Johnson Seeks  Reconsideration of Her  Motion for a Jury Trial  for the  Board of Bar Disciplinary Hearing

COMMONWEALTH OF MASSACHUSETTS BOARD OF BAR OVERSEERS ______________________ BAR COUNSEL                                                            B.B.O. File No.  C2-01-0091         Petitioner                                                                B.B.O. File No.  C2-01-0090                                                                                           B.B.O. File No.  C2-00-0078 v.                                                                                       B.B.O. File No.  C2-98-0580 BARBARA C. JOHNSON         Respondent ______________________

RESPONDENT’S MOTION TO RECONSIDER MOTION FOR TRIAL BY JURY Now comes Respondent Barbara C. Johnson ["Johnson"] and moves for reconsideration of her motion for a jury trial. As grounds, Respondent states that article XV of the Massachusetts Declaration of Rights, Part the First, Constitution of the Commonwealth of Massachusetts, is the source of Respondent’s right to a jury trial.  Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.  In Dalis v. Buyer Advertising, Inc., 418 Mass. 220 (1994)\1/, the Court exposited on the meaning and significance of article XV in our society. "Article 15 ‘preserves the "common law trial by jury in its indispensable characteristics as established and known at the time the Constitution was adopted" in 1780.’" Id., at 222 (internal cite omitted). FN1 Johnson, Respondent here, wrote the amicus curiae brief in the Dalis case. The language of art. 15 sweeps broadly: "In all controversies concerning property, and in all suits between two or more persons, ... the parties have a right to a trial by jury ..." (emphasis added). The exception is narrowly defined: "[E]xcept in cases in which it has heretofore been otherways used and practised." Thus, according to the language of art. 15, the "sacred" method for resolving all manner of cases and controversies was trial by jury unless the case was one in which a court of equity in either England or Massachusetts would have exercised jurisdiction in 1780.  Dalis, 418 Mass. at 222. Dalis was a case in which the plaintiff complained of gender discrimination in her employment and sought equal rights, and where the court held that despite the absence of specific statutory language, she was entitled to a jury trial on her State claims. The Court determined (1) that the nature of Dalis’s claim was not analogous to any case which was traditionally heard in a court of equity, id. at 223, and (2) that the sex discrimination claim was analogous to common law actions sounding in both tort and contract. Id., at 223.  Since Dalis, the court has determined that jury trials are also available in other contexts: "Actions for declaratory judgment can, of course, be heard by a jury if there are triable issues of fact and the judge determines that a jury traditionally would have determined those issues." New Bedford Housing Authority v. Olan, 50 Mass.App.Ct. 188, 197 (2000). The significance of the New Bedford decision was that the facts of even equitable claims could be given to a jury. And after Dalis and New Bedford, the Court in Rosati v. Boston Pipe Covering, Inc., 434 Mass. 349, 350 (2001) further echoed the reasoning in those decisions.  In the instant case, there is a controversy over whether Respondent has a right to hold onto her license, which is her property and for which she pays an annual licensing fee, or must be fined for allegedly improperly using it and the rights under it. This case is a suit between two persons – a Bar Counsel named Daniel Crane who may or may not be operating properly within the scope of his authority – and Johnson, whom Crane has named as a Respondent. Crane is not an elected official, he is one named in a manner not commonly known to the common man and by a class of men not commonly known to the common man. When Crane was appointed Bar Counsel, he was lauded in the Lawyers Weekly as having won a place of honor in the legal community.  The question then becomes, What is Crane’s authority over Johnson? Is Crane working for the common good? Or is he working for the private interests of the class of men who appointed him? And is this class of men some of those who are against Johnson’s public campaign to reform the courts and abolish judicial and quasijudicial immunity? Johnson contends, he is! And by so doing, Crane is violating article VII of the Massachusetts Declaration of Rights, and attempting to restrict what amounts to core political speech by Johnson. First Amendment. U.S. Constitution.  Article VII. Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men: Therefore the people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it. Art. VII, Massachusetts Declaration of Rights, Part the First, Constitution of the Commonwealth of Massachusetts.See also Sahli v. Bull HN Information Systems, Inc., 437 Mass. 696, 701 (2002), and Bain v. Springfield, 424 Mass. 758, 766-767 (1997). So the instant case "clearly sets forth a controversy concerning property" and under Dalis, at 223, Johnson is clearly entitled to a jury trial. And in it, Respondent has sought $50,000 for legal fees from the Supreme Judicial Court, the authority under which the Board and Bar Counsel operate.\2/  FN2 Because of the denial of that motion, Respondent has not had the funds to retain competent counsel and has had to go forward pro se.  Similarly, because of the frivolous nature of the Petition for Discipline, Respondent should be entitled to money damages for the horrendous waste of Respondent’s time the Petition has caused.  Article XI, Declaration of Rights, Massachusetts Constitution. The Court in Dalis said they next had to "examine whether the plaintiff's claim [was] analogous, in either subject matter or remedy sought, to cases within the court's equity jurisdiction, as it existed at the time of the adoption of the Constitution." Dalis, at 223.  Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.  Clear again is that the Bar shall be declaring their judgment as to whether Johnson as acted improperly in her capacity as a lawyer. But before they reach that decision, there are "triable issues of fact," which, according to New Bedford, supra, makes a jury appropriate.  An example of one such fact is whether Robyn Gerry-Sylvia, the mother of James Linnehan’s child and a public figure,\3/ suffered a loss of privacy or some other injury by Johnson publishing Robyn’s name on her website, falseallegations.com. (Johnson is an Internet publisher.)  FN3 Robyn ran twice recently for public office in the Town of Fairhaven.  She brought to the Bristol County District Attorney charges against two governmental officials, one a school committee woman.  Those charges were dropped, but Robyn and the circumstances of her charges had become a local cause celêbre.  On the day of her first loss of election, she complained of Johnson to the Bar.  After her second loss, this past April, 2003, she sold her house and moved out of Fairhaven. Another example is multifaceted: the many facts that are subsumed in the words "fee dispute."  A third example of a triable fact is whether the second complainant had given Johnson permission to upload her family plaint on Johnson’s website.  And a fourth example of a triable fact is whether there was a clear and convincing order with which Johnson had to comply.  A fifth example of a triable fact is whether Johnson was jailed because of the alleged noncompliance with any order, clear or unequivocal or not, of which she had been found in contempt.\4/ FN4 Many other triable facts do exist, of course, according to Johnson, but listing of them here would be overkill Next, licensing for lawyers is a relatively new concept. So is the concept of the Board of Bar as a regulatory agency. Neither were around in 1780. But lawyering as a profession certainly was, and the relationships were contractual, whether by written contract or under a theory of quantum meruit, between mentor and intern and between client and attorney. So this is not the type of case in which someone would lose his or her right to a jury.  In the totality of the circumstances surrounding this case, the suit is a "controvers[y] concerning property," and it is a suit "between two or more persons," there are triable facts that Johnson is entitled to bring to a jury, and the nature of the action was not around in 1780, which bringing the action plainly within art. 15. Rosati, 434 Mass. at 350.  Nothing about the claim makes it one that traditionally came within the court's equity jurisdiction. Rather, the claim is essentially an action in law sounding in contract.  "[T]he ordinary action of contract is a controversy concerning property, in which trial by jury was had as of right at the time of the adoption of the Constitution. Rosati, 434 Mass. at 351, quoting" Farnham v. Lenox Motor Car Co., 229 Mass. 478, 480 (1918).  The remedies sought in the present case (lost wages and benefits, multiple damages, costs, and attorney's fees) are remedies at law, not in equity. The fact that G.L. c. 149, § 27, also allows a plaintiff to seek injunctive relief in addition to damages, (FN4) thus mixing a traditionally equitable remedy with a traditionally legal remedy, "may not compromise [the] constitutional right to a trial by jury." Dalis v. Buyer Advertising, Inc., supra at 227, 636 N.E.2d 212, citing Stockbridge v. Mixer, 215 Mass. 415, 418 (1913).  Rosati, 434 Mass. at 351. So in this case, which is arguably one mixed with issues at law and in equity, Johnson is entitled to a jury trial. In both its legal theories and the nature of the remedies sought, the present action "belongs to the class of cases, therefore, where under the Constitution trial by jury must be held sacred and jealously guarded against every encroachment."  Rosati, 434 Mass. at 351 (internal cite omitted). Alternatively, Johnson argues, that the instant suit is quasicriminal, in the nature of a criminal suit, in that it is punitive in purpose. Frizado v. Frizado, 420 Mass. 592, 594-595 (1995). Where the purpose is punitive, Johnson is entitled to a jury under art. XII\5/ of the Declaration of Rights. FN5 Article XII. No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his counsel, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.  Declaration of Rights, Part the First, Constitution of the Commonwealth of Massachusetts.  The need for jurors is clear: "Jurors bring to a case their common sense and community values; their 'very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye.' "  New Bedford Housing, 50 Mass.App.Ct. at 202, quoting Dalis, supra at 222, quoting from Parklane Hosiery Co. v. Shore, 439 U.S. 322, 355, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) (Rehnquist, J., dissenting). Further underpinning of Respondent’s position is found in such other constitutional articles as articles CVI, V, X, XVI, and XXIX\6/ and the Fourteenth Amendment to the United States Constitution\7/    FN6  Article CVI.  All people are born free and equal and have certain natural, essential and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness. Equality under the law shall not be denied or abridged because of sex, race, color, creed or national origin. Article V. All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.  Article X. Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary: but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent. And whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. [See Amendments, Arts. XXXIX, XLIII, XLVII, XLVIII, The Initiative, II, sec. 2, XLIX, L, LI and XCVII.]  Article XXIX. It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well; and that they should have honorable salaries ascertained and established by standing laws. [See Amendments, Arts. XLVIII, The Initiative, II, sec. 2, and The Referendum, III, sec. 2, LXVIII and XCVIII.]    FN7 Amendment XIV.   Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. WHEREFORE, Respondent requests that this motion for reconsideration for a jury trial be allowed in the interest of fairness, of justice. Bar Counsel will suffer neither prejudice nor harm, particularly where Bar Counsel, theoretically at least, is not supposed to be adversarial but interested only in justice. Justice, of course, mandates that any procedure be fundamentally fair.

Respectfully submitted, 20 July 2003                               Barbara C. Johnson                                                  Barbara C. Johnson, Esq.. Pro Se                                                  6 Appletree Lane                                                   Andover, MA 01810-4102                                                   978-474-0833    CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that on 22 July 2003, I served in hand a true and accurate copy of the within pleading both to the BBO (FAX: 617-357-1872) and to Assistant Bar Counsel Susan Strauss Weisberg (FAX: 617-357-1866), Office of Bar Counsel, 75 Federal St., Boston, MA 02110. 22 July 2003                               Barbara C. Johnson                                                   Barbara C. Johnson, Esq.