Continued: The Bar War Against Barb  Barb is Suing the  BBO [Board of Bar Overseers] in State and Federal Courts: Here is the  Motion for Preliminary Injunction, filed in  State and Federal courts. SJC Judge Spina Dismissed the State Motion Within One Day.  He did not wait for an Answer or a Motion to Dismiss from the BBO. He simply dismissed it immediately. He should be impeached. His rubber-stamping unlawful activity by the BBO and OBC is a wonderful reason to campaign for the election of judges. In federal court, Judge Young was going to put the injunction on "ice" because of the "abstention" issue. I preferred dismissal of the injunction over it being frozen on ice, so that the abstention issue would evaporate. The federal Complaint itself is still alive and well. Only time will tell.     BE SURE TO SEE THE COMING VERIFIED COMPLAINT FILED IN FEDERAL COMPLAINTS TWO DAYS LATER.  IT IS ALMOST THE SAME AS THIS ONE EXCEPT FOR THE JURISDICTIONAL STATEMENT AND FOR THE COUNTS RAISING FEDERAL QUESTIONS. In other words, it is longer!!


 
 
 

UNITED STATES DISTRICT COURT FOR THE  EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: 03-CV-12314-WGY --------------------------------------------------------------                                 Barbara C. Johnson, Esq.                                                   Plaintiff  v.  Board of Bar Overseers of Massachusetts M. Ellen Carpenter, Esq., in her individual        and professional capacities, including her       capacity as Chair of the Board of Bar  Overseers of Massachusetts Herbert P. Phillips, Esq., in his individual        and professional capacities, Office of Bar Counsel Daniel Crane, Esq., in his individual        and professional capacities, Commonwealth of Massachusetts,                                                    Defendants  ------------------------------------------------------------- EMERGENCY MOTION FOR PRELIMINARY INJUNCTION  TO STAY PROCEEDINGS,  INCLUDING TRIAL, OF THE BBO/OBC DISCIPLINARY ACTIONS (with Affidavit by Plaintiff below signature) Now comes Plaintiff Barbara C. Johnson ["Johnson"] and moves this Honorable Court for a preliminary injunction in accordance with Prayer #2 of the Complaint for the reasons noted below.  Should Johnson get a jury trial, there is a great likelihood that she will succeed clearing herself on the merits. Should Johnson be tried by the quasicourt, the Board of Bar Overseers ["BBO"], there is absolutely no likelihood of success on the merits, for Johnson is not merely an adversarial respondent, she is an outspoken publisher and political opponent. The harm to her professionally and economically will be irreparable. In fact, given the conduct of the BBO thus far in the process, it is reasonable to conclude that the plaque memorializing her professional demise has already been crafted.  And there is no adequate remedy at law, the Supreme Judicial Court having immunized the BBO, its Board, and its staff from suit under section 9 of SJC Rule 4:01. Further, the public interest in Johnson retaining her license is great and far exceeds the wrongs alleged by Bar Counsel that preliminary injunctive relief is warranted. The conduct of the BBO/OBC has been unlawful, malicious, arbitrary, and in bad faith, making it imperative that Johnson’s right to a jury trial on the Bar Counsel’s Petition for Discipline be declared forthwith.  BACKGROUND: UNDERLYING CASE Johnson became the target of the Office of the Bar Counsel ["OBC"], the prosecutorial arm of the Board of Bar Overseers ["BBO"] via a Petition for Discipline served on her in March of this year, 2003. She is being singled out because she is a lawyer exercising her First Amendment rights on her website, falseallegations.com,\FN1/ , and in her pleadings, whether on or off her website.\FN2/ She has been exercising her First Amendment rights to free speech and freedom of the press. They are her fundamental personal rights and liberties protected by due process clause of Fourteenth Amendment from impairment by States. So says Griswold v. Connecticut, 381 U.S. (Conn.) 479, 487 (1965), Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925); Snyder v. Com. of Massachusetts, 291 U.S. 97, 105 (1934).   FN1  Although Johnson also has a website at barbforgovernor.com, on which she advocates the election of judges, the OBC/BBO has/have not brought that website explicitly into the fray. FN2 Only the matter in Count I had been on Johnson’s website prior to the OBC’s so-called investigation. When it appeared the OBC would bring actions under questionable circumstances, Johnson uploaded the information complained-of in Counts II and III. In total, the OBC is complaining of 32 files on the website.   Crane’s accusations against Johnson are not only vague, they are ludicrous. In Count I,\FN3/ Crane alleges that Johnson published confidential material on her website and thereby harmed people, but Crane has not identified with any particularity the offending language or the people allegedly harmed. That which he has identified as offensive are Johnson’s own thoughts, opinions, conclusions, and summaries of two legal cases.\FN4/ They appear in state and federal complaints and other pleadings and they appear on Johnson’s website. FN3 Count I of the petition swirls around Linnehan’s custody and paternity case about which Johnson filed a Complaint in federal court. Johnson then uploaded the latter Complaint and, later, an Amended Complaint for Modification filed in Probate & Family Court to her website. In the complaints, Johnson chastised both a judge for depriving the father of his parental rights for over a decade without due process and equal protection, and the mother for lying. The mother, an unsuccessful candidate for public office, blamed her loss on Johnson’s website, filed a complaint on election day at the Bar, and became the complainant for Count I of Bar Counsel’s petition against Johnson. The details are in Johnson’s answer to the Bar, and at falseallegations.com/bbo-drano90-answer-count-one-linnehan.doc. FN4 It is frightening to be a victim of the thought police. George Orwell warned us. Those of us who are sufficiently old could only laugh nervous laughter while reading his prophetic 1984. But Crane’s petition has proved that the thought police are real and they are here in the Commonwealth.   Crane is also fighting NOT to have to bring any witnesses at Johnson’s trial. He wants to enter alleged evidence of harm of the Complainant of Count I through the letters of his prosecuting assistant bar counsel, Susan Strauss-Weisberg. He wants to enter alleged evidence of harm of the Complainant’s son, now in his majority, through the Complainant, who is an inveterate liar, a fact of which Johnson has abundant proof in pleadings that the woman herself filed in court in her own divorce (she eventually married and divorced), as well as in other pleadings and documents.  Johnson knows of no court that allows someone to write, essentially, "I’m harmed," and allows that writing in as evidence on the word of that person’s counsel. Because Bar Counsel Crane, like Lola of "Damn Yankees" fame, gets whatever he wants from Chair Ellen Carpenter and Special Hearing Officer Phillips, the prospect of having a trial run by them is frightening. The BBO has not even followed its own rules: in fact, the resemblance of the BBO to the Court of Star Chamber is startling. At this point, Johnson incorporates herein by reference all the facts and law in and the exhibits attached to the Complaint, wherein only the most egregious infractions and insults against justice by the members of the OBC and BBO are recounted.\FN5/ FN5 They are significant enough to demand a full-scale investigation of how the BBO and the OBC operate. A list of bulleted items, an admixture of fact and law, excerpted in no special order from the Complaint of the instant case is attached hereto this pleading as Exhibit A. In Count II, Crane and Assistant Bar Counsel Weisberg alleged that Johnson commingled funds, but they have not stated the amount. Count II\FN6/ involves a multifaceted matter about which Johnson did some consulting and returned around 30 percent of the retainer because she had deeply discounted the fee. The wife of the criminally charged defendant wanted more money returned and instead of going to the Fee Arbitration Board, complained to the BBO. Crane claimed that the money should have gone into the IOLTA account. Johnson said not. After the OBC let Johnson know that charges would be brought, Johnson added her responses to her website at falseallegations.com/bbo-drano90-answer-count-two-sano.doc. That publication then became integrated as a violation of ethics into the Petition for Discipline. FN6 Johnson incorporates herein by reference footnote 6 of the Complaint in this court. Count III arose out of a whistleblower, wrongful termination case. During its prosecution in March 1995, eight years ago, Johnson was found in contempt of a non-existent order. [BBO v. Johnson, Am.Ans. ¶ 108, 111, et al.] After the labyrinthine proceedings of a Rube Goldberg remand case -- up and down the ladder of the courts several times -- the finding of contempt against Johnson was not vacated. On 17 December 1998, Johnson was ordered to jail because she said No to Judge Paul McGill, who had found her in contempt in 1995 and continuously thereafter. She remained jailed for 24 hours. The Complainant to the Bar was Judge McGill. After the OBC let Johnson know that charges would be brought, Johnson added her responses to the petition to her website at falseallegations.com/bbo-drano90-answer-count-three-lily.doc. Note that Crane, Weisberg, and the BBO, one of whose members of the Board approved the issuance of the petition against Johnson, changed the names of the principals in Counts I (the inveterate lying mother) and II (the wife of the man accused of rape), all in the name of privacy, but did not change the name of Johnson’s client, who was against the petition issuing and with whom Weisberg refused to speak. So much for being concerned about privacy for people dealing with the Bar (tongue in cheek, of course). The OBC’s concern is hypocritical, too. Ironically, Crane and Weisberg want to go forward at trial without witnesses. They want to use Weisberg’s letters – which Johnson had published -- as evidence in place of the Sanos’ testimonial evidence. And Crane and Weisberg have sought and got, over Johnson’s opposition, orders of impoundment and protection of these materials. Johnson contends, of course, that she has a constitutional right to confront her accusers and a right to make the evidence available for public scrutiny.\FN7/ She also has a right to know in advance the nature and extent of the charge against her. "These are adversary proceedings of a quasicriminal nature." In re Ruffalo, 390 U.S. 544, 551 (1968) (disbarment of petitioner reversed). "The charge must be known before the proceedings commence. They become a trap. . . ." Id. "The absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process." Id. at 552. FN7 Hypocritically, the BBO put up on its website that disciplinary proceedings against Johnson are pending and then alleged that Johnson violated the ethics rules when she uploaded to her website her defenses to the false accusations out of which the disciplinary proceedings arose. Certainly Johnson’s publication gives both sides of the story and leaves room for the public to come to its own conclusions. That BBO’s pejorative publication does not leave room for anyone to believe anything but that Johnson is guilty of something unethical. And that simply is not true. If anything, the BBO’s publication is unconstitutional and defamatory. Johnson’s publication is not: she is exercising her constitutional right to defend herself. Given that Johnson filed two motions for more definite statements\FN8/ and both were summarily denied by Special Hearing Officer Herbert P. Phillips ["SHO Phillips"], Johnson will be faced with a moving target to debunk or disprove at time of trial. The danger of a moving target at trial is well-experienced by Johnson. Last year, Johnson was defending a client\FN9/ charged with violating a c. 209A restraining order obtained by his wife against him.  FN8 Both motions are included in the addendum to the Complaint as Papers 48 and 69. Paper 69 addresses the issue of the moving targets. The Bar Counsel alleged that Johnson broke 14 ethical rules but he failed to state what it was that Johnson did, the people involved, the time, date, place, manner, or means n which Johnson broke those rules. Johnson’s second motion requested SHO Phillips to order Crane to fill in 51 specific blanks. SHO Phillips denied Johnson’s second motion as he did the first.  FN9 The man had written Johnson from jail and sought her representation. Johnson recounts that client’s story here below because it did, subsequently, link directly to Assistant Bar Counsel Weisberg and the Office of Bar Counsel.     The DA’s response to a motion for a Bill of Particulars was worthless. Johnson wanted to learn specifically the date, location, time, manner, and means of the alleged violation and the people involved (the order required the client to stay away from the wife and three minor children and the marital home). A motion to get more specific information was denied. The wife admitted on the stand that she and the two youngest children left the marital apartment and went to her friend’s apartment three days earlier. The police admitted that no one had seen the client at the marital residence. Johnson moved for a directed verdict. Denied. The accusation then changed to one not on any police report: one of the children had called the police saying that she had seen the client enter the neighbor’s building.  Johnson’s client knew that of the three older children, the mother’s older son had long since run away from home, that the younger of the two older sisters had run away to Worcester, and that the oldest child, who was already emancipated and had her own out-of-wedlock child, was the one child who remained at the marital home and there was no restraining order regarding her. Therefore on the stand, the mother claimed it was the middle sister, who was named on the restraining order who made the call and who was at home.  Because the DA had not been compelled to identify which of the people whose names were on the order was supposedly violated by the client going into the friendly neighbor’s building, the switch was successful. The target kept on moving. Clear fabrication and hearsay. All suborned by an assistant DA and allowed by a court. It made what should have been a swift trial into one several days in length. As the court in Ruffalo said, "The charge must be known before the proceedings commence. They become a trap. . . ." Id. "The absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges deprived petitioner of procedural due process." Id. at 552. The trial judge, a former ADA, allowed the perjury and overlooked the subornation, but he freed the defendant and filed without a change of plea from not guilty the two other 209A violations the wife had brought.    In the same courthouse, however, another judge, Alan Jarasitis, had issued a FOURTH complaint brought by the wife against her husband while he was in jail. The defendant was not even habed in for the hearing at which Jarasitis issued a restraining order for a year. Judge Jarasitis refused to vacate the restraining order. Accused by Johnson of intentionally acting in a manner not contemplated by any legislature, Jarasitis subsequently cooperated with Crane’s counsel, Susan Strauss-Weisberg, in concocting still another complaint against Johnson.  Fighting fire with fire, Johnson published the outrageous conspiracy between the judge and Weisberg on her website – falseallegations.com/drano96-judge-jarasitis-judas-to-justice.htm. The alleged complaint has been in limbo ever since. Skepticism has little weight in the law, this court may say, but it is sometimes appropriate to give it greater weight. This is one of those times: The OBC and/or Crane are not to be trusted for designing either a fair trial or even one with the appearance of fairness. That the BBO or Carpenter and/or Phillips are not compelling Crane and Weisberg to be sufficiently particular so that Johnson will know, at least, that which she is being charged are guaranteeing another "moving target" case for a predetermined result. (See Paper 69 attached to the Complaint filed simultaneously with this motion.) Johnson wants a jury trial. She is entitled to a jury trial. The constitutions guarantee her a jury trial. A quasicourt with no accountability, with no rules that are followed, and guided only by ulterior motives and political agendas is not the institution to be chosen to give Johnson the fair trial to which she is entitled. Johnson contends that the Supreme Judicial Court, which appoints the members of the Board and runs the conjoined BBO, wants to censor Johnson’s website, falseallegations.com, but that would be politically incorrect. The OBC and its Bar Counsel are the vehicle and the driver on the front-line ordered to bring the petition to censure Johnson instead. With arbitrary procedures and the absence of due process, cenSURing is much easier than cenSORing.\FN10/ FN10 Ironically, what appears to offend the OBC is the publication of Johnson’s pre-petition responses to letters sent her by Weisberg. Given, however, that it is Johnson who holds the privilege of confidentiality, it appears that the OBC was displeased that Johnson waived her right to confidentiality. Johnson had previously received Sano’s consent to publication. See Figure 1 of the Complaint, incorporated herein by reference. Johnson will suffer immediate and irreparable harm should the trial on the disciplinary action go forward at the BBO before a determination is made regarding her entitlements or rights as a lawyer to due process and equal protection of the laws, including her right to a jury trial. ARGUMENTS 1. Attorneys facing bar discipline proceedings are entitled to due process protections – both substantive and procedural due process. "It is well settled that attorneys facing bar discipline proceedings are entitled to due process protections." In re Abbott, 437 Mass. 384, 391 (2002), citing In re Ruffalo, 390 U.S. 544, 550 (1968) (disbarment reversed on grounds of lack of notice of additional charge on which disbarment based). "The respondent has a constitutionally protected interest in his license to practice law and he is entitled to due process in bar discipline proceedings." Matter of Eisenhauer, 426 Mass. 448, 453 (1998), citing Ruffalo, 390 U.S. at 551. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976);  "A disciplinary sanction constitutes ‘a punishment or penalty’ levied against the respondent, and therefore the respondent is entitled to procedural due process." Matter of Fordham, 423 Mass. 481, 493 (1996), quoting Ruffalo, 390 U.S. at, 550; Matter of Kenney, 399 Mass. 431, 436 (1987) ("attorney has a substantial property right in his license to practice law"). "Procedural due process . . . includes fair notice of the charges and an opportunity for explanation and defense." Matter of Tobin, 417 Mass. 92, , (1994), citing Kenney,, 399 Mass. at 436, and Ruffalo, 390 U.S. at 550. "Procedural due process" requires that a statute or governmental action that has survived substantive due process scrutiny be implemented in a fair manner. [United States v.] Salerno, 481 U.S. [739] 746 [{1987}]. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The definition of the interest involved is also a threshold inquiry for procedural due process analysis because the "requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Regents of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Further, the individual interest at stake must be balanced against the nature of the governmental interest and the risk of an erroneous deprivation of liberty or property under the procedures which the State seeks to use, so as to determine whether the due process requirements of the Fourteenth Amendment have been met. Mathews v. Eldridge, supra. SeeSpence v. Gormley, 387 Mass. 258, 274-277 (1982).  Aime v. Com., 414 Mass. 667, 674-675 (1993). Given that it is clear that attorneys are entitled to procedural due process, clearly it has been determined, at the very least, in the hearts and minds of the courts speaking to the issue, attorneys’ property interest in their licenses to practice law is a fundamental right entitled to substantive due process. . . . When a fundamental right is at stake, the so-called "strict scrutiny" formula for examining the constitutionality of State infringement on that right comes into play. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993). This formula traditionally is stated in terms of requiring (1) a legitimate and compelling State interest to justify State action, and (2) careful examination to ascertain whether the action taken was "narrowly tailored to further [that] interest."  Blixt v. Blixt, 437 Mass. 649, 655-656 (2002). Due process is at the core of our American system of justice. It requires basic fairness in any procedure that can lead to punishment. It is nowhere to be seen at the Board of Bar Overseers or the Office of Bar Counsel. Attorneys must be able to avail themselves of "the general rules which govern society" [Cohen v Hurley, 366 U.S. 117, 136 (1961) (Mr. Justice Black, with whom The Chief Justice and Mr. Justice Douglas concur, dissenting)\FN11/],for "lawyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S.(N.Y) 511, 516 (1967); Zauderer, supra at 671 ("These guarantees apply fully to attorney disciplinary proceedings because, obviously, ‘lawyers also enjoy first-class citizenship’"), quoting Spevack, at 516. FN11  Cohen, a 5-to-4 decision, was overruled in Spevack v. Klein, 385 U.S.(N.Y) 511, 514 (1967). In Cohen, some 40 years ago, Messrs. Justice Black, Chief Justice Warren, and Justice Douglas eloquently warned that the important role that lawyers are to play in society makes it all the more imperative that they not be discriminated against and not be deprived of "the basic freedoms that are designed to protect the individual against the tyrannical exertion of governmental power." Cohen, at 138.  Singling out "groups for special treatment with regard to certain constitutional privileges" is "clearly unconstitutional." Id., at 137 n. 13, citing Barsky v. Board of Regents, 347 U.S. 442, 456-467 (1954).  When the Founders of this Nation drew up our Constitution, they were uneasily aware of this English practice, both as it had prevailed in that country and as it had been experienced in the colonies prior to the Revolution. Particularly fresh in their minds was the treatment that had been accorded the lawyers who had sought to defend John Peter Zenger against a charge of seditious libel before a royal court in New York in 1735. These two lawyers had been summarily disbarred by the judges presiding at that trial for [filing Exceptions after being warned not to do so]. It is to the lasting credit and renown of the colonial bar that Andrew Hamilton, a lawyer of Philadelphia, defied the hostility of the judges, defended and brought about the acquittal of Zenger. Cohen, at 140-141. Such language throughout the dissents to the later-overruled majority report in Cohen makes this author confident that were these high justices here today, it is likely they would write, "In Medieval England, the BBO/OBC would have become as justly vilified as the Star Chamber." The due process clause of the Fourteenth Amendment embodies the notion that Americans are entitled to "at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown." Ingraham v. Wright, 430 U.S. 651, 673 (1977).  Aime v. Com., 414 Mass. 667, 677 (1993). On the record before us, the respondent has failed to demonstrate how these rights have been violated. There is no evidence in the record that bar counsel was biased or engaged in misconduct. Nor is there any evidence that either the appeal panel, the board, or the single justice was biased. Eisenhauer, 426 Mass. at 453-454.  Here, of course, Johnson has demonstrated how her rights have been violated . . . and they have been violated by an entity – BBO/OBC -- operating or using methods that resemble those used by the England’s Court of the Star Chamber. For instance, the Star Chamber had grown unusually powerful during the reign of Henry VII, when by the act of 1487, the court became a separate judicial body from the king's council with a mandate to hear petitions of redress.  Eventually "the Star Chamber became the great engine of the royal tyranny." Id. Under Chancellor Wolsey and Cranmer's leadership (1515-1529), the Court of Star Chamber became a political weapon for bringing actions against opponents to suppress opposition to royal policies of Henry VIII. Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. There was no right of appeal, no juries, no witnesses, and punishment was swift, flexible, and severe to any enemy of the crown. During 1628-1640, the Court of Star Chamber became a substitute for Parliament and in the 1630s banned all "news books." "Charles I made extensive use of the Court of Star Chamber to persecute dissenters, including the Puritans who fled to New England. Star Chamber proceedings were not only used to gain arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect as well. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually executed him." Wikipedia. In sum, because it "characteristically departed from common-law traditions . . . and . . . specialized in trying "political" offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights." Faretta v. California, 422 U.S. 806, 821 (1975).   2.    Johnson is entitled to a more definite statement of what the charges are against her and her two motions more definite statements have been denied, making a fair trial by the BBO impossible. In addition to ensuring fair notice, vagueness doctrine also guards against "'harsh and discriminatory enforcement . . . against particular groups deemed to merit [official] displeasure.'" Papachristou v. City of Jacksonville, 405 U.S. 156, 170 (1972) (citation omitted); see also Kolender v. Lawson, 461 U.S. 352, 358 (1983). Some commentators have suggested that vague disciplinary rules have been used as a tool for singling out unorthodox and unpopular attorneys for sanction. See, e. g., Comment, Controlling Lawyers by Bar Associations and Courts, 5 Harv. Civ. Rights-Civ. Lib. L. Rev. 301, 312-314 (1970); Comment, The Privilege Against Self-Incrimination in Bar Disciplinary Proceedings: What Ever Happened to Spevak?, 23 Vill. L. J. 127, 135-136 (1977). See also n. 11, infra. Zauderer v. Office Disciplinary Counsel Supreme Court Ohio, 471 U.S. 626, 666 n. 10 (1985) (dissent). Special Hearing Officer, Phillips denied Johnson’s two motions for a more definite statement, which included requests for the following reasons: Bar Counsel Crane averred that Johnson published confidential material on her website, falseallegations.com, but has refused to identify what material that is confidential, Bar Counsel Crane averred that Johnson published privileged material on her website, but has refused to identify what material that is privileged, Bar Counsel Crane averred that Johnson published material on her website which harmed people, but has refused to identify what material that harmed people, Bar Counsel Crane averred that people have been harmed by material on her website, but has refused thus far to identify those people. Johnson believed she could obtain the above information, but BBO General Counsel told Johnson discovery is not allowed by the Board Rules. Although no prospective evidence had been identified to Johnson, the OBC, through Crane and Weisberg, moved to impound all evidence prior to and at the prospective trial\FN12/ Although Chair Carpenter was informed of the failure of Bar Counsel to identify or give notice to Johnson of the evidence that was the subject of his motion, Carpenter, acting in excess of her agency for the BBO, allowed Crane’s motion for impoundment.  FN12  This motion was subsumed in the Motion for Protective Order. Under the Due Process Clause, "reasonable notice" must include disclosure of "the specific issues [the party] must meet," In re Gault, 387 U.S. 1, 33-34 (1967) (emphasis added), and appraisal of "the factual material on which the agency relies for decision so that he may rebut it," Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 288, n. 4 (1974). These guarantees apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Spevack v. Klein, 385 U.S. 511, 516 (1967). Where there is an "absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges," so that the attorney is not given a meaningful opportunity to present evidence in his defense, the proceedings violate due process. In re Ruffalo, 390 U.S., at 552 (emphasis added). Zauderer v. Office Disciplinary Counsel Supreme Court Ohio, 471 U.S. 626, 671 (1985).   3.       Where Carpenter acted in excess of her agency when she usurped the power of the SHO to decide nondispositive motions and violated Board Rule 3.18(a), the likelihood of the trial rules, if any even acknowledged by the BBO, will be followed is nil and a jury trial must be ordered. Rule 3.18(a) requires nondispositive motions to be "submitted to a member of the Board for determination." That rule continues: "The Board member may refer the motion to the chair of the assigned hearing committee" [there is none] "or hearing panel" [there is none] "or to the special hearing officer" [there is one] for determination." Carpenter is none of the named people.Fredrickson told Johnson, in words for all intents and purposes, "We’ve done it that way ever since I’ve been here." And that has been approximately 14 years (since 1989).  To a similar excuse in Cohen, Justice Hugo Black wrote: . . . This argument -- that constitutional rights are to be determined by long-standing practices rather than the words of the Constitution -- is not, as the majority points out, a new one. It lay at the basis of two of this Court's more renowned decisions -- Dred Scott v. Sandford, 19 How. 393 [1857], and Plessy v. Ferguson, 163 U.S. 537 [1896]. But cf. Brown v. Board of Education, 347 U.S. 483 [1954]. The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261. Cohen, at 142 n.23 (dissenting).  To interpret Rule 3.22(c) as Carpenter and Fredrickson are doing it, Rule 3.22(c) is in conflict with Rules 3.18(a) and 3.18(b). To interpret Rule 3.22(c) literally, in accordance with the words used and the definitions given in Rule 1.2, then the 12 Board members, appointed from time to time by the SJC, must determine the motion. The rules have become arbitrarily interpreted and imposed. Thus Carpenter ultimately used her usurped power (a) to secrete documentary evidence not only from the public but also from Johnson and (b) to preclude Johnson from contesting Bar Counsel’s allegations in Count III.  On the issue of secretion: Because the documents to be secreted were not identified, Johnson could not intelligently and fully oppose the combined motion for impoundment and protection inasmuch as she did not – and still does not -- know to which documents Bar Counsel and Strauss-Weisberg were referring. That unlawful disability exists today. Johnson still seeks that all documentary evidence remain open to the public, so that it may scrutinize the proceedings and determine whether the quasicourt is acting in an unscrupulousness manner and contrary to public policy. Although Chair Carpenter was informed of the failure of Bar Counsel to identify or give notice to Johnson of the evidence that was the subject of Crane’s motion, Carpenter, acting in excess of her agency for the BBO, allowed Bar Counsel’s motion for the protective order over of all evidence prior to and at the prospective trial. Johnson has been denied access to all the documentary evidence in order (a) to conduct all reasonable discovery that would arise from inspecting the documents and (b) to prepare for trial. "Timely notice of allegations and charges is an elemental aspect of due process." Sarzen v. Gaughan, 489 F.2d 1076 (1st Cir. 1973), citing Mullane v. Central Hanover Bank, 339 U.S. 306 (1950); In re Gault, 387 U.S. 1, 33 (1967); In re Ruffalo, 390 U.S. 544, (1968).  The proceedings thus far have been and shall continue to be procedurally invalid because decisions appear to be being based on evidence to which Johnson does not have access. SeeGreene v. McElroy, 360 U.S. 474, 496 (1959).  On the issue of preclusion: Board Rule 3.15(f) required Johnson to plead mitigation, and so she did plead it. BBO and Crane’s motive was to preclude Johnson from showing that the lower-court orders were not only "bad," but that they were also based on fabricated facts and findings and on, literally, a materially altered document. "There is something specially repugnant to justice in using rules of practice in such a manner as to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense." Faretta v. California, 422 U.S. 806, 822-823 (1975), quoting 1 J. Stephen, A History of the Criminal Law of England, 341-342 (1883).  The majority is holding . . . that lawyers are not entitled to the full sweep of due process protections because they had no such protections against judges or their fellow lawyers in England. But I see no reason why this generation of Americans should be deprived of a part of its Bill of Rights on the basis of medieval English practices that our Forefathers left England, fought a revolution and wrote a Constitution to get rid of. Cohen, at 142 (Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting). Fearing that the majority opinion in Cohen implied that "a lawyer is not to have the protection of the First Amendment with regard to his private beliefs and associations whenever his exercise of those freedoms might interfere with his duty to ‘co-operate’ with a judge’" [id. at 145], they concurred: It seems to me that the majority takes a fundamentally unsound position when it endorses a practice based upon the artificial notion that rights and privileges can be stripped from a man in his capacity as a lawyer without affecting the rights and privileges of that man as a man.  Id. at 145 (dissent).   4.    Where there is no "clear and present danger" of "actual prejudice or an imminent threat," Johnson may not be punished for criticizing judges or publishing public records on her website. Crane and Weisberg’s motion for a protection order was not only a motion for a "protective order" but also  a motion for impoundment  motion to censor Johnson’s website, falseallegations.com,  a motion to enjoin Johnson’s political and free speech and  a motion for secret hearings  As such, the Commonwealth must, under the First Amendment to the United States Constitution, demonstrate a "clear and present danger" of "actual prejudice or an imminent threat" before any discipline may be imposed on Johnson for uploading public records to her website. Cf. Dominic P. Gentile v. State Bar Nevada, 501 U.S. 1030, 1069 (1991), citing Nebraska Press Assn. v. Stuart, 427 U.S. 539 (1976), Bridges v. California, 314 U.S. 252 (1941), Pennekamp v. Florida, 328 U.S. 331 (1946), and Craig v. Harney, 331 U.S. 367 (1947). Trial courts may not "constitutionally punish, through use of the contempt power, newspapers and others for publishing editorials, cartoons, and other items critical of judges in particular cases [where there is no] clear and present danger of ‘some serious substantive evil which they are designed to avert.’" Gentile, 501 U.S. at 1069, quoting Bridges v. California, supra, at 270. And like the sheriff in Wood v. Georgia, 370 U.S. 375 (1962), Johnson may not be punished "for publicly criticizing a judge's charges." Gentile, at 1069, citing .Wood.   5.       Where the BBO and OBC have conspired to thwart the Board Rules, rules of evidence, rules of law, Johnson must be given a jury trial. Strauss-Weisberg and Bar Counsel  failed to acknowledge and identify the standards to be followed when determining such potpourri motions as Bar Counsel’s,  failed to show good cause,  failed to follow the procedures for impoundment,  failed to state the authority giving the Bar the right to censor Johnson’s website and stifle her political speech and free expression,  failed to state the scope of the website censorship sought,  failed to state how the censorship was to be implemented,  failed to state the authority giving the Bar permission to override Johnson’s First Amendment rights, and  failed to identify with sufficient particularity those documents of which Bar Counsel wants to prevent disclosure and those which he wants to impound and Chair Carpenter did not care. She, ignoring all the law and the relevant rules, allowed the potpourri motion.   6.      Attorneys facing bar discipline proceedings are entitled to a jury trial. Until the BBO, the practices of which are not fair and do not have the appearance of being fair, is either disbanded or radically re-organized, no attorney must be forced to stand trial in front of that body. The United States Supreme Court declared disbarment proceedings to be of a "quasi-criminal nature." In re Ruffalo, 390 U.S. (Ohio) 544, 551 (1968); Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S.(N.J.) 423, 438 (1982) (Justice Brennan, concurring in the judgment).  The quasicriminal nature of the proceedings triggers article XII of the Declaration of Rights, allowing Johnson to present all proofs favorable to her, to meet witnesses against her face to face, to be fully heard in her defense, and not to be deprived of her property but by the judgment of her peers, which means a jury trial. A jury trial is a substantive due process right. Com. v. Crowell, 403 Mass. 381, 382 n. 2 (1988). The property interest of an attorney is protected by both the due process clause of the Fourteenth Amendment to the United States Constitution and by our State Constitution. Cf.Blue Hills Cemetery, Inc. v. Board of Registration in Embalming & Funeral Directing, 379 Mass. 368, 372 (1979) ("the right to engage in any lawful occupation is an aspect of the liberty and property interests protected by the substantive reach of the due process clause of the Fourteenth Amend- ment to the United States Constitution and analogous provisions of our State Constitution"). Shamar, Ltd. v. Licensing Bd. for City of Boston, 2000 WL 576401 *4, No. CIV. A. 98-6182-F (Mass.Super. April 18, 2000) (Lauriat, J.) ("[T]his court must note its concern with the Board's apparent disregard of the substantive and procedural due process rights of the licensee"). Cf. Blixt v. Blixt, 437 Mass. 649, 652 (2002) (liberty interests of parents are protected by both the due process clause of the Fourteenth Amendment to the United States Constitution and by our State Constitution). An interesting issue is raised by respondent's claim that F.R.A.P. 46 is so vague that its enforcement against him would be a denial of due process. There is no question but that attorney discipline proceedings are subject to due process scrutiny. In re Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222 (1968). Indeed, in view of the gravity of the punishment which may be meted out pursuant to F.R.A.P. 46, which includes stiff fines,* or even suspension or disbarment*fn6 with all of the consequential damage which that entails, the test which must be employed as to the constitutionality of the disciplinary machinery to be used must be a very severe one. There has been considerable discussion both within and without the ranks of the legal profession of the need for tightened disciplinary rules and more vigilant enforcement. While we support such efforts we do not think that there is any inconsistency between that laudable goal and the equally important goal of providing the strictest possible due process standards for the procedures used to carry out necessary bar discipline. In re Bithoney, 486 F.2d 319 (1st Cir. 10/23/1973 Article XV of the Massachusetts Declaration of Rights is another source of Respondent Johnson’s right to a jury trial.\FN13/ FN13 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 Article XV of the Massachusetts Declaration of Rights, Part the First, Constitution, Commonwealth of Massachusetts. Historically, in Massachusetts, attorney-discipline cases have been identified as being on the common-law side of the court, making a jury trial legally possible. Boston Bar Ass'n v. Greenhood, 168 Mass. 169, 183 (1897).\FN14/ Despite that early pronouncement, however, the traditional hostility between equity and common law has been aggravated by the use made by the BBO, like the Star Chamber,\FN15/ of the disciplinary process. That is, the BBO has used its powers as a tool for filtering out criticism of the judicial system by "singling out unorthodox and unpopular attorneys" for discipline Zauderer v. Office Disciplinary Counsel Supreme Court Ohio, 471 U.S. 626, 666 n. 10 (1985). FN14 In In re Mayberry, 295 Mass. 155, 166, 168 (1936), however, the Court found that the respondent was not prejudiced by the findings of a single justice rather than by jurors because the ". . . jurors [were] of low grade in respect to intelligence and character." In re Sleeper, 251 Mass. 6, 12 (1925).  FN15  The traditional hostility between equity and common law was aggravated by the use made of the Star Chamber by the Stuarts as a vehicle for exercising the royal prerogative, particularly over church matters, in defiance of Parliament. It was abolished by the Long Parliament in 1641. In its later period, the court was so reviled that Star Chamber became a byword for unfair judicial proceedings.  And as Justice Black wrote, in words for all intents and purposes, the goal of a tyrannical government is to deprive its citizens of independence. In that way, they become "nothing more than parrots of the views of whatever group wields governmental power at the moment." Cohen, at 138.  And given that Johnson recently ran for public office on a platform of court reform and has publicized her criticism of the judiciary and the judicial system on her websites, Johnson can only conclude – reasonably – that it is the judiciary who is wielding their power at the moment. So, to avoid the runaway BBO freight train\FN16/ coming at Johnson full speed with all its lights on and no one with the power, ability, or willingness to switch the train onto a constitutional track, Johnson must be allowed to have a jury trial. To trust the BBO, given its current track record in the Johnson case, would be both a death wish for Johnson and confirmation that the members of the SJC, if not the conductors of the train, are its guiding lights. FN16  Johnson does not know whether the SJC, when it created and shaped the BBO several decades ago, contemplated that they were birthing an infant judicial devil whose goal would become the oppression of its and the SJC’s righteous opponents. WHEREFORE, Plaintiff is, in accordance with Prayer #2 of the Complaint, entitled to a restraining order and/or preliminary injunction to stay the disciplinary proceeding, including trial, until further order of this Court. Respectfully submitted, Plaintiff Barbara C. Johnson, pro se, _________________________________ Barbara C. Johnson, Esq., Pro Se 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 16 November 2003      AFFIDAVIT OF BARBARA C. JOHNSON I, Barbara C. Johnson, hereby swear and say that all the statements and observations I attribute to myself in the within pleading are true and accurate. Those statement to which I attribute to others as having been said to me, are also as I remember hearing them. I also hereby swear and say that I have kept all of the exhibits attached to this pleading in the ordinary course of business. Sworn under the pains and penalties of perjury.   _________________________________ Barbara C. Johnson  16 November 2003  CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that on 17 November 2003, I caused to be served in hand a true and accurate copy of the within pleading with the Complaint to each of the named defendants at the Board of Bar Overseers and Office of Bar Counsel, 75 Federal St., Boston, MA 02110, for that Board has been uncooperative in providing the requested home addresses to effect service. ___________________________ Barbara C. Johnson 17 November 2003     BE SURE TO SEE THE VERIFIED COMPLAINT FILED IN FEDERAL COMPLAINTS TWO DAYS LATER.  iT IS ALMOST THE SAME AS THIS ONE EXCEPT FOR THE JURISDICTIONAL STATEMENT AND FOR THE COUNTS RAISING FEDERAL QUESTIONS. In other words, it is longer!!