VIRGINIA BAR EXAM: LACK OF TRANSPARENCY

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

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

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

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