                             In the
    United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-1716
MATTHEW F. HALE,
                                               Plaintiff-Appellant,
                                 v.

COMMITTEE ON CHARACTER AND FITNESS FOR
THE STATE OF ILLINOIS, et al.,

                                            Defendants-Appellees.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
             No. 01 C 5065—John W. Darrah, Judge.
                          ____________
     ARGUED OCTOBER 30, 2002—DECIDED JULY 14, 2003
                     ____________


 Before FLAUM, Chief Judge, and BAUER and DIANE P.
WOOD, Circuit Judges.
   DIANE P. WOOD, Circuit Judge. Matthew Hale is a pub-
lic advocate of white supremacy and the leader of an
organization (formerly called the World Church of the
Creator1) dedicated to racism and anti-Semitism. He comes


1
 In TE-TA-MA Truth Foundation-Family of URI, Inc. v. World
Church of the Creator, 297 F.3d 662 (7th Cir. 2002), we ordered
Hale to rename the organization, formerly known as the World
Church of the Creator, for infringing on another group’s trade-
                                                  (continued...)
2                                                     No. 02-1716

before us today because he seeks to be admitted to prac-
tice law in the state of Illinois. The Illinois State Bar
requires applicants not only to demonstrate proficiency
in the law on a written bar examination, but also to pass
a character and fitness exam. Hale succeeded in satisfy-
ing the first of these hurdles, but not the second. His de-
feat came at the hands of the Committee on Character
and Fitness (Committee) appointed by the Illinois Su-
preme Court, which found him unfit to practice law. Hale
challenged that determination both before the Illinois
Supreme Court and then the Supreme Court of the United
States, claiming among other things that the Committee
had violated his First Amendment rights by acting solely
on the basis of his viewpoints. Unsuccessful in that effort,
he then turned to the U.S. District Court for the Northern
District of Illinois with a fresh lawsuit again raising his
First Amendment claim, among other constitutional chal-
lenges. This time he lost because the district court con-
cluded, in part, that the Rooker-Feldman doctrine did not
permit it to review the earlier decision of the Illinois
Supreme Court. See Rooker v. Fidelity Trust Co., 263 U.S.
413, 415-16 (1923); District of Columbia Ct. of App. v.
Feldman, 460 U.S. 462, 486 (1983). Bearing in mind the
unique procedures that the Illinois Supreme Court uses
for bar admission decisions (as opposed to its review of
litigated cases), we find that Hale has had his day in the


1
   (...continued)
mark. Hale refused to comply. Earlier this year, Hale was
arrested for conspiring to kill the district court judge presiding
in the trademark infringement case, and is currently being held
without bond. Jodi Wilgoren, White Supremacist is Held in
Ordering Judge’s Death, N.Y. Times, Jan. 9, 2003, at A1. In
light of these events, it is difficult to imagine that the Committee
would vote positively today in favor of Hale’s character and
fitness, though that is not the strict issue before us today.
No. 02-1716                                               3

state courts, and that the district court correctly dis-
missed his suit.


                             I
  Hale’s avowed mission in life is to bring about the
hegemony of the white race, the legal abolition of equal
protection, and the deportation of non-white Americans
by non-violent means. With these goals in mind, Hale
attended Southern Illinois University School of Law,
graduating with a J.D. and passing the Illinois bar exam
in 1998. In his application for admission to the Illinois
State Bar, Hale disclosed his active role in promoting
racism and anti-Semitism.
   Hale’s application was referred to a single member of
the Committee on Character and Fitness of the Third
Judicial District of the State of Illinois (Third District
Committee), pursuant to Rule 5.1(a) of the Rules of Pro-
cedure of the Board of Admissions and the Committee
on Character and Fitness (the Rules of Procedure). This
member advised the Board that he was not prepared to
recommend that Hale be admitted to practice law in
Illinois.
  In accordance with Rule 5.2(a) of the Rules of Proce-
dure, the Chairperson of the Third District Committee
assigned Hale’s application to a three-person “Inquiry
Panel” for further review. On December 18, 1998, in a 2-1
written decision, the Inquiry Panel recommended that the
Committee refuse to approve Hale’s admission to practice
law in Illinois. The Committee rejected the argument
that Hale was merely an applicant with distasteful views
that were nonetheless protected under the First Amend-
ment. Instead, it said, Hale’s active commitment to big-
otry under “any civilized standards of decency” demon-
strated a “gross deficiency in moral character, particularly
for lawyers who have a special responsibility to uphold
4                                              No. 02-1716

the rule of law for all persons.” In short, the Committee
believed that Hale was likely to commit acts of various
kinds in the future that were inconsistent with member-
ship in the bar.
  The Inquiry Panel’s recommendation that Hale not be
certified resulted in the automatic creation by the Commit-
tee of a five-member “Hearing Panel” to determine with
finality whether Hale should be certified for admission
to practice law. The Panel held a hearing on April 10,
1999, at which multiple witnesses testified that Hale
possessed the requisite character and fitness to practice
law. Hale himself testified before the Panel, and asserted
that he was prepared to comply with the Rules of Pro-
fessional Conduct. He also indicated, however, that he
believed that the Rules applied only while he worked as
an attorney, and not while he practiced his religion.
  On June 30, 1999, the Hearing Panel denied Hale’s
application. It began by drawing a distinction between
Hale’s First Amendment right to express ideas and his
right to become a member of the Illinois bar, commenting
that the case was “not about Mr. Hale’s First Amendment
rights. The issue here is whether Mr. Hale possesses
the requisite character and fitness for admission for the
practice of law.” The Hearing Panel based its decision that
Hale had not satisfied his burden of proving that he
possessed the requisite character and fitness on several
findings. First, the Hearing Panel believed that Hale’s
outspoken intent to continue discriminating in his pri-
vate life, especially taken together with negative character
evidence such as academic probation, an order of protec-
tion, and a list of arrests (not convictions), was inconsis-
tent with the Rules of Professional Conduct. The Hearing
Panel was also concerned about Hale’s refusal to repudiate
a 1995 letter he wrote in response to published commen-
tary in support of affirmative action, in which Hale re-
ferred to the female author’s “rape at the hands of a nigger
No. 02-1716                                                 5

beast.” The letter, the Hearing Panel found, was insulting,
inappropriate, and showed a “monumental lack of sound
judgment” that would put Hale “on a collision course
with the Rules of Professional Conduct.” Finally, the Hear-
ing Panel concluded that Hale was not candid and open
with it during the hearing.
  Pursuant to Supreme Court Rule 708, Hale petitioned
the Illinois Supreme Court to reconsider the Committee’s
denial. Hale asked the Illinois Supreme Court to review
the constitutionality of the Committee’s decision, in addi-
tion to challenging the constitutionality of the disciplinary
rule against discrimination (Rule 8.4(a)(5) of the Illinois
Rules of Professional Conduct). Hale’s complaint squarely
raised the claim that the Committee had violated the
First and Fourteenth Amendments when it arbitrarily
denied his bar application, because it based its decision
not on any conduct in which Hale may have engaged, but
instead solely on its speculation about his likely future
conduct and its distaste for his political and religious
beliefs. The Committee filed a response in opposition to
Hale’s petition for review, as it was required to do under
Rule 708. It asked the Illinois Supreme Court to sustain
its decision and to deny certification of Hale’s bar ap-
plication. On November 12, 1999, the Illinois Supreme
Court denied Hale’s petition for review—an action that had
the effect of leaving the Committee’s decision in place.
Justice Heiple dissented from the court’s refusal to con-
duct plenary proceedings in the case.
  Hale then filed a petition for a writ of certiorari with the
Supreme Court of the United States, in which he presented
his constitutional challenges to the Illinois Supreme
Court’s decision. The Supreme Court of the United States
denied his petition without comment. Hale v. Committee
on Character and Fitness, 530 U.S. 1261 (2000).
  Frustrated with what he perceived to be a total lack of
access to a judicial body that would give him a full hearing
6                                             No. 02-1716

on his First Amendment claims, Hale then turned to the
district court and filed the present case. His complaint
named as defendants the Committee, the Board of Ad-
missions to the Bar (Board), the Third District Com-
mittee, members of the Hearing Panel in their individual
capacity, and the Illinois Supreme Court.
  Counts I to IV of the complaint assert various claims
under 42 U.S.C. § 1983, including “as-applied” violations
of his First Amendment rights of freedom of expression
and association and his Fourteenth Amendment rights to
due process and equal protection. Counts V and VI seek
a declaration that Rule 8.4(a)(5) of the Illinois Rules of
Professional Conduct is facially unconstitutional as a
violation of the First Amendment right of freedom of
association and freedom of expression. Count VII seeks
a declaration that Illinois Supreme Court Rule 708 and
Rule 4 of the Committee’s Rules of Procedure violate
the Fourteenth Amendment by failing to provide bar
applicants with a forum in which their constitutional
challenges to the Committee’s actions can be adjudicated.
For each of the seven counts, Hale seeks declaratory
and injunctive relief. The district court dismissed the en-
tire lawsuit for lack of subject matter jurisdiction and on
grounds of res judicata. This appeal followed.


                            II
  The central question we must decide is a procedural
one: did the proceedings that culminated in the Illinois
Supreme Court’s decision to allow the Committee’s rejec-
tion of Hale’s application to stand qualify as “judicial
proceedings,” such that the doctrine that forbids lower
federal courts to sit in review of state court decisions or
the preclusion doctrines should apply? If the answer to
that is yes, we are finished, because the Supreme Court
of the United States has had an opportunity to consider
No. 02-1716                                               7

whether the Illinois court’s decision violated federal law,
and it chose not to hear the case. If the answer to that
question is no, however, then this case would have to
be remanded to the district court for further proceedings
on the merits of his claims.
  Ordinarily, the least of any court’s problems in apply-
ing the Rooker-Feldman doctrine is whether there was
a judicial proceeding at all in the state courts. Instead,
courts struggle with the distinction between a Rooker-
Feldman problem and a res judicata problem, see, e.g., Leaf
v. Supreme Court of Wisconsin, 979 F.2d 589, 600 (7th Cir.
1992), or with the question whether the state court’s
judgment is sufficiently distinct from the issue posed
in federal court that independent consideration is per-
missible, or if on the other hand the two proceedings are
“inextricably intertwined.” See, e.g., Long v. Shorebank
Dev. Corp., 182 F.3d 548, 554-60 (7th Cir. 1999). On the
other hand, the role of state courts in bar admissions does
not present a new Rooker-Feldman issue. The Feldman
case itself raised the question whether the U.S. District
Court for the District of Columbia had jurisdiction to re-
view decisions of the D.C. Court of Appeals in bar admis-
sion matters. The Court first decided that the proceed-
ings before the D.C. Court of Appeals (the equivalent for
this purpose to the Illinois Supreme Court in our case) in
connection with the two petitions for waiver from a rule
governing admission to the bar were judicial in nature,
not legislative, ministerial, or administrative. 460 U.S. at
479. The fact that the form those proceedings took was
different from that of normal judicial proceedings was
immaterial. It followed that the federal court had no
jurisdiction to review the D.C. Court of Appeals’ decision
denying the petitions for waiver. The only part of the
case that was cognizable in the district court was the
petitioners’ general attack on the constitutionality of the
rule requiring applicants for the bar to have graduated
from an accredited law school.
8                                              No. 02-1716

   More recently, this court held that an unsuccessful
applicant to the Illinois bar could not challenge the Com-
mittee on Character and Fitness’s right to demand certain
medical records in an independent federal court action,
because her case essentially attacked the order of the
Illinois Supreme Court denying her petition for review.
See Edwards v. Illinois Bd. of Admissions to the Bar, 261
F.3d 723, 728-31 (7th Cir. 2001). Applying the Rooker-
Feldman analysis, the court asked whether petitioner
Edwards’s injury resulted from the state court judgment
declining to certify her for admission to the Illinois bar,
and it concluded that it did. Id. at 730. The remainder of
her case was so inextricably intertwined with the state
court’s judgment that it too fell under the prohibition of
the Rooker-Feldman doctrine.
  Hale acknowledges that Feldman and Edwards both point
in the direction of no jurisdiction, but he urges us to take
a more careful look at the actual procedure followed by
the Illinois Supreme Court and to accept the statements
about Illinois procedure made in the dissenting opinion
of Justice Heiple in Hale’s own case. With respect to the
former, we believe that there is nothing in the procedures
used in Hale’s case that would justify a result different
from the one reached in Feldman and Edwards. With re-
spect to the latter, it is enough to say that the views
expressed by dissenting judges or justices are not binding.
  The path Hale’s case, and all others like it (including
Edwards’s), took to the Illinois Supreme Court, began
after the Committee had finished all of its proceedings—
that is to say, after the Hearing Panel decided to deny
Hale’s application once and for all. At that point, the
applicant must turn to Rule 708(e) of the Illinois Su-
preme Court Rules, which reads as follows:
      A law student registrant or applicant who has
    availed himself or herself of his or her full hearing
No. 02-1716                                                9

    rights before the Committee on Character and Fitness
    and who deems himself or herself aggrieved by the
    determination of the committee may, on notice to the
    committee by service upon the Director of Admin-
    istration for the Board of Admissions in Springfield,
    petition the Supreme Court for review within 35 days
    after service of the Committee’s decision upon the law
    student registrant or applicant, and, unless extended
    for good cause shown, the Committee shall have 28
    days to respond. The director shall file the record of
    the hearing with the Supreme Court at the time that
    the response of the Committee is filed.
Once the Rule 708 petition is before the Illinois Supreme
Court, the court usually takes one of two actions: denial
or plenary review. In the majority of cases, not surpris-
ingly, the court denies the petition for review. Many
years ago in In re Frank, 127 N.E. 640 (Ill. 1920), it ex-
plained that it will review the case “only where there
has been an arbitrary refusal to hear and consider evi-
dence which may be presented,” or if there was a “manifest
abuse of discretion.” See also In re Latimer, 143 N.E.2d 20,
21 (Ill. 1957). More recently, the court clarified the point
that the Committee’s recommendation is “advisory, and
neither binds this court nor limits its authority to take
action.” In re Loss, 518 N.E.2d 981, 983 (Ill. 1987).
  One of Hale’s concerns is that this process does not
allow him to present before the court serious constitu-
tional challenges to the Committee’s decision, such as his
First Amendment claim. The decision in Latimer, however,
does not support such a narrow interpretation of the
court’s powers. There, the court said that “[s]ince applicant
contends that certain of his constitutional rights were
violated, we have set the petition down for argument and
opinion.” 143 N.E.2d at 22. See also In re Anastaplo, 121
N.E.2d 826, 828 (Ill. 1954) (Illinois Supreme Court re-
10                                               No. 02-1716

solves petitioner’s constitutional challenge to the Com-
mittee’s decision to reject his bar application).
  But, Hale argues, the mere fact that the court may
hear and consider a constitutional challenge does not
mean that it has done so in every case. He analogizes
the Illinois Supreme Court’s role in Rule 708 petitions to
its role in ordinary applications under its Rule 315 peti-
tions for leave to appeal from the appellate court, or to
the Supreme Court of the United States’s role in ruling
on petitions for a writ of certiorari. In both the Rule 315
situation and the certiorari situation, a decision by the
highest court not to take a case carries with it no implica-
tion at all about the court’s view on the merits. It is simply
a decision to refrain from accepting the case for review. If
that were all that the Illinois Supreme Court did in Rule
708 petitions, Hale would have a much stronger case.
  Justice Heiple’s dissenting opinion suggests that the
court was playing exactly this kind of passive role, but
as we said before, a dissent does not reflect the state of
the law. The court itself has said that the final decision
concerning the admission of an applicant to the bar rests
with itself. In re Loss, supra, 518 N.E.2d at 983. Moreover,
the fact that the court may decide a Rule 708 appeals on
a paper record, as it did in Hale’s case, does not mean
that the court failed to decide the case on the merits.
There is no rule that requires full briefing and oral ar-
gument in every case, and we note that the federal courts
of appeals decide countless cases every year on paper
records, under the authority conferred by FED. R. APP. P.
34. Some of those decisions are brief orders indicat-
ing that a lower court’s decision, or an administrative
agency’s decision, is affirmed. That is essentially what
the Illinois Supreme Court does in its response to Rule
708 petitions, unless it thinks that expanded proceedings
are necessary.
No. 02-1716                                                11

  We therefore reject Hale’s argument that he had no
prior opportunity to litigate his constitutional challenges
to the Illinois Supreme Court’s decision not to override
the Committee’s recommendation to deny his admission to
the bar. He did, and he was unsuccessful. Implicit in this
conclusion is the fact that the Committee itself was not
the final actor, and thus any limitations on its powers
that were not shared by the Illinois Supreme Court are
irrelevant. Finally, Hale presents nothing analogous to
the facial challenge to a particular court rule that the
Supreme Court found was cognizable in Feldman. His
only complaint is about the evaluation of his character
and fitness to practice law in the State of Illinois. Although
he asserts that the Illinois rule prohibiting discrimina-
tion should not have applied to his personal life, this is
an “as applied” challenge that merely restates his prin-
cipal argument. His challenge to the Illinois Supreme
Court’s decision not to admit him to the bar has been
adjudicated, and he must take any further complaints
he has about the outcome of that adjudication to the
state courts of Illinois.
  The judgment of the district court dismissing Hale’s
action is hereby AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-14-03
