Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Thanks to Ahcuah for getting me a copy of the complaint in the case I mentioned below, where a guy named Stephen Dunne is suing everyone and their brother in Massachusetts over failing the bar exam. There was a question on the exam about gay marriage, based on Goodridge ruling and Dunne refused to answer the question; the loss of credit for that question was enough to cause him to fail the exam. Now he's suing everyone under the sun over it, claiming that the question required him to "affirmatively accept, condone and promote same sex marriage and same sex parenting" (that phrase appears dozens, perhaps hundreds, of times in the complaint).
What I was hoping for in the complaint is not there: the actual wording of the question he is complaining about. Bar exams include lots of questions about how a given law or court ruling should or must be applied in various circumstances, but none that I am aware of require anyone to agree with the law. Dunne, who is representing himself in the case, never bothers to actually quote the question. I've uploaded the complaint here.
Instead, we get a bizarre complaint full of rants about the "liberal religion of secular humanism", about homosexuality being a choice and not inborn, about how the Goodridge decision violates the Supremacy Clause (huh?) and destroys democracy. It's really quite amusing to read. His complaint is not only over the question, but over the Goodridge ruling itself. He claims that the ruling is "contrary to the United States constitution and must be preempted to maintain national peace and harmony."
Dunne claims that the Massachusetts court ruling violates the constitutional guarantee that each state will have a republican form of government. Sorry Stephen, that ridiculous argument was already tried by Mat Staver and Liberty Counsel. It was dismissed and that dismissal upheld all the way to the Supreme Court, which denied cert. It will work no better for you.
He doesn't even seem to recognize the difference between state law and Federal law. The Goodridge ruling was based upon the Massachusetts constitution, not the US constitution. Yet Dunne claims:
Plaintiff contends that "Defendants'" reliance on Goodridge v Dept. of Public Health, an indisputably unconstitutional decision is in contravention to the Supreme Court's decision in Baker v Nelson (holding that a State law barring marriage between persons of the same sex does not violate the equal protection or due process guarantees of the United States Constitution).
But this is utterly irrelevant. Just because the US Supreme Court said such laws don't violate the US constitution does not mean that a state supreme court can't rule that such a law does violate the state constitution. This isn't exactly advanced con law, folks, this is really basic stuff. If he can't get that right, I'm certainly not surprised that skipping one question was enough to make him fail the bar exam.
This guy is clearly a nut and this lawsuit is about as frivolous as it gets. Not only will the case be dismissed, the ridiculous nature of the suit itself may well cost this guy any chance he had of getting a law license in Massachusetts in the future.
Comments
Is this kind of case something that is remotely normal? I mean, is there any particular precedent for someone suing the bar for failing to pass him?
I was somehow under the impression a lot of people failed the bar and the expected response is to just shrug and try again the next year.
Posted by: Coin | July 3, 2007 2:33 PM
Thank God this guy failed the bar !!
What does whether you like a law have to do with an examination on whether you understand the law?
Posted by: ds | July 3, 2007 2:39 PM
Ed, when you take the bar, they swear you not to reveal the questions asked on the bar exam, and they don't permit you to bring a copy home with you. It may be that he was being cautious, but more likely is that he simply didn't have access to the exact wording.
Coin, my understanding is that most states expect you to just shrug it off and try again, so much so that they institutionalize it. I know that in Indiana, for example, you only get to ask for review (and then only once) if you very nearly passed, but there is zero transparancy or accountability associated with the review process.
Posted by: Michael LoPrete | July 3, 2007 2:50 PM
As Ed notes, it does make one wonder just what the heck this guy was doing during his constitutional law class. Sleeping?
Posted by: Ahcuah | July 3, 2007 2:58 PM
Actually, the phrase in question appears 18 times. The utter mangling of legal concepts is reminiscent of a certain banned Anonymous poster who thinks he is a legal expert. For example, he bases Commerce Cause claim jurisdiction on a blatant misreading of a court case. The case challenged a local ordinance that all dairy must be supplied by farms no more than 5 miles from town. This meant that out-of-state as well as most in-state suppliers were barred from commerce in that town. The court held that they had jurisdiction because out-of-state suppliers were disfavored (specifically, barred) with respect to a protected class of in-state suppliers, regardless of the fact that other in-state suppliers not in the protected group were similarly disfavored. The idiot took this to mean that all claims involving interstate commerce were thereby granted federal jurisdiction!
(btw, I keep getting a timeout error for www.atdmt.com -or something like that- when loading ScienceBlog pages. The Seed Media overlords may want to know about this. It started this morning and is intermittent on a number of blogs, but not anywhere else)
Posted by: W. Kevin Vicklund | July 3, 2007 3:01 PM
Ed, when you take the bar, they swear you not to reveal the questions asked on the bar exam, and they don't permit you to bring a copy home with you.
Hm. Are you sure that's the case everywhere? Because in the other thread Dr X linked a PDF version of the whole test on the Massachusetts state government website.
Posted by: Coin | July 3, 2007 3:01 PM
The amazing thing isn't that this guy failed the bar...its that he almost passed!
Posted by: Dave S. | July 3, 2007 3:04 PM
I would have refused to answer question number 6 on the grounds that its obviously just the script of the next Mr Bean movie.
Posted by: MartinC | July 3, 2007 3:32 PM
Applicants might have to swear not to reveal questions, (my wife has to in NC), but the state bar examiners can release such questions if they want to.
Posted by: Reed A. Cartwright | July 3, 2007 3:41 PM
First, having taken (and thankfully passed) the Mass bar ex am in 1979, this case gives me PTSD flahbacks to that excruciating (write till your arm falls off)experience. Second, I've read hundreds of federal court complaints, and this is one of the worst ever; even jailhouse lawyers do better jobs. Third, it will be promptly dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure, for "failure to state a cause of action." Fourth, the question to which Dunne objected (no. 4 on the exam) didn't ask him to take a stand, one way or the other, on gay marriage; it simply dealt with the rights of parents under state adoption law. The question was actually gender neutral, although it was based (loosely) on a recent case (which Ed has discussed) on the rights of a same-sex couple who entered into a civil union in Vermont and later split up. This is a frivolous case, hardly worthy of discussion.
Posted by: peter irons | July 3, 2007 3:43 PM
I wonder if he's a Regent Univ. law school grad? This sounds like something right out of Pat Robertson's playbook.
Posted by: Paul T. | July 3, 2007 4:29 PM
Almost sounds like a member of the Phelps clan.
Posted by: Heidi | July 3, 2007 4:32 PM
I found the following text of the question posted here, I have no way of knowing if this was really it:
Posted by: ben | July 3, 2007 4:50 PM
The Mass. bar sure dodged a bullet with this guy. Judging from his complaint, I find it hard to believe that he wasn't a marginal candidate to begin with. How did this guy get through law school if he refused to answer questions requiring him to apply law with which he disagreed?
Perhaps someone should point out to this wannabe legal crusader that if Thurgood Marshall and other pioneering civil rights lawyers refused to answer questions on their bar exams that required them to understand and apply precedents with which they disagreed (Plessy, anyone?) they would never have had the opportunity to have the objectionable cases overturned.
I predict a swift dismissal for failure to state a claim. I imagine that whatever judge gets this will relish the opportunity to take this guy apart during oral arguments.
Posted by: AnneS | July 3, 2007 4:59 PM
The Mass. bar sure dodged a bullet with this guy. Judging from his complaint, I find it hard to believe that he wasn't a marginal candidate to begin with. How did this guy get through law school if he refused to answer questions requiring him to apply law with which he disagreed?
Perhaps someone should point out to this wannabe legal crusader that if Thurgood Marshall and other pioneering civil rights lawyers refused to answer questions on their bar exams that required them to understand and apply precedents with which they disagreed (Plessy, anyone?) they would never have had the opportunity to have the objectionable cases overturned.
I predict a swift dismissal for failure to state a claim. I imagine that whatever judge gets this will relish the opportunity to take this guy apart during oral arguments.
Posted by: AnneS | July 3, 2007 4:59 PM
ben-
LOL. I think that was meant as a parody.
Posted by: Ed Brayton | July 3, 2007 5:10 PM
Sorry, I guess I should have read it more closely. It's a good pisstake though, upon further review. I hereby propose this be added to the next test just to lighten things up.
Posted by: ben | July 3, 2007 5:17 PM
ben | July 3, 2007 04:50 PM
I actually like that question. I'd give the examinees an entire morning to answer it.
One of the things that a law student should learn in law school it that success on a law exam has more to do with whether or not the examinee can spot the issues, to a lesser extent how the examinee resolves the issue. The question had at least ten issues that I could identify, and I don't even do family law.
Posted by: raj | July 3, 2007 5:34 PM
And also - the Dormant Commerce Clause? $10 million in actual and punitive damages? Using quotation marks every time words like "Defendants" appear? I think he should be suing that "prestigious" Boston law school he attended instead.
Posted by: AnneS | July 3, 2007 5:41 PM
"This is a frivolous case, hardly worthy of discussion."
For those of us that have taken, and passed, the bar exam, it is definitely worth laughing our asses off about. Anybody know where this guy went to law school?
Posted by: PhysioProf | July 3, 2007 5:43 PM
According to the official Massachusetts site, that is the actual question, right down to the baseball bat. Not a parody, Ed.
Posted by: W. Kevin Vicklund | July 3, 2007 5:54 PM
Well, he says it's a Boston law school so that narrows it down to Harvard (doubtful), Boston College and Boston University. Oops, nope, there's another one I've never heard of:
New England School of Law.
http://www.nesl.edu/students/ELS/events.cfm
A picture of Dunne toward the bottom. Prestigious, indeed.
Posted by: Ed Brayton | July 3, 2007 5:59 PM
Ed Brayton | July 3, 2007 05:59 PM
There are several other law schools in the Boston area: at least Suffolk, New England School of Law, Massachusetts School of Law, and perhaps others.
Posted by: raj | July 3, 2007 6:03 PM
Leave us not forget Northeastern University. Although Mr. Dunne would seem to be a product of the NESoL.
Posted by: Dave S. | July 3, 2007 7:16 PM
I think this guy is looking forward to a long career with the prestigious firm of Burger, King, Frye & Cooke.
Posted by: kehrsam | July 3, 2007 8:11 PM
Actually, I suspect that he might be from the Massachusetts School of Law. It's unacredited, as far as I know.
Posted by: raj | July 3, 2007 8:20 PM
Boy, you can sure spot the people here who don't know Boston. Suffolk is the law school you go to if you want to become a Boston politician. :)
Posted by: Bill Poser | July 3, 2007 9:00 PM
Ed, I think Ben's got the right question. Here are all the essay tests from the past 6 years.
Posted by: Greg | July 3, 2007 11:31 PM
thank you SO MUCH for that complaint. i have spent the last two days crafting a federal complaint & questioning my adequecy. I feel better now.
I particularly enjoy that he seems to think he has a Fifth Amendment due process claim against the state government.
The unfortunate thing (for him, not for potential clients) is that he was so close to passing that he probably could have passed on a re-do BUT having filed a frivilous lawsuit will likely make him ineligible for admisison on grounds unrelated to his ability to pass the bar.
All of that said, I understand how crazy one could get with the bar examination business.
Posted by: tony | July 4, 2007 1:32 AM
We can assume he would also refuse to win a case on this topic if a client walked through the door and offered him a $1 million retainer?
Hey, don't forget Kevin Craig, the guy who passed the California bar, but then objected to the oath on odd religious grounds, and then sued to be able to practice without taking the oath required (he lost). He ran for Congress in Missouri last round -- didn't we discuss him here before?
This guy in Boston sounds like Kevin Craig's more enthusiastic nephew.
Posted by: Ed Darrell | July 4, 2007 2:14 AM
All of that said, I understand how crazy one could get with the bar examination business.
Those who advocate standardized testing often forget that the bloodiest civil war in history was actually set off by a young man being driven insane by being unable to pass the civil service exams, prompting him to declare himself the younger brother of Jesus Christ and take over the government
Posted by: Coin | July 4, 2007 2:32 AM
When you're reduced to suing the bar, you're already pretty much screwed.
Posted by: csrster | July 4, 2007 4:23 AM
How many times had this fellow failed previously?
Posted by: mark | July 4, 2007 9:46 AM
even though he is suing the bar, I do not see how that would prevent him from taking the exam over again.
Posted by: Phill k | July 4, 2007 9:48 AM
Phil - Character and fitness. As part of the application in process, you generally have to list every civil suit to which you have been a party. This is usually a check on whether the candidate has been a defendant in actions for collections of a debt, fraud, etc. This genius made himself so notorious that whoever judges his app. will likely go and read the complaint. The craziness, frivolity, and general idiocy of the complaint reflect poorly on his ability to practice law. He's going to have a hard time getting admitted anywhere after this stunt.
Posted by: AnneS | July 4, 2007 10:13 AM
Here's how you solve this one. Let him act as his own attorney in the suit, no outside counsel. If he wins his suit, pass him and admit him to the bar. If not, oh well!
Posted by: gex | July 4, 2007 4:05 PM
I went to school with this guy. He is an idiot. He was an idiot during school, and I hope he never becomes a lawyer. What amazes me most is that he didn't even realize that it was a DOMESTIC RELATIONS question as opposed to a CON LAW question. Maybe he would have earned 1/2 a point for saying "MA recognizes same sex marriages", but only in the context that you need a legal marriage to take place in order for an antenuptual agreement to take into effect. (atleast in NY..I am sure it is the same in MA) (If you didn't read the essay, it deals with a prenup).
Posted by: barbriprofny | July 5, 2007 10:23 AM
I'm not sure what leads folks to believe that the question ben posted was a parody. It's been a few years since I took the bar, but that one looks plenty legit to me. It's issue-dense as hell--I'm glad I didn't have to answer it--but it seems perfectly plausible.
The other ironic thing about the question, I think, is that the hypothetical situation in it is hardly an argument for the wonderfulness of gay marriage. One spouse smacking the other with a baseball bat, the other spouse grabbing the kids and running--shouldn't this be right up Dunne's anti-gay alley? (Never mind the mature responses to "ooh, look at this gay marriage gone ugly"--that's obviously not this guy's style.)
Posted by: Rieux | July 5, 2007 3:28 PM
You have to wonder what kind of idiot would sacrifice his career to make a political message. I would also put Michael Newdow in the same category, but for Dr. Newdow, he used his child like a pawn to make his point.
I guess reasonable people can differ, but I don't think the ends (sacrificing your career or child) comes anywhere close to justifying the means.
Fraktards.
Posted by: Royale | July 6, 2007 8:38 AM
Stephen Dunne- Bar-exam flunker sues: Wannabe rejects gay-wed question, law
I hate to admit it but I'm related to this ( Stephen Dunne )con-artist/thief. He failed the Pa. Bar exam 4 times and got into serious legal trouble in the Philly area and thought it was time to leave town, back to Boston where he went to school. As a close relative of this scumbag/politician type/ lawyer want to be, I would never ever do any business with this guy because he'd rob you blind and your mother too!!
Posted by: Brutus | July 10, 2007 7:33 PM
What gets me is that the question is gender neutral. Mary was pregnant (so no wuestion there) but what about but what about "Jane". Other than the name there is no indication of gender. Shame on all the lawyers and wannabes that jump to conclusions. The point is in Mass. Law there is virtually no difference in how this would be treated regardless of the gender of the parties. Gender need not even have been raised.
Posted by: Mr. Obvious | July 12, 2007 11:51 AM