhaps mistranslated." I received a response on October 30th completely disregarding my request and stating, "the results are final." On October 31st I again contacted the Board: "The letter I received from you did not respond to this specific request (of reviewing the answers in person) and, despite my best efforts, I have been unable to reach you (Secretary Scott Street) over the phone all week...it now seems to be necessary that I obtain my essay answers." Shortly thereafter, on November 3rd I received an email from a staff member directing me to send them an encrypted copy of the Exam4 file saved on my computer so they could compare it to the one they had. This did not address my concern. All this would do is confirm that the USB drive appropriately saved whatever encrypted data was on my computer, corrupted or not. It does not answer the question of what happened, if anything, at the saving stage of the exam. The file on my computer, as I would later tell the court, may very well have been corrupted. What if the data was lost when the error box came up? I would need to see my answers. Why not send me my essay answers?
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<br />Applicants for the bar have no idea how much trust they are putting into a computer system that is far from perfect. Consider what happened in the much more transparent state of New York on its July 2007 bar exam:
<br />http://www.newyorkpersonalinjuryattorneyblog.com/2008/02/i-passed-new-york-bar-exam.html
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<br />Eric Zeni, a recent graduate, experienced technical difficulties just like I did. In the middle of a question the software gave out on him and he was forced to handwrite the rest of the exam. After receiving a failing grade, he petitioned the Board and reminded them of this computer mishap. Just like me, he was informed that his answers were received in full and to rest assured that the result was accurate. Then he requested his essay answers. Unlike me, he was able to get his answers, apparently without a problem. Sure enough, he was able to pinpoint where a significant portion of his test was lost in the encryption/ translation of his answers. What's more, the essay was graded despite the fact that his answer was incomplete. Eric used his recollection of what he wrote to pinpoint for the Board exactly where the missing portion was, and by doing so was of great help to the Board in ensuring accuracy. As a result, his test was reviewed again and found to have passed. Soon thereafter, he was sworn in. It turns out that Eric was one of many who experienced technical difficulties, and consequently New York changed its computer software servicer from Exam Secure to Exam Soft, which is most commonly used in all state bars that provide the laptop as an option. I am also informed that New Jersey recently switched software companies as well. At least these states recognize the inherent imperfections in the system and leave open the door for review. Had Eric Zeni not gotten his answers his problem would likely have become a lost cause. New York's process is clearly an open and honest one, which upholds accuracy and not finality as its primary goal. After dealing with the Virginia Board of Bar Examiners, I got the distinct impression that they simply want my problem to go away. It would, if they would just send me my essay answers.
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<br />After doing this research on what happened in New York, I replied to the Board on November 4th that before I send over the encrypted file I needed to obtain the essay answers. That is how it was done in the case with Eric Zeni, and it is the only way that makes sense. Examining the code could be a helpful second step but it does not address my concern about what happened at the critical saving stage of the exam. I am undoubtedly the best asset the Board has in determining the authenticity and completeness of my essays. Eric Zeni's mishap affected one question. The problem I experienced may have affected my entire test! It would certainly explain the discrepancy. Still, without responding to my requests to get my answers, I received a response that no further action would be taken. A follow-up letter said this matter was now "CLOSED."
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<br />At this point I had no other option but to file for emergency injunctive relief in my county of residence at the Fairfax Circuit Court where I requested that the Board be forced to release the essays to me. The Board right away challenged jurisdiction, saying that they are an agency of the Virginia Supreme Court and could not be hailed into court there. I argued that they were indeed subject to jurisdiction of the circuit court because they are a quasi governmental body subject not only to the Rules of the Supreme Court of Virginia but to the laws of the General Assembly. I argued that this was a case of abuse of discretion by not exercising the discretion to release answers afforded to the Board by law. Va. Code Section 54.1-108(1). The Board, represented by Assistant Attorney General Catherine Hill, argued that "in its discretion the Board does not provide copies of bar exam answers to any applicant." Respondent's Brief, December 2, 2008. I argued that this was no real or meaningful discretion at all, that the Board was circumventing its own discretion by making an inappropriate rule against the discretion afforded to it by law. Such a hard line rule is designed for no other purpose but to effectively obliterate the last remaining transparency that the General Assembly intended for the public to have to ensure the integrity of the system. To show how the board was undermining legislative intent, I brought up the point of what would be the reason for Virginia instituting a specific law that requires the Board to maintain the essays for one year. See Va. Code Section 54.1-3929. It's for cases and controversies like mine. The board’s policies are simply encouraging a closed licensing process. Why all the secrecy? What harm could there possibly be in sending me my essay answers?
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<br />Long story short, Judge Alden in my emergency motion of December 5th, asked Catherine Hill whether the Virginia Supreme Court has original jurisdiction over this matter. The answer was no, unless it could be likened to a disciplinary matter, which this is not. When asked what recourse does an aggrieved person have, Catherine Hill responded: "that is an interesting question." When the same question was given to me I said after doing research there appears to be little or no precedent. Since December 5th the matter has been taken under advisement by the judge and we await the ruling. Since then I have researched other jurisdictions such as North Carolina, Michigan, Indiana, and the District of Columbia and they all recognize the importance of an appeal process because test results have in the past been overturned, even after having been re-graded. The Virginia Board of Bar Examiners has many examples of how other jurisdictions uphold the integrity of the subjective essay grading system. During this transition stage where the Board is encouraging more and more to take the test on laptop, it is time for the Board to adapt to the changing trends throughout the United States and adopt the appropriate safeguards. Releasing the essay answers upon request would be a first step in that direction. For additional information, refer to my blog: http://jonathanbolls.blogspot.com.
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<br />In my last statement to the Board of November 12th I explained my reasons in going forward with this: "I understand that you do not appreciate anyone questioning this system, but may I remind you of the simple truth that no system is perfect." To date, the Board has refused to send the answers, even though they have been informed that my aspiring prosecutorial career in Virginia hangs in the balance. After the bar I did a postgraduate fellowship with the Arlington Commonwealth Attorney's office. Just about every other state on the east coast would honor a request to obtain the answers for a small fee, even without a reason given. Here not only do I have a legitimate reason but the Board has discretion; they simply haven't exercised it. In a system as new as this, where data is automatically encrypted as it is typed, saved onto laptop then transferred to USB drive before being translated back to the English for the graders, one is absolutely at the mercy of the correct functioning of the computer system. When things go wrong, as in my case, there is no better reason to divulge the answers to at least rule out the possibility of technical mishap. The integrity of the system and the people of Virginia depend on it. It's nothing but a small inconvenience to photocopy the answers- other states do it regularly. For me on the other hand, it would be of great benefit- they have been made well aware of that.
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<br />So the question remains...why not send me the essay answers?
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<br />I have called the following states' board of bar examiners to find out what their policies were on this subject. I have called every state on the east coast and plan to call all fifty so this is still a work in progress.
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On January 9th, 12th, 15th, and 27th I called the following states on the east coast:</span>
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<br /><span style="FONT-WEIGHT: bold">Maine</span> (essays obtainable) (model essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Vermont</span> (essays obtainable) (model essays obtainable)
<br /><span style="FONT-WEIGHT: bold">New Hampshire</span> (essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Massachusetts</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">New Jersey</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Rhode Island</span> (essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Connecticut</span> (essays obtainable) (provides breakdown of each essay score)
<br /><span style="FONT-WEIGHT: bold">New York </span>(essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Pennsylvania</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Maryland</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Virginia</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">District of Columbia</span> (essays obtainable) (model essays obtainable) (appeal) (review)
<br /><span style="FONT-WEIGHT: bold">North Carolina</span> (essays obtainable) (selected approved answers obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">South Carolina</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">Georgia</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">Florida </span>(essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On January 15th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Washington</span> (essays obtainable) (model answers obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Ohio</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Illinois </span>(essays reviewable) (model essays reviewable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On January 16th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Indiana</span> (essays obtainable) (model essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Colorado</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">Michigan</span> (essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Nebraska </span>(essays reviewable)
<br /><span style="FONT-WEIGHT: bold">Iowa </span>(essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 6th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Texas </span>(essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Montana </span>(essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Wyoming </span>(essays reviewable)
<br /><span style="FONT-WEIGHT: bold">Wisconsin </span>(essays obtainable) (model essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Kansas </span>(essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 9th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">South Dakota </span>(no transparency)
<br /><span style="FONT-WEIGHT: bold">Hawaii </span>(no transparency)
<br /><span style="FONT-WEIGHT: bold">Kentucky</span> (essays reviewable) (model essays reviewable)
<br /><span style="FONT-WEIGHT: bold">New Mexico</span> (essays obtainable) (model essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Minnesota</span> (essays obtainable) (model essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 10th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Arkansas</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">Alaska</span> (essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Missouri</span> (no transparency)
<br /><span style="FONT-WEIGHT: bold">Tennessee </span>(essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 11th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Alabama</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Oklahoma</span> (essays obtainable) (model essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">North Dakota</span> (essays obtainable)
<br /><span style="FONT-WEIGHT: bold">Utah</span> (essays obtainable with scoring breakdown) (model essays obtainable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 12th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Oregon </span>(essays obtainable) (model essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Arizona </span>(essays obtainable) (appeal)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 13th I called the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Louisiana</span> (essays reviewable)
<br /><span style="FONT-WEIGHT: bold">California</span> (essays obtainable) (appeal)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 17th I received an email response from the following:</span>
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<br /><span style="FONT-WEIGHT: bold">Delaware</span> (essays obtainable) (model essays obtainable)
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<br /><span style="FONT-STYLE: italic"><span style="FONT-WEIGHT: bold">On February 19th I called the following:
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<br /></span></span><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold"><span style="FONT-WEIGHT: bold">West Virginia</span></span></span><span style="FONT-STYLE: italic"><span style="FONT-WEIGHT: bold"><span style="FONT-STYLE: italic"></span></span><span style="FONT-STYLE: italic"><span style="FONT-STYLE: italic"></span></span><span style="FONT-WEIGHT: bold"><span style="FONT-STYLE: italic"></span> </span></span>(essays reviewable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 20th I contacted the following by phone and email respectively:</span>
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<br /><span style="FONT-WEIGHT: bold">Idaho </span>(essays obtainable) (appeal)
<br /><span style="FONT-WEIGHT: bold">Nevada </span>(essays obtainable) (model essays reviewable)
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<br /><span style="FONT-STYLE: italic; FONT-WEIGHT: bold">On February 23rd I extracted the following from the bar examiners' website:</span>
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<br /><span style="FONT-WEIGHT: bold">Mississippi </span>(essays obtainable) (essays reviewable) (appeal)
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<br />I experienced software glitches in both the morning and afternoon sessions of the July 2008 Virginia Bar Exam, and despite the Board knowing this fact for months I have not been able to obtain or review my essays. I see it as my duty to let as many potential applicants know about this continuing injustice. My essay score fell way below how I thought I did and I consequently failed the test. No explanation or breakdown of the essay questions was provided in the documentation- just a number, as if this is some kind of an exact science. This is a very important matter because it's not just the applicants that are at risk. The people of Virginia trust in the integrity of the system that selects which lawyers are admitted to the practice of law.
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<br />The solution is obvious: make the system transparent. That means proper disclosure of the essay answers upon request. The way it is now, graders know full well they will never have to justify their assessments. By the way, these are not necessarily law professors who do the grading- they are busy practicing lawyers. It means putting the final saving instructions in writing, just like it does the setup instructions. It means allowing first time test takers the opportunity to review their essays in person. Applying for a license is not the same as applying for a job. If the person does the work and fulfills the requirements then they are entitled to the license. Witholding a license has to be justifiable. Otherwise, the Board appears to be acting arbitrarily. Finally, it means ensuring the right to appeal. Jurisdictions like North Carolina, Michigan, Indiana, and the District of Columbia all recognize the importance of an appeal because test results have in the past been overturned, <span style="FONT-WEIGHT: bold">even after</span> having been regraded. The state of Washington bar is unique in that it consists entirely of essays, for three days straight. For the past four or five exams it has used Exam Soft as its computer software company (which by the way is the service of choice for most states that have the laptop option). Failed applicants can not only get copies of their essays but the model answers as well; in fact, they are allowed to appeal directly to the board. Connecticut has not approved the laptop program, yet it allows applicants to obtain their answers and provides a breakdown of the individual essay scores. Both Vermont and Maine allow applicants to obtain their answers and get a sample of the model answers. The Virginia Board of Bar Examiners has many examples of how other jurisdictions uphold the integrity of the subjective essay grading system. During this transition stage where the Board is encouraging more and more to take the test on laptop, it is imperative for the Board to adapt to the changing trend throughout the United States and adopt the appropriate safeguards.
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<br />In a follow-up brief to Judge Alden I cited several analogies to shed light on how the Board is circumventing its discretion by making a rule against anyone obtaining their essay answers. As we all learn in law school, discretion is a legal word that implies review of the discretion. Under Va. Code Section 2.2-3004, pertaining to grievance hearings, "the court, in its discretion, may receive such other evidence as the ends of justice require." If the court, in its discretion, decided not to receive other evidence then certainly there would be some instances where justice would not be served. Such a rule would only make sense if efficiency and finality are the only ends sought, as opposed to justice. Consider another instance. The fact finder (a judge, for example) has the discretion to award exemplary damages to the plaintiff if the evidence shows that the defendant acted with malice. Va. Code Section 8.01-44.5. If a judge were to make it a rule never to award exemplary damages then the deterrent purpose of this law would certainly go unserved.
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<br />January 26, 2009
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<br /></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span></span>Jonathan Bollshttp://www.blogger.com/profile/04706089252135948150noreply@blogger.com1