Jon Bolls

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

2011-11-13T10:58:00.000-08:00

Update 27: On September 14, 2011 the Eastern District Court, by Judge Henry Hudson, wrote a 9-page opinion accompanying an order dismissing the constitutional challenge to Va. Code Sec. 54.1-108(1) for lack of standing and lack of a triable federal due process controversy. The case has since been appealed to the U.S. Court of Appeals for the Fourth Circuit and the initial opening brief/ assignment of errors (reprinted below) was submitted on November 10, 2011. The standing question and due process question will be reviewed de novo ("as they were new," i.e. no deference given to the lower court). After my previous action was denied jurisdiction on the basis that it challenged the policy that no applicant can obtain their essays with reference only to my own exam, now the same court is concluding that a facial attack on the same policy and its foundational law cannot be brought by an aggrieved bar examinee either. Again, the merits of the case (consisting of an expert report, eyewitness testimony both in and outside Virginia relating to the same software symptoms observed, major move toward transparency nationwide given the transition to computer-based testing, and the existence of an actual remedy developed by the National Conference of Bar Examiners) have yet to be addressed.

My argument for reversal is fairly simple and straightforward. The injury to myself was clearly stated up front in the complaint, and it is ongoing. The injury to others is also ongoing, as the Attorney General has conceded that software system reboots and hands-on technical assistance at the saving stage are occurring at every exam. The district court simply mischaracterized the injury as mere software malfunctions that could be sorted out by the Virginia Supreme Court. On the contrary, the injury that I complain of is much more insidious and could only be heard by a federal court- the law in question takes away an applicant's right to present evidence vital to the Virginia Supreme Court in the exercise of its authority. Essentially, the policies of the Virginia Supreme Court and its Board work a "catch-22" for the applicants in violation of federal due process procedural protections accorded to U.S. citizens. Whatever the case law may have been in the 1970's and 80's the introduction of computer-based testing, and experiences of applicants at the saving stages, means Va. Code Sec. 54.1-108(1) denying applicants who have a software dispute from obtaining by FOIA their essays, is no longer proper and violates individual rights following the exam. Dr. Castell, the expert in this case, can testify that having such a policy in place violates a core IT systems principle. The only two other experts I have consulted concur.

IN THE
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT
2011-2012 TERM
No. 11-2115

JONATHAN BOLLS,
APPELLANT

v.

VIRGINIA BOARD OF BAR EXAMINERS,
APPELLEE

On appeal from the
United States District Court for the
Eastern District of Virginia

INITIAL BRIEF FOR THE APPELLANT

Jonathan B. Bolls
Pro-Se

ASSIGNMENTS OF ERROR

1. The district court erred in holding that Appellant lacked standing to bring a prima facie constitutional challenge to Va. Code §54.1-108(1) and its corresponding unwritten policy of the bar examiners that no applicant can obtain their essays.

2. The district court erred in finding that Appellant suffered no injury-in-fact and bears no personal stake in the outcome.

3. The district court erred by finding that the Due Process Clause of the Fourteenth Amendment of the Federal Constitution is not implicated by failing to address the ultimate issue of the case: what the means are of resolving software related disputes before the Virginia Supreme Court if a law and policy present an obstacle to applicants obtaining their essays in the first place.

4. The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction over a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant.

OPINION BELOW

The opinion of the United States District Court for the Eastern District of Virginia
appears in its order of dismissal, Civ. No. 3:11CV427-HEH (September 14, 2011).

JURISDICTION
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.

PRELIMINARY STATEMENT

This case is a prima facie constitutional attack, given the recent transition to computer-based testing in Virginia, on Va. Code §54.1-108(1), denying applicants’ FOIA requests to obtain their test essays, and to the corresponding unwritten policy of the Board that no applicant can obtain their essays. Appellant’s previous case, Bolls v. Street, brought a constitutional challenge to just the Board’s policy that no applicant can obtain their essays coupled with a request for the release of his own essays. That case was dismissed as an as-applied challenge under Woodard v. Virginia Bd. of Bar Exmnrs., 598 F.2d 1345 (4th Cir. 1979). Because others continue to experience the same problems Appellant experienced with the software, and the fact that at least three computer forensic experts are in agreement that it violates a core IT systems principle to prevent applicants in a computer-based test from obtaining their essays, Appellant now brings a prima facie case against the policy and its foundational law.

The injuries to Appellant and a significant number of others that Appellant complains of are not, as the district would have it, merely software system malfunctions. Though these malfunctions are a seminal reason for a change in law and policy, the actual injury to Appellant and others similarly situated is quite different, and much more insidious. In Virginia a bar examinee has a right following the release of the results to bring a complaint to the Virginia Supreme Court, which has the power to reverse exam assessments under its inherent authority. See Order of the Fairfax Circuit Court, App. 3a. But this right is fatally handicapped when there exists an unwritten policy followed by the Board that no applicant can obtain their essays, which policy is rooted in Va. Code §108(1) denying Freedom of Information Act requests for the same. The injury that Appellant complains of is therefore an unreasonable hindrance to his and others’ access to the Virginia Supreme Court, namely the right to present necessary evidence to that court. The evidence in this case would prove, by expert and eyewitness testimony, that the Board is engaging in a pattern of improper activity in setting forth a sham remedy and applying the policy in question uniformly to applicants who experience a software system malfunction as described in Complt ¶28 and App. 9a-10a in Appellant’s affidavit. This policy of uniform application has been in existence since the 1970’s, long before the software system was introduced to all applicants in 2005. This activity is also going on while there exists an even longer standing law in Virginia that requires the Board to preserve an individual’s essays, presumably for any kind of dispute that should arise (see Va. Code §54.1-3929, reprinted App. 21a).

On standing, the injury to Appellant is both real and concrete, as borne out in the procedural history of his individual case, Bolls v. Street. Immediately after reaching an impasse with the Board with respect to obtaining his essays, he filed for an emergency court order in Fairfax Circuit Court to compel the release of the essays so that he could avail himself of his right to make an informed decision and particularize his complaint appropriately for the Virginia Supreme Court. That court, having found that the Board is not subject to review under the Virginia Administrative Process Act, directed Appellant to the Virginia Supreme Court. Appellant’s prayer for relief before the Virginia Supreme Court was two-fold: first, he sought to compel the release of the test essays, and then second, he sought an expedited second hearing “in the event that a claim is made.” Appellant informed the court as to what he and others experienced at the test site and that he had a leading computer forensics expert to back him up. Without hearing any of the evidence, the Virginia Supreme Court dismissed on the grounds that it cannot compel a discretionary decision on the part of the Board. App. 1a (Opinion of the Supreme Court of Virginia). He lost a career position (see Cmplt ¶10: “denied his license and lost a job in public service”) after experiencing a software system malfunction not the fault of his own (Complt. ¶10: described by a leading computer forensics expert as a “textbook case”) and then, once he requested to obtain his essays so that he could make an informed decision on how to proceed, he was denied his essays. The essays are patently sine qua non evidence in any bar exam software related dispute before the Virginia Supreme Court.

Appellant has informed the Board, and every former court that has denied jurisdiction, that his essay score on the 2008 Virginia Bar Exam is completely inaccurate- he has simply been prevented from making an informed decision and particularizing his complaint to the Virginia Supreme Court because his essays have been wrongfully witheld. Applicants do have a right, as the district court points out to “simply take the bar exam again” (Mem. Op. p. 8) but that court failed to address the fact that when such applicants take the exam again they will be subject to the same flawed law and policy that Appellant objects to on constitutional grounds. The district court’s opinion therefore acts to perpetuate the problem and does not square with the Fourth Circuit’s previous statement that “the rule is: once is enough” (see Richardson v. McFadden, infra). Appellant continues to have a right to have his first bar exam properly reviewed and resolved by the Virginia Supreme Court.

Since the Board is an agency of the Virginia Supreme Court and the Virginia Supreme Court bears ultimate responsibility for determining admission to the Virginia bar, this Court has concluded that for the purposes of reviewing a constitutional challenge to a bar examiner policy the federal court should conceptualize the Virginia Supreme Court and its Board as a single administrative agency. “[W]hen that court [Virginia Supreme Court] reviews or declines to review a decision of the bar examiners as to an individual examinee’s status, the court is acting as an administrative agency, rather than as a court of appeals. Therefore, we find it appropriate to determine whether or not [] allegations concerning the review procedures of the court and the Board make out a viable claim.” Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (P4). Where an applicant experiences a system software malfunction at the test site and later observes that his/her essay score was surprisingly low, that applicant is currently prevented from obtaining their essays and directed to the Virginia Supreme Court. When the applicant seeks an order by the Virginia Supreme Court to compel the release of the essays prior to filing a complaint in that court, the Virginia Supreme Court rules, even before hearing the expert testimony, that it cannot mandamus a discretionary act on the part of the Board. App. 2a (Supreme Court of Virginia order of dismissal of Appellant’s individual case). This is a “catch-22” for these applicants; the Virginia Supreme Court bears just as much responsibility as the Board in maintaining a meaningless review mechanism with impossible obstacles to the individual complainant.

Virginia’s transition to computer-based testing has not taken place in a vacuum. Other state bars have faced similar difficulties as the evidence in this case shows. The vast majority of states have taken steps to ensure their applicants rights to the essays, Virginia being only one of seven (7) states that do not. App. 19a (note that Colorado has recently changed its policy to allow applicants such rights). In almost all the States, over 50% of the applicants now rely on the satisfactory performance of testing software. See Chart, App. 20a. Applicants to many other Virginia licensing boards and departments, such as the Virginia Board of Pharmacy for example, now rely on computer-based tests. Indeed, the change is also an international one as Appellant’s expert states: “The move towards computer-based testing is a major transition, as was identified and discussed at the 10th CAA International Computer Assisted Assessment Conference, July 4-5 2006, held at Loughborough University here at the UK.” Declaration of Stephen Castell PhD ¶29.

The instant case represents a constitutional challenge to both (i) Va. Code §54.1-108(1) and (ii) the Board’s unwritten policy that no applicant can obtain their essays. These are not one in the same but work in tandem, as the latter acts to circumvent the discretion of the former. Perhaps most illuminating is the Board’s initial argument before the Fairfax Circuit Court, stating as follows: “In its discretion, the Board does not provide copies of bar exam answers to any applicant, including petitioner.” (Mem. Opp. Mot. for Emerg. Inj. Relief, p.3 (emphasis in original). Appellant’s previous action in federal court, Bolls v. Street, was found to be a prohibited as-applied constitutional challenge to a bar examiner policy that no one can obtain their essays. The instant case is a prima facie constitutional challenge to the same policy and to Va. Code §54.1-108(1), its foundational underpinning. A comparison of the two complaints will bear out the difference.

STANDARD OF REVIEW
The standard of review for jurisdictional dismissal by the district court is de novo. “We review issues of justiciability pursuant to Article III de novo.” National Rifle Ass’n v. Magaw, 132 F.3d 272, 278 (6th Cir. 1997) (quoted with approval in Thomas Moore Law Center v. Barack Obama, 2011 FED App. 0168P (6th Cir.)). Issues of justiciability encompass dismissals based on 12(b)(1) subject matter jurisdiction and 12(b)(6) failure to state a claim. The Fourth Circuit reviews dismissals de novo for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted. See Cavallo v. Star Enter., 100 F.3d 1150, 1153 (4th Cir. 1996); Tillman v. Resolution Trust Corp., 37 F.3d 1032, 1034 (4th Cir. 1994). In the case at bar, the district court dismissed under Rule 12(b)(1) and Rule 12(b)(6) based on its findings as to standing and due process respectively. Memorandum Opinion, page 9. Further, “the issue of standing presents a pure question of law, thus a trial court’s ruling on the issue is entitled to no deference on appeal.” C.J.S. Actions §102 (2009).

A district court dismissal for failure to state a claim is proper “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). On this point, courts are held to a “beyond a reasonable doubt” standard. “[U]nless it appears beyond a reasonable doubt that the Appellant can prove no set of facts in support of his claim which would entitle him to relief” a court should not dismiss a complaint for failure to state a claim. Conley v. Gibson, 355 U.S. 41, 47 (1957).

ARGUMENT

I. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(1) MOTION BASED ON LACK OF STANDING.

The “irreducible constitutional minimum of standing” contains three elements: “(1) an
injury in fact, meaning an injury that is concrete and particularized, and actual or imminent, (2) a causal connection between the injury and the causal conduct, and (3) a likelihood that the injury will be redressed by a favorable decision.” Granite State Outdoor Advertising Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003). In ruling on a motion to dismiss, this Court simply needs to examine Appellant’s allegations:

At the pleading stage, general factual allegations of injury resulting from defendant’s conduct may suffice, for on a motion to dismiss we “presume[e]that general allegations embrace those specific facts that are necessary to support the claim.”

Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (quoting Lujan v. Nat’l Wildlife Federation, 497 U.S. 871, 889 (1990). Thus, “mere allegations of injury” are sufficient to withstand a motion to dismiss based on lack of standing. Dep’t of Commerce v. U.S. House of Representatives, 525 U.S. 316, 329 (1999).

Appellant laid out his injury in ¶10 of the Complaint, entitled “Parties & Standing,” stating as follows: “[h]is essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service.” As soon as he received his bar exam results, right away he contacted the Board and explained to them that the “essay segment of the exam” was “surprisingly deficient.” App. 13a (Appellant’s initial letter to the Board dated October 21, 2008). The rest of ¶10 details how he petitioned state and federal courts for over two years to release his essays, which are preserved by law , after he and others experienced a software system malfunction with identical symptoms to what was observed one year prior in New York where corruption of the essays was proven and properly remedied.

The injury to Appellant therefore consists of injury to his right to make an informed decision and, if necessary, present the evidence alongside his complaint to the Virginia Supreme Court. Va. Code §54.1-108(1) and the Board’s corresponding Policy of Nondisclosure effectively foreclosed any form of meaningful review by the Virginia Supreme Court because that court could not possibly act without the essays in question. As Appellant’s expert states in his declaration:

As an expert in many high-profile cases both in American federal courts and the English High Court on matters relating to information and communication technology, software, systems, and services, I cannot conceive how it would be possible to bring a claim relating to a software malfunction without discovery of the item in question. This leaves the question of what the means are of resolving such disputes.
Declaration of Stephen Castell PhD ¶32.

The district court simply misconstrues the alleged injury. Apparently focusing on what could possibly be known about the extent of damage as a result of the software malfunctions where the essays are not released, it characterizes the injury as speculative and hypothetical. Mem. Op,, p.6. The software malfunction, however, is not the injury Appellant seeks a federal court to redress. Once applicants who experience a software malfunction can obtain their essays, the Virginia Supreme Court can make such determinations on its own. Until the law and policy in question are removed as improper following a computer-based test, legitimate software disputes will become “unsolved mysteries.” The right to practice one’s chosen profession is a well-recognized liberty interest and cannot be taken away without certain due process protections in place. This Court has recognized that in Virginia, an applicant’s due process interests are satisfied by the Virginia Supreme Court’s inherent authority over bar admissions. The injury that Appellant complains of is simply the taking away of his (and others’) right to present the evidence vital to that court in the exercise of its authority. Essentially the injury is Va. Code §54.1-108(1) creating an impediment to an applicant’s right to present their complaint to the Virginia Supreme Court. “In order to work a violation of the right to access the courts, it is not necessary for a statute to produce a procedural hurdle which is absolutely impossible to surmount, only one which is significantly difficult.” C.J.S. Constitutional Law §2156 (2009). Without the essays, in any software dispute, it is utterly impossible to resolve the dispute.

To support its conclusion as to there being no injury, the district court ignores this Court’s precedent and reaches for an out-of-circuit precedent that poses a contrary view. On page 8 of the Memorandum Opinion, the district judge cites to Brewer v. Wegmann, 691 F.2d 216, 217 (5th Cir. 1982) which held that the unqualified right to retake the bar exam constitutes adequate due process protection. However, after considering the issue of reexamination and due process, the Fourth Circuit is clear that reexamination is not a more effective remedy than judicial review:

It is true that some courts have held that reexamination is a more effective remedy than review because the administrative burden of allowing challenges
was perceived to be too great. We are not persuaded . . . To our knowledge, a
person is not required by any state to repeatedly demonstrate his competence to
practice law. The rule is: once is enough. And the reason for the rule is that it takes work, effort, and nowadays money to prepare for a bar examination. Moreover, the license is deemed of sufficient value that delay in getting it is an injury.Richardson v. McFadden, 540 F.2d 744, 752 (4th Cir. 1976).

To require applicants who have a legitimate software dispute, some of whom have a career position on the line, to take the exam again six months later does nothing to correct the underlying fault in the review process that is supposed to be available to the applicants. Dr. Castell was prepared to testify that withholding essays following the mishaps described in Complaint ¶28 goes to the heart of a core IT systems development principle. Hence, where a fault is built into an exam or the examining procedures, reexamination will not correct the fault and suit is proper before a federal district court. See Castro v. Beecher, 334 F. Supp. 930 (D. Mass. 1971).

The district court erroneously concludes on page 6 of its Memorandum Opinion that Appellant has no personal stake in the matter. Because he “will suffer no actionable harm as a direct result of the challenged statute [Va. Code §54.1-108(1)] , he does not have a sufficient personal interest at stake to prosecute this action” (citing to City of Los Angeles v. Lyons, 461 U.S. 95 (1983)). Lyons brought suit to enjoin as unconstitutional the use of chokeholds by the LAPD in instances where the police were not threatened with death or serious bodily injury (alleged to be an official policy). The Lyons court concluded, “[a]bsent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to bring an injunction than any other citizen of LA; and a federal court may not entertain a claim by an or all citizens who no more than assert that certain practices of law enforcement officers are unconstitional.” Id. at 111. Appellant Jonathan Bolls is situated differently than Lyons because Mr. Bolls’ injury is ongoing; it is not complete. He never was heard by the Virginia Supreme Court because that court ruled as a matter of law, even before receiving the expert testimony, that it could not mandamus the essays (App. 1a). Putting the injury in its proper context as a denial of access to crucial evidence to bring a complaint, the injury to Appellant is therefore a continuing one. Secondly, as the district court points out, he has a right to retake the examination. He cannot take the examination, however, without being subject to the very same law and policy that he contends is compromising the integrity of the test. Unlike Lyons, where the likelihood of him being subject to another chokehold was found to be miniscule, Appellant most certainly does have a substantial personal interest in fixing the very process that he would again be subject to in order to practice his chosen profession in his home state.

II. THE DISTRICT COURT ERRED IN GRANTING A 12(B)(6) MOTION BASED ON ITS FINDING THERE IS NO VIABLE DUE PROCESS CLAIM.

In support of this finding, the district court relies on settled case law prior to the institution of computer-based testing for the bar exam. The 4th circuit authority it cites to on page 9 of its memorandum opinion, Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985), is the same one that Appellant cites to in order to establish jurisdiction. But it is crucial for this Court to understand that the facts presented between this case and that one are fundamentally different. Rogers’ test was not administered on a software program; Rogers did not experience a software system malfunction requiring hands-on technical assistance and a system reboot while the essays were being saved; Rogers did not have an expert report concluding that the software symptoms observed are consistent with that of another jurisdiction where data loss and misgrading as a direct result were proven. Rogers also had an opportunity to at least review her essays in a previous failed exam- the review policy she challenged merely precluded applicants from having a second review on a following exam.

The purpose of Appellant citing to Rogers is two-fold. First, it is to show that when a Virginia bar examinee brings a complaint as to the constitutionality of a review policy, the district court does have jurisdiction under D.C. Court of Appeals v. Feldman [see Part III infra]. Rogers v. Supreme Court of Virginia, No. 84-1746, August 22, 1985 p.3. Second, it is to show that when this Court determines allegations regarding post examination review procedures for the bar, it does not consider the state supreme court an appellate court but rather an administrative agency. As such, the review procedures of the Virginia Supreme Court and its agency, the Board, are to be reviewed together to know if a viable due process claim exists. See page 4 of Rogers:

[W]e think that when that court [Virginia Supreme Court] reviews or declines to review a decision of the bar examiners as to an individual examinee’s status, the court is acting as an administrative agency, rather than as a court of appeals. Therefore, we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.

The district court departs from applying this type of analysis by sidestepping the heart of the issue, which is how a software dispute could possibly be resolved if an applicant cannot obtain their essays before approaching the Virginia Supreme Court. Having overlooked this crucial point, the court simply directs such aggrieved applicants to the Virginia Supreme Court, where the procedural due process injury originates. See Memorandum Opinion, page 8: “Bar applicants who have been notified that they have failed the bar examination and who believe that it is attributable to a computer or software glitch have two available statutory options. They can either present their grievance to the Supreme Court of Virginia or, if decided adversely to them, petition the Supreme Court of the United States for certiorari.” This does not take into account the fact that the district court in Rogers was reversed for its similar line of reasoning. The review procedures of the state supreme court, and its board, are appropriately reviewed together by a federal court when challenged under due process, particularly procedural due process actions like the instant case. A contrary rule would simply undermine the 14th Amendment’s prohibition upon the States.

Certainly, this Court would not stand for the proposition that no due process challenges may be brought against a policy of the Virginia Board of Bar Examiners or law of the Virginia General Assembly. It is an established principle that the content of due process varies with each factual context. Hannah v. Larche, 363 U.S. 420 (1960). The recent major transition to computer-based testing in Virginia, and indeed throughout the country, is undoubtedly such a change that requires the courts to now reconsider the question of what rights applicants have to their essays in this new context. The expert report filed with the Complaint has been able to conclude, even absent a forensic analysis of Virginia’s software system, that the only way for an applicant who undergoes a software system malfunction as described in ¶28 of the Complaint to have the matter properly resolved is for that applicant, the “key creator of the data,” to obtain their essays. Declaration of Stephen Castell PhD ¶2, ¶31. This is also what is done in the vast majority of States. As it stands now in Virginia, any legal recourse such applicant has to the Virginia Supreme Court is meaningless unless they can obtain their essays. Paragraphs 9, 30 and 45 of the Complaint speak directly to this for Va. Code §54.1-108(1) and the Board’s Policy of Nondisclosure. See also ¶31 which states the fact that the Board has used its discretion to install Policy of Nondisclosure which is applied uniformly to all applicants, including those who experience the software problems described in ¶28. And see ¶36 which states that the USB saving mechanism in Virginia is identical to that used in New York where, as explained in ¶35 and ¶29 , data corruption and misgrading were proven.

Whether a remedy exists for a plaintiff alleging violation of constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). The new realities of computer-based testing turn the case law that the district court relies on completely on its head. Before the software issues came into being, it was generally thought that the opportunity for reexamination provided an adequate means of exposing grading errors. Tyler v. Vickery, 517 F.2d 1089 (5th Cir. 1975), cert. denied, 426 U.S. 940 (1976); Whitfield v. Illinois Board of Law Examiners, 504 F.2d 474 (7th Cir. 1974). Thirty years after these decisions came down the computer-based test was introduced, raising a new question on what procedural safeguards are adequate to protect an individual’s rights should something go wrong during the test. The answer for the vast majority of the states is resoundingly clear: transparency. All except for seven allow failed applicants access to their essays (see charts, App. 19a-20a) (note that Colorado has recently made the transition to allow such access after this data was compiled). It is no wonder why the Board has dropped its initial argument before the Fairfax Circuit Court that such disclosure would compromise the integrity of the exam when such policies work just fine in other states, regardless of whether they have a built-in appeals process or not. The high court of every state still has the inherent authority over its bar admissions and essentially becomes a court of first impression if no other statutory procedure is in place.

A. Due Process Procedural Protections

In Virginia, as the Attorney General concedes, applicants are experiencing the software symptoms described in ¶28 of the Complaint at every exam. App. 42a ¶6. A law that prevents these applicants from obtaining their essays through FOIA, particularly when the applicants claim a significant discrepancy in their essay score, means that “the bar examiners may very well have a serious problem on their hands and not even know it” (Declaration of Stephen Castell PhD ¶30). Neither can the applicants prove it without their essays, effectively denying them the procedural right to which they are already entitled- to present their complaint to the Supreme Court of Virginia.

Bar examiners are subject to due process requirements in carrying out their duties, (Richardson v. McFadden, 540 F.2d 744 (4th Cir. 1976), on reh’g, 563 F.2d 1130 (4th Cir. 1977), and bar examination procedures are reviewable to ascertain whether there has been a due process infringement. The 2nd Circuit has held that the principal function of the due process clause is to ensure that state power is exercised only pursuant to procedures adequate to vindicate individual rights. In re Taylor, 567 F.2d 1183 (2nd Cir. 1977). Cf. Opinion of the Justices, 252 Ala. 351, 40 So.2d 849 (1949) (while due process of law does not guarantee any particular form, mode, or method of procedure, the fundamental principles inherent therein must be observed).

The law is clear that one of the fundamental principles inherent in due process is the right of a plaintiff to present evidence to court in support of the complaint. “A litigant’s right to present evidence in court is generally considered essential to due process.” C.J.S. Constitutional Law §1790 (2009). In a software dispute, the essays themselves happen to be the only evidence. Simply put, without them there is no complaint, i.e. sine qua non evidence. As Eric Zeni would testify, had his case been in Virginia his essay grade would not have been corrected. The Virginia Supreme Court would not likely accept a petition from a bar examinee without concrete evidence. It has already ruled in Appellant’s individual case, described by Dr. Castell as a “textbook case” of a software mishap (Declaration of Stephen Castell PhD ¶31), that it cannot mandamus a discretionary act on the part of the Board. App. 1a. This in no way addresses the fact that the Board has used its discretion to make a policy that no one, including those who experience software mishaps, can obtain their essays. The problem is thus a systemic one requiring federal court intervention to consider the new issues brought on by the computer-based test.

III THE DISTRICT COURT ERRED BY IGNORING THE JURISDICTIONAL MANDATES OF D.C. COURT OF APPEALS V. FELDMAN.

The district court erred by ignoring the jurisdictional mandates of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), establishing jurisdiction for a prima facie constitutional challenge to a bar examiner policy brought by an aggrieved bar applicant. Given the then-current state of confusion among the circuits over what jurisdiction a district has in this area, the U.S. Supreme Court drew a distinction between as-applied and facial challenges to a bar examiner policy:

The Court of Appeals for the 10th Circuit in Doe v. Pringle properly emphasized the distinction between general challenges to state bar admission rules and claims that a state court has unlawfully denied a particular applicant admission . . . United States district courts, therefore, have subject-matter jurisdiction over general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings, which do not require review of a final state-court judgment in a particular case.”D.C. Court of Appeals v. Feldman, 103 S. Ct. at 1316-1317.

The Eastern District Court has since upheld under the principles of Feldman constitutional challenges to state bar rules that are applied uniformly to all applicants. See Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 519 (E.D. Va. 1994) (“It is now clear to the Court that, rather than attacking the Board’s treatment of Clark in particular, this case challenges the defendants’ right to enforce their rule of general application that all applicants must answer question 20(b) . . . under the principles of Feldman, it has jurisdiction over this case.”) . See also Rogers v. Supreme Court of Virginia, 772 F.2d 900 (4th Cir. 1985) (“the district court correctly decided it had jurisdiction, on the ground that Rogers was challenging the conduct of a non-judicial proceeding under District of Columbia Court of Appeals v. Feldman. . . Therefore, we find it appropriate to determine whether or not Rogers’ allegations concerning the review procedures of the court and the Board make out a viable claim.”). Similarly, in the instant case, the Board continues to enforce an unwritten policy of uniform application that no applicant can obtain their essays, which the expert testimony would show violates a sound IT systems principle in a computer-administered examination.

In citing to Schware v. Bd. of Bar Examiners of New Mexico, 353 U.S. 232 (1957) on page 7 of the Memorandum Opinion, the district court places an undue limitation on a federal court’s enforcement authority over due process and equal protection cases. Schware is essentially a character and fitness case, not a bar exam case, and the court quoted a portion of Schware that is appropriate for a character and fitness case to illustrate its point. Certainly the principles of due process would also be able to reach the bar exam, which is the most significant part of the bar admissions process.

A. The Courts have a duty to open, rather than close, the door to the courthouse where a denial of standing would pose an impenetrable barrier to any judicial scrutiny of legislative action.

There is nothing paradoxical about a bar exam applicant who experienced the software system reboots described in ¶28 by himself and a significant number of others to eventually seek to change an improper policy that denied him and others meaningful review. The Supreme Court of Virginia is the proper forum for these disputes but it is utterly impossible for a litigant to bring a software dispute before the Virginia Supreme Court if he cannot first investigate, make an informed decision, and particularize the evidence in the complaint. This goes to the very core of the integrity of the grading process and a sense of fairness in the American judicial system. The Supreme Court of Alaska, for example, has properly characterized the Alaska bar examiner board’s process requiring applicants to prove error without a device to locate the error as a “logical hiatus.” Application of Peterson, 459 P.2d at 709 (Alaska 1969).

It is patently false for the Attorney General to assert that the Board is offering a remedy for those who experience the problems described in ¶28 of the Complaint. As Dr. Castell, a leading computer forensics and computer law expert of over forty years experience, states in his preliminary report filed with this Court:

To the extent that the board seeks to “review the version on [the applicant’s] computer against the one graded,” this can only merely confirm that the file was written by [the applicant] using the Exam4 software. In no way does this pose a remedy to, or even a sensible investigation of, any potential corruption problem caused by the Exam4 software itself, or through other (temporary or permanent) system fault, for which [the applicant] could not have been
responsible.Declaration of Stephen Castell PhD ¶20.

This is significant: if there is any omission, alteration, corruption or other fault or deficiency in or of data when the Exam4 program records data during the first step of saving the essays onto the laptop, then the data on the USB will be nothing more than a duplicate of such (already) deficient, faulty, or corrupted essay data.Id. ¶19.

The only remedy that does exist is not being employed presumably because it requires cooperation with the applicant. Following the software mishaps of New York’s July 2007 exam, the National Conference of Bar Examiners developed an alternative grading methodology detailed in a press release sent out by the New York Board of Law Examiners on Nov. 15, 2007 (reprinted top of App. 24a ). Eric Zeni, an attorney in New York whose software had to be rebooted in the middle of the essay exam in July 2007, has agreed to testify to the authenticity of the above referenced press release and to how the alternative grading methodology helped protect his license from being unfairly denied only once he was able to obtain his essays as of right. Dr. Castell has described this remedy as an “obvious and sensible remedy” which could work if “there were in Virginia to be the reasonable, and technically sound, policy in place for applicants to obtain and inspect their essays . . .” Id. ¶38.

If Appellant does not have standing to challenge this law and policy, then that leaves the question of who would have such standing. Where “a denial of standing would pose, in effect, an impenetrable barrier to any judicial scrutiny of legislative action, the court’s duty is to open, rather than close, the door to the courthouse.” C.J.S. Actions §112 (2009). The fact that Appellant’s software malfunctioned at the saving stage of both morning and afternoon sessions of the test, requiring hands-on technical assistance which was to no avail, and finally a system reboot is a “textbook case” of a software malfunction and “very real cause for concern.” Declaration of Stephen Castell PhD ¶31 and ¶22. See also Appellant’s affidavit in App. 9a-10a. These problems also affected a significant number of others (App. 10a ¶9) and the Attorney General has conceded that the software reboots are occurring at every exam (App. 42a ¶6). There is significant evidence and expertise brought to this case, including expert testimony, eyewitness testimony, and research on other state bar exam policies and computer-based tests. Further evidence relating to the Engineers’ Notes of the technicians at the Virginia Bar exams could be obtained on discovery to corroborate Appellant’s observations that the software problems are localized to the saving stage of the exams, an indication of a systemic problem. In light of all the ongoing problems associated with software administered testing, post examination review mechanism of the Virginia Supreme Court and its Board must be reviewed by a federal court. Ignoring these observations, or downplaying them, is to trifle with individual rights. If this Court affirms such denials of standing to the only individuals who possibly would have standing then this Court is being too overly restrictive of its judicial role.

Previously in Bolls v. Street, Appellant brought a challenge to the policy that no applicant can obtain their essays coupled with a request for his own essays to be released. This was found to be an as-applied challenge to a bar examiner policy, which is prohibited under Feldman, supra. In this case there is no request whatsoever that Appellant Jonathan Bolls’ essays be released. Additionally, the case seeks not just to bring a prima facie challenge to the Board’s policy but to its foundational underpinning, Va. Code §54.1-108(1). The allegations borne out in the Complaint clearly establish a solid case for a prima facie challenge as they refer to software problems that affected a substantial number of others in Virginia, evidence consisting of eyewitness and expert testimony on the propriety of the law and policy in question, research compiled on what the policies are of the other States, and the existence of an efficient, thorough, and nationwide remedy developed by the National Conference of Bar Examiners for such situations (see Complaint ¶35). The procedural history of Appellant’s individual case is instructive to this Court as one case in point.

The novel issues raised by computer-administered testing, and the evidence of the instant case, are compelling reasons for the court to hear this case, notwithstanding previous case law on the subject that took place before these issues were even a consideration.

CONCLUSION

In sum, the district court characterized the injury-in-fact incorrectly. Appellant had to bring this case to a federal court because the policies of the Board and the Virginia Supreme Court were effectively denying individuals their right to bring evidence in support of their complaints, thereby preventing them from accessing needed evidence for their complaints. See Complaint ¶10 detailing his own particular injury (“His essays were withheld from him, and his case never could be heard on its merits. He was denied his license and lost a job in public service.”). Without considering the novel issues raised with respect to the computer-based testing, without squaring the opinion with the content of the expert’s report, and without addressing the overwhelming trend among all the state bars toward openness and transparency, the district court concludes that due process is satisfied by the recourse applicants have to the Virginia Supreme Court. In so concluding, it fails to address ¶¶6, 9, 30, 31, 36, and 45 of the Complaint and relies on settled case law from the 70’s and 80’s, well before the software issues were even a consideration. The heart of this matter is that the applicants’ right to petition the Virginia Supreme Court under its inherent authority is vitiated because the evidence necessary to substantiate such a complaint is being withheld by the law and policy in question. An applicant such as Eric Zeni in New York would not be able to have his grade corrected in Virginia.

The standing question is linked with the due process question. Having found that there is no due process interest at issue with the law and policy in question, the court concludes that there is therefore no injury-in-fact and no standing. Had the court concluded, as it should have, that due process procedural protections were fairly implicated, then “the law is clear that injuries to common law, constitutional, and statutory rights are sufficient for standing.” Whether a remedy exists for a plaintiff alleging constitutional rights is itself a question of federal law sufficient to confer federal jurisdiction. See Bell v. Hood, 327 U.S. 678, 683-85 (1946). Had the district court understood the injury in its proper context, this controversy would have been heard on its merits and Appellant would be able to proceed with the prima facie case to vindicate his rights and the rights of all future applicants to the Virginia bar.

This issue is ripe for review as there is no precedent on what constitutes procedural due process protections in the context of a software malfunction. The parameters of due process must keep up with a rapidly changing society, and technology clearly represents a driving force for such as change. Va. Code §54.1-108(1) was enacted into law at a time when the General Assembly could not have foreseen the vast implications of computer software performance on society as a whole, let alone on individual rights as we see today. As the Supreme Court states, “ ‘Due Process’ is, perhaps, the least frozen concept of our law- the least confined to history and most absorptive of powerful social standards of a progressive society.” Griffin v. Illinois, 351 U.S. 12 (1956). The law that prevents FOIA requests and a corresponding policy that no applicant can obtain their essays has been generally upheld in the past, however, the advent of computer-based testing demands that courts take a second look. The evidence shows that applicants in other parts of the country that are allowed to obtain their essays have indeed proven that the same software symptoms observed at the Virginia Bar Exam have led to corruption of their essays, and misgrading as a result. Furthermore, a workable remedy does exist that requires cooperation with the applicants.

Appellant’s personal stake in the outcome should have been readily apparent. The injury to his due process rights is still ongoing as the evidence necessary to a proper review of his case continues to be held in secret pursuant to an improper policy following a computer-administered exam. He furthermore has a vested interest in fixing a bar admissions process that he has a standing right to undergo again in order to practice his chosen profession, in his home state.

Respectfully Submitted,

Jonathan Bolls
Appellant Pro-Se

November 10, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

2011-09-09T08:17:00.000-07:00

Update: 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 res judicata, 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.

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 without reaching the merits 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.

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.

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.

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.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

Civil Action No. 3:11cv427

JONATHAN BOLLS,

Plaintiff,

v.

VIRGINIA BOARD OF BAR EXAMINERS,

Defendant.

Plaintiff’s Memorandum of Law Opposing Defendant’s Motion to Dismiss

NOW COMES Plaintiff, Jonathan Bolls, pro se, in opposition to the Motion to Dismiss states as follows:

Introduction
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.

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.

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.

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.

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.

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.

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.

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.

ARGUMENT

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.

The Declaratory Judgment Act offers a unique mechanism by which advocates may seek
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).

A number of courts have 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. 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.

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.

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.

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.

The Attorney General’s office has conceded that hands-on technical assistance and
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.

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:

“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.”

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

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:

“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.”

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:

“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.”

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.

III. Stopping Bar Applicants in a Computer-Based Essay Test From Obtaining Their Essays Acts to Foreclose the Only Available Remedy That Does Exist.

The National Conference of Bar Examiners has developed an efficient, thorough,
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).

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:

“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.
To the extent that the board seeks to ‘review the version on his 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 it pose a remedy to, or
even a sensible investigation of, any potential corruption problem caused by the
exam4 software itself, or through other (temporary or permanent) system fault,
for which [the applicant] could not have been responsible.”

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.

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.

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.

IV. The Rooker-Feldman Doctrine should not be invoked because there is no state court decision under review.

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.

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).

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.

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.

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.

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.

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.

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:

“subtle but fundamental distinction 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 . . .” Clark, at 515.

“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).”[Court then strikes the request for an order directing the defendants to grant plaintiff a license]. Id. 518-519.

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 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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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:

“[I]n support of the plea of res judicata in the subsequent law action, the defendants
argued that plaintiff’s ‘based [their case] on the identical cause of action which was
litigated in the former equity suit.’ We rejected this argument, stating that ‘while the
causes of action in the two suits [were] closely related, they [were] not identical.’”
Wright v. Castles, 232 Va. 218 (1986) (quoting Worrie v. Boze, 198 Va. 533, 537, 95
S.E. 2d 192, 196 (1956).

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.

VI. Denial of Certiorari by the Supreme Court Is Not An Expression on the Merits.

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.

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.

CONCLUSION

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.

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.

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.

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.

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.

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.

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.
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.

For the foregoing reasons, Plaintiff asks this Court to deny the Motion to Dismiss.

Respectfully Submitted,

Jonathan Bolls
Plaintiff Pro-Se

August 20, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

2011-07-21T05:29:00.000-07:00

Update 25: 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 (case no. 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).

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.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

No. 3:11CV427

JONATHAN BOLLS,
a resident of the Commonwealth
Plaintiff,

v.

VIRGINIA BOARD OF BAR EXAMINERS,
Defendant.

COMPLAINT FOR DECLARATORY AND INUNCTIVE RELIEF

Plaintiff states as follows:

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.

Introduction

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%.

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.

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.

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.

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).

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.

7. There exists no rule of the Supreme Court of Virginia that precludes an applicant from obtaining their essay responses.

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.

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).

Parties & Standing

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.

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.

Jurisdiction and Venue

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.

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.”).

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.”).

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”).

Grounds for Relief

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.”

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.

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.

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:

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;
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;
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.
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.

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.

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.
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.

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.

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.

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.

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”).

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.

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.

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%).

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.

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.

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.

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).

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.

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.

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.

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.”

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:
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.

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.

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

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”).

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.”).

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”).

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).

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.

Constitutional Basis for Relief

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.

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.

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.

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.

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.

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:
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.

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.

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).

50. As the U.S. Supreme Court has often said:
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.Ex Parte Virginia, 100 U.S. 339, 347 (1879).

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.

Respectfully Submitted,

___________________
Jonathan Bolls
Plaintiff Pro-Se
June 24, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

2011-05-14T04:52:00.000-07:00

Update 24: 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 pro se 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 pro se 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 pro se litigants. Although I requested the court to invoke the traditional leniency for pro se litigants on matters of court procedure, the court at the direction of Judge Diana Motz refused to do so.

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.

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY Petition for Rehearing En Banc

2011-04-05T09:27:00.000-07:00

Update 23: 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.

Following is the Petition for Rehearing En Banc, filed with the court on March 31st.

IN THE
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT

JONATHAN BOLLS,
Appellant,
v. No. 10-2361

W. SCOTT STREET, III, Secretary
of the Virginia Board of Bar Examiners,
Appellee.

Appellant’s Petition for Rehearing En Banc
COMES NOW Appellant, Jonathan Bolls, pro-se, in support of his petition for rehearing en banc states as follows:

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.

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.

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”).

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, Software Snafus Upset Test Takers During First Day of State Bar Exam: “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.

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:
“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.”
Id. ¶30.

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.

Prong 3: The Affirmance of the Dismissal Does Not Address the Direct Conflict with the Jurisdictional rule in D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

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 and 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:
“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
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.”
Feldman, at 486, 103 S. Ct. at 1317.

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. Feldman 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 Richardson and Woodard cases relied on by the court below. Had either the Eastern District or the Fourth Circuit properly applied the rule as laid out in Feldman, jurisdiction would have been established.

The need for a policy change is manifest now that the transition to computer-based testing is well underway.

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.

Conclusion

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.” Schware, 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 Clark v. Virginia Board of Bar Examiners, 861 F. Supp. 512, 518 (E.D. Va. 1994) (relies on the rule in Feldman, supra); Keenan v. Bd. of Law Exmnrs. of North Carolina, 317 F. Supp. 1350 (1970); Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974), aff’d 419 U.S. 955. Appellant’s case should have been no different.
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.

Respectfully Submitted,

Jonathan Bolls
Appellant Pro-Se

March 31, 2011

VIRGINIA BAR EXAM: LACK OF TRANSPARENCY Initial Brief on Appeal

2011-01-23T14:00:00.000-08:00

Update(22): 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.

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).

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.

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.

It is time for Virginia to be in line with the transparency shown throughout the rest of the country.

IN THE
UNITED STATES COURT OF APPEALS
FOURTH CIRCUIT
2010-2011 TERM
No. 10-2361

JONATHAN BOLLS,
APPELLANT

v.

W. SCOTT STREET III, SECRETARY OF THE
VIRGINIA BOARD OF BAR EXAMINERS,
APPELLEE

On appeal from the
United States District Court for the
Eastern District of Virginia

INITIAL BRIEF FOR THE APPELLANT

Jonathan B. Bolls
Pro-Se

QUESTION PRESENTED FOR REVIEW

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 D.C. Court of Appeals v. Feldman, 460 U.S. 462, brought by an aggrieved bar examinee who:
(a) Seeks the permanent removal of these policies; and
(b) Seeks individual relief to protect his own interest as well.

TABLE OF CONTENTS

Opinion Below
Jurisdiction
Preliminary Statement
Statement of the Case
Argument

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.

A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.
B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.
C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers.
D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.

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.

A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).
B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions.
C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level.
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.

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.

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.
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.

1. No Legitimate State Goal Exists for the Two Policies in Question.

2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies.

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.

A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.
B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level.
C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.
D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.

V. APPELLANT REQUESTS ORAL ARGUMENT.

Conclusion

.....................................................................................

OPINION BELOW

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).

JURISDICTION

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.

PRELIMINARY STATEMENT

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.

STATEMENT OF THE CASE

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.

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.

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. Id.

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,’ this can only merely confirm that the file was written by Mr. Bolls using the Exam4 software (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.”

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.

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.

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.”

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.

ARGUMENT

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.

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.

A. Appellant’s Declaratory Judgment Action Reflects the Larger Intent.

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.”

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.

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.

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.

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.

6. “On July 29, 2008 Petitioner was one of numerous applicants who experienced problems saving the essays.” ¶26.

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.

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.
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.

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.

11. “Software malfunctions of the nature experienced by Petitioner have caused data loss and, consequently, misgrading in other jurisdictions.” ¶27.

12. “Not acting within his duty, Respondent is guilty of the following careless and negligent acts or omissions:
a. Failure to install criteria by which an exception to Policy of Nondisclosure or Policy of Finality could be made.
b. Failure to adequately investigate the consequences of a major technical irregularity.
c. Failure to employ alternative grading methodology developed for system wide software mishaps of this nature by the National Conference of Bar Examiners.
d. Failure to require standby technicians to record applicant identification numbers of all applicants who required hands-on technical assistance.
e. Failure to address Petitioner’s concerns or cooperate in any meaningful way.”

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.

14. “The constitutional infirmity of Policy of Nondisclosure and Policy of Finality is overinclusion.” ¶43.

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.

16. “No harm would occur to the Board or to the Supreme Court of Virginia if applicants can obtain their essays.” ¶51.

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.”

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.

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.

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.

21. “Policy of Nondisclosure is not technically sound given the current realities of computer-based testing for bar examinations.” ¶63.

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.

B. Appellant’s Response to the Motion to Dismiss Reflects the Larger Intent.

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.

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.

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.

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.

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.

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.

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.

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.

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.

10. “Such a systemic problem requires a remedy.” Page 1.

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.

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.

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.

14. “In short, Plaintiff’s case, and all other cases like it, are handicapped from the outset.” Page 16.

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.

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.

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.

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.

C. Appellant Orally Stated His Intentions with Respect to the Larger Issue at the Pre-Trial Conference in Chambers.

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.

D. Appellant’s Motion to Alter Judgment Reiterates His Larger Intent Which Does Transcend His Own Case.

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.

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.”

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.

4. “Now Plaintiff is turning to a federal district court to strike these policies down once and for all.” Page 2.

5. “The ‘necessary steps’ that Plaintiff is referring to in his Prayer for Relief is just that: broad injunctive relief.” Page 4.

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.

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.

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.
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.

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.” Richardson v. McFadden, 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.” Richardson, 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.

A. The Declaratory Judgment Action Falls Under Federal Court Jurisdiction Under the Principles of D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983).

The Supreme Court in Feldman 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).

The cases relied on by the court below for its dismissal for lack of subject-matter jurisdiction include Woodard v. Virginia Bd. of Bar Examiners, 598 F.2d 1345 (4th Cir. 1979) and Richardson v. McFadden, 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 Woodard 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.

In resolving the subject-matter jurisdiction issue, the U.S. Supreme Court in Feldman (1983) underscored the 10th Circuit’s reasoning in Doe v. Pringle, 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: “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.” Feldman, at 1316 (citing to Doe, at 597). This goes directly to the subject-matter jurisdiction question at hand. Here the court correctly references Judge Hall’s concurrence in Richardson v. McFadden, 563 F.2d 1130 (4th Cir. 1977), which cited to the same exact Doe language even before Feldman made it national law. Richardson, at 1133 (Hall, J. concurring). In 1979, in Woodard v. Virginia Bd. of Bar Examiners, 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 Doe (highlighted in bold above). Since the Supreme Court’s Feldman 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, Clark v. Va. Bd. of Bar Exmnrs., 861 F. Supp. 512, 519].

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 . . .” Feldman, at 1316 (quoting Doe v. Pringle, 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.

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 supra). 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).

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. Feldman, 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.” Id., 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 Rogers v. Supreme Court of Virginia, 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 District of Columbia Court of Appeals v. Feldman, 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.

B. There are Many Examples Where Bar Examiner Policies are Challenged in Federal Court and the Individual Relief is Derivative of Those Actions.

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. See Brown v. Supreme Court of Virginia, 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); Goldsmith v. Pringle, 399 F. Supp. 620 (D. Colo. 1975) (equal protection challenge to reciprocity Rule 202(7). The court conducted a rational basis test). Huffman v. Montana Supreme Court, 372 F. Supp. 1175 (1974), aff’d 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.

Keenan v. Bd. of Law Examiners of North Carolina, 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.” Id. 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. Id., 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.” Id., 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.

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 Clark v. Virginia Board of Bar Examiners, 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 Doe, supra, 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.” Clark, 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 Feldman, it has jurisdiction over this case.” Clark, 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. Clark v. Virginia Board of Bar Examiners, 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).

C. Res Judicata Does Not Act to Bar These Proceedings Because They Are Not Identical To the Previous Proceedings at the State Level.

The rule in Wright v. Castles, 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. Wright, 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 Worrie v. Boze, 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.]

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.

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. See Evans v. Hartnett 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). Thus, broad injunctive relief can be brought by a single individual.

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. Cf. 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); Harmon v. Thornburgh, 878 F.2d 484, 491-494 (D.C. Cir. 1989) (constitutional challenge to random drug tests of federal employees); and Gallinot, 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.

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.
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. Whitfield v. Illinois Bd. of Bar Exmnrs., 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 Richardson: “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.

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.

The Supreme Court in Rochin v. California, 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 Griffin v. Illinois, 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.” Chicago B&Q R.R. v. Chicago, 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.
[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.]

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).

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.

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.
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. Id. Again, this does not appear to be human error.

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.

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 Application of Peterson, 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.

1. No Legitimate State Goal Exists for the Two Policies in Question.

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. Goldfarb v. Supreme Court of Virginia, 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 Keenan v. Bd. of Law Exmnrs. of North Carolina, 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.

2. No Harm to the Board or the Supreme Court of Virginia Exists By the Removal of These Policies.

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.

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.

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.

A. There Exists No Preclusive or Precedential Effect of the Virginia Supreme Court’s Dismissal of Appellant’s Individual Case.

Rejecting the contention that plaintiffs were accorded a full and fair opportunity to litigate a vote dilution claim, the Supreme Court in Johnson v. De Grandy, 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.

B. Appellant is at Liberty to Litigate in Any court That Has Jurisdiction at the State or Federal Level.

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 Johnson v. Degrandy, 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.

C. Denial of Writ of Certiorari by the Federal Supreme Court Imports No Expression of Opinion on the Merits of Appellant’s Individual Case.

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. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L.Ed. 469, reh’g denied 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). See also Theard v. United States, 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 Griffin 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.” Griffin v. Illinois, 351 U.S. 12 (1956). The two policies thus create an unconstitutional roadblock with very far reaching effects.

D. Probative Facts that Point to Manifest Unfairness and Other Serious Grounds or Circumstances Warrant Federal Court Review.

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 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.

V. APPELLANT REQUESTS ORAL ARGUMENT.

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.

CONCLUSION

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.

Respectfully Submitted,

Jonathan Bolls
Pro-Se

January 18, 2011