appellees.brief112164

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT CASE NO. 11-2164

BRYAN J. BROWN, Appellant, v. DR. ELIZABETH BOWMAN, TERRY HARRELL, et al., Appellees.

) ) ) ) ) ) ) ) ) ) )

Appeal from the United States District Court for the Northern District of Indiana Fort Wayne Division Cause No. 1:09-cv-346-TLS The Honorable Theresa L. Springmann, Judge

__________________________

BRIEF OF APPELLEES __________________________

MARK W. BAEVERSTAD ANDREW L. PALMISON ROTHBERG LOGAN & WARSCO LLP 505 East Washington Boulevard Fort Wayne, Indiana 46802 Attorneys for Elizabeth Bowman, M.D.

GREGORY F. ZOELLER Attorney General of Indiana Atty. No. 1958-98 FRANCES BARROW Deputy Attorney General Atty. No. 15115-22

SHARON L. STANZIONE STEPHEN M. BRANDENBURG JOHNSON & BELL, LTD. 11051 Broadway, Suite B Crown Point, Indiana 46307 Attorneys for Stephen Ross, Psy.D.

Office of Attorney General Indiana Government Center South, 5th Flr 302 West Washington Street Indianapolis, IN 46204-2770 Telephone: (317) 232-0169 Attorneys for Terry Harrell and Tim Sudrovech

Case: 11-2164 Document: 23 Filed: 08/17/2011 Pages: 65Case: 11-2164 Document: 24 Filed: 08/17/2011 Pages: 65

v

TABLE OF CONTENTS

Circuit Rule 26.1 Disclosure Statement (Mark W. Baeverstad)....................................... i

Circuit Rule 26.1 Disclosure Statement (Stephen M. Brandenburg)..............................ii

Circuit Rule 26.1 Disclosure Statement (Andrew L. Palmison) ....................................iii

Circuit Rule 26.1 Disclosure Statement (Sharon L. Stanzione)......................................iv

Table of Authorities ........................................................................................................... vii

Jurisdictional Statement ....................................................................................................... 1

Statement of the Issues ......................................................................................................... 2

Statement of the Case ........................................................................................................... 2

Nature of the Case .................................................................................................... 2

Course of the Proceedings ....................................................................................... 2

Disposition ................................................................................................................. 5

Statement of Facts ................................................................................................................ 6

Summary of the Argument................................................................................................ 16

Argument ............................................................................................................................. 19

I. Brown’s claims under Section 1983 were barred under the Rooker-Feldman doctrine ................................................................................... 19

A. Rooker-Feldman survives to ensure that state-court losers do not get a second opportunity for review in the federal district courts................................................................. 19

B. Brown’s claims of a conspiracy to discriminate against him were previously reviewed by the Indiana Supreme Court and were a part of the final decision to deny his admission of the Indiana state bar...................................................... 23

C. This Court’s precedent in bar application challenges mirrors the present litigation and requires the dismissal of Brown’s claims ................................................................ 27


vi

D. Brown’s careful pleading does not materially distinguish the claims in this matter from the claims raised by Marc Feldman and Edward Hickey in The District of Columbia Court of Appeals v. Feldman ................................................................... 32

E. If Brown does not claim the denial of his certification for admission as an injury, he has failed to show any injury under Section 1983 .................................................................... 35

II. Drs. Ross and Bowman are entitled to absolute immunity as witnesses/consultants in quasi-judicial proceedings.................................. 36

A. Drs. Ross and Bowman are intimately associated with the bar admission process........................................................... 38

B. Absent absolute immunity, a realistic prospect of continuing harassment by disappointed litigants exists................. 40

C. The bar admission process contains adequate safeguards to protect the applicant’s constitutional rights ................................. 43

III. Defendants Harrell and Sudrovech are entitled to immunity under Indiana Admission and Discipline Rule 31 and to quasi-judicial absolute immunity ................................................................... 47

A. Immunity under Rule 31...................................................................... 48

B. Quasi-judicial absolute immunity....................................................... 50

Conclusion ........................................................................................................................... 53

Certificate of Compliance with Fed. R. App. P. 32(a)(7) (Word Count Certificate) ................................................................................................... 54

Certificate of Service ........................................................................................................... 54


vii

TABLE OF AUTHORITIES

Page(s) CASES

Abbott v. Michigan, 474 F.3d 324 (6th Cir. 2007).........................................................................20

Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440 (7th Cir. 2009)....................................18

Auriemma v. Montgomery, 860 F.2d 273 (7th Cir. 1988).........................................................38, 40

Blair v. Pachtman, 424 U.S. 409 (1976)........................................................................................37

Brokaw v. Weaver, 305 F.3d 660 (7th Cir. 2002) ...........................................................................17

Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d 188 (7th Cir. 1993)..............................18

Cleavinger v. Saxner, 474 U.S. 193 (1985) .............................................................................37, 50

Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009) .............................................................39, 41, 42

Crenshaw v. Baynerd, 180 F.3d 866 (7th Cir. 1999).....................................................................38

D.C. Court of Appeals v. Feldman, 460 U.S. 462 (U.S. 1983).............................................. passim

Edwards v. Ill. Bd. of Admissions, 261 F.3d 723 (7th Cir. 2001) ......................................29, 30, 31

Embler v. Pachtman, 424 U.S. 409 (1976) ....................................................................................40

Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008) ................................................................................18

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005) ...................................20, 21

Forrester v. White, 484 U.S. 219 (1988) .................................................................................37, 50

Fort Wayne Women’s Health Org. v. Brane, No., 1:90-cv-66 (N.D. Ind.)........................14, 15, 16

Frederiksen v. City of Lockport, 384 F.3d 437 (7th Cir. 2004) ......................................................17

Freedom Mortg. Corp. v. Burnham Mortg., Inc., 569 F.3d 667 (7th Cir. 2009) ...........................21

Giffin v. Summerline, 78 F.3d 1227 (7th Cir. 1986) ................................................................40, 41

Golden v. Sigmund & Associates, Ltd., 611 F.3d 356 (7th Cir. 2010)...........................................39

Hale v. Committee on Character and Fitness for the State of Ill., 335 F.3d 678 (7th Cir. 2003) ..............................................................................................28, 29

Hall v. Bodine Elec. Co., 276 F.3d 345 (7th Cir. 2002) .................................................................49


viii

Heyde v. Pittenger, 633 F.3d 512 (7th Cir. 2011)...........................................................................18

Hill v. Trustees of Indiana Univ., 537 F.2d 248 (7th Cir. 1976).....................................................36

Hutchinson v. Lewis, 75 Ind. 55 (1881) .........................................................................................40

Kamilewicz v. Bank of Boston Corp., 92 F.3d 506 (7th Cir. 1996) ...............................................20

Kelley v. Med-1 Solutions, LLC, 548 F.3d 600 (7th Cir. 2008) ..........................................17, 18, 21

Kentucky v. Graham, 473 U.S. 159 ...............................................................................................36

Kramer v. Village of North Fond du Lac, 384 F.3d 856 (7th Cir. 2004).......................................35

Krison v. Nehls, 767 F.2d 344 (7th Cir. 1985)................................................................................36

Lance v. Dennis, 546 U.S. 459, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006) .........................20, 21

Leavell v. Ill. Dep’t. of Nat. Res., 600 F.3d 798 (7th Cir. 2010).....................................................36

Long v. Shorebank Dev. Corp., 182 F.3d 548 (7th Cir. 1999).......................................................20

Marcus & Millichap Inv. Serv. of Chi., Inc. v. Sekulovski, 639 F.3d 301 (7th Cir. 2011) ..............................................................................................18, 47

McMillan v. Svetanoff, 703 F.2d 149 (7th Cir. 1986) ....................................................................40

Mitchell v. Forsyth, 472 U.S. 511 (1985) ......................................................................................38

Park v. City of Chicago, 297 F.3d 606 (7th Cir. 2002)...................................................................49

Rhiver v. Rietman, 265 N.E.2d 245 (Ind. App. 1970)....................................................................41

Skinner v. Switzer, 131 S. Ct. 1289 (2011) ............................................................................ passim

Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) ..................................................................50, 51, 52

St. John’s United Church of Christ v. City of Chi., 502 F.3d 616 (7th Cir. 2007) .........................18

Tenney v. Brandhove, 341 U.S. 367 (1951)...................................................................................37

Tobin for Governor v. Illinois State Bd. of Elections, 268 F.3d 517 (7th Cir. 2001) ....................50

Walrath v. U.S., 35 F.3d 277 (7th Cir. 1994)...........................................................................37, 38

Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir. 1996) ....................................................................37, 38


ix

STATUTES

28 U.S.C. § 1257..............................................................................................................................8

28 U.S.C. § 1291..............................................................................................................................2

28 U.S.C. § 1331..............................................................................................................................1

28 U.S.C. § 1343..............................................................................................................................1

28 U.S.C. § 1367..............................................................................................................................1

42 U.S.C. § 1983.................................................................................................................... passim

Ind. Code § 33-24-1-2(b)(1) ............................................................................................................6

RULES

Fed. R. Civ. P. 12(b)(1)..................................................................................................................17

Fed. R. Civ. P. 12(b)(6)..................................................................................................................18

Tex. R. Crim. P. 64 ........................................................................................................................22

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ......................................................................................................................28

U.S. Const. amend. XI .................................................................................................................5, 6

U.S. Const. amend. XIV ..................................................................................................2, 3, 22, 28

Ind. Const. art. VII, §§ 1 - 4.......................................................................................................6, 51

OTHER AUTHORITIES

Ind. Admis. Disc. R. 9......................................................................................................................7

Ind. Admis. Disc. R. 12.......................................................................................................... passim

Ind. Admis. Disc. R. 14..................................................................................................................25

Ind. Admis. Disc. R. 14, § 2.......................................................................................................8, 25

Ind. Admis. Disc. R. 19................................................................................................................3, 5


x

Ind. Admis. Disc. R. 23................................................................................................................3, 5

Ind. Admis. Disc. R. 31..................................................................................................8, 47, 48, 50

JLAP Guidelines § 5(c) ........................................................................................................9, 10, 11


1

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT CASE NO. 11-2164

BRYAN J. BROWN, Appellant, v. DR. ELIZABETH BOWMAN, TERRY HARRELL, et al., Appellees.

) ) ) ) ) ) ) ) ) ) )

Appeal from the United States District Court for the Northern District of Indiana Fort Wayne Division Cause No. 1:09-cv-346-TLS The Honorable Theresa L. Springmann, Judge

__________________________

BRIEF OF APPELLEES __________________________

JURISDICTIONAL STATEMENT

The Appellant’s Jurisdictional Statement is not complete and correct. The

district court had jurisdiction based on 28 U.S.C. §§ 1331 and 1343 because Bryan

J. Brown’s complaint alleged a violation of his civil rights under 42 U.S.C. § 1983.

The complaint also asserted state common law, statutory, and constitutional

claims over which the district court had supplemental jurisdiction under 28

U.S.C. § 1367. The district court entered an Opinion and Order on March 31,

2011, that dismissed the complaint without prejudice to Brown’s ability to amend

his complaint, as long as such amended complaint along with a motion to amend

was filed no later than April 14, 2011. No motion or amended complaint being

filed by that date, the district court ordered the case dismissed on April 20, 2011,


2

and the final judgment was entered the same day. No tolling motions were filed.

Brown filed a timely Notice of Appeal on May 19, 2011.

This Court has jurisdiction under 28 U.S.C. § 1291 because this is an

appeal from a final judgment as to all parties and all claims.

STATEMENT OF THE ISSUES

I. Whether the district court lacked jurisdiction over Brown’s

constitutional claims under the Rooker-Feldman doctrine.

II. Whether Defendants Bowman and Ross had witness immunity.

III. Whether Defendants Harrell and Sudrovech were entitled to immunity

under the Indiana Admission and Discipline Rules, and also entitled to quasi-

judicial immunity.

STATEMENT OF THE CASE

A. Nature of the Case. Brown’s complaint alleged that Defendants

violated his First and Fourteenth Amendment rights in violation of 42 U.S.C. §

1983, and has made claims under state common law and statutory law and the

Indiana Constitution.

B. Course of the Proceedings. Brown filed his pro se complaint on

December 8, 2009. [ECF No. 1.] The Defendants were Dr. Elizabeth Bowman and

Dr. Stephen Ross, Terry Harrell, individually and in her official capacity as

Executive Director of the Judges and Lawyers Assistance Program (JLAP), Tim

Sudrovech, individually and in his official capacity as Clinical Director of JLAP,

Randall Shepard, in his official capacity as Chief Justice of the Indiana Supreme


3

Court, and John Does and Jane Does as co-conspirators. [Id.] The complaint

included 220 paragraphs of factual allegations regarding Defendants’

participation in the process of evaluating his fitness as an applicant for admission

to the Indiana bar. [Id.] The complaint set out 26 legal claims with additional

subparagraphs [Id.]

Counts 1 through 3 were directed to defendant Shepard, and claimed that

the confidentiality provisions of Indiana Admission and Discipline Rule 19

violate Brown’s free speech rights under the First and Fourteenth Amendments.

[ECF No. 1.] Count 24 claimed that Rule 19 violates Brown’s rights under the

Indiana Constitution. [Id.] Counts 25 and 26 were also directed to defendant

Shepard, and claimed that announced changes to Admission and Discipline Rule

23 violated Brown’s due process rights under the Fourteenth Amendment. [Id.]

Counts 4 through 10 were directed to all Defendants, and claimed they violated

Brown’s Fourteenth Amendment rights including Free Exercise of Religion, the

Establishment Clause, Freedom of Association, and Freedom of Assembly. [Id.]

Counts 11 through 13 were directed to Defendants Bowman, Ross, Sudrovech,

and Harrell, and alleged conspiracy to violate Brown’s First and Fourteenth

Amendment rights to due process and equal protection. [Id.]

Counts 14 through 15C were state law claims against defendant Ross,

Counts 16 through 19 were state law claims against defendant Bowman, Count

20 was a state tortious interference claim against defendant Sudrovech. [ECF No.

1.] Counts 21 through 23 were against Defendants Bowman, Ross, Sudrovech,


4

and Harrell, and claimed these Defendants conspired to violate Brown’s rights

under the Indiana Constitution. [Id.]

Defendants Shepard, Harrell, and Sudrovech filed a motion to dismiss and

supporting brief on January 29, 2010. [ECF Nos. 27, 28.] Defendant Ross filed a

motion to dismiss and supporting brief on February 1, 2010, and attached a copy

of the final order of the Indiana Supreme Court on Brown’s bar application.

[ECF Nos. 29, 30, 30-1.] Bowman filed an amended answer on February 3, 2010

and a motion to dismiss and supporting brief on February 24, 2010. [ECF Nos. 32,

42, 43.] Brown filed a response to the motions to dismiss on March 29, 2010. [ECF

No. 49.] Bowman filed a reply brief on March 31, 2010, to which she attached a

copy of the United States Supreme Court’s Ruling on Petition for Certiorari. [ECF

Nos. 50, 50-1.] Ross filed a reply on April 8, 2010, to which he attached a copy of

Brown’s Petition for Writ of Certiorari to the United States Supreme Court. [ECF

Nos. 52, 52-1, 52-2, 52-3.] Brown filed a supplemental brief on April 26, 2010, to

which he attached certain evidentiary materials. [ECF Nos. 57, 57-1.] Bowman

filed a reply regarding absolute immunity on May 5, 2010. [ECF 58.] Ross filed a

reply on May 6, 2010. [ECF 59.] Defendants Shepard, Harrell, and Sudrovech

filed a reply on May 7, 2010. [ECF 60.]


5

C. Disposition. On March 31, 2011, the district court entered an Opinion

and Order that granted Defendants’ motions to dismiss. [ECF No. 63.1] With

regard to matters outside the pleadings, the court took judicial notice of the final

order of the Indiana Supreme Court, [ECF No. 30-1.], and the docket report of the

United States Supreme Court that showed the denial of Brown’s petition for

certiorari. [ECF Nos. 50-1, pp. 8-9, 63, p. 14.] The court found it could not

consider other matters outside the pleadings in ruling on the motions to dismiss.

[Id.]

The district court held that the constitutional claims in Counts 4 through

13 were barred under the Rooker-Feldman doctrine. [ECF No. 63.] “The Plaintiff

raises claims that are intertwined with, and were directly resolved by, the

Indiana Supreme Court.” [Id. p. 19.] The Court held that Brown’s challenges to

the Indiana Admission and Discipline Rules 19 and 23 in Counts 1 through 3,

and 25 through 26, were not ripe, and dismissed these Counts. [Id. pp. 20-23.]

“The Court is not determining that the Plaintiff would not face consequences

from violating the challenged rules, only that any potential consequence appears

to be too remote to be discernable at this time.” [Id., p. 23.]

The district court further determined that Brown’s claims against

Defendants Shepard, Harrell, and Sudrovech were barred by the Eleventh

1 Appellant has included this document and others in his “Short Appendix”; however, Appellant has failed to provide page numbers for the appendix making pinpoint citations difficult and imprecise. In order to provide clarity to the Court, Appellees have cited to the electronic docket.


6

Amendment, and that Defendants Bowman and Ross were entitled to absolute

judicial immunity because they served as witnesses in a quasi-judicial

proceeding. [ECF No. 63, pp. 23-27.] The court dismissed claims as to Defendants

John Does and Jane Roes, and also dismissed the state law claims at Counts 14

through 24. [Id., pp. 27-30.]

Finally, the district court ordered that if Brown wished to amend his com-

plaint, he must file a motion to amend and proposed amended complaint by

April 14, 2011, and that failure to do so would result in dismissal of the case.

[ECF No. 63, pp. 30-31.]

On April 20, 2011, the district court entered an Order that found Brown

failed to file a motion to amend and proposed amended complaint by April 14,

2010, and therefore dismissed the case. [ECF No. 64.] Final judgment was entered

the same day. [ECF No. 65.]

Brown filed his notice of appeal on May 19, 2011. [ECF No. 66.] On appeal,

Brown challenges only the holdings regarding Rooker-Feldman and witness

immunity.

STATEMENT OF FACTS

A. Background of Indiana Bar Admission Procedure

The Indiana Supreme Court possesses exclusive and original jurisdiction

over matters involving admission to the practice of law. Ind. Const. art. VII § 4;

Ind. Code § 33-24-1-2(b)(1) (“The supreme court has exclusive jurisdiction to: . . .

admit attorneys to practice law in all courts of the state; . . . under rules and


7

regulations as the supreme court may prescribe.”) To effectuate this mandate, the

Indiana Supreme Court has adopted Admission and Discipline Rules. Pursuant

to these Rules, the Indiana Supreme Court appoints a ten-member Board of Law

Examiners (BLE) to oversee the admissions process. Admis. Disc. R. 9. The

Indiana Supreme Court also appoints a person to serve as the Executive Director

of the BLE. Id.

The Indiana Supreme Court requires the BLE to “inquire into and deter-

mine the character, fitness, and general qualifications to be admitted to the

practice of law. . .” Admis. Disc. R. 12, § 1. The BLE is further required to report

and certify to the Indiana Supreme Court that “the applicant, after due inquiry,

has been found to possess the necessary good moral character and fitness to

perform the obligations and responsibilities of an attorney practicing law in the

State of Indiana . . .” Id. at § 2. For purposes of such determination, relevant

considerations include, among other things, “ . . . violation of an order of a court;

evidence of mental or emotional instability; . . . and disciplinary action by a

lawyer disciplinary agency . . .” Id. The BLE has the discretion to require an

applicant to appear for a hearing for inquiry into the applicant’s character and

fitness. Id. at § 5. The BLE may continue the appearance and require the applicant

to submit additional information or evaluations. Id.

With respect to each applicant to the Indiana Bar, the BLE must make a

finding as to whether the applicant possesses the requisite good moral character

and fitness to be eligible to be admitted to the practice of law. Admis. Disc. R. 12,


8

§ 6. Following the BLE’s finding, the applicant may request a hearing at which

the BLE has the power to administer oaths, issue subpoenas, and require the

production of documentary evidence. Id. at § 9(e). Specifically, the applicant:

shall have the right to attend such hearing in person to examine and cross-examine witnesses and otherwise participate in said hearing and to require the attendance of witnesses and production of documentary and other evidence by subpoena. An applicant or conditional admittee may be represented by counsel at such person’s expense.

Id. at § 9(f). Following the hearing, the BLE must make findings as to the

applicant’s moral character. Id. at § 9(h). The BLE’s findings are reviewable by

the Indiana Supreme Court and, ultimately, the United States Supreme Court.

Admis. Disc. R. 14, § 2; 28 U.S.C. § 1257.

The Indiana Supreme Court also created the Judges and Lawyers

Assistance Committee (JLAC) which, through the Judges and Lawyers

Assistance Program (JLAP), provides assistance to judges, lawyers, and law

students who suffer from physical or mental disabilities. Admis. Disc. R. 31, § 1.

The JLAC is empowered and obligated to adopt rules and regulations, known as

Guidelines, for the discharge of its powers and duties. Id. at § 4. The Guidelines

only become effective when approved by the Indiana Supreme Court. Id.

According to the JLAP Guidelines, any judge, lawyer, or law student may contact

the JLAC and report to the committee that a judge, lawyer, or law student needs

the JLAC’s assistance. Id. at § 8. The BLE is also authorized to refer judges,

lawyers, or law students to the JLAC for assessment or treatment consistent with

the guidelines. Id. at § 8(c).


9

When the BLE refers an applicant for admission to the Indiana Bar to

JLAP, JLAP: (i) determines if all appropriate releases have been obtained; (ii)

determines whether the assessment or evaluation will be completed in-house,

referred, or by combination; (iii) contacts the referral source for background

information and direction, if necessary; (iv) coordinates the assessment process

with a selected provider; and (v) releases information and/or the final

assessment/evaluation as allowed by written release. JLAP Guidelines § 5(c).

JLAP maintains a list of available providers to provide a broad range of

therapeutic resources. Id. at §§ 7, 9. Drs. Ross and Bowman are health care

providers authorized by the Indiana Supreme Court, through the JLAP, to

provide services and evaluations on its behalf. [ECF No. 1, ¶¶ 33, 101-102, 126.]

Defendant Harrell is the Executive Director of JLAP. [ECF No. 1, ¶ 12.]

Defendant Sudrovech is the Clinical Director of JLAP. [Id., ¶ 13.]

B. Brown’s Referral to JLAP

On March 1, 1996, Brown filed his first application to sit for the July, 1996

bar examination. [ECF No. 52-2, p. 3.] The application included a lengthy

personal statement explaining several arrests that occurred before law school for

acts of civil disobedience none of which resulted in felony or serious

misdemeanor prosecutions. [Id.] Nonetheless, the BLE was sufficiently concerned

regarding Brown’s character to request an in-person meeting. [Id.] Brown

canceled the meeting, informing the BLE that he would not be available to sit for

the July, 1996 bar examination, but that he hoped to seek approval to sit for the


10

February, 1997 examination. [Id.] Before the February, 1997 examination, Brown

was instructed to appear before the BLE on January 19, 1997. [Id.] Brown made

no response to the request to appear and failed to appear for the February, 1997

bar examination. [Id.]

More than a decade later, on April 19, 2007, Brown submitted a second

application for admission to the Indiana Bar with documentation almost 200

pages long. [ECF No. 52-2, p. 4.] In the intervening decade, Brown had been

admitted to the Kansas Bar and actively engaged in the practice of law. [Id.; ECF

No. 1, p. 2, ¶ 10.] Because of the BLE’s concerns regarding Brown’s character and

fitness, and following an initial hearing on January 25, 2008, the BLE referred

Brown to the JLAP for evaluation. [ECF No. 1,p. 5, ¶¶ 29-30.]

Thereafter, Sudrovech, the clinical director of JLAP, referred Brown to

psychologist Steven Ross, Ph.D. [ECF No. 1, p. 5, ¶¶ 32-33.] Brown met with Dr.

Ross on two occasions and underwent three psychological examinations. [Id., p.

6, ¶ 36.] On April 23, 2008, Dr. Ross issued a report finding that nothing should

preclude Brown from taking the bar examination but that Brown’s “emotional

expressiveness and mood variability suggests[ed] . . . the possibility of a sub-

clinical bipolar disorder of a hypomanic type.” [Id., p. 6, ¶¶ 43-48.] Dr. Ross

further suggested that his interpersonal style warranted further consideration by

a psychiatrist. [Id., p. 7, ¶ 52.]

Following the receipt of Dr. Ross’s report, Brown expressed his concerns

regarding the Dr. Ross examinations to both JLAP and the BLE. [ECF No. 1, pp.


11

8-16.] Specifically, Brown wrote Dr. Ross letters on June 12 and June 24, 2008

expressing concerns regarding the political and religious content of the questions

asked of him during the evaluation; questioning the scientific validity of the tests

used; and disagreeing with the Dr. Ross’s conclusion that Brown undergo a

psychiatric evaluation for possible bipolar disorder. [Id., pp. 8-12.] Brown’s June

12 and 24, 2008 letters were copied to Sudrovech. [Id., ¶ 63.] Brown also

explained to Sudrovech his belief that Dr. Ross’s evaluation violated his

constitutional rights. [ECF No. 1, ¶ 85, Ex. “A”.] Brown additionally wrote JLAP

and the BLE on September 8, 2008 explaining “in detail” his concerns regarding

the evaluation and requesting an independent review of his case by state officers

trained in constitutional and civil rights laws. [Id., p. 12, ¶¶ 91-93.] Brown

requested permission to see a Fort Wayne psychiatrist of his own choosing. [Id.,

p. 13, ¶¶ 101-102, 104.] He repeated this request on October 3, 2008. [Id., p. 15, ¶

117.] Also in September and October, 2008, Brown self-presented to Dr.

Flueckiger and attempted to persuade JLAP to allow him to utilize Dr. Flueckiger

as an “expert witness.” [Id., pp. 14-16.]

Consistent with Dr. Ross’s recommendation, Sudrovech directed Brown to

see a psychiatrist. [ECF No. 1, p. 12, ¶¶ 90 and 95; p. 16, ¶ 128.] In order to com-

ply with JLAP’s request that Brown be evaluated by a psychiatrist, Brown elected

to meet with Dr. Bowman, one of the two psychiatrists JLAP recommended. [Id.,

p. 16.] Dr. Bowman met with Brown over a period of time while performing

psychiatric evaluations. [Id., pp. 17-27.] Following her evaluation of Brown, Dr.


12

Bowman authored a final report wherein she diagnosed Brown with “personality

disorder, not otherwise specified” which included components of narcissism and

obsessive compulsive disorder. [Id., pp. 18-22.] Dr. Bowman’s report further

concluded that Brown placed his values and morals higher than legal obligations

and “. . . he firmly believes he is obligated as a Christian to put obedience to

God’s laws above human laws.” [Id., pp. 19-20.] Dr. Bowman noted that Brown

demonstrated a lack of empathy for “this evaluator whose profession and

presumed religious beliefs he repeatedly devalued.” [Id., p. 21, ¶ 160.] She

concluded that, “Brown’s thinking showed obsessions with viewing mental

health assessments as subjective, biased against religion, and negatively inclined

towards him.” [Id., p. 21, ¶ 162.] Dr. Bowman further noted that Brown

expressed “devaluating attitudes towards pharmacologic or psycho-therapeutic

mental health treatment” and made “sarcastic remarks devaluing authority of all

types, especially mental health authority and the abortion industry.” [Id., pp. 21-

22.] Dr. Bowman, however, did not reach a conclusion regarding Brown’s

character and fitness under Rule 12 and did not make a recommendation with

respect to Brown’s candidacy for admission to the Indiana Bar. [Id., p. 22.]

Following the receipt of Dr. Bowman’s report, Brown “began

investigating Dr. Bowman’s associations and publications.” [ECF No. 1, p. 24, ¶

181.] In doing so, Brown “discovered that Defendant Bowman [had] received

professional awards for her work on religious synchronism in which religion is

reconciled with modern psychiatry”; “discovered that Dr. Bowman was a


13

Protestant cleric of a decidedly liberal persuasion . . . who has been an

Evangelical and Women’s Caucus member for ‘so long that she cannot remember

when she joined’”; discovered that Dr. Bowman had “presented [feminist views]

in session along side members of the Fort Wayne feminists” with which she “is

now and has long been associated”; and that she “appeared in a . . . docudrama .

. . in which she attempts to debunk Catholic exorcism.” [Id., pp. 24-25.] As was

the case with Dr. Ross, Brown reported his belief that Dr. Bowman was biased

and that her report to BLE and JLAP was inaccurate. [Id., p. 24. See also ECF No.

57, p. 11 (“Plaintiff attempted to engage the Defendants in discussion of the

important evidentiary and constitutional issues involved . . . They ignored nearly

every concern Plaintiff raised . . . ..”).] Brown attempted to apprise the BLE of his

concerns regarding the JLAP process, his evaluations by Drs. Bowman and Ross,

his concerns regarding the BLE procedures, and his constitutional concerns. [ECF

No. 1, p. 57.] He sent “multiple requests for meetings” and “letters raising

constitutional concerns”. [ECF 57, pp 10-11.] According to Brown, he provided

the JLAP and BLE “more than sixty other statements contradicting [Dr.

Bowman’s] opinion”, repeatedly requested a civil rights investigation, and

provided the BLE letters of recommendation. [ECF 57, pp. 12, 20-21.]

On February 11, 2009, Brown was notified by letter that his application for

admission had been denied due to his failure to carry his burden of

demonstrating good moral character under Admission and Discipline Rule 12.

[ECF No. 52-2, p. 1.] Thereafter, Brown requested and was granted a hearing,


14

scheduled to take place on June 1, 2009. [Id., p. 2.] Although Brown had the

ability to subpoena Drs. Ross and Bowman to appear at the hearing, he elected

not to do so. On May 11, 2009, Brown asked the BLE for a more definite

statement as to why his application was rejected.” [Id., p. 2.] The BLE responded

that the non-exclusive clarification included:

(1) Any unpaid judgments; (2) Disciplinary charges in Kansas; (3) The conduct on which the disciplinary charges in

Kansas is based; (4) Failure to follow the Board’s direction regarding

psychological examination; and (5) How these and other matters manifest the applicant’s

respect for the law [ECF No. 52-2, p. 2.]

On May 13, 2009, Brown moved to strike all reports authored by

Sudrovech. [ECF No. 52-2, p. 2.] The motion was taken under advisement by the

BLE to be considered at the June 1, 2009 hearing, but was later withdrawn. [Id., p.

2.] At the June 1, 2009 hearing, several additional pieces of information were

available to the BLE that were not available to it at the time of its decision. [Id., p.

4.] These items included information related to the Kansas disciplinary

investigation; the disposition regarding unpaid attorney fees and costs from Fort

Wayne Women’s Health Org. v. Brane, No., 1:90-cv-66 (N.D. Ind.); the full results of

Brown’s psychological evaluations; correspondence between Brown and JLAP;

and correspondence between Brown and Judge Nancy E. Boyer, Brown’s

character and fitness evaluator. [Id., p. 4.] The BLE also had available to it


15

Brown’s June 24, 2008 letter which, in 16 pages, expressed Brown’s belief that the

examinations violated his constitutional right to freedom of religion; challenged

the use of the Minnesota Multiphasic Personality Inventory 2 (MMPI-2) test; and

expressed his refusal to be evaluated by a psychiatrist chosen by JLAP. [Id., pp. 7-

8; ECF 1, pp. 8-9.] The BLE also considered what it described as a “continuous

stream” of written communications in the form of letters and e-mails from Brown

to the BLE and JLAP containing a “steady drum beat” of thinly veiled threats to

initiate civil rights litigation against the Board, JLAP and the individual

members. [ECF 52-2., pp. 7-8.] The BLE further had available to it the full report

authored by Dr. Bowman. [Id., pp. 7-11; ECF 57 p. 37.]

At the June 1, 2009 hearing, Brown called no witnesses. He did submit Dr.

Bowman’s report. [ECF No. 52-2, p. 11.] Specifically, Brown criticized Dr.

Bowman for being biased against him for personal and religious reasons. [Id., p.

13.] He argued that Dr. Bowman’s believed religious beliefs rendered her

incapable of evaluating him of objectively and that the use of her personality test

was biased against Roman Catholics like Brown. [Id., p. 19.]

After the full-day hearing on June 1, 2009, Brown filed various post-

hearing motions and documents seeking, inter alia, to exclude from the record the

psychological reports of Drs. Ross and Bowman; seeking an independent

investigation of alleged civil rights violations; and seeking reconsideration of the

denial of his application. [ECF No. 52-2, p. 17.] The BLE set forth its denial of

Brown’s request to be permitted to sit for the Indiana Bar examination on


16

September 25, 2009 by written recommendations containing issue extensive

findings of fact and conclusions of law. [ECF No. 52-2.] Thereafter, on October

21, 2009, Brown appealed the Board’s decision to the Indiana Supreme Court.

[Id.; ECF No. 1, pp. 3-4.] On November 16, 2009, the Indiana Supreme Court

denied Brown’s Petition for Review. [ECF 30-1.] On March 29, 2010, Brown’s

Petition for Writ of Certiorari to the United States Supreme Court was denied.

[ECF 50-1.]

SUMMARY OF THE ARGUMENT

I. The district court correctly determined that it lacked jurisdiction over Brown’s

constitutional claims under the Rooker-Feldman doctrine. The doctrine survives to ensure

that state-court losers do not get a second opportunity for review in the federal district

courts. Brown’s claims of a conspiracy to discriminate against him were previously

reviewed by the Indiana Supreme Court and were a part of the final decision to deny his

admission the Indiana state bar. This Court’s previous precedent in bar application

challenges mirrors the present litigation and requires the dismissal of Brown’s claims.

Brown’s careful pleading does not materially distinguish the claims in this matter from

the claims raised by Marc Feldman and Edward Hickey in The District of Columbia

Court of Appeals v. Feldman. If Appellant is not claiming the denial of his certification

for admission as an injury, Appellant has failed to show any injury 42 U.S.C. § 1983.

II. The district court correctly held that Defendants Bowman and Ross had

witness immunity. Drs. Ross and Bowman are entitled to absolute immunity as

witnesses/consultants in quasi-judicial proceedings. The witness immunity

doctrine applies under the functional approach. Drs. Ross and Bowman are


17

intimately associated with the Bar Admission process. Absent absolute

immunity, a realistic prospect of continuing harassment by disappointed

applicants exists. Also, the bar admission process contains adequate safeguards

to protect the applicant’s constitutional rights.

III. Dismissal of the complaint was proper as to Defendants Harrell and

Sudrovech because they were entitled to immunity under the Indiana Admission

and Discipline Rules. The Rules provide that JLAP staff members are not subject

to civil suit for official acts done in good faith. These Defendants are also entitled

to quasi-judicial immunity because their functions were undertaken pursuant to

directives of a judicial officer.

STANDARD OF REVIEW

When the Rooker-Feldman doctrine applies, dismissal is proper under

Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.

Frederiksen v. City of Lockport, 384 F.3d 437, 439 (7th Cir. 2004), rehearing and

rehearing en banc denied. This Court reviews de novo the district court’s

determination that it lacked subject matter jurisdiction based on the Rooker-

Feldman doctrine. Kelley v. Med-1 Solutions, LLC, 548 F.3d 600, 603-04 (7th Cir.

2008), citing Brokaw v. Weaver, 305 F.3d 660, 664 (7th Cir. 2002). “A district court,

in ruling upon an issue of subject matter jurisdiction, must accept as true all well-

pleaded factual allegations and draw all reasonable inferences in favor of the

plaintiffs.” Kelley, 548 F.3d at 604, citing Capitol Leasing Co. v. Fed. Deposit Ins.

Corp., 999 F.2d 188, 191 (7th Cir. 1993).


18

Also, “[t]he law is clear that when considering a motion that launches a

factual attack against jurisdiction, ‘[t]he district court may properly look beyond

the jurisdictional allegations of the complaint and view whatever evidence has

been submitted on the issue to determine whether in fact subject matter

jurisdiction exists.’” Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 444 (7th

Cir. 2009), quoting Evers v. Astrue, 536 F.3d 651, 656-57 (7th Cir. 2008), quoting St.

John’s United Church of Christ v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007). Thus,

the district court should have considered the copy of Brown’s petition for

certiorari and corresponding appendix filed with defendant Ross’ reply brief,

[ECF No. 52-1, 52-2, 52-3.], when evaluating its jurisdiction under the Rooker-

Feldman doctrine.

De novo review also applies to the district court’s dismissal under Federal

Rule of Civil Procedure 12(b)(6) of Brown’s claims against Bowman and Brown

on the basis of absolute judicial immunity. See Heyde v. Pittenger, 633 F.3d 512,

516 (7th Cir. 2011) (affirming 12(b)(6) dismissal on the basis that defendant had

absolute immunity).

Finally, “[i]t is well established that [this Court] may affirm the result

below on any basis that appears in the record, even if it was not the district

court’s ground for dismissing the suit.” Marcus & Millichap Inv. Serv. of Chi., Inc.

v. Sekulovski, 639 F.3d 301, 312 (7th Cir. 2011).


19

ARGUMENT

I. Brown’s claims under Section 1983 were barred under the Rooker-Feldman doctrine.

A. Rooker-Feldman survives to ensure that state-court losers

do not get a second opportunity for review in the federal district courts.

Appellant’s lengthy argument explaining the alleged death of the Rooker-

Feldman doctrine overlooks the basic fact that this doctrine still survives to pre-

vent a state court loser from litigating the same issues in front of a federal district

court that were before the state court in a previous action. Although Brown has

made numerous other claims in his Complaint, the basic claim before the Court

is that Brown was “the subject of a conspiracy to fail him through the JLAP

process by Defendants and others…because of his pro-life beliefs arising out of

his traditional Christian worldview and constitutional political perspective.”

[ECF No. 1, ¶ 265.] This claim was previously reviewed and decided by the

Indiana Supreme Court by virtue of it adopting the findings of the BLE. In order

to avoid the Rooker-Feldman doctrine, Brown has made the conclusory allegation

this claim is wholly separate from his application for admission to practice law in

Indiana and the Indiana Supreme Court’s decision on said application. [Id., ¶¶

17-26.] Through a review of Brown’s Complaint and the evidence submitted to

the district court, it is clear that his claims are inextricably intertwined with the

BLE’s recommendation and Indiana Supreme Court’s affirmation of that

recommendation. Although Rooker-Feldman only applies in narrow


20

circumstances, this case meets those requirements, and thus, the district court’s

dismissal of Brown’s 42 U.S.C. § 1983 claims pursuant to the Rooker-Feldman

doctrine was appropriate.

The district court lacked jurisdiction to review Brown’s claims under 42

U.S.C. § 1983 as these claims were reviewed by the Indiana Supreme Court and

only the United States Supreme Court has exclusive jurisdiction to review

Indiana Supreme Court decisions. Since “[t]he Supreme Court is vested with

exclusive jurisdiction over appeals from final state-court judgments,” Abbott v.

Michigan, 474 F.3d 324, 328 (6th Cir. 2007), the lower federal courts, such as the

district court in this case, do not have jurisdiction “over cases brought by ‘state-

court losers’ challenging state-court judgments rendered before the district court

proceedings commenced ‘under what has come to be known as the Rooker-

Feldman doctrine.’” Lance v. Dennis, 126 S. Ct. 1198, 1199 (2006) (quoting Exxon

Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). As Brown admits

at page 33 of his brief, “[t]he pivotal inquiry is ‘whether the federal plaintiff seeks

to set aside a state court judgment or whether he is, in fact, presenting an

independent claim.’” Long v. Shorebank Dev. Corp., 182 F.3d 548, 555 (7th Cir.

1999) (citing Kamilewicz v. Bank of Boston Corp., 92 F.3d 506, 510 (7th Cir. 1996)).

Brown has carefully made his allegations in such a manner that he is not asking

the court to reverse the Indiana Supreme Court’s decision regarding his

admission to the Indiana state bar, but instead he seeks a review of the process

used by the Indiana Supreme Court to reach this decision. His allegations,


21

however, do not avoid the fact that the actions of the Defendants were part of the

final decision reached by the Indiana Supreme Court, and in fact, mirror image

claims of discrimination were brought to the Indiana Supreme Court’s attention

for review before reaching its final decision.

As this Court knows, the Rooker-Feldman doctrine is purely jurisdictional

in nature. Freedom Mortg. Corp. v. Burnham Mortg., Inc., 569 F.3d 667, 670 (7th Cir.

2009). The doctrine prevents federal district courts from reviewing state-court

judgments, over which only the United States Supreme Court has federal

appellate jurisdiction. Skinner v. Switzer, 131 S. Ct. 1289, 1297 (2011).

Undoubtedly, as Brown argues, Rooker-Feldman is a “narrow doctrine, confined

to cases brought by state-court losers complaining of injuries caused by state-

court judgments rendered before the district court proceedings commenced and

inviting district court review and rejection of those judgments.” Kelley v. Med-1

Solutions, LLC, 548 F.3d 600, 603 (7th Cir. 2008) (quoting Lance v. Dennis, 546 U.S.

459, 464, 126 S. Ct. 1198, 163 L. Ed. 2d 1059 (2006)). Although the Rooker-Feldman

doctrine will not prevent a losing litigant from presenting an independent claim

to a district court, it will prevent the presentation of claims that are “inextricably

intertwined” with state court determinations. Exxon Mobil Corp. v. Saudi Basic

Indus. Corp., 544 U.S. 280, 293 (U.S. 2005) and D.C. Court of Appeals v. Feldman, 460

U.S. 462, 483 (U.S. 1983). Here, Brown’s Section 1983 claims fall into this narrow

doctrine because he seeks a federal district court review of the judicial process


22

used by the Indiana Supreme Court in rendering its decision on Brown’s

application for admission to the Indiana State Bar.

Brown focuses on the United States Supreme Court’s recent decision

Skinner v. Switzer, 562 U.S. –, 131 S.Ct. 1289 (2011) in support of his argument that

the Rooker-Feldman doctrine has been narrowed in applicability to the point of

being inconsequential, and this case now falls outside of the doctrine. Skinner,

however, did not change the doctrine or even narrow its application. In Skinner,

an inmate on death row filed a federal action for injunctive relief under Section

1983 claiming that Texas violated his Fourteenth Amendment right to due

process by refusing to provide for the post-conviction DNA testing he had

requested. 131 S.Ct. at 1295. Under the Texas Code of Criminal Procedure Rule

64, Skinner had twice petitioned the Texas state court for post-conviction DNA

testing and both times the testing was denied. Id. After the two denials, Skinner

filed an action with the federal district court seeking a finding that Texas Code of

Criminal Procedure Rule 64 was unconstitutional on its face. Id. The Fifth Circuit

Court of Appeals dismissed the federal district court claim finding it was not

cognizable under Section 1983 and must instead be brought as a petition for writ

of habeas corpus. Id. In reviewing the case, the United State Supreme Court

determined Skinner’s claim was not barred because he targeted as

unconstitutional the Texas statute the state court construed rather than the

decision of the state court in denying his request for relief. Id. The court’s

decision in Skinner did not create any new law or authority as it was a


23

reaffirmation of the finding in Feldman that “the difference between seeking

review in a federal district court of a state court’s final judgment [ ] and

challenging the validity of a state [rule or statute] has been recognized.” Feldman,

460 U.S. at 483-84. Even in Feldman the court noted that the district court would

have had jurisdiction to review the plaintiff’s challenge to the bar admission

rules constitutionality on their face. Id. As such Skinner does not stand for any

change in the application of the Rooker-Feldman doctrine, but instead is merely a

reminder of the doctrine’s narrow application.

The Rooker-Feldman doctrine still prevents a state court loser from

challenging a state court decision in a federal district court. Although Brown

claims he does not seek a review of the Indiana Supreme Court’s decision, it is

clear he seeks a review of the process used by the Indiana Supreme Court in

reaching its decision. The end result of this litigation, if Brown were successful,

would be an invalidation of the process used by the Indiana Supreme Court in

reaching its decision. For this reason the claims were appropriately dismissed

pursuant to the Rooker-Feldman doctrine.

B. Brown’s claims of a conspiracy to discriminate against him were previously reviewed by the Indiana Supreme Court and were a part of the final decision to deny his admission the Indiana state bar.

The conduct of Defendants at issue was a part of the judicial process used

by the Indiana Supreme Court in reaching its final decision to deny Brown

admission to the Indiana state bar. As such the claims against Drs. Bowman and


24

Ross, Harrell, and Sudrovech for conducting evaluations on behalf of JLAP are

necessarily a part of the Indiana Supreme Court’s final decision. The Indiana

Supreme Court rules provided Brown with an avenue to appeal the BLE’s

recommendations, and Brown used the appeal to argue the defendants conspired

to discriminate against him for his religious beliefs. The Indiana Supreme Court

denied Brown’s appeal finding that his claim of discrimination was insufficient

to warrant a reversal of the BLE’s recommendation to deny Brown’s admission to

the bar. As such Brown’s claims against Defendants must be considered

“inextricably intertwined” with the Indiana Supreme Court’s decision, and thus,

the claims are barred by the Rooker-Feldman doctrine.

The process under which Brown claims he was discriminated was a part

of the judicial process used by the Indiana Supreme Court as supported by the

Indiana Constitution and the Indiana Supreme Court’s Admission and Discipline

Rules. The Indiana Constitution confers original and exclusive jurisdiction to the

Indiana Supreme Court on matters involving the practice of law and the

discipline of attorneys in Indiana, which has been confirmed through Indiana

statutory law. As part of its judicial process in implementing this authority, the

Indiana Supreme Court has adopted the Indiana Admission and Discipline

Rules, which provide for the creation of the BLE to “inquire into and determine

the character, fitness, and general qualifications to be admitted to practice law as

a member of the bar of the Supreme Court of Indiana.” Admis. Disc. R. 12, § 1.

The Indiana Supreme Court relies on the BLE to provide it with


25

recommendations regarding an applicants’ fitness to practice law in the State of

Indiana. Id.

If the BLE determines that it has concerns about an applicant’s moral

character during the application process, it has the option to refer the applicant

to JLAP for evaluation. JLAP is designed to assist judges, lawyers, and law

students who suffer from mental or physical disabilities that impair their ability

to practice law. JLAP and its committee operate under the guidelines approved

by the Indiana Supreme Court for assessing and treating bar applicants. Brown

claims the JLAP process violated his constitutional rights. Based upon the close

relationship of the JLAP evaluations to the bar admission process, a review of

these evaluations would be “inextricably intertwined” with the Indiana Supreme

Court’s final decision on admission. Moreover, the records before the Court

provide that Brown already brought forth his claims regarding JLAP’s alleged

discrimination to the Indiana Supreme Court in his appeal of the BLE’s

recommendations.

Brown’s claims regarding a conspiracy were brought before the Indiana

Supreme Court when he appealed the recommendation of the BLE to deny his

admission to the Indiana state bar. The Indiana Rules for Admission to the Bar

provide an opportunity to appeal the actions of the BLE, and thus, the actions of

JLAP, to the Indiana Supreme Court. Admis. Disc. R. 14, § 2. Pursuant to Rule 14,

Brown filed an Amended Petition to Review Final Determination of the State

Board of Law Examiners’ Recommendation in the Indiana Supreme Court under


26

Case Number 94-S-00-0910-BL-00446. [ECF 52-2, pp. 21-34; Appellant’s Short

App. 40.] Through the evidence submitted to the district court by both Brown

and Defendants it is clear Brown brought forward his claims of conspiracy and

discrimination to the Board of Law Examiners and the Indiana Supreme Court in

his initial appeal. In his petition for review, Brown even stated under oath “I

herein raise due process, free exercise, free speech, equal protection and other

claims based on enumerated laws and statutes as set forth in the sections entitled

‘Errors of Law.’” [ECF 52-2, p. 34.] The Indiana Supreme Court reviewed

Brown’s concerns about the Board of Law Examiners’ recommendations and

then affirmed the board’s recommendations. [ECF No. 30-1.] Brown’s current

federal claims cannot be considered an “independent claim” from his application

for admission to the Indiana State Bar and ensuing appeal to the Indiana

Supreme Court. If the district court were required to review Brown’s claims, it

would necessarily require the court to review the Indiana Supreme Court’s

judicial process as set forth in the Indiana Supreme Court’s rules.

Brown argues that his Section 1983 claims against Drs. Elizabeth Bowman

and Stephen Ross, Terry Harrell, and Tim Sudrovech allege injuries that could

not have been adequately presented during his review by the Indiana Supreme

Court. However, Brown’s Petition for Certiorari and corresponding Amended

Petition for Review of the Final Determination of the State Board of Law

Examiners, make it clear that Brown has already brought forward essentially the

exact claims at issue to the Indiana Supreme Court and the court found his


27

claims to lack merit. [See ECF Nos. 52-1, -2, and -3, Brown v. The Indiana Board of

Law Examiners, Petition for Writ of Certiorari] The BLE’s recommendations,

which were reviewed and accepted by the Indiana Supreme Court, make it clear

that Brown’s current claims of religious discrimination by the Defendants have

been at issue and reviewed throughout the entire Indiana Supreme Court judicial

process. [ECF Nos. 52-2, pp. 1-20.] Reviewing these documents and the

allegations in the Complaint, it is apparent the Section 1983 claims at issue were

reviewed by the Indiana Supreme Court in reaching its decision on Brown’s

admission to the Indiana State Bar. Any continuing claim by Brown is thus

necessarily barred by the Rooker-Feldman doctrine as the district court would

have to question the process used by the Indiana Supreme Court in reaching its

decision.

C. This Court’s precedent in bar application challenges mirrors the present litigation and requires the dismissal of Brown’s claims.

Although Brown speculates about Rooker-Feldman’s impending death, the

doctrine remains a barrier to state court losers challenging a state court decision

in federal district court. The United State Supreme Court reminded the courts of

the narrow application of the Rooker-Feldman doctrine in the Skinner decision, but

the law on the application of the doctrine has not been changed. Due to the lack

of any recent change in the law applying Rooker-Feldman, there is no reason for

this Court to change its previous application of the Rooker-Feldman doctrine with

regard to claims by aggrieved bar applicants. This issue has been addressed at


28

least twice by this Court, and each time the Court has found the claims barred by

the Rooker-Feldman doctrine. The recent decision by the United States Supreme

Court in Skinner should not change the precedent set in these cases, which both

require the dismissal of Brown’s claims under Section 1983.

In the case of Hale v. Committee on Character and Fitness for the State of Ill.,

335 F.3d 678 (7th Cir. 2003), the plaintiff, a continuing public advocate of white

supremacy and discrimination, brought suit in the Northern District of Illinois

under Section 1983 against the Committee on Character and Fitness for the State

of Illinois (“Committee”) for their alleged violations of Hale’s First Amendment

right of freedom of expression, freedom of association, and equal protection

rights due to the Committees’ denial of his application for admission to the

Illinois state bar. After reviewing Hale’s application, the Committee had deter-

mined that his “active commitment to bigotry under any civilized standards of

decency demonstrated a gross deficiency in moral character” that would put him

on a “collision course with the Rules of Professional Conduct.” Id. at 680-81.

Based upon this finding, the Committee recommended to the Illinois Supreme

Court that Hale not be admitted to the Illinois State Bar. Much like the present

case, Hale then petitioned the Supreme Court of Illinois for review of the

Committee’s denial. In his petition Hale asked the Illinois Supreme Court to

review the constitutionality of the Committee’s decision based upon his First and

Fourteenth Amendment concerns. Id. at 681. Shortly thereafter, the Illinois

Supreme Court denied Hale’s request for a review. Id. Again like the present


29

case, Hale petitioned the United State Supreme Court for a writ of certiorari

which was denied. Id.

Hale then brought suit against the Committee in federal district court for

the alleged discriminatory actions taken in its denial of his application for

admission to the Illinois state bar. Hale argued his claims of discrimination by

the Committee were not part of the Illinois Supreme Court’s decision as he did

not have an adequate chance to present these concerns to the court. Hale, 335 F.3d

at 683. This Court found otherwise and affirmed the dismissal of Hale’s claims

stating:

We therefore reject Hale’s argument that he had no prior opportunity to litigate his constitutional challenges to the Illinois Supreme Court’s decision not to override the Committee's recommendation to deny his admission to the bar. He did, and he was unsuccessful.

Id. at 684. The same conclusion should be reached in the present case as Brown

brought forward the exact same claims of discrimination in his Amended

Petition to Review Final Determination of the State Board of Law Examiners. The

Indiana Supreme Court reviewed these claims and denied his request. The fact

that Brown does not request the court overturn Indiana Supreme Court’s

admission decision does not change the fact that his discrimination claims were

reviewed as a part of the Indiana Supreme Court’s admission decision.

Even more on point is this Court’s decision in Edwards v. Ill. Bd. of

Admissions, 261 F.3d 723 (7th Cir. 2001). In Edwards the plaintiff filed claims in

federal district court against the Illinois Board of Admissions to the Bar, the


30

Character and Fitness Committee, and the chairman of the Character to Fitness

Committee claiming the requirement for a complete release of her mental health

records during the bar admission process constituted a violation of the

Americans with Disabilities Act. Id. at 725. Edwards’ mental health records were

requested after she informed the Committee that she had been forced to resign

from a job as an air traffic controller due to continuing depression. Id. Prior to

any decision on admission, Edwards filed the district court action to prevent the

release of the records, but this claim was dismissed under the abstention

doctrine. Id. Eventually, the Committee analyzed a number of factors, including

Edwards’ refusal to release her mental health records, and decided that she was

unfit to practice law. Id. at 727. Edwards filed a petition for review with the

Illinois Supreme Court arguing the ADA protected the disclosure of her mental

records, and the Illinois Supreme Court denied the petition. Id.

Edwards filed her claim in district court while her admission was pending

in which she did not seek a reversal of the decision to deny her admission to the

bar. Edwards, 261 F.3d at 726. Instead, she sought a finding that requiring the

release of her mental health records was a violation of the ADA and that the

Defendants should be enjoined from making such a requirement in the future. Id.

Addressing this issue, this Court found:

While she might not be asking us to review the state court order declining certification, granting the relief she requests would have that effect: she is asking for a remand so the district court may determine whether the Committee violated the ADA in treating her decision not to release the records as it did. If the Committee did violate the ADA, the district court


31

would be directing the Committee to reconsider plaintiff's case for admission when it has already ruled on it. This we can not do.

Id. at 731. This Court further determined that Edwards’ claims were barred by

the Rooker-Feldman doctrine, as they were constitutional claims that were

“inextricably intertwined” with the Illinois Supreme Court’s judicial process and

decision regarding her admission to the bar. Id.

This case mirrors Edwards. In his Complaint, Brown specifically stated that

he is not asking the Court to review the Indiana Supreme Court’s order

regarding his admission to the bar. Edwards also “repeatedly assert[ed] that she

[was] not asking [the court] to review the state court determination because her

complaint [does] not ask [the court] to grant her certification to the bar.” Much

like Edwards, granting Brown’s desired relief would require a review of the

Indiana Supreme Court’s decision and would, therefore, violate the Rooker-

Feldman Doctrine. Brown essentially asked the district court to make a

determination as to the constitutionality of the judicial process used by the

Indiana Supreme Court. While it is “often difficult to distinguish between

situations in which the plaintiff is seeking to set aside the state court judgment

and ones in which the claim is independent,” there was no injury to Brown

“distinct from the state court judgment and not inextricably intertwined with it.”

Edwards, 261 F.3d at 728-729. Although Brown asserts that his Section 1983 claims

are wholly separate actions with separate injuries, his complaint and the

evidence submitted to the district court show his claims are “inextricably


32

intertwined” with the Indiana Supreme Court’s previous decision and the

judicial admission process. The district court appropriately determined it lacked

the jurisdiction to review the Defendants’ actions when the Indiana Supreme

Court has already reviewed and ruled on these claims.

D. Brown’s careful pleading does not materially distinguish the claims in this matter from the claims raised by Marc Feldman and Edward Hickey in The District of Columbia Court of Appeals v. Feldman.

Brown has attempted an end-run around Rooker-Feldman through careful

pleading, but a complete view of his claims can lead to no other conclusion

except the end result would violate Rooker-Feldman. Brown argues the facts in

this matter are materially distinct from those that gave rise to the Feldman

decision as the plaintiffs in Feldman were actually seeking to overturn the order

of the denying their admission to the bar. He claims that because he did not ask

the federal district court to review the Indiana Supreme Court order, the claim is

separate from the Indiana Supreme Court’s decision, and thus, wholly distinct

from the decision in Feldman. Essentially, Brown claims the actions by the

Defendants were administrative in nature rather than part of the judicial process,

and thus a review of these actions does not require a review of the Indiana

Supreme Court’s decisions. However, his conclusory allegations do not remove

this case’s similarities to Feldman, as the end result will require a review of the

Indiana Supreme Court’s decision.


33

In D.C. Court of Appeals v. Feldman, 460 U.S. 462 (U.S. 1983), two bar

applicants filed petitions in the District of Columbia Court of Appeals asking for

waivers of the District of Columbia’s bar admission rule requiring applicants to

have graduated from an American Bar Association approved law school. Id. The

District of Columbia Court of Appeals issued per curiam orders denying the

petitions. Id. Instead of appealing to the United States Supreme Court, the

applicants filed complaints in the United States District Court for the District of

Columbia challenging the District of Columbia Court of Appeals' denial of their

waiver petitions. Id. The bar applicants argued the District Court had jurisdiction

as the decision by the District Columbia Court of Appeals was not a “judicial

proceeding” and could be reviewed. Id. at 475. The United States Supreme Court

found otherwise and held the process used by the court on the petitioners’

qualification and legal arguments were necessarily judicial nature. Id. at 481. The

Supreme Court found that the district court lacked jurisdiction as it “has no

authority to review final judgments of a state court in judicial proceedings.”

In this matter Brown has essentially argued the process used by JLAP was

a wholly separate administrative process which is reviewable by the district

court. Much like the process used by the court in Feldman, while the process of

JLAP may appear administrative, it is an integral part of the Indiana Supreme

Court’s review of an applicant’s qualifications for admission to the Indiana bar.

Any review of this process would necessarily require a review of the Indiana


34

Supreme Court’s decision regarding that applicant. It is on this basis the Rooker-

Feldman doctrine applies.

When issuing the opinion in Feldman, the court was prescient of the

potential constitutional concerns associated with the bar admission process and

an applicant’s ability to raise those concerns. Addressing these concerns, the

court provided as follows:

If the constitutional claims presented to a United States district court are inextricably intertwined with the state court's denial in a judicial proceeding of a particular plaintiff's application for admission to the state bar, then the district court is in essence being called upon to review the state-court decision. This the district court may not do. Moreover, the fact that we may not have jurisdiction to review a final state-court judgment because of a petitioner's failure to raise his constitutional claims in state court does not mean that a United States district court should have jurisdiction over the claims. By failing to raise his claims in state court a plaintiff may forfeit his right to obtain review of the state-court decision in any federal court.

Feldman, 460 U.S. at 483 n. 16. The court understood that plaintiffs may try to

plead around the Rooker-Feldman doctrine by not specifically asking for review of

the state court action. Here, Brown did not waive his constitutional claims in the

state court matter as he made the claims of discrimination to both the Indiana

Supreme Court and United States Supreme Court in his appeal of the BLE’s

recommendations. To allow a review of these claims a second time would

necessarily require a review of the Indiana Supreme Court’s judicial process and

final order, and thus violate the precedent set in Feldman. Brown’s attempt to

plead around the doctrine does not change the essence of his claims.


35

E. If Brown does not claim the denial of his certification for admission as an injury, he has failed to show any injury under Section 1983.

Brown claims that the injuries at issue in his Section 1983 claims are

wholly separate from the denial of his admission to the Indiana state bar and for

this reason the claims are outside the Rooker-Feldman doctrine. In fact, he claims

that he could have filed his claims against Defendants months before the Indiana

Supreme Court denied his admission. This argument relies on the idea that

somehow even apart from the denial of his bar application Brown would still

have a Section 1983 claim against Defendants. In order to have a cognizable

Section 1983 claim, Brown must show “(1) that he was deprived of a right

secured by the Constitution or laws of the United States, and (2) that the

deprivation was visited up-on [him] by a person or persons acting under color of

state law.” Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004).

Absent the denial of his admission to the Indiana state bar, the remaining

allegations of Brown’s complaint do not provide a single allegation showing that

he was deprived of a right under the constitution. If this Court accepts Brown’s

claim that he is not seeking damages for the denial of bar application, a dismissal

of his complaint is still appropriate as he failed to allege any recoverable injury

under Section 1983.

Moreover, to the extent Brown complains that his due process rights were

violated by the procedures utilized by the BLE and JLAP, his claims fail as a

matter of law. As noted above, Brown had the opportunity to challenge the


36

JLAP procedures, to discredit the evaluations, and to raise his constitutional

concerns and objections to JLAP, the BLE, the Indiana Supreme Court, and the

United States Supreme Court. He failed to utilize certain powers granted him by

the Admission and Discipline rules. Specifically, he failed to subpoena Drs. Ross

and Bowman to testify. Had he done so, he would have been able to examine

their findings under oath – the core of his constitutional complaint. Brown’s

failure to utilize the procedures and due process provided to him are fatal to any

alleged due process violations. See Hill v. Trustees of Indiana Univ., 537 F.2d 248

(7th Cir. 1976); Krison v. Nehls, 767 F.2d 344 (7th Cir. 1985); Leavell v. Ill. Dep’t. of

Nat. Res., 600 F.3d 798, 805 (7th Cir. 2010)

II. Drs. Ross and Bowman are entitled to absolute immunity as witnesses/consultants in quasi-judicial proceedings.

Brown’s Complaint does not delineate whether he seeks to recover as

against Drs. Bowman and Ross in their individual capacities or in their official

capacities. Nonetheless, Brown raises no cognizable claim as against any

government entity which Brown believes is vicariously liable for the actions of

Drs. Ross and Bowman. Accordingly, it is presumed that Brown has sued Drs.

Ross and Bowman solely in their individual capacities. Nonetheless, an

individual sued in his or her individual capacity pursuant to Section 1983 may

assert common law immunity defenses such as the absolute immunity defense

asserted herein. See Kentucky v. Graham, 473 U.S. 159, 166-67.


37

Section 1983 provides that “[e]very person” who acts under color of state

law to deprive another of a constitutional right shall be answerable to that person

in a suit for damages. 42 U.S.C. § 1983. Despite this broad language, immunities

that are “well-grounded in history and reason” were not abrogated “by covert

inclusion in the general language” of Section 1983. Blair v. Pachtman, 424 U.S. 409,

418 (1976), citing Tenney v. Brandhove, 341 U.S. 367, 376 (1951). Immunities from

damages under Section 1983 have been held to apply to “truly judicial acts”

performed by a judge within his lawful jurisdiction. Forrester v. White, 484 U.S.

219, 226-27 (1988). Prosecutors are also generally entitled to immunity for

conduct closely associated with the judicial process. Cleavinger v. Saxner, 474 U.S.

193, 200 (1985). Immunity has further been extended to prisoner review board

members for activities that are analogous to those performed by judges. Walrath

v. U.S., 35 F.3d 277, 281 (7th Cir. 1994). Entitlement to absolute immunity does

not depend on the identity or title of the person who performed the act in

question but rather the nature of the function performed. Wilson v. Kelkhoff, 86

F.3d 1438, 1443 (7th Cir. 1996). Thus, in determining whether a government

official is entitled to absolute immunity, the Seventh Circuit applies a “functional

approach.” Id. The functional approach does not apply a mechanical test, but

rather requires the analysis of several factors, including: (1) the extent to which

Drs. Ross and Bowman are associated with the quasi-judicial/administrative bar

application process; (2) the prospect of continuing harassment or vexatious

litigation by disappointed applicants; and (3) whether the bar admission process


38

contains sufficient safeguards to protect the applicant’s constitutional rights.

Auriemma v. Montgomery, 860 F.2d 273, 275 (7th Cir. 1988) citing Mitchell v. Forsyth,

472 U.S. 511, 521-23 (1985); Wilson v. Kelkhoff, 86 F.3d 1438, 1444 (7th Cir. 1996)

(“Absolute immunity protects [parole board members] . . . for actions that are

‘part and parcel’ of the decision-making process”).

A. Drs. Ross and Bowman are intimately associated with the bar admission process.

One of the relevant considerations with respect to whether an official

should be entitled to absolute immunity is the extent to which that official is per-

forming activities that are “inexorably connected” with procedures that are

analogous to “judicial action.” See Wilson, 86 F.3d at 1444, citing Walrath, 35 F.3d

at 282.

The BLE proceedings, including referrals to JLAP, are analogous to other

quasi-judicial or administrative procedures where the participants have been

granted absolute immunity. Wilson, 86 F.3d at 1443-44 (prisoner review board

members), Walrath, 35 F.3d at 282 (parole official entitled to absolute immunity

for signing the arrest warrant); Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir.

1999) (alleged discriminatory actions performed by the seven commissioners of

the Indiana Civil Rights Commission). Therefore, immunity is not limited to

actual in-court testimony at a contested hearing but rather extends to matters

which are quasi-judicial or administrative in nature. Absolute immunity extends


39

to individuals that are “inexorably connected” to the procedures or “part and

parcel” of the adjudicatory function.

Drs. Ross and Bowman’s role with respect to Brown’s application to the

Indiana Bar was to serve as witnesses/consultants at the request of the Indiana

Supreme Court through the BLE and JLAP. In such role, Drs. Ross and Bowman

performed a function analogous to expert witnesses. Individuals performing the

same or similar functions have been granted absolute immunity from damages

actions brought by disappointed litigants. See Golden v. Sigmund & Associates,

Ltd., 611 F.3d 356, 360 (7th Cir. 2010) (court appointed child representative whose

actions were performed within the scope of her court-appointed duties entitled

to absolute immunity); Cooney v. Rossiter, 583 F.3d 967, 970 (7th Cir. 2009)

(guardians ad litem and court-appointed experts, including psychiatrists, held

absolutely immune from liability for acts done at the court’s direction).

Consequently, Drs. Ross and Bowman, serving in their role as evaluators on

behalf of the Indiana Supreme Court through JLAP, acted solely as consultants or

witnesses and were “part and parcel” of the decision-making process.

In his Brief, Brown raises no allegation that Drs. Bowman and Ross acted

outside of their duties and responsibilities with respect to the JLAP process

pertaining to Brown’s Section 1983 claims. Neither Dr. Bowman nor Dr. Ross

performed any tasks extraneous to their mandate as experts requested to provide

an evaluation of Brown for the BLE’s benefit and evaluating Brown’s attempts to

meet his burden of establishing good moral character and fitness. In order to


40

perform their evaluations, Drs. Bowman and Ross utilized their education,

training, and experience in their respective fields and provided reports to JLAP

based on such expertise. Consequently, the application of immunity to Brown’s

Section 1983 claims does not fit within the cases that denied immunity to officials

who performed an action extraneous to their official role. See e.g., McMillan v.

Svetanoff, 703 F.2d 149 (7th Cir. 1986) (judge denied immunity for administrative

act of firing court reporter); Auriemma v. Montgomery, 860 F.2d 273 (7th Cir. 1988)

(municipal attorneys denied absolute immunity for extrajudicial investigation of

obtaining credit reports in defending civil rights suit against city). Rather, Drs.

Bowman and Ross performed evaluations of Brown in accordance with their

court-related duties to provide an evaluation for the benefit of the BLE and JLAP.

Because such activities are intimately associated with their court-related duties,

Drs. Bowman and Ross are entitled to absolute immunity. See Auriemma, 860 F.2d

at 277, quoting Embler v. Pachtman, 424 U.S. 409, 430 (1976) (it is only when such

activities are intimately associated with the court-related duties of government

attorneys that the activities are entitled to absolute immunity).

B. Absent absolute immunity, a realistic prospect of continuing harassment by disappointed litigants exists.

The absolute immunity sought by Drs. Bowman and Ross stems from the

historic common law immunity afforded to witnesses in civil suits. See Giffin v.

Summerline, 78 F.3d 1227, 1230 (7th Cir. 1986), quoting Hutchinson v. Lewis, 75 Ind.

55, 60-61 (1881) (“all statements of a witness, as a general rule, are absolutely


41

privileged. . .”); Rhiver v. Rietman, 265 N.E.2d 245, 248 (Ind. App. 1970) (medical

opinion in mental illness commitment proceeding). The public policy

considerations granting absolute immunity to witnesses testifying in open court

are to ensure that the judicial system functions unimpeded by fear on the part of

its participants that they may be sued for damages for their role in the

proceedings. Giffin, 78 F.3d at 1230-31. These public policy considerations extend

beyond live testimony in open court to, for example, testimony in the form of

depositions and affidavits. Id. at 1230. The justification for extending such

protections beyond live courtroom testimony is that the “threat of a lawsuit for

damages can have the same intimidating effect on a witness who testifies by

deposition as one who testifies in court.” Id. Accordingly, one of the primary

considerations in determining whether a participant in a quasi-judicial

proceeding is entitled to absolute immunity is the need to protect the witness

from fear or threats of intimidation in the form of subsequent damages suits.

Such were the circumstances in the case primarily relied upon by the

district court, Cooney v. Rossiter, 583 F.3d 967 (7th Cir. 2009). Cooney alleged

violations of constitutional rights including that the evaluating psychiatrist and

child representative advised the court as to which disposition of the children

would be in the best interest of the child. Cooney’s alleged conspiratorial acts

also included allegations that the psychiatrist and child representative

communicated with each other, that the conclusions in the psychiatrist’s report

were false, and that the child representative may have given a draft copy of the


42

report to Cooney’s husband but not Cooney. The court found that all of these

acts were done in the course of their court-appointed duties. These acts did not

occur under oath, in a courtroom, or by testimony. Nonetheless, this Court found

sufficient public policy justification to extend absolute immunity to the acts

performed at the court’s direction.

Rossiter and Bischoff are entitled to absolute immunity. Guardians ad litem and court-appointed experts including psychiatrists are absolutely immune from liability for damages when they act at the court’s direction. [internal citations omitted.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judge’s do. Experts asked by the court to advise on what disposition will serve the best interest of the child in a custody proceeding need absolute immunity in order to be able to fulfill their obligations “without the worry of intimidation and harassment from dissatisfied parents.” [internal citation omitted.] This principal is applicable to a child’s representative, who although bound to consult the child is not bound by the child’s wishes but rather by the child’s best interests, and is thus a neutral, much like a court-appointed expert witness.

Cooney, 583 F.3d at 970. Like the physician in Cooney, Drs. Ross and Bowman were appointed by

the Court, through the JLAP and the authority vested to it, to provide

evaluations of Brown. All of the actions Brown alleges relate to a conspiracy to

deprive him of his constitutional rights were taken pursuant to their court

appointed duties. The same fear of reprisals that justified the extension of

immunity in Cooney applies here. Physicians or psychologists performing

evaluations of bar applicants pursuant to the Indiana Supreme Court’s directive

that all attorneys admitted to practice law in the State of Indiana possess the

requisite character and fitness should be entitled to absolute immunity for the


43

information provided to the BLE to preserve the objectivity of their evaluations.

The fear that a physician or psychologist vested with absolute immunity will

trample constitutional rights with impunity is unwarranted given the extensive

due process afforded to the applicant, as discussed infra.

C. The bar admission process contains adequate safeguards to protect the applicant’s constitutional rights.

The bar application procedure provides extensive procedural safeguards

to which a disappointed applicant may avail himself. Ironically, the JLAP process

is one of the due process safeguards which may be utilized by an applicant to

meet his burden of establishing sufficient character and fitness. An applicant

who possesses a dependency or mental health problem may be admitted to the

bar with appropriate treatment and monitoring, if appropriately engaged with

the JLAP process.

As noted above, the Indiana Supreme Court, through the BLE, places the

burden of proving requisite moral character and fitness to practice law upon the

applicant. The Indiana Supreme Court does not limit the type of information the

applicant may submit in order to demonstrate his character and fitness. Indeed,

in attempting to meet his burden, Brown supplied the BLE with hundreds of

pages of documents including evaluations he obtained independent of the JLAP

process from Dr. Flueckiger and a clinic in Topeka, Kansas. The BLE, as is within

its discretion, afforded weight to these submissions as it deemed appropriate. As

such, not only was Brown afforded opportunity to present whatever evidence he


44

deemed appropriate to the BLE for its consideration, he took full advantage of

such opportunity.

Following the BLE’s determination as to whether the applicant has met his

burden to establish the requisite moral character and fitness, a disappointed

applicant has several layers of review and opportunities to express

dissatisfaction with the process. The applicant can, and in Brown’s case did,

request a hearing before the panel. At such hearing, the applicant may submit

whatever additional evidence and/or testimony he deems appropriate.

Importantly, subpoena power is granted. Both the BLE and the applicant may

request documents or live testimony. The applicant may cross-examine

witnesses. Following the hearing panel’s consideration of the evidence

presented, the hearing panel must provide written findings of fact and

conclusions of law. The findings are reviewable by the Indiana Supreme Court

and, ultimately, the United States Supreme Court.

With respect to the procedural safeguards noted above, Brown either took

full advantage of his procedural rights or waived his opportunity to do so. The

record is replete with Brown’s repeated and extensive efforts to strike, dismiss,

discredit, and refute Drs. Bowman and Ross’s findings. His barrage of com-

plaints related to the JLAP’s requested evaluations began shortly after Dr. Ross’s

evaluation. For example, Brown corresponded, on June 12 and June 24, 2008,

with Dr. Ross and JLAP calling into question Dr. Ross’s use of the MMPI-2 and

the nature of the questions Dr. Ross asked of Brown. He provided Dr. Ross


45

studies which Brown believed refuted the validity of the MMPI-2. He also

refuted Dr. Ross’s comment that further evaluation was warranted by a

psychiatrist to determine whether Brown suffered from bipolar disorder. Brown

wrote the BLE addressing his concerns with respect to Dr. Ross’s methodology,

analysis and conclusions. In addition to Brown’s efforts to impeach the validity

of Dr. Ross’s findings, Brown raised constitutional concerns with JLAP and BLE.

Following Dr. Ross’s report and prior to Brown’s evaluation by Dr.

Bowman, Brown requested of JLAP permission to see a Fort Wayne psychiatrist

of his choosing, underwent an independent evaluation in Topeka, Kansas, and

underwent an evaluation by Dr. Flueckiger. All of these measures reflect Brown’s

efforts to contradict and refute Dr. Ross’s findings and bolster evidence that he

possessed the requisite character and fitness to sit for the Indiana Bar

examination. More importantly, the BLE either did or could have reviewed all of

the independent evaluations, constitutional concerns, and attempts to impeach

and discredit Dr. Ross’s findings.

Similarly, after Brown agreed to an evaluation by Dr. Bowman, he had

and took full advantage of his opportunity to impeach and refute Dr. Bowman’s

findings. Brown had and exercised a full and fair opportunity to challenge the

bar application process, including expressing his constitutional concerns to Dr.

Bowman, JLAP, and BLE. Indeed, it appears Brown began seeking what he

believed to be impeachable material at the outset of his first session with Dr.

Bowman, by inquiring into her personal religious beliefs. Brown’s Complaint


46

references his frustration that he had insufficient time prior to his evaluation by

Dr. Bowman to more fully investigate her background and beliefs, presumably in

search of more impeachable material. Nonetheless, following the issuance of her

report, Brown began investigating Dr. Bowman’s “associations and

publications.” Brown’s Complaint details those aspects of Dr. Bowman’s

personal and professional background which he believes render her evaluation

suspect. Brown states, “all of this was brought to the attention of the Defendant

Sudrovech and Harrell, as well as all other government agents involved in the

review of Plaintiff’s application.”

As noted in Brown’s Complaint, on May 7, 2009, Linda Loepker (executive

director of BLE) sent a subpoena to JLAP to produce “the entire contents of the

file of Bryan J. Brown.” The BLE therefore had Drs. Ross and Bowman’s reports

and all of Brown’s correspondence challenging the validity of the reports

themselves, his concerns regarding the evaluation process, and his constitutional

concerns. At the time of Brown’s June 1, 2009 hearing, BLE had compiled and

considered a broad range of Brown’s moral, legal, procedural, constitutional, and

substantive concerns.

Despite all of the written material the BLE had regarding Brown’s due

process concerns, Brown had even had another opportunity to challenge the BLE

and JLAP process in his attempt to establish the requisite character and fitness.

Brown could have subpoenaed Drs. Ross and Bowman to appear at the hearing

pursuant to the Admission and Discipline Rules. He elected not to do so. Had he


47

done so, he could have placed them under oath and questioned them extensively

about their reports. To the extent Brown complains that Drs. Bowman and Ross

did not give “testimony” “under oath,” he can fault only his failure to utilize the

procedures established under the admission and discipline rules.

Notwithstanding the fact that Brown had the opportunity to obtain live,

under oath testimony from Drs. Ross and Bowman, the application of absolute

immunity is not dependent upon a witness providing live testimony in open

court. The extensive due process protections afforded to an applicant to the

Indiana bar provide an adequate safeguard to ensure that an applicant’s due

process rights are protected. In light of the extensive safeguards, the policy of

protecting from vexatious litigation those who provide testimony to the BLE and,

by extension, the Indiana Supreme Court, is advanced by affording absolute

immunity to those integral to the bar admission process such as Drs. Ross and

Bowman.

III. Defendants Harrell and Sudrovech are entitled to immunity under Indiana Admission and Discipline Rule 31 and to quasi-judicial absolute immunity.

The district court’s decision was based chiefly on Rooker-Feldman and

witness immunity grounds, but this Court may affirm the decision below on any

basis in the record, even if it was not cited by the court as a reason for dismissing

the suit. See Marcus & Millichap Inv. Serv. of Chi., Inc. v. Sekulovski, 639 F.3d at 312.

The record shows that Defendants Harrell and Sudrovech, as JLAP employees,


48

were entitled to immunity under Rule 31 of the Indiana Admission and

Discipline Rules, and also entitled to quasi-judicial absolute immunity.

A. Immunity under Rule 31.

Harrell is the Executive Director of JLAP, and Sudrovech is the JLAP

Clinical Director. [ECF No. 1, ¶¶ 12, 13.] Rule 31, Section 10, of the Indiana

Admission and Discipline Rules provides that “[t]he Committee [JLAC],

Executive Director, staff, and volunteers are not subject to civil suit for official

acts done in good faith in furtherance of the Committee’s work.” This Rule

provides Harrell and Sudrovech immunity from Brown’s suit unless he can show

they acted in bad faith. Brown’s response to the Defendants’ motions to dismiss

listed the following paragraphs of his complaint that were intended to show bad

faith: 12, 13, 50, 62, 88, 94, 105, 151, 162, 177, 180, 188-191, 194, 201, 204, 265. [ECF

No. 49, p. 29.] However, none of the allegations in Brown’s complaint are

sufficient to show bad faith on the part of any Defendants, including Harrell and

Sudrovech.

Paragraphs 12 and 13 simply identify Harrell’s and Sudrovech’s positions

with JLAP. Paragraph 50 alleges Brown’s belief that Sudrovech acted with

prejudicial and discriminatory intent with regard to a report of Dr. Ross.

Paragraph 62 alleges that Sudrovech “should have requested” revisions to Dr.

Ross’ report. Paragraph 94 is a general allegation that that Brown was forced “to

accept a state defined orthodoxy” and that “many persons, both governmental

and private” worked “toward the same unlawful goal while motivated by bias,


49

invidious discriminatory intent and animus.” Paragraph 105 complained about

JLAP’s policy of briefing providers before having them talk to applicants.

Paragraph 151 alleged that all Defendants had a duty to recall Dr. Bowman’s

report because she “was unable to detach her own personal biases and invidious

discriminatory intent . . .” Paragraphs 188-191 similarly complain that Harrell

and Sudrovech failed to do anything about Dr. Bowman’s allegedly

discriminatory intent. Paragraphs 88, 162, 177, 180, 194, 204, and 265 say nothing

about Harrell or Sudrovech. Paragraph 201 alleges that Sudrovech delayed the

filing of Dr. Bowman’s report until January 22, 2009, the 36th anniversary of Roe v.

Wade.

None of these allegations, even the ones that specifically mention

Defendants Harrell or Sudrovech, come close to showing they acted in bad faith.

Brown’s entire case is based on his suspicion that the Defendants were offended

by his religious views and improperly conspired to block his application to the

Indiana bar. However, he offers nothing more than speculation regarding

Defendants’ motives. This Court requires more than speculation to support an

allegation that a defendant acted in bad faith. See Hall v. Bodine Elec. Co., 276 F.3d

345, 358 (7th Cir. 2002) (“Because Hall offers nothing more than self-serving

speculation, we conclude that Metz’s failure to preserve his handwritten notes is

not, in and of itself, evidence that his investigation was conducted in bad faith, or

that Bodine’s reason for firing her was pretextual.”); Park v. City of Chicago, 297

F.3d 606, 616 (7th Cir. 2002) (“[O]ther than her own speculation, Ms. Park has


50

failed to adduce evidence that the City, in bad faith, declined to produce these

records.”).

Brown has failed to show that Harrell or Sudrovech acted in bad faith.

Accordingly, these defendants are entitled to immunity under Rule 31 of the

Indiana Admission and Discipline Rules.

B. Quasi-judicial absolute immunity.

Harrell and Sudrovech also possess quasi-judicial absolute immunity from

suit. As noted above, the Supreme Court has used a functional approach to

determine whether an individual is entitled to absolute immunity. The existence

of absolute immunity depends upon the nature of the functions performed by

the official and the effect exposure to liability would have on the appropriate

exercise of those functions. See Forrester v. White, 484 U.S. 219, 224, 108 S. Ct. 538

(1988); Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct. 496 (1985). Provision of

immunity is designed to prevent situations in which decision-makers act with

excessive caution or skew their decisions resulting in less than full commitment

to the goals and independent criteria that ought to guide their conduct because

of a fear of litigation or personal monetary liability. Tobin for Governor v. Illinois

State Bd. of Elections, 268 F.3d 517, 522 (7th Cir. 2001).

Absolute judicial immunity has been extended to officials in two circum-

stances. First, quasi-judicial immunity may be extended to those individuals

whose functions are comparable to those of judges – they exercise discretionary

judgment. Snyder v. Nolen, 380 F.3d 279, 286 (7th Cir. 2004). The second circum-


51

stance in which absolute judicial immunity has been extended is when their

functions have been undertaken pursuant to directives of a judicial officer. Id.

(citations omitted). This second form of immunity applies to those who have

administrative functions and operate under the directions of judicial officers.

In the present action, Defendants Harrell and Sudrovech work for JLAP, a

program established by the Indiana Supreme Court pursuant to the Court’s

authority to regulate the practice of law. The Court is created by the Indiana

Constitution. See Article 7, § 1. The Supreme Court has the power to appoint

personnel as necessary. See Article 7, § 2 – 3. The Supreme Court has original

jurisdiction for admission to the practice of law. See Article 7, § 4. This includes

such things as discipline and disbarment. Id. JLAP is charged with assisting

members of the bar in recovery, education and reducing potential harm to the

public, profession and legal system caused by attorneys who are impaired.

Admis. Disc. R. 31, § 2. Thus, JLAP is an arm of the Indiana Supreme Court

created to assist the Court in carrying out its obligations for oversight of those

admitted to practice law in Indiana.

Brown sought admission to practice law in Indiana. At the request of the

BLE, JLAP, through Harrell and Sudrovech, attempted to assess Brown’s mental

health as it related to his ability to practice law. They referred Brown to

Defendant Ross and subsequently to Defendant Bowman to assist them in

preparation of a report to the Board of Law Examiners. The BLE ultimately

decided that Brown did not possess the requisite character and fitness to be


52

admitted to the bar. Brown subsequently had a hearing before the BLE at which

he offered extensive evidence. The BLE, pursuant to its statutory duties, issued a

final report which the Indiana Supreme Court affirmed. The end result of all of

these proceedings was Brown’s denial for admission to practice law. Brown then

commenced this action against Harrell and Sudrovech.

As employees of JLAP, a program created by the Indiana Supreme Court

to assist it in the regulation of the practice of law, Harrell and Sudrovech under-

took functions “pursuant to directives of a judicial officer.” Snyder v. Nolen, 380

F.3d at 286. They acted in a quasi-judicial function when they performed the

review of Brown’s fitness at the request of the BLE. Under these circumstances,

Harrell and Sudrovech must be afforded absolute immunity from Brown’s

allegations. Without immunity under the circumstances, Harrell and Sudrovech,

as extensions of the authority of the Supreme Court, would be hampered in their

ability to carry out their obligations on behalf of the Court, obligations which al-

low the Court to be fully enabled in making decisions with respect to admission

of attorneys to practice law in Indiana.

Harrell and Sudrovech are entitled to absolute immunity and the charges

against them were properly dismissed.


53

CONCLUSION

This Court should affirm the dismissal of Brown’s complaint.

Respectfully submitted,

/s Mark W. Baeverstad /s Stephen M. Brandenburg Mark W. Baeverstad Sharon L. Stanzione Andrew L. Palmison Stephen M. Brandenburg ROTHBERG LOGAN & WARSCO LLP JOHNSON & BELL, LTD. 505 East Washington Boulevard 11051 Broadway, Suite B Fort Wayne, Indiana 46802 Crown Point, Indiana 30746410 Attorneys for Elizabeth Bowman, M.D. Attorneys for Stephen Ross, Psy.D. GREGORY F. ZOELLER By: s/ Frances Barrow Frances Barrow

Deputy Attorney General 302 West Washington Street Indianapolis, Indiana 46240 Attorneys for Terry Harrell and Tim Sudrovech


54

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a)(7) (WORD COUNT CERTIFICATE)

1. Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned counsel for the

Appellees certifies that this brief complies with the type-volume limitations of

Fed. R. App. P. 32(a)(7)(B) because this brief contains fewer than 14,000 words,

excluding the parts of the brief exempted by Fed R. App. P. 32(a)(7)(B)(iii).

2. This brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2007 in font size 12, Book Antiqua.

s/ Frances Barrow Deputy Attorney General

CERTIFICATE OF SERVICE I do hereby certify that a copy of the foregoing was served on the

following attorneys of record by first class mail, postage prepaid, on August 17,

2011:

Bryan J. Brown 827 Webster Street Fort Wayne, Indiana 46802

s/Frances Barrow

Frances Barrow Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL Indiana Government Center South, Fifth Floor 302 West Washington Street Indianapolis, Indiana 46204 Telephone: (317) 233-0555 Fax: (317) 232-7979 [email protected] GZ/793107


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