Barb Continues the War Against the Bar Barb Sued the  BBO et al [Board of Bar Overseers and others] ~~~~~~~~~ Barb's Appellate Brief UNITED STATES COURT OF APPEALS  FOR THE FIRST CIRCUIT  ________________________________________________________ Case Number 04-1713 and 04-1833 ________________________________________________________   Barbara C. Johnson, Esq. Plaintiff/Appellant 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, 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/Appellees All the original pleadings and orders in this case  are available to the public through PACER . . .  Nowadays they are filed electronically in .pdf format. PLUS "Reforming Lawyer Discipline" Lawyers Weekly, Editorial, 10/18/04, 33 M.L.W. 426 _____________________________________________________________________________

JURISDICTIONAL STATEMENT 1. Jurisdiction of the Court of Appeals arises under 28 U.S.C. §§1291 (final decisions of district courts), 1294 (circuits in which decisions reviewable), and 1295, 1331 (federal question), 1337 (amount in controversy), 1343(a) (deprivation of civil rights and privileges, furtherance of conspiracy, equitable relief), and 1367(a) (supplemental jurisdiction); 42 U.S.C. §§ 1983 (civil action for deprivation of rights) and 1988 (proceedings in vindication of civil rights); and 18 U.S.C. § 1341 (scheme or artifice to defraud). 2. Pursuant to the Memorandum and Order dated 26 May 2004, judgment entered for the defendants into the docket of the U.S. District Court (Boston) on 27 May 2004 [Add:1].\1/ FN1 The pages of the Addendum are referred to as "Add:". Pages in the Appendix, as" App:". STATEMENT OF THE ISSUES Where (a) the BBO proceedings are administrative and not judicial in nature; (b) the proceedings do not implicate important state interests; and (c) they do not provide an adequate opportunity to raise federal claims, the Younger abstention doctrine does not apply. Where there is a dispute as to whether Johnson has satisfied the "bias" exception to the Younger abstention doctrine, dismissal is inappropriate. Where federal district courts have jurisdiction over "‘general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings’"and the disciplinary proceeding against Johnson is administrative and nonjudicial in nature, dismissal of Johnson’s challenges is reversible error. Younger does not require abstention on Johnson’s claims for declaratory and equitable relief. The second-prong of the Eleventh Amendment, which the district court applied here, was never duly ratified and is thus unconstitutional and inapplicable to this case, making the dismissal of the claims against the natural defendants in their official capacities reversible error.  Quasijudicial and quasiprosecutorial immunity are not applicable to the natural defendants in their individual capacities. The court has discretion to retain supplemental jurisdiction over the pendent State claims.   The facts included in the Amended Complaint and the attachments to it and the issues detailed in the briefs filed in the district court – all of which are included in the two volumes constituting the Appendix -- are incorporated as if set forth herein in entirety by reference. Those documents which were scanned in have signatures.  Those which were electronically filed have electronic signatures. Those which were filed in the BBO do not have signatures in the appendices but do have on the originals filed in the BBO.   STATEMENT OF THE CASE This case involves a Massachusetts attorney, Barbara C. Johnson, Esq. ["Johnson"], against whom the Massachusetts Office of Bar Counsel has brought disciplinary charges before the Massachusetts Board of Bar Overseers. Johnson filed suit in [the District] Court against the Board of Bar Overseers, the Office of Bar Counsel, the Commonwealth of Massachusetts and various individuals, alleging that these administrative proceedings have been conducted unfairly and unlawfully. Am. Verified Compl. ("Am. Compl.") [App: 6 et seq]. In her suit, Johnson allege[d] various violations of her civil rights under 42 U.S.C. §§ 1983 and 1985, and she also allege[d] defamation under state law [App: 60]. She seeks declaratory and injunctive relief as well as money damages. Id. [ Add: 2-3]. On February 24th, the District Court dismissed Counts 1-6, all of which sought declaratory judgments. On February 25th, the [District] Court [held] that Johnson’s suit for money damages against the individual defendants in their personal capacities stated a cause of action, and invit[ed] the parties to submit further briefing on the issues of quasi-judicial and quasi-prosecutorial immunity. 02/25/04 Order [Doc. No. 14].  Add: 3, citing Add: 24-25.  In response, . . . Johnson filed her opposition to that motion [Doc. No. 18], asserting that neither quasi-judicial nor quasi-prosecutorial immunity is applicable [Doc. No. 17], and a motion for reconsideration of this Court’s February 25th order dismissing her claims for declaratory relief ("Pl.’s Mot. for Reconsideration") [Doc. No. 20.]  Add: 3, citing Doc. No. 17 at App:469-500, Doc. No. 18 at App: 501-508, Doc. No. 20 at App: 509-510. Caveat: There was no motion at that time regarding quasi-judicial or quasi-prosecutorial immunity. Those issues were raised by Judge Young sua sponte in an order after the hearing on the defendants’ first motion to dismiss.  This appeal is from the dismissal of  Johnson’s declaratory-judgment claims [Add: 7-8] "on the basis of the Younger abstention doctrine" [Add: 23],  her three money-damage claims against the unnatural defendants and the named individuals acting in their professional capacities for diverse violations of her civil rights under §§ 1983 and 1985 during the disciplinary process "pursuant to their Eleventh Amendment immunity from suit" [id.],  her three money-damage claims against the named individuals acting in their individual capacities for diverse violations of her civil rights under §§ 1983 and 1985 during the disciplinary process "on the basis of those defendants' absolute immunity arising from their quasi-judicial and quasi-prosecutorial roles in the Board of Bar Overseers and the Office of Bar Counsel" [id.], and  her common-law defamation claim (Count 10) against Defendant Bar Counsel Daniel Crane on the grounds that it had the discretion to decline to exercise supplemental jurisdiction [id.].  Should the dismissal of counts 1 through 9 be reversed and remanded, Johnson seeks also that the dismissal of the defamation claim be reversed and remanded. In this brief, Johnson demonstrates that the district court judge’s memorandum contained several critical inconsistencies, resulting in conclusions based on specious facts and making reversal mandatory.   STATEMENT OF MIXED FACTS AND LAW RELEVANT TO THE ISSUES Plaintiff/Appellant Johnson is a lawyer duly licensed to practice law in the Commonwealth of Massachusetts. A quasi-administrative State delicensing proceeding is pending. No final recommendation or judgment or order has issued in that proceeding.  Johnson did and does not ask the district court or this court, respectively, to vacate, modify, or alter in any way any of the interlocutory rulings, decisions, or orders that have emanated in that State proceeding.\2/ FN2.   Johnson is not barred (a) from seeking declaratory relief of independent federal questions and/or (b) from making a general constitutional challenge of state law. Subject matter jurisdiction of this action is proper because an actual controversy exists among the parties as to which a declaratory judgment setting forth their rights and obligations is appropriate, for if this controversy is not resolved, and the Massachusetts judicial branch has shown that it is not willing to resolve it, there will be further litigation. Although the summation provided by Judge William Young in his memorandum of the three counts in the Office of Bar Counsel’s petition against Johnson was accurate, the judge did not have the benefit of seeing the transcript of the aborted trial of which the Judge wrote.\3/ That transcript contains admissions by the prosecuting Assistant Bar Counsel that some of the allegations made in the petition were untrue: FN3  The transcript of the so-called trial was supplied to Johnson but not in a timely manner. When Johnson attempted to communicate to the BBO’s "court" reporter regarding the transcript, the BBO’s reporter refused to communicate with Johnson. Therefore, Johnson had no opportunity to file the transcript in the district court, and thus was precluded from including the transcript in the Appendix to this appellate brief. The iteration by Judge Young of the December 2003 BBO hearing in its brevis form is misleading to this Court. For example, the judge’s iteration does not include the fact that there was no protective order, a fact admitted by the Assistant Bar Counsel prosecuting the disciplinary action. The judge’s iteration does not, because the district-court judge deprived Johnson her rights to have the facts heard by a jury and thus deprived himself of the opportunity to learn the necessary facts before passing judgment. Fundamental fairness was ambushed before discovery and trial.     The Judge Wrote A hearing was scheduled for December 2, 3, 4, 9, 10 and 11, 2003. Am. Compl. ¶ 176 [App: 38]. On December 2, during Johnson's opening statement, Assistant Bar Counsel objected to Johnson's mentioning the names of the complainants and various witnesses. Id. ¶ 181. Johnson then attempted to avoid using real names, but when "[a] few times, she slipped," the defendant Phillips, the Special Hearing Officer presiding over the case, ordered the public out of the hearing room. Id. ¶ 183-86 [App: 38-39]. To protest this decision, Johnson walked out of the hearing room with the last of the public to leave. Id. ¶ 187 [App: 39].    The Transcript Reads HEARING OFFICER:  Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg?  MS.  WEISBERG: No, we don't actually have a list.  We have documents that are protected.  That's a name that appears -- I believe the evidence will show that that name is a name that appears in documents that Miss Johnson published on her web site.  So they are out there in the public domain.  HEARING OFFICER: I'm going to assume that was an inadvertent slip, Miss Johnson. No more of those.  I'm going to have the record redact that name, (name redacted).  Transcript, I: 56-57, emphasis supplied.   HEARING OFFICER:  Let the record show that the protective order, the protective order has not been adhered to, and Miss Johnson has elected, along with some people that are supporters of hers, to leave this hearing.  The hearing will proceed without her.  Transcript, I:62, emphasis supplied.   HEARING OFFICER: Let the record show that Miss Johnson continuously was using the names of the real parties and was not adhering to the protective order, and I had given her advanced warning that I was going to remove the other participants or the other attendees in the room to preserve the sanctity of the protective order, that she herself, Miss Johnson, would be allowed to stay in the room to continue to defend herself and present her own evidence and to rebut whatever bar counsel had, but she has now elected to adjourn herself, perhaps permanently, from this proceeding along with her attendees. And, therefore, the hearing will continue on, and bar counsel will now-- I see it's now ten minutes to one. I'm not sure we should just take a recess. I think we'll take a recess now, we'll adjourn back here at quarter of two, and bar counsel could then put in her case in principal.  [Transcript, I:65-66, emphasis supplied].  Just for the record, I just wanted to state on the record and recap what happened before we recessed for the lunch break. The respondent, Barbara Johnson, was in the middle of her opening statement, and we had given -- The Chair had given Barbara Johnson a reminder on the motion for protective order which had been allowed by Chair Ellen Carpenter on September 10th, 2003, with respect to the impoundment matters and confidentiality and things that were going to be in that vein, and that we were going to insist that the pseudonyms be used in lieu of the real names, especially since the hearing was open to the public and [67] . . . And that we wanted to preserve the nature and spirit and intention of the protective order.  When respondent in her opening statement started to mention the real names of some of the parties, the Chair admonished her she should not do this because that was going to be in violation of the protective order, and she indicated that she would use the name male or female, if the case may be.  She continued on one or two other occasions to continue to use the real names, and, again, we, the Chair warned her, and finally it was told to her that if she did not adhere to the rules that were going to be promulgated regarding the protective order that the attendees would be asked to leave the room. . . .  [Transcript, I:66-67, emphasis supplied].  Defendant Phillips’ monologue immediately above ignored the fact that there was, as admitted by Strauss-Weisberg, no protective order regarding the names of people. Contrary to Judge Young’s finding that "Bar disciplinary proceedings in Massachusetts are similar to those in New Jersey" [Add: 10], Bar disciplinary proceedings in Massachusetts are not similar to those in New Jersey.  In New Jersey, Bar disciplinary proceedings are judicial [Add: 9].  In Massachusetts, Bar disciplinary proceedings are administrative, not judicial. A bar disciplinary process is "an administrative process under the authority of the justices of the Supreme Judicial Court." Matter of Jones, 425 Mass. 1005, 1007 (1997) (emphasis supplied) [App: 438]. See also In re Segal, 430 Mass. 359 (1999) (Administrative Procedures Act ["APA"] governs BBO proceedings); In re Tobin, 417 Mass. 92 (1994) (same as Segal); In re Karahalis, 429 Mass. 121, 124 n. 5 (1999) ("prior [disciplinary] decisions were procedural and administrative in nature"); Matter of Eisenhauer, 426 Mass. 448, 454 (1998) (Bar discipline is an "administrative process under the authority of the justices of the Supreme Judicial Court"); Matter of Pressman, 421 Mass. 514, 517 (1995) (same as in Eisenhauer); and BBO Rule § 3.39. [App: 456-466, generally, App: 458-461, 465, particularly.] Judge Young was biased in favor of the defendants and the Attorney-General’s office. Johnson attempted to educate the judge to the egregious misrepresentation by the defendants’ counsel, but the judge inappropriately ignored what Johnson had to say. For example, Johnson wrote [App: 438-439]:   The Massachusetts SJC had had 15 years to adopt – but did not adopt -- the holding of the United States Supreme Court that attorney disciplinary proceedings are judicial proceedings for purposes of Younger abstention. . . . NOTE The defendants’ counsel, Assistant Attorney-General Hitt, altered the statement allegedly quoted from the Middlesex case [Defs. Mem. at 4]. THE TRUE STATEMENT ALLEGEDLY QUOTED It is clear beyond doubt that the New Jersey Supreme Court  considers its bar disciplinary proceedings as "judicial in nature."  Id. at 433-434. ASSISTANT A-G HITT’S FALSIFIED QUOTATION It is clear beyond doubt that [Massachusetts Supreme Judicial] Court considers its bar disciplinary proceedings as "judicial in nature." Id. at 433. Johnson contends that Massachusetts has held fast to the notion that bar disciplinary proceedings are administrative proceedings. To do otherwise, the SJC could not allow the BBO to operate as a quasi-administrative body under the APA, which allows the BBO to avoid using the rules of evidence. The change AAG Hitt made is significant. The Massachusetts SJC does not want to consider its bar disciplinary proceedings as "judicial in nature," for it would have to change how the BBO is doing business.\7/ FN7 In the year prior to establishing the OBC and BBO, the SJC held that disbarment proceedings were civil in nature and the "‘rules of evidence applicable to civil trials . . . (are) rightly enforced.’" Matter of Troy, 364 Mass. 15, 24-25 (1973), quoting Matter of Ulmer, 268 Mass. 373, 392 (1929) and [Matter of] Mayberry, [295 Mass. 155], 166-167 (1936); and Collins v. Godfrey, 324 Mass. 574, 577-578. After the establishment of the OBC and the BBO, the rules of evidence were no longer applied or enforced in disciplinary proceedings. Ergo, Judge Young’s conclusory statement, "The attorney disciplinary procedure in Massachusetts thus meets the first test that the proceedings be "judicial in nature" [Add: 11] is 100 percent wrong. To reach that erroneous conclusion, the district-court judge had to ignore the SJC’s position in Matter of Jones, 425 Mass. at 1007, and be willing to be snookered by the clear, absolutely fraudulent misrepresentation by the assistant attorney-general. And again ergo, another of Judge Young’s conclusory statements, "[E]ven where, as here, all three requirements of Younger are satisfied . . ." [Add: 13 (citations omitted) (emphasis supplied)], is incorrect: Massachusetts’ disciplinary actions, as noted above, are administrative and not judicial in nature. Johnson argued that District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), cited by Catz v. Chalker, 142 F.3d 279 (6th Cir. (Ohio) 1998), "gives this district court subject-matter jurisdiction over general challenges to state bar rules, which is exactly what Johnson’s counts [1-6, for declaratory judgments] are, namely, general challenges to the BBO rules" [App: 509]. To apply the Younger doctrine, which does not inure to Johnson’s benefit, the district court had to find that a Massachusetts disciplinary proceeding is judicial in nature. Where a Massachusetts disciplinary proceeding is administrative in nature, Younger does not apply. To apply the legal proposition in Feldman, as cited in ¶13, supra, which does inure to Johnson’s benefit, the district court had to find also that a Massachusetts disciplinary proceeding is judicial in nature. But the district court did not want to apply Feldman, which would have inured to Johnson’s benefit, To not apply Feldman, the district court had to findthat a Massachusetts disciplinary proceeding is administrative in nature. Consequently, in order to give the judge’s result-oriented conclusion legal support, the lower-court judge changed his conclusion as to the nature of disciplinary proceedings from "judicial" in nature to "administrative" in nature [Add:16], which precluded the application of Feldman:   The Judge Wrote Were Johnson not engaged in state administrative proceedings involving the same rules as those cited in her complaint, Feldman might well permit her to challenge the constitutionality of those rules in federal court. See Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 34 (1st Cir. 2004) ("Rooker-Feldman does not insulate from federal challenge administrative rulings standing alone." (citing Van Harken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997)) (emphasis in original). Add:16 (emphasis supplied). Given that the disciplinary proceedings were administrative in nature, the Younger doctrine is not applicable, which should have inured to Johnson’s benefit. Given that the disciplinary proceedings were administrative in nature, the Feldman doctrine is applicable, which should have inured to Johnson’s benefit. Johnson’s "‘views on the need for judicial accountability and the need for court reform are well-known to the courts.’ Am. Compl. ¶ 111." [Add: 14, citing App: 23, ¶111.] "[T]he Board of Bar Overseers and Office of Bar Counsel are ‘offspring of the SJC.’ Am. Compl. ¶ 111." [Add:14, citing App: 23, ¶111.] "[T]he Board of Bar Overseers Chair Carpenter's ‘colleague and former partner is sitting on the SJC bench that appointed her to the Board.’ Am. Compl. ¶ 111." [Add: 14, citing App: 23, ¶111.] "Appeal would be ‘futile’ based on [Johnson’s] past experience bringing ‘a few cases to the SJC,’ where the Supreme Judicial Court made ‘what Johnson perceived to be unconscionable decisions in those few cases.’ Am. Compl. ¶ 111." [Add: 14, citing App: 23, ¶111.] "[T]he ulterior motive of Bar Counsel is to censor Johnson’s website, and thereby to interfere with her exercise of her ‘First Amendment right to political speech and free expression, as well as her right and obligation to see that justice is done.’ Am. Compl. ¶ 46." [Add: 14, citing App:15, ¶46.] Defendant M. Ellen Carpenter is Chair of the Board of Bar Overseers ["BBO"] [App: 8, ¶3, and Add: 20]. Under SJC Rule 4:01, §9(3), Carpenter has absolute immunity. "Carpenter was a shadow judge" [App: 474-475]. "Carpenter was not a member of a hearing panel. Nor was she the special hearing officer appointed pursuant to Board Rule 3.19(a)" [App: 474-475]. At a prehearing conference on 17 November 2003, Phillips told the stenographer repeatedly that the proceeding was "off the record" when Johnson spoke [App: 29, ¶134]. On 2 December 2003, two of Johnson’s witnesses appeared and Phillips asked whether they were here because of Johnson’s subpoenas, and when they said, Yes, Phillips excused them and told them the subpoenas were invalid and they could leave [App: 38, ¶179].\8/   FN8See School Comm. of Brockton v. Massachusetts Comm'n Against Discrimination, 423 Mass. 7, 15-16, 666 N.E.2d 468 (1996) (school committee's failure to subpoena and to cross-examine physicians whose letters were admitted at administrative proceeding was indication of reliability of evidence) . . ." In re Segal, 430 Mass. at 366, 719 N.E.2d at 487. During Johnson’s Opening Statement, the Defendant Special Hearing Officer Phillips claimed that a pre-existing protective order of 10 September 2003 precluded Johnson from mentioning names of witnesses, including a complainant. [In App: 38, ¶182, Johnson mistakenly wrote Strauss-Weisberg’s name. The trial transcript later received identified – on page 12 -- the person making the claims as SHO Phillips.] Phillips invoked the fictional "protective order" on pages 12, 47-49, 56, 62, and 65 of the trial transcript – both before and after Phillips ordered the public to leave the so-called trial. Phillips ordered the public audience from the hearing room on the first day of the scheduled trial [App: 39, ¶186]. Contrary to the district court finding that Defendant Daniel Crane was not acting in an adjudicative role, but in a role prosecutorial in nature [Add: 21], Crane was merely both the titular administrative prosecutor and the titular plaintiff [App: 469-500, and 479-480]. As the titular administrative prosecutor, Crane’s role was, at most, ministerial in nature [App: 469-500, 480], making immunity unavailable to him [see cases cited at App. 472]. Johnson moved for a jury trial [App: 15-17, ¶¶48-55, 58-61; Addendum; App: 94-96. 98-99, 110-112. 141-144, 267, and generally 94-267 (Johnson’s motions, OBC oppositions, BBO orders and letters, all from 6/21/03 through 9/16/03)]. Johnson moved to preclude Defendant Chair Carpenter from sitting on any committee or deciding any motion in the actions [App: 17-18 , ¶69; Addendum; App: 145-153, App: 261-262]. Johnson moved to recuse Defendant Special Hearing Officer ["SHO"] Phillips [App. 32, ¶146; Addendum, and App: 400-401 (denied 12/01/03)]. Johnson moved to remove the Assistant Bar Counsel as prosecutor [App: 32, ¶146; Addendum; App: 287, filed 11/5/03 and denied 11/18/03]. Johnson requested that the Full Board (not the Chair alone) issue subpoenas requiring attendance and testimony at trial [App: 13 at ¶37; App: 283 (denied 11/04/03)]. Johnson moved for a conference with the 12-member Board [App: 40, ¶194; denied on 12/12/03 by Phillips]. SUMMARY OF ARGUMENT In Issue 1, Johnson challenges each of the three prongs of the Younger test upon which the district court relied to dismiss six counts requesting declaratory judgments and three counts against the natural defendants in their official capacities, and concludes that the Younger abstention doctrine does not apply. [Pp. 14-19]. Because the district court had concluded that she had not satisfied the "bias" exception to the Younger abstention doctrine, Johnson, in Issue 2, had to run the gauntlet between the two common-law elements of that exception: (1) "general institutional bias" and (2) "the defendants’ pecuniary stake in the outcome of the litigation." To demonstrate that she had shown bias, Johnson had to argue matters that would ordinarily be deemed "taboo" and not in the best taste for an appellate brief. [Pp. 19-22]. In Issue 3, Johnson challenges the validity – i.e., the constitutionality -- of the BBO Rules and proves that her reliance on District of Columbia Court of Appeals v. Feldman is not misplaced, contrary to the lower court’s assertion. To do so requires discussion of (a) the inconsistency of Judge Young’s conclusions as to the nature of a bar-disciplinary hearing in the Commonwealth, (b) the relief sought by Johnson, and (c) the lower court’s misinterpretation of Maymó-Meléndez v. Álvarez-Ramírez and Van Arken v. City of Chicago as to when Rooker-Feldman is applicable and when it is not. [Pp. 22-26]. To prove in Issue 4 that the Younger doctrine does not require abstention on Johnson’s claims for declaratory and equitable relief, Johnson (a) discusses the principles of comity, analogizing to cases in the domestic-relations arena, (b) asserts that her money-damage claims for civil rights violations fall within the exception and are thus cognizable in federal court, (c) asserts that constitutional claims do not require a federal court to make a determination of whether an attorney should be disciplined, and (d) asserts that the exhaustion of state judicial remedies is not required of her and thus Younger is not implicated in the context of this case. [Pp. 26-31]. Issues 5 and 6 present the issue of competing constitutions. Johnson shows that article V of the Massachusetts Declaration of Rights is alive and well and that where no United States Congress took part in the birth and development of either the judicially-created second prong of the Eleventh Amendment (from the ribs of Hans v. Louisiana) [Issue 5] or the judicially-created doctrine of judicial immunity (from the womb of the Star Chamber) [Issue 6], the federal supremacy clause cannot trump art. V’s guarantee of accountability since 1780 by all magistrates and officers of all three branches of government to all the people all the time. [Pp. 31-34, 34-40]. In Issue 7, Johnson relies on Roche v. John Hancock Mut. Life Ins. Co. It held that the court has discretion to retain supplemental jurisdiction over the pendent State claim -- even if the federal claims suffer an early demise -- when the discretion is gauged on concern for comity, judicial economy, convenience, fairness, and the like, and that the preferred approach is pragmatic and case-specific. [Pp. 40-42]. ARGUMENTS 1. Where the Massachusetts disciplinary proceedings (a) are administrative in nature; (b) do not implicate important state interests; and (c) do not provide an adequate opportunity to raise federal constitutional challenges, the Younger abstention doctrine is inapplicable to this case. The parties initially appeared in the district court for a hearing on Johnson’s Motion for an Injunction. The judge, sua sponte, dismissed it on the grounds of the Younger abstention doctrine. Younger v. Harris, 401 U.S. 37 (1971). Taking the lead from the judge, the defendants then, relying on Bettencourt v. Bd. of Registration in Med., 904 F.2d 772, 777 (1st Cir. 1990), moved for the dismissal of the case-in-chief on Younger grounds [Add: 8].  The district-court judge set out a test that was to be applied if there are "‘ongoing, originally state-initiated civil or even administrative proceedings that satisfy three conditions.’" Bettencourt, 904 F.2d at 777. The three conditions are: (1) the proceedings are judicial (as opposed to legislative) in nature; (2) they implicate important state interests; and (3) they provide an adequate opportunity to raise federal constitutional challenges." Id. (footnote omitted). Add: 8.  Johnson contends that in its decision, the lower court failed to acknowledgment (1) that to apply Younger, the plaintiff must be seeking the district court to vacate, modify, or alter any of the interlocutory rulings, decisions, or orders that have emanated in that State case and (2) that Johnson did not seek the lower court to vacate, modify, or alter any of the interlocutory rulings, decisions, or orders that emanated from the State disciplinary proceedings. See ¶2, supra. As to the first factor of the three-pronged test: Johnson vigorously asserts that (1) the BBO proceedings are not judicial and not legislative in nature; they are strictly administrative. See ¶¶8-11, 13-15, supra.; Matter of Jones, at 1007; In re Segal, 430 Mass. at 364-365 (the APA governs evidence in board proceedings); Matter of Tobin, 417 Mass. at 102; In re Karahalis, 429 Mass. at 124 n. 5 (disciplinary decisions are "procedural and administrative in nature"); Matter of Eisenhauer, 426 Mass. at 454 (Bar discipline is an "administrative process under the authority of the justices of the Supreme Judicial Court"); Matter of Pressman, 421 Mass. at 517 (same as in Eisenhauer); and BBO Rule §3.39. Thus the court was in error when it concluded, at Addendum: 10-11, 13, that the disciplinary proceeding was judicial in nature. As Johnson wrote [App: 512]:   First, it is clear that a bar disciplinary proceeding in Massachusetts is administrative not judicial in nature. Second, it is clear that the assistant attorney general falsified quoted text to make it appear that Massachusetts bar disciplinary proceedingswere judicial in nature as are New Jersey’s. Third, this Court must not countenance the reprehensible misrepresentation by the assistant attorney general as being true. As argued in her brief at 6-7, "Massachusetts has held fast to the notion that bar disciplinary proceedings are administrative proceedings, for to do otherwise, the SJC could not allow the BBO to operate as a quasi-administrative body under the Administrative Practice Act, which allows the BBO to avoid using the rules of evidence. The change AAG Hitt made is significant. The Massachusetts SJC does not want to consider its bar disciplinary proceedings as ‘judicial in nature,’ for it would have to change how the BBO is doing business." [Johnson’s brief, at 6-7 (footnotes omitted)]. Later, of course, the court flip-flopped and declared that the disciplinary proceeding was administrative in nature [Add: 16]. The only reasonable conclusion is as Johnson iterated previously, that the court had to conclude that the BBO proceeding was administrative in nature in order to defeat the constitutional challenge allowed by Feldman of the rules involved in state administrative proceedings. See Add:16. As to the second factor of the three-pronged test:"(2) they implicate important state interests" [Add: 8]. The district court pointed out: that "[t]he policies underlying Younger are fully applicable to noncriminal judicial proceedings when important state interests are involved." Middlesex, 457 U.S. [423,] 432 [(1982)] (citing Moore v. Sims, 442 U.S. 415, 423 (1979), and Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05 (1975)). Add: 8 (emphasis supplied). "The offense to state interests is likely to be less in a civil proceeding. A State's decision to classify conduct as criminal provides some indication of the importance it has ascribed to prompt and unencumbered enforcement of its law." Younger, at 55 n. 2 (Stewart, J., concurring, with whom Harlan, J., joined). Given that the Commonwealth has steadfastly asserted that the disciplinary hearing is not criminal, and merely administrative, one in which witnesses and other evidence was precluded by pretrial orders, the state interest is minimal. App: 440 (emphasis supplied).Where (1) according to Massachusetts common law, Massachusetts’ disciplinary proceedings are not judicial and merely administrative, and (2) the facts of the BBO proceedings against Johnson demonstrate that the BBO did not even follow APA procedures, the state interest is minimal. Where the defendants and the court failed to satisfy the second prong of the Bettencourt test, the Younger test does not apply. As to the third factor of the three-pronged test: "‘(3) they provide an adequate opportunity to raise federal constitutional challenges.’ Id. (footnote omitted)" [Add: 8]. See also Middlesex, at 435-36. First, the Bar disciplinary proceedings in Massachusetts are not similar to those in New Jersey. SeeAdd: 10. Second, until 1974, when the BBO and Office of Bar Counsel ["OBC"] were established merely as "Affiliated Entities"\9/ by the Supreme Judicial Court of Massachusetts, attorney discipline actions in Massachusetts were held in a court contemplated by Article III of Ch. 1, Sec. 1, of the Constitution of the Commonwealth of Massachusetts, or in Article III courts in the federal judicial system. FN9   Exhibit to App: 501-508. See Figure 1, infra, at 33-34. Third, although the BBO and OBC do not appear on the Commonwealth’s list of "Authorities & Quasi-public Agencies," they are listed on the SJC website\10/ as "Affiliated Entities." Their regulations were promulgated pursuant to SJC Rule 4:01, §5(3)(i), by the SJC Rules Committee, which is "[m]ade up of three SJC Justices (excluding the Chief Justice)."\11/ As an Affiliated Entity, the BBO is not a court of the type contemplated by the Framers of our state and federal governments.  FN10  <http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicial- court/about.html#affiliated> FN11  <http://www.state.ma.us/courts/courtsandjudges/courts/supremejudicial- court/about.html#rules1> While there appears to be written into the rules adequate opportunities to raise constitutional challenges, as required under Middlesex, at 432, which was cited by the district court, the problem of which Johnson complains is that the BBO does not follow its rules. At this point, Johnson incorporates her entire Amended Complaint [App: 6-74, including attachments], which details all the rules violated by the BBO. So the opportunity to challenge the constitutionality of the rules is but a smokescreen and the district judge’s assertion, meaningless [Add: 11].\12/ FN12   Curiously, the district court wrote [Add: 15] that the court, having dismissed outright Johnson’s state and federal claims in the federal suit, Johnson's sole appeal from an unfavorable state court decision will be to the United States Supreme Court, since "[i]t is well-established that lower federal courts have no jurisdiction to hear appeals from state court decisions, even if the state judgment is challenged as unconstitutional." Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d 620, 628 (1st Cir. 1990). See District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923). See also 28 U.S.C. § 1257. Johnson did not bring any claims from the state court to the federal district court. The BBO cannot rule on the constitutionality of its own rules (the subject of Johnson’s counts seeking declaratory judgments) and the BBO cannot award money damages (the subject of her state claims) Although it can be argued that the opportunity for constitutional challenge will be resuscitated when the disciplinary action reaches the SJC [Add: 12], and therefore that defendants have satisfied the third and final requirement of the Younger test, the defendant must satisfy all three factors of the Younger test, not just one factor. The Younger abstention doctrine is therefore not applicable in this case. 2. Where there is a dispute as to whether Johnson has satisfied the "bias" exception to the Younger abstention doctrine, dismissal is inappropriate. The court held that Johnson met the first requirement of the "bias" exception by seeking the recusal of allegedly biased judges in the state proceeding. [Add: 13, citing Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 640 (1st Cir. 1996)].  The dispute arises as to whether Johnson offered sufficient "‘evidence to demonstrate that abstention will jeopardize [her] due process right to an impartial adjudication.’ Brooks, 80 F.3d at 640." [Add: 14]. According to the court, Johnson could not implicate due process because she did not show (a) "general institutional bias, . . . such as a potential conflict of interest" or (b) "a pecuniary stake in the outcome of the litigation" [Add: 14-15]. General Institutional Bias:\13/ Johnson argued that to prove definitively such wrongdoing as general institutional bias would be a virtually impossible burden not only for Johnson but also for most plaintiffs, given that communications in any form between government officials and others in power would be inaccessible to Johnson.\14/ For instance, Johnson would need to access communications between (a) the SJC and Defendant Chair of the BBO M. Ellen Carpenter, BBO General Counsel Michael Fredrickson, Defendant OBC Bar Counsel Daniel Crane, (b) diverse people in the offices of the BBO and the OBC, and (c) diverse people in the offices of the BBO and the OBC and Defendant Special Hearing Officer Phillips. The likelihood of obtaining the contents of those communications is nil. To assert otherwise would be foolish and naive.  FN13Johnson had argued that Brooks’ requirement of a "further showing" was met by "‘her crusade for court reform and the abolition of judicial and quasi-judicial immunity.’ Pl.'s Mem. Opp'n at 14" [Add: 14, quoting App: 446], that her "claims that her ‘views on the need for judicial accountability and the need for court reform are well-known to the courts’" [Add: 14], that "her claim that appeal would be ‘futile’ based on her past experience bringing ‘a few cases to the SJC,’ where the Supreme Judicial Court made ‘what Johnson perceived to be unconscionable decisions in those few cases.’ Am. Compl. ¶ 111 " [Add: 14, quoting App: 23, ¶111], that the ulterior motive of Bar Counsel is to censor her website, and thereby to interfere with her exercise of her "First Amendment right to political speech and free expression, as well as her right and obligation to see that justice is done" [App: 15, ¶46].   FN14 Motions to Quash would abound. Motions to Compel would be inevitably denied. If any orders for production were to issue, subsequent contempts would be dismissed prior to hearings being held. Johnson has been down this road a few times. What is, is. That is reality. Johnson suggested that were the government the plaintiff, for instance, such an investigation would cost the government millions of dollars and the appointment of special prosecutors [App: 445 at n. 20]. Case on point: Special Prosecutor Ken Starr’s investigation of Pres. Clinton. Therefore, unless Johnson can conduct discovery before a fundamentally fair court and then confront these persons on a witness stand and put the issue before a jury, Johnson’s averments of bias must be taken as true. In fact, the standard to be used in determining a motion to dismiss requires that all facts stated by the plaintiff must be taken as true. Doran v. Mass. Turnpike Auth., 348 F.2d 315, 318 (1st Cir. 2003), citing Rockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994). Thus the issue of bias cannot be subject to a brevis disposition by a bench. Johnson’s further showing is her crusade for court reform and the abolition of judicial and quasijudicial immunity [Add:14, citing App: 23 at ¶111(a-d)]. In fact, approximately a third of the OBC’s trial exhibits consisted of pleadings uploaded to Johnson’s website, falseallegations.com, where she not only exercises her First Amendment rights to free speech and political expression but also fulfills her obligation to make public the unscrupulousness of certain courts. [App: 14-15, ¶¶45-47; App: 28-29, ¶128; App: 29, ¶¶131-133].  App: 446. Johnson incorporates herein by reference her argument on this topic from her opposition to the first motion to dismiss [App. 434-452]. A Pecuniary Stake in the Outcome of the Litigation. Job security (BBO General Counsel) and potential for upward career moves satisfy this prong of the lower court’s analysis. BBO Chair Carpenter, to be a judge, like two of her four former partners: SJC Justice Martha Sosman and Superior Court Leila Kern. One of her other partners, Christine M. Roach, is on the State Ethics Commission; OBC Bar Counsel Crane, to be a judge, like former OBC Bar Counsel Daniel Klubock, or employment by a prestigious lawfirm, as former Bar Counsel Arnold Rosenfeld did; Special Hearing Officer Phillips has an interest in obtaining continuing re-appointment as a hearing officer and other assignments.\15/ FN15 Many of the same people are appointed to many governmental entities: for example, the BBO, the Client Security Board, the State Ethics Commission, the Civil Service Commission, to name a few. These appointments are similar to the kids’ game Musical Chairs, except that instead of the music stopping and starting, the term of one appointment to one entity ends and the term of the appointment to another such entity begins. The underlying power is a relationship derived from political incest. Unfortunately, the populace is not sufficiently interested to take note of the phenomenon. Those politically connected and astute keep, of course, the phenomenon under wraps to protect their own potential and possibly lucrative benefit. Phillips and Carpenter are but two of those people. Phillips is too aged to become a judge, but Carpenter’s age is perfect. If the frequency of her picture in the Lawyers Weekly is any measurement, her goal is within her reach. Johnson was not so bold or brazen to write about the Musical Chairs game in the district court, but Judge Young’s specious and spurious conclusion has compelled her to spell out – at least with a bit of particularity . . . and very hesitantly . . . on a very sensitive subject -- the "pecuniary stakes involved in the outcome of the litigation," the reality of which the judiciary is well aware and which remains buried by the Code of Silence prescribed in the Code of Judicial conduct and the Rules of Professional Conduct for lawyers.   3.    Where federal district courts have jurisdiction over "‘general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings’" and the disciplinary proceeding against Johnson is administrative and nonjudicial in nature, dismissal of Johnson’s challenges was reversible error. Johnson argued below that District of Columbia Court of Appeals v. Feldman permits her to attack the validity of the BBO rules in the district court [Add: 15, citing App: 509-510]. Then after stating, "The Court carefully distinguished between 'general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings' -- for which there is jurisdiction in the lower federal courts -- and ‘challenges to state-court decisions in particular cases arising out of judicial proceedings,’ -- for which there is not." Schneider, 917 F.2d at 628 (quoting Feldman, 460 U.S. at 486).  [Add. 16], the court stated, "Were Johnson not engaged in state administrative proceedings involving the same rules as those cited in her complaint, Feldman might well permit her to challenge the constitutionality of those rules in federal court" [Add: 16 (emphasis supplied)]. Therein lies the district court’s error. "‘In conducting [a Rooker- Feldman] analysis, we must pay close attention to the relief sought by the federal-court plaintiff.’" Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 2004.C01.0000167 at ¶37 <http://www.versuslaw.com> (1st Cir. 2004), citing Kenmen Eng'g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002).  The district court slid over both the relief sought by Johnson and the nature of the administrative proceedings. In Maymó-Meléndez, the plaintiff’s "challenge [was] an attack on the Puerto Rico Circuit Court of Appeals's decision affirming the suspension and [was] therefore barred by Rooker-Feldman." Maymó-Meléndez, 2004.C01.0000167 at ¶38 <http://www.versuslaw.com>. In the instant case, Johnson’s challenge is not to a decision or judgment out of the Bar disciplinary proceeding, for there has been no decision or judgment, and is therefore not barred by Rooker-Feldman on those grounds. In Maymó-Meléndez , the court assumed that all administrative proceedings were judicial in nature. In Massachusetts, bar disciplinary proceedings, like disciplinary proceedings for judges, are nonjudicial. Matter of McKenney, 384 Mass. 76, 88 (1981) (re discipline of judges). Matter of London, 427 Mass. 477, 482 (1998) (re discipline of lawyers), citing Matter of Eisenhauer, 426 Mass. at 454 (special protections afforded to criminal defendant are not applicable in bar discipline proceedings as they are administrative in nature and respondent is not entitled to full panoply of rights afforded criminal defendant) (emphasis supplied). See also Matter of Jones, 425 Mass. at 1007. "Younger, even where it presumptively applies, is not implicated where the federal claims cannot be raised and resolved somewhere in the state process. "Maymó-Meléndez, 2004.C01.0000167 at ¶53 <http://www.versuslaw.com>, citing Middlesex County Ethics Comm., 457 U.S. at 432.  "The scope and conditions of the various Younger exceptions remain uncertain. Underneath the surface is an unspoken policy debate as to how much should be done by federal courts and how far state courts are to be trusted." Maymó-Meléndez, 2004.C01.0000167 at ¶58. "About all that is certain is that there is some reason for interim federal court intervention where core constitutional values are threatened during an ongoing state proceeding and there is a showing of irreparable harm that is both ‘great and immediate.’ Id., citing Younger, 401 U.S. at 46. Further, the Rooker-Feldman doctrine does not extended to administrative judgments. Van Harken v. City of Chicago, 103 F.3d 1346, 1997.C07.3 at ¶14 <http://www.versuslaw.com> (7th Cir. 1997). And where there has been no judgment against Johnson in the state disciplinary proceeding, Rooker-Feldman is inapplicable. Id.  Insofar as the plaintiffs merely seek a declaration that the procedures under which the parking charges against them were, or in the case of those members of the class whose cases have not yet been heard will be, adjudicated are constitutionally inadequate, they are not barred by Rooker-Feldman because they are not challenging the judgment in any parking case. Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 227 (7th Cir. 1993); see also Nesses v. Shepherd, 68 F.3d 1003, 1005 (7th Cir. 1995); Dubinka v. Judges of Superior Court, 23 F.3d 218, 222 (9th Cir. 1994); Centifanti v. Nix, supra, 865 F.2d at 1429. But insofar as they are seeking refunds of the parking fines imposed upon them, they are barred. The Feldman decision illustrates the distinction. It allowed the plaintiffs in that case to challenge the constitutionality of the rule under which they had been denied admission to the bar, 460 U.S. at 487-88, while refusing to allow them to challenge the denial itself. If they prevailed on their challenge to the rule, they might or might not be able to get a new hearing on the denial of their applications for admission, and to that extent the Rooker-Feldman doctrine does not prevent a form of collateral attack upon -- or, better perhaps, an oblique swipe at -- a state court judgment by a suit brought in a federal district court. Our case is the same so far as the declaratory relief sought by the plaintiffs is concerned, and no more is necessary to support jurisdiction. Van Harken, 103 F.3d 1346, 1997.C07.3 at ¶15 <http://www.versuslaw.com>.  So, when quoting [Add: 16] from Maymó-Meléndez, 364 F.3d at 34, for the proposition that "Rooker-Feldman does not insulate from federal challenge administrative rulings standing alone," the district court here committed a "Totem Pole reversible error." The first error was by the First Circuit: in Maymó-Meléndez, it misread Van Harken,103 F.3d at 1349, for there appears to be no language in Van Harken which supports the proposition set forth in Maymó-Meléndez regarding when Rooker-Feldman is applicable and when it is not. And the misreading by the appellate panel in Maymó-Meléndez of Van Harken caused Judge Young to err.  Notwithstanding the Totem Pole error, the district court also erred by stating that "Johnson's challenge emanates from the proceeding currently underway in the Massachusetts Board of Bar Overseers." That is not true. While there is a pending state disciplinary proceeding against Johnson, she does not seek anything to be vacated or modified or amended. She seeks declaratory judgments. Johnson’s collateral attack or oblique swipe at or challenge of the Bar rules, by seeking declaratory judgments, arises from her reading and learning the rules and seeing them in practice. It is clear that the rules Johnson challenged are unconstitutional "standing alone." And her claims for money damages for the harm and damages she has suffered as a result of the wrongful and/or unlawful application of those rules provide the controversy required to make claim to a declaratory judgment.  Lastly, the BBO does not have jurisdiction over civil rights claims pursuant to 42 U.S.C. §1983 and common-law or First Amendment claims. 4.      Younger does not require abstention on Johnson’s claims for declaratory and equitable relief. The status of the pending state disciplinary proceeding has no bearing on the  underlying torts alleged. Cf. Ankenbrandt v. Richards, 504 U.S. (La.) 689 (1992). Further, because defendants committed torts against Johnson, federal subject-matter jurisdiction is proper in this case. Ankenbrandt, 504 U.S. at 704. Cf. also Dunn v. Cometa, 238 F.3d 38, 41 (C.A.1 (Me.) 2001).\16/ FN16"In general, lawsuits affecting domestic relations, however substantially, are not within the exception unless the claim at issue is one to obtain, alter or end a divorce, alimony or child custody decree." Dunn, at 41, where the counts for breach of fiduciary duty and for negligence and waste were not foreclosed by the domestic relations exception. Id. at 40-41. "This narrow construction led the Court in Ankenbrandt to hold that the exception did not apply to tort claims there at issue despite their intimate connection to family affairs." Id., citing Ankenbrandt, 504 U.S. at 704. Both counts were central to the defendant's "alleged misfeasance or wrongful nonfeasance in allowing Dunn's private insurance policy to lapse." Id. at 42. Where "petitioner's claims [ ] involve a federal question or statute -- the presence of which would strongly counsel against abstention -- petitioner's state-law tort claims for money damages are easily cognizable in a federal court. All these considerations favor the exercise of federal jurisdiction over petitioner's claims." Ankenbrandt, at 717 (Stevens and Thomas, JJ., concurring).  Because the same comity principles apply, Johnson analogizes to the following cases in the domestic-relations arena. Federal district court also has subject-matter jurisdiction over claims seeking relief from family-court orders which emanated under procedures that allegedly violated due process, equal protection, and other federal statutes such as §1983, the civil rights statute. Agg v. Flanagan, 855 F.2d 336, 339 (C.A.6 (Ohio) 1988). Where Agg, like the instant case, had been brought under §1983 and alleged deprivation of federal constitutional rights and state procedures that were contrary to federal law and thus invalid under the supremacy clause, the domestic-relations exception doctrine, which concerned federal jurisdiction based on diversity, did not apply. Id. at 339. "[J]urisdiction [ ] was therefore proper under 28 U.S.C. sec. 1331 or sec. 1343." Id., U.S. Const. Art. 6, cl. 2; Amends. 5, 14. See also Rubin v. Smith, 817 F.Supp. 987, 991 (D.N.H. 1993) (domestic relations exception did not apply to a §1983 civil rights suit that raised constitutional questions and sought damages for the "deprivation of plaintiffs’ constitutional interests without due process of law); Thomas v. New York City, 814 F.Supp. 1139, 1147 (E.D.N.Y.) (the issue of "whether the state's procedure used to separate parent from child complie[d] with constitutional due-process requirements [was] squarely within [the] court's federal question jurisdiction"); Friedlander v. Friedlander, 149 F.3d 73, 740 (C.A.7 (Ill.) 1998) (where action merely arises from a domestic-relations dispute and does not seek any of the distinctive forms of relief typically associated with domestic-relations jurisdiction, the domestic-relations exception does not bar diversity jurisdiction), citing Lloyd v. Loeffler, 694 F.2d 489 (7th Cir.1982) (a suit for interference with custody); McIntyre v. McIntyre, 771 F.2d 1316 (9th Cir. 1985) (similar to Lloyd); DiRuggiero v. Rodgers, 743 F.2d 1009, 1018-20 (3d Cir.1984) (similar to Lloyd); Stone v. Wall, 135 F.3d 1438 (11th Cir. (Fla.) 1998)3 (similar to Lloyd); "and better yet" [Dunn at 740] Raftery v. Scott, 756 F.2d 335, 337-38 (4th Cir. 1985),\17/ and Drewes v. Ilnicki, 863 F.2d 469 (6th Cir. (Ohio) 1988),\18/ both cases like Friedlander, one of intentional infliction of emotional distress.  FN17 In Raftery, the court held that the exercise of diversity jurisdiction over former husband's action against former wife for intentional infliction of mental distress, arising out of former wife's effort to destroy and prevent rehabilitation of relationship between former husband and the parties' son, did not contravene domestic relations exception to federal diversity jurisdiction. FN18  In Drewes, the court held that the domestic-relations exception to diversity jurisdiction does not apply to suits that are actually tort or contract claims having only domestic-relations overtones. 28 U.S.C. sec. 1332(a)(1). Going one step further, the court in Catz v. Chalker, 142 F.3d 279 (C.A.6 (Ohio) 1998) (former husband's action, seeking a declaration that the state divorce decree was void as a violation of due process, was not a core domestic relations case to which the domestic-relations exception applied). Catz did not seek declaration of marital or parental status, but instead presented a constitutional claim in which it was incidental that the underlying action involved a divorce. Id. Fourteenth Amendment. The domestic- relations exception has no generally recognized application as a limitation on federal question jurisdiction; it applies only as a judicially implied limitation on diversity jurisdiction. U.S. v. Johnson, 114 F.3d 476 (C.A.4 (Va.) 1997). In Johnson v. Rodrigues (Orozco), 226 F.3d 1103, 1109 (C.A.10 (Utah) 2000), the Rooker-Feldman doctrine did not apply where the underlying claims presented a general challenge to the constitutionality of the Utah adoption statutory scheme and alleged a due process violation. Such claims were asserted under federal question jurisdiction, and constitutional claims do not require a federal court to make a custody determination. Id. at 1111. So, too, are Johnson’s claims asserted under federal question jurisdiction, and constitutional claims do not require a federal court to make a determination of whether an attorney should be disciplined. Moreover, the following proposition by Judge Young is, Johnson suggests, curious: "[O]nce a state judicial proceeding [has] begun," Younger requires the "exhaustion of state judicial remedies" even though a final state court judgment would likely preclude any new federal lawsuit. Maymó-Meléndez, 364 F.3d at 34-35 (citing Huffman [v. Pursue, Ltd.], 420 U.S. [592], 607-11 [1975]).  Add: 16-17. The issue presented in the judge’s quotation is "an exhaustion of remedies question" [Maymó-Meléndez, at 34] and requires that the claims are the same in both the state and federal courts. Here, they are not.\19/  Because (1) the claims in the instant case allege deprivation of federal constitutional rights and state procedures that are contrary to federal law and thus invalid under the supremacy clause, and (2) there is no pending State case involving the claims presented in the instant case, neither the exhaustion of state judicial remedies nor the Younger doctrine in that context applies.\20/  FN19 The appellate route of the state disciplinary proceeding is clear: a review by the BBO, review by a single justice of the SJC, review by the SJC bench. If Johnson remains unhappy when she exhausts her state judicial remedies – assuming the pending BBO proceedings are ultimately resolved against her interests -- she will have to bring her unhappiness to the U.S. Supreme Court. FN20  The Younger abstention doctrine does not apply, however, to Johnson's claims for money damages pursuant to Section 1983 or Section 1985, or to her defamation claim, since she will not have the opportunity to make these claims in the state proceeding. See Deakins v. Monaghan, 484 U.S. 193, 202 (1988) (stating that even if the Younger abstention applies, the district court has no discretion to dismiss rather than to stay claims for monetary relief that cannot be redressed in the state proceeding). Thus, while declaratory judgment Counts 1 through 6 were dismissed in toto in reliance on Younger, the civil rights Counts 7 through 9 were dismissed under Younger only to the extent that Johnson sought equitable relief. Add: 17. Maymó-Meléndez and Huffman also require the state proceeding to be judicial.\21/ Here, it is not: it is administrative in nature. "Younger, even where it presumptively applies, is not implicated where the federal claims cannot be raised and resolved somewhere in the state process." Maymó-Meléndez, 2004.C01.0000167 at ¶37 <http://www.versuslaw.- com>, citing Middlesex County Ethics Comm., 457 U.S. at 432. Therefore, because the federal claims raised in the instant action cannot be either raised at the BBO or resolved in the ordinary route of appeal in the Commonwealth of the BBO disciplinary proceeding, Younger is not implicated in this case. FN21   "At the time Huffman was decided, Younger had not formally been extended to state administrative proceedings; and the Court reserved the exhaustion question as to them." Maymó-Meléndez, at 35. "Huffman is a reliable guide only where full-fledged state administrative proceedings of a judicial character and, arguably, of a coercive nature, are directed against the federal plaintiff." Id. 5.     The second-prong of the Eleventh Amendment, which the district court applied here,\22/ was never duly ratified and is thus unconstitutional and inapplicable to this case.\23/ FN22 Add: 17. FN23 The defendants did not plead the Eleventh Amendment. Judge Young raised it sua sponte as to Counts 7-9 at the hearing on the motion to dismiss [App: 456-466]. A day after the hearing, he ruled that the Eleventh Amendment did not apply to the money-damage Counts 7-9. Two days after the hearing, "upon further reflection" about those counts, he allowed the parties to submit briefs on the issue of whether quasijudicial and quasiprosecutorial immunity were applicable to the money-damage counts [Add: 25]. Finally, in his decision, the judge dismissed Counts 7-9 against the natural defendants acting in their professional capacities pursuant to their Eleventh Amendment immunity from suit [Add: 24]. Another untenable excuse used by the federal courts to allow governmental defendants to escape liability and accountability is the so-called Eleventh Amendment. Like the doctrine of judicial immunity, the nascence of the second prong of the Eleventh Amendment was without the potency of any Congress. The second prong was birthed by the Court acting outside the scope of its authority almost 100 years after the first prong of the Eleventh Amendment was duly-ratified, and has no application here whatsoever. Hans v. Louisiana, 134 U.S. 1 (1890) (by judicial fiat, the Court enhanced the Eleventh Amendment by holding that a citizen cannot sue his/her own State in federal court). It was a Court that when circumventing the legislature by usurping its law-making power, transformed our government into one that oppressed the governed.  This was contrary to what our Framers intended.\24/ To prevent such oppression, the Framers gave the public the right to return those oppressing the governed to private life. U.S. Const., Art. 3, §1. Mass. Declaration of Rights, art. VIII. It is reasonable to conclude that the Framers considered that the public would choose from the full spectrum of sanctions: from the giving of relief for one identifiable wrongdoing to the harsh sanction of impeachment. Thus the district court here holding that the Eleventh Amendment barred Johnson’s §1983 claims in Counts 7-9 was reversible error. FN24  Not having been duly ratified, the second prong of the Eleventh Amendment may not be invoked against the petitioner. Nor may it override or preempt article V of the Mass. Declaration of Rights, which has since 1780 constitutionally guaranteed accountability at all times by all three branches of government to the people, of which Johnson is one. Nor may it supercede the Fourteenth Amendment, duly ratified 22 years prior to the judicial grenade thrown at the civil rights of individuals in Hans. Nor may it override the plain language of §1983, enacted to enforce the provisions of the Fourteenth Amendment. Nor may it overrule the intent of Congress not to afford immunity to those judges who deprive citizens of their civil rights. Moreover, where Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times, and where it does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities, article V constitutes the state’s express and unequivocal consent to suit by the people. Thus the Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio (id.). Certainly the Eleventh Amendment cannot preempt article V of the Declaration. Notwithstanding the obvious issue of competing constitutions, Article VI of the federal constitution would have to be invoked, and that is impossible. To invoke the supremacy clause of Article VI, the intent of the United States Congress to preempt the Massachusetts Declaration of Rights would have to be shown, and where no United States Congress took part in the birth or the development of the Eleventh Amendment, no such intent can be shown. Johnson’s First Amendment and other constitutional interests should trump the defendants’ or the federal and state governments’ interests in precluding Johnson’s claims, which is, in effect, an unlawful bestowing of immunity on the defendants. Immunity is immunity is immunity and by any other name would smell as foul. By not having an existing statute or a constitutional provision upon which judicial or quasijudicial or quasiprosecutorial immunity or the second prong of the Eleventh Amendment are based, and no ordinary constitutional analysis -- using strict or intermediate scrutiny or a rational basis test -- of the facts of the case or of Johnson’s legal arguments, the decisions below leave unsettled the critical conflict between the judicially-created law and the State and Federal constitutions.  Where the second prong of the Eleventh Amendment has never been scrutinized and cannot be attributed to the Framers or to any Congress, the application of the unratified second prong of the Eleventh Amendment must not be continued as a de facto constitutionalized policy or practice.  To the extent that the court dismissed Counts 7 through 9, which sought money damages against the Commonwealth of Massachusetts, the Board of Bar Overseers, the Office of Bar Counsel, and the individual defendants for actions taken in their official capacities, the lower court committed reversible error. 6.   Quasijudicial and quasiprosecutorial immunity are not applicable to the natural defendants in their individual capacities. Johnson incorporates herein by reference two of her briefs, in entirety, on the issue of whether quasijudicial and quasiprosecutorial immunity are inapplicable to this issue [App:469-508].  The district court relied upon Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 782 (1st Cir. 1990),\25/ and Butz v. Economou, 438 U.S. 478, 508 (1977), to find that the natural defendants in this case were "‘quasi-judicial’ agency officials who . . . perform[ed] functions essentially similar to those of judges or prosecutors, in a setting similar to that of a court" [Add: 19]. To make that finding, Judge Young applied a three-part test [Add: 20].  FN25  Bettencourt was a civil rights action arising out of the revocation of the plaintiff physician’s medical license by the Board of Registration in Medicine. First, he concluded that Chair Carpenter and SHO Phillips were "performing a traditional adjudicatory function by determining whether to recommend Johnson for disciplinary sanctions after making factual and legal determinations" [Add: 20]. Johnson contends, contrary to Judge Young’s assertion [id.], that the natural defendants in this case did not decide facts, did not apply law, and did not "otherwise resolve[] disputes on the merits" . . . and there was nothing they did "in a setting similar to that of a court." Although the Supreme Court has been "quite sparing" in its grants of absolute immunity, Forrester v. White, 484 U.S. 219 (1988), the Court has recognized that "there are some officials whose special functions require a full exemption from liability." Butz v. Economou, 438 U.S. 478, 508 (1977). Such officials include, . . . certain "quasi-judicial" agency officials who, irrespective of their title, perform functions essentially similar to those of judges or prosecutors, in a setting similar to that of a court. Butz v. Economou, 438 U.S. 478, 511-17 (1977). See generally Cleavinger v. Saxner, 474 U.S. 193, 199-202 (1985) (reviewing doctrine of quasi-judicial immunity); Scott v. Central Maine Power Co., 709 F. Supp. 1176, 1181-84 (D.Me. 1989) (same). We must consider here whether the district court correctly determined that defendants fall within this latter category. We hold that it did. Bettencourt v. Board of Registration, 904 F.2d 772, 1990.C01.40406 at ¶62 <http://www.versuslaw.com> (1st Cir. 1990). Here, the defendant officials – who are not officials of an agency but only officials of Affiliated Entities – did not "perform functions essentially similar to those of judges or prosecutors, in a setting similar to that of a court." Id. See Figure 1 below. Even were we to assume arguendo that judicial immunity is constitutional, the factual dispute as to whether Carpenter and Phillips were performing judicial functions as judges do in a court setting is within the purview of a jury to resolve, not within that of the bench when considering a motion to dismiss.     Affiliated Entities Board of Bar Overseers, Office of Bar Counsel, and Clients' Security Board The Justices of the Supreme Judicial Court established the Board of Bar Overseers, the Office of Bar Counsel, and the Clients' Security Board (CSB) by rule in 1974. The Board of Bar Overseers collects annual registration fees from lawyers and applies them to fund its operations and those of the Office of Bar Counsel, the Clients' Security Board, and Lawyers Concerned for Lawyers. The Bar Counsel, an independent prosecutor who serves at the pleasure of the Court, investigates grievances alleging professional misconduct against lawyers, and prosecutes formal charges against lawyers before the Board of Bar Overseers. The Board of Bar Overseers may dismiss charges, impose minor discipline, or recommend suspension or disbarment to the Court. The Board also hears petitions for reinstatement to the bar. . . . To learn more about the Board of Bar Overseers and the Office of Bar Counsel, visit their website at http://www.state.ma.us/obcbbo. . . . FIGURE 1. Attachment #1 to Case Doc. 18 at 501-598, excerpted from http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/about.html#affiliated1

It is because Defendants Carpenter and Phillips did not consider facts when ruling on motions (no final disposition has been made), did not apply law before deciding motions, or "otherwise resolve[] disputes on the merits," the natural defendants did not perform traditional adjudicatory functions, making the award of quasijudicial immunity reversible error.\26/ FN26  Article V of the Massachusetts Declaration of Rights explicitly guarantees that all magistrates and officers of each branch of government be accountable at all times to the people, of whom Johnson is one. Constitution of the Commonwealth of Massachusetts, Part the First, art. V, ratified in 1780, a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts. Second, Judge Young concluded that were the BBO to recommend discipline, the attorney would be litigious, "making the need for absolute immunity apparent."  [Add: 20]. There is no evidence of this. This is a bald assertion. In fact, most attorneys, fearful of the power of the BBO and OBC, roll over for those political institutions, and if they do not, they lose again on appeal. Those awarded immunity by §9(3) are not at all in need of absolute immunity. They are protected by Power. I ... never believed there was one code of morality for a public, and another for a private man. Thomas Jefferson to Valentine de Foronda, 1809, The Writings of Thomas Jefferson, Monticello (Memorial Edition), 12:320; (Washington ed.) v, 475; (Ford ed.) ix, 260. A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.  Thomas Jefferson (1743-1826), in a letter to Thomas Ritchie, December 25, 1820, The Writings of Thomas Jefferson, Memorial Edition, 15:298. The Judicial Branch must be independent of other branches of government, but not independent of the nation itself. It is rightly responsible to the people for irregular and censurable decisions, and judges should be appointed for limited terms with reappointments resulting from approved conduct. Eyler Robert Coates, Sr. in The Writings of Thomas Jefferson, chapter 29, Metairie, Jefferson Parish, Louisiana. Mr. Madison thought it indispensable that some provision should be made for defending the Community agst (against) the incapacity, negligence or perfidy of the chief Magistrate. James Madison, Friday, July 20, 1787, The Framers' Debates on the Impeachment Provisions (from the notes of James Madison, taken at the Constitutional Convention in Philadelphia on Friday, July 20, 1787). Massachusetts had already taken that precaution seven years earlier by ratifying article V of the Declaration of Rights. But 200 years later, the SJC burdened the people with Rule 4:01, §9(3), which reads, "The Board, members of the Board and its staff, members of hearing committees, special hearing officers, and the bar counsel and members of his or her staff shall be immune from liability for any conduct in the course of their official duties," by throwing accountability out of the window [App. 472]. By so doing, §9(3) has become but brazen perfidy to article V’s guarantee of accountability to the people at all times by all officers of the three branches of State government.\27/ FN27    There is no justification for the Board, its members and its staff, the members of hearing committees, special hearing officers, and Bar Counsel and members of his staff to be given absolute immunity at all times, and thus be treated differently than all other quasigovernmental appointees in the Commonwealth. Thus §9(3) of SJC Rule 4:01 is unconstitutional in that it violates Article V of the Massachusetts Declaration of Rights. Third, Judge Young equated "multiple safeguards designed to protect a physician's constitutional rights" with "multiple levels of review" existing up to and including review by the full Supreme Judicial Court. [Add: 20]. This is reversible error. (1) It is too little too late. Multiple levels of review after a disciplinary recommendation do not cure the harm and damages suffered prior to any disposition of the disciplinary action, which is the basis of Johnson’s counts 7-10. (2) The BBO has no jurisdiction over claims for declaratory judgments and torts and civil rights. "Multiple levels of review exist" for the disciplinary action, but the federal district-court case is not a disciplinary action. Nor does the district-court case seek to modify, amend, or vacate any BBO decision, ruling, or order. See note 16, supra.  Fourth, Judge Young wrote that Johnson made "no allegations of conduct of these defendants outside their roles as adjudicators of her case." That was astonishing, given the recitation of a large number of facts describing how Defendants Carpenter and Phillips acted outside the scope of the authority given to them only by the suspect Rules of the Board [App: passim]. Fifth, the nonprosecutorial role Defendant Crane played is not described in any statute, rule, or regulation [App: 21]. Therefore, contrary to that which the district court and the court in Bettencourt held, absolute immunity does not bar Johnson's claims for damages against the Board members [App: 21]. In fact, Defendant Crane did not act as a prosecutor in the state disciplinary proceeding.\28/ Therefore Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), and Wang v. New Hampshire Bd. of Reg. in Med., 55 F.3d 698, 701 (1st Cir. 1995), both relied upon by Judge Young for the proposition that Crane is entitled to absolute prosecutorial immunity, do not apply and thus do not form the basis for the dismissal of Counts 7 through 9 of Johnson’s Complaint. FN28    Johnson incorporates in entirety herein by reference App: 469-500, and, in particular, 478-482, 495-499. Further, given the conditions of birth of the doctrine, judicial immunity and its progeny, the derivative "quasi" immunities, are unconstitutional and may not be applied not only to this case but to any other [App: 469-500, Add: 15]. The doctrine fosters secrecy, sloth, and unscrupulousness. The doctrine is contrary to well-settled law: (1) Congress did not intend judges to be immune against civil rights deprivation claims, (2) article 6 of the U.S. Constitution may not be invoked, for Congress neither was a party at the Bradley v. Fisher bench nor had the intention to immunize judges or the Commonwealth, (3) judicial immunity is violative of the Ninth Amendment of the U.S. Constitution, (4) judicial immunity is against public policy, and (5) judicial immunity cannot bar Johnson’s §1983 claims and her pendent common-law claim for defamation.   7.    The court has discretion to retain supplemental jurisdiction over the pendent State claims. It is well-settled that state law claims would be within the pendent jurisdiction of the federal court if the constitutional [claims were] established." Dobyns v. E-Systems Inc., 667 F.2d 1219, 1221 n. 4 (5th Cir. 1982), citing United Mine Workers v. Gibbs, 383 U.S. 715 (1966). [App: 21]. It is equally as settled that efficiency and conservation of resources demand that the district court retain jurisdiction over Johnson’s remaining claim for defamation should the dismissal of Johnson’s federal claims be reversed. There is authority for this court to do so: "The exercise of pendent jurisdiction is a matter of discretion, not of right." Landrigan v. City of Warwick, 628 F.2d 736, 1980.C01.40168 at ¶ 83 <http://www.versuslaw.com> (1st Cir. 1980), citing United Mine Workers v. Gibbs, 383 U.S. at 726.    . . . In a federal-question case, the termination of the foundational federal claim does not divest the district court of power to exercise supplemental jurisdiction but, rather, sets the stage for an exercise of the court's informed discretion. See 28 U.S.C. Section(s) 1367(c)(3) (authorizing a district court to decline adjudication of lingering state-law claims after it has dismissed "all claims over which it has original jurisdiction"). In deciding whether or not to retain jurisdiction on such an occasion, the trial court must take into account concerns of comity, judicial economy, convenience, fairness, and the like. See Rodriquez v. Doral Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995); Vera-Lozano v. International Broadcasting, 50 F.3d 67, 70 (1st Cir. 1995); Newman v. Burgin, 930 F.2d 955, 963-64 (1st Cir. 1991). While dismissal may sometimes be appropriate if the federal-question claim is eliminated early in the proceedings, see, e.g., Martinez v. Colon, 54 F.3d 980, 990 (1st Cir.), cert. denied, 116 S. Ct. 515 (1995), each case must be gauged on its own facts. The preferred approach is pragmatic and case-specific. Thus, in "an appropriate situation, a federal court may retain jurisdiction over state-law claims notwithstanding the early demise of all foundational federal claims." Rodriguez, 57 F.3d at 1177. Roche v. John Hancock Mutual Life Insurance Co., 81 F.3D 249, 1996.C01.0000210 at ¶52 <http://www.versuslaw.com> (1st Cir. 1996). WHEREFORE, Plaintiff prays this court  vacate the dismissal of Plaintiff’s claims in Counts 1-10, remand to the district court for discovery and trial, grant to Plaintiff a temporary injunction against the Office of Bar Counsel and Board of Bar Overseers, and award Plaintiff fees for this appeal.                                                                        Respectfully submitted,                                                                        Plaintiff/Appellant Barbara C. Johnson, pro se,                                                                        ____________________________ 18 October 2004                                               Barbara C. Johnson, Esq., Pro Se                                                                        6 Appletree Lane                                                                        Andover, MA 01810-4102                                                                        978-474-0833     CERTIFICATE OF COMPLIANCE I, Barbara C. Johnson, hereby certify that above pleading, including caption, footnotes and certificates, is 12,713 words and 1218 lines in length, as measured by MS Word 97, within the limits of F.R.A.P. (32)(a)(7).                                                                         ____________________________ 18 October 2004                                                Barbara C. Johnson, Esq. CERTIFICATE OF SERVICE I hereby certify that on 18 October 2004, I caused to be served by first-class mail an true and accurate copies of the within pleading on opposing counsel, Assistant Attorney General John R. Hitt, Government Bureau, One Ashburton Place, Boston, MA 02108-1598.                                                                         ____________________________ 18 October 2004                                                Barbara C. Johnson, Esq., Pro Se


 

S U R P R I S E ON 10/25/04 THE MASSACHUSETTS BAR ASSOCIATION ANNOUNCES BBO TASK FORCE: TIME IS RIPE FOR REFORM OF THE BOARD OF BAR OVERSEERS