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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. SHARON L. STANZIONE STEPHEN M. BRANDENBURG JOHNSON & BELL, LTD. 11051 Broadway, Suite B Crown Point, Indiana 46307 Attorneys for Stephen Ross, Psy.D. GREGORY F. ZOELLER Attorney General of Indiana Atty. No. 1958-98 FRANCES BARROW Deputy Attorney General Atty. No. 15115-22 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

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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. Browns 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. Browns 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 Courts precedent in bar application challenges mirrors the present litigation and requires the dismissal of Browns claims ................................................................ 27

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D. Browns 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 applicants 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

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TABLE OF AUTHORITIES CASES Page(s)

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 Womens 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

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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. Dept. 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. Johns 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

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STATUTES

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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 ix

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Ind. Admis. Disc. R. 23................................................................................................................3, 5 Ind. Admis. Disc. R. 31..................................................................................................8, 47, 48, 50 JLAP Guidelines 5(c)........................................................................................................9, 10, 11

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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 Appellants Jurisdictional Statement is not complete and correct. The district court had jurisdiction based on 28 U.S.C. 1331 and 1343 because Bryan J. Browns 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 Browns 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,

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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 Browns

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 quasijudicial immunity. STATEMENT OF THE CASE A. Nature of the Case. Browns 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

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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 Browns free speech rights under the First and Fourteenth Amendments. [ECF No. 1.] Count 24 claimed that Rule 19 violates Browns 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 Browns due process rights under the Fourteenth Amendment. [Id.] Counts 4 through 10 were directed to all Defendants, and claimed they violated Browns 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 Browns 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, 3

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and Harrell, and claimed these Defendants conspired to violate Browns 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 Browns 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 Courts 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 Browns 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.]

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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 Browns 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 Browns 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 Browns claims against Defendants Shepard, Harrell, and Sudrovech were barred by the Eleventh

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.
1

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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 complaint, 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

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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 determine 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 applicants 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, 7

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6. Following the BLEs 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 persons expense. Id. at 9(f). Following the hearing, the BLE must make findings as to the applicants moral character. Id. at 9(h). The BLEs 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 JLACs 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). 8

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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. Browns 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 Browns 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 9

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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 BLEs concerns regarding Browns 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 Browns emotional expressiveness and mood variability suggests[ed] . . . the possibility of a subclinical 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. Rosss report, Brown expressed his concerns regarding the Dr. Ross examinations to both JLAP and the BLE. [ECF No. 1, pp. 10

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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. Rosss conclusion that Brown undergo a psychiatric evaluation for possible bipolar disorder. [Id., pp. 8-12.] Browns June 12 and 24, 2008 letters were copied to Sudrovech. [Id., 63.] Brown also explained to Sudrovech his belief that Dr. Rosss 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. Rosss recommendation, Sudrovech directed Brown to see a psychiatrist. [ECF No. 1, p. 12, 90 and 95; p. 16, 128.] In order to comply with JLAPs 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. 11

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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. Bowmans 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 Gods 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, Browns 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. 2122.] Dr. Bowman, however, did not reach a conclusion regarding Browns character and fitness under Rule 12 and did not make a recommendation with respect to Browns candidacy for admission to the Indiana Bar. [Id., p. 22.] Following the receipt of Dr. Bowmans report, Brown began

investigating Dr. Bowmans 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 12

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Protestant cleric of a decidedly liberal persuasion . . . who has been an Evangelical and Womens 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. Bowmans] 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, 13

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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) (2) (3) (4) (5) Any unpaid judgments; Disciplinary charges in Kansas; The conduct on which the disciplinary charges in Kansas is based; Failure to follow the Boards direction regarding psychological examination; and How these and other matters manifest the applicants 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 Womens Health Org. v. Brane, No., 1:90-cv-66 (N.D. Ind.); the full results of Browns psychological evaluations; correspondence between Brown and JLAP; and correspondence between Brown and Judge Nancy E. Boyer, Browns character and fitness evaluator. [Id., p. 4.] The BLE also had available to it

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Browns June 24, 2008 letter which, in 16 pages, expressed Browns 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. 78; 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. Bowmans 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. Bowmans 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 posthearing 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 Browns request to be permitted to sit for the Indiana Bar examination on 15

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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 Boards decision to the Indiana Supreme Court. [Id.; ECF No. 1, pp. 3-4.] On November 16, 2009, the Indiana Supreme Court denied Browns Petition for Review. [ECF 30-1.] On March 29, 2010, Browns 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 Browns 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. Browns 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 Courts previous precedent in bar application challenges mirrors the present litigation and requires the dismissal of Browns claims. Browns 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 16

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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 applicants 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 courts determination that it lacked subject matter jurisdiction based on the RookerFeldman 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 wellpleaded 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). 17

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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. Johns 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 Browns 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 RookerFeldman doctrine. De novo review also applies to the district courts dismissal under Federal Rule of Civil Procedure 12(b)(6) of Browns 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 courts ground for dismissing the suit. Marcus & Millichap Inv. Serv. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 312 (7th Cir. 2011).

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ARGUMENT I. Browns claims under Section 1983 were barred under the RookerFeldman doctrine. A. Rooker-Feldman survives to ensure that state-court losers do not get a second opportunity for review in the federal district courts.

Appellants lengthy argument explaining the alleged death of the RookerFeldman doctrine overlooks the basic fact that this doctrine still survives to prevent 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 othersbecause 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 Courts decision on said application. [Id., 17-26.] Through a review of Browns Complaint and the evidence submitted to the district court, it is clear that his claims are inextricably intertwined with the BLEs recommendation and Indiana Supreme Courts affirmation of that recommendation. Although Rooker-Feldman only applies in narrow

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circumstances, this case meets those requirements, and thus, the district courts dismissal of Browns 42 U.S.C. 1983 claims pursuant to the Rooker-Feldman doctrine was appropriate. The district court lacked jurisdiction to review Browns 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 statecourt losers challenging state-court judgments rendered before the district court proceedings commenced under what has come to be known as the RookerFeldman 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 Courts 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, 20

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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 Courts 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 statecourt 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, Browns Section 1983 claims fall into this narrow doctrine because he seeks a federal district court review of the judicial process

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used by the Indiana Supreme Court in rendering its decision on Browns application for admission to the Indiana State Bar. Brown focuses on the United States Supreme Courts 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 Skinners 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 courts decision in Skinner did not create any new law or authority as it was a 22

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reaffirmation of the finding in Feldman that the difference between seeking review in a federal district court of a state courts 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 plaintiffs 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 doctrines 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 Courts 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. Browns 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

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Ross, Harrell, and Sudrovech for conducting evaluations on behalf of JLAP are necessarily a part of the Indiana Supreme Courts final decision. The Indiana Supreme Court rules provided Brown with an avenue to appeal the BLEs recommendations, and Brown used the appeal to argue the defendants conspired to discriminate against him for his religious beliefs. The Indiana Supreme Court denied Browns appeal finding that his claim of discrimination was insufficient to warrant a reversal of the BLEs recommendation to deny Browns admission to the bar. As such Browns claims against Defendants must be considered inextricably intertwined with the Indiana Supreme Courts 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 Courts 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 24

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recommendations regarding an applicants fitness to practice law in the State of Indiana. Id. If the BLE determines that it has concerns about an applicants 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 Courts final decision on admission. Moreover, the records before the Court provide that Brown already brought forth his claims regarding JLAPs alleged discrimination to the Indiana Supreme Court in his appeal of the BLEs recommendations. Browns 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 25

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Case Number 94-S-00-0910-BL-00446. [ECF 52-2, pp. 21-34; Appellants 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 Browns concerns about the Board of Law Examiners recommendations and then affirmed the boards recommendations. [ECF No. 30-1.] Browns 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 Browns claims, it would necessarily require the court to review the Indiana Supreme Courts judicial process as set forth in the Indiana Supreme Courts 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, Browns 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 26

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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 BLEs recommendations, which were reviewed and accepted by the Indiana Supreme Court, make it clear that Browns 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 Browns 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 Courts precedent in bar application challenges mirrors the present litigation and requires the dismissal of Browns claims.

Although Brown speculates about Rooker-Feldmans 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

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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 Browns 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 Hales 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 Hales application, the Committee had determined 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 Committees denial. In his petition Hale asked the Illinois Supreme Court to review the constitutionality of the Committees decision based upon his First and Fourteenth Amendment concerns. Id. at 681. Shortly thereafter, the Illinois Supreme Court denied Hales request for a review. Id. Again like the present 28

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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 Courts 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 Hales claims stating: We therefore reject Hales argument that he had no prior opportunity to litigate his constitutional challenges to the Illinois Supreme Courts decision not to override the Committee' recommendation to deny his s 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 Courts admission decision does not change the fact that his discrimination claims were reviewed as a part of the Indiana Supreme Courts admission decision. Even more on point is this Courts 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

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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 30

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would be directing the Committee to reconsider plaintiff' case for s 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 Courts 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 Courts 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 Browns desired relief would require a review of the Indiana Supreme Courts decision and would, therefore, violate the RookerFeldman 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

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intertwined with the Indiana Supreme Courts 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. Browns 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 Courts 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 Courts decisions. However, his conclusory allegations do not remove this cases similarities to Feldman, as the end result will require a review of the Indiana Supreme Courts decision.

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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 Columbias 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 Courts review of an applicants qualifications for admission to the Indiana bar. Any review of this process would necessarily require a review of the Indiana

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Supreme Courts decision regarding that applicant. It is on this basis the RookerFeldman 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 applicants 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' denial in a judicial s proceeding of a particular plaintiff' application for admission to the state s 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' failure to raise his s 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 BLEs recommendations. To allow a review of these claims a second time would necessarily require a review of the Indiana Supreme Courts judicial process and final order, and thus violate the precedent set in Feldman. Browns attempt to plead around the doctrine does not change the essence of his claims.

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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 Browns complaint do not provide a single allegation showing that he was deprived of a right under the constitution. If this Court accepts Browns 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

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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. Browns 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. Dept. 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. Browns 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.

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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 37

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contains sufficient safeguards to protect the applicants 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 performing 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

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to individuals that are inexorably connected to the procedures or part and parcel of the adjudicatory function. Drs. Ross and Bowmans role with respect to Browns 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 courts 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 Browns 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 BLEs benefit and evaluating Browns attempts to meet his burden of establishing good moral character and fitness. In order to 39

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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 Browns 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

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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. Cooneys alleged conspiratorial acts also included allegations that the psychiatrist and child representative communicated with each other, that the conclusions in the psychiatrists report were false, and that the child representative may have given a draft copy of the 41

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report to Cooneys 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 courts 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 courts direction. [internal citations omitted.] They are arms of the court, much like special masters, and deserve protection from harassment by disappointed litigants, just as judges 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 childs representative, who although bound to consult the child is not bound by the childs wishes but rather by the childs 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 Courts 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 42

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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 applicants 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

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deemed appropriate to the BLE for its consideration, he took full advantage of such opportunity. Following the BLEs 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 Browns 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 panels 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 Browns repeated and extensive efforts to strike, dismiss, discredit, and refute Drs. Bowman and Rosss findings. His barrage of complaints related to the JLAPs requested evaluations began shortly after Dr. Rosss evaluation. For example, Brown corresponded, on June 12 and June 24, 2008, with Dr. Ross and JLAP calling into question Dr. Rosss use of the MMPI-2 and the nature of the questions Dr. Ross asked of Brown. He provided Dr. Ross 44

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studies which Brown believed refuted the validity of the MMPI-2. He also refuted Dr. Rosss 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. Rosss methodology, analysis and conclusions. In addition to Browns efforts to impeach the validity of Dr. Rosss findings, Brown raised constitutional concerns with JLAP and BLE. Following Dr. Rosss report and prior to Browns 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 Browns efforts to contradict and refute Dr. Rosss 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. Rosss 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. Bowmans 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. Browns Complaint 45

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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. Bowmans associations and

publications. Browns Complaint details those aspects of Dr. Bowmans 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 Plaintiffs application. As noted in Browns 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 Bowmans reports and all of Browns correspondence challenging the validity of the reports themselves, his concerns regarding the evaluation process, and his constitutional concerns. At the time of Browns June 1, 2009 hearing, BLE had compiled and considered a broad range of Browns moral, legal, procedural, constitutional, and substantive concerns. Despite all of the written material the BLE had regarding Browns 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 46

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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 applicants 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 courts 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,

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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 Committees work. This Rule provides Harrell and Sudrovech immunity from Browns suit unless he can show they acted in bad faith. Browns 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 Browns complaint are sufficient to show bad faith on the part of any Defendants, including Harrell and Sudrovech. Paragraphs 12 and 13 simply identify Harrells and Sudrovechs positions with JLAP. Paragraph 50 alleges Browns 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, 48

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invidious discriminatory intent and animus. Paragraph 105 complained about JLAPs policy of briefing providers before having them talk to applicants. Paragraph 151 alleged that all Defendants had a duty to recall Dr. Bowmans 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. Bowmans 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. Bowmans 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. Browns 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 Metzs failure to preserve his handwritten notes is not, in and of itself, evidence that his investigation was conducted in bad faith, or that Bodines 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 49

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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 circumstances. 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 circum50

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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 Courts 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 Browns 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 51

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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 Browns 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 undertook 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 Browns fitness at the request of the BLE. Under these circumstances, Harrell and Sudrovech must be afforded absolute immunity from Browns 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 allow 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.

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CONCLUSION This Court should affirm the dismissal of Browns complaint. Respectfully submitted, /s Mark W. Baeverstad Mark W. Baeverstad Andrew L. Palmison ROTHBERG LOGAN & WARSCO LLP 505 East Washington Boulevard Fort Wayne, Indiana 46802 /s Stephen M. Brandenburg Sharon L. Stanzione Stephen M. Brandenburg JOHNSON & BELL, LTD. 11051 Broadway, Suite B Crown Point, Indiana 30746410

Attorneys for Elizabeth Bowman, M.D. Attorneys for Stephen Ross, Psy.D. GREGORY F. ZOELLER s/ Frances Barrow Frances Barrow Deputy Attorney General 302 West Washington Street Indianapolis, Indiana 46240 Attorneys for Terry Harrell and Tim Sudrovech

By:

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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 Frances.Barrow@atg.in.gov GZ/793107

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