The
respondent had not sought Juvenile Court materials.
Therefore she neither sought nor obtained permission from any
Juvenile Court
judge for any of that court’s materials. Given that Johnson never
appeared in
the care and protection action nor asked for nor got documents from the
Juvenile Court, she did not know what they contained and had nothing to
return
to that court. The letter-reports were written by McCarthy,
who was a psychologist,
but he was not a court-appointed psychologist.
5.
In
early 2001, the respondent posted on her website: (1) Jones’s
Amended
Complaint for Modification, dated May 9, 2000, which was filed in
Probate &
Family Court two years after §13 of c. 209C was amended, and as
such was not an
impounded document. (2) A Complaint filed in
U.S. District Court. (3) She also filed
pleadings from Jane's divorce
action.
In or
around 1998, years after the two original actions were
closed, Jones’s parents brought a grandparents’ Complaint.
McCarthy put the
kibosh on the grandparents’ requested visitation. Johnson
uploaded the highly
redacted letter by the only psychologist, McCarthy, regarding
grandparents’
visitation in the file containing the obituary of Jones’ father.
If the court
reads the file, the purpose of uploading McCarthy’s letter is clear and
righteous. There was no humanistic reason to deprive the
grandparents of
having a relationship with their grandson.
McCarthy
did not
treat Jane
and “William.” \ [1]/ McCarthy
saw William once—according to one report—and a few
times—according to
the redacted published one—in the presence of Jane, his mother.
McCarthy, a
widower, saw the exquisitely exotic Jane 21 times on her own but billed
the
insurance company for his so-called professional hour for seeing
William, and
billed Jones for the co-payments, or uninsured portion of McCarthy’s
bills.
McCarthy’s “To Whom It May Concern” letter explains this.
There is no way
McCarthy treated William when he never saw him but for the first time,
and
maybe a few other times, when Jane was present with the child.
These
pleadings are public records. As far as Johnson knew, other than
the literally
few words quoted from Christopher Salt’s reports, no material was from
Juvenile
Court records. Both the Amended Complaint in Probate & Family
Court and
the Complaint in the U.S. District Court are public records.
Nothing in them
was summarized from Juvenile Court records. The information was
from (1)
the memory of her client, (2) Christopher Salt’s
deposition (taken
under the Probate & Family Court caption), (3) the
divorce papers
of “Jane Brown,” a public figure (having run for public office) and
“Michael
Brown,” her then-husband, and (4) a few miscellaneous papers
her client
had retained. The exact quotes were well identified by Johnson at
all times
and on pages 69-70 in her Opposition to the Board Recommendation:
(a) “justification”
[CS, depo at 15, lines 7 and 4]\2]/
(b) “no
live-in boyfriend” [CS 7/1/88 report at 25]
(c)
“dated a few times and have remained good friends” [CS
7/1/88 report
at 17]
(d) “there
appears to be no significant males in [William's] life other than Mr.
[Jones]”
[id. at 25]
(e)
“there was no diagnosis of sexual abuse, the possibility is not
to be eliminated.
His fear and anxiety about his father had been confirmed[;] he had
undergone a
traumatic experience and now suffered from post-traumatic stress” [CS
depo
at 34]
(f)
“parenting"
(g)
“her husband Michael
is very important to
[William] and that Michael treats her son as if he were his own” [CS
1/5/92
report at 2; also 15]
(h)
“might well be detrimental” [CS 1/5/92 report]
(i)
“except for one or two” [CS depo at 8]
6.
Johnson did write that both
boys were conceived out of wedlock, which was true. Johnson did not identify
both boys as victims of sexual
abuse by their respective fathers. She did identify
their mother as one who falsely accused both
fathers of sexual abuse of their children.
Although
Johnson incorrectly called Jane a perjurer, for Jane
had not been convicted of the crime, the written evidence was
overwhelming that
Jane had lied to everyone on the case and to the courts about diverse
material
facts when it suited her agenda.
7.
In mid-February, 2001, OBC Weisberg
filed Bar
Counsel’s
Motion for Release of Impounded or Segregated Records in Bristol County
Probate
& Family Court prior to serving the Petition for Discipline. [See page 40 of
Johnson’s opposition to the BBO’s recommendation.]
Then
Judge Prudence
McGregor’s allowed bar counsel's motion
for the release
of the paternity action records for purposes of bar discipline
proceedings
against the respondent. Without an open case, a motion
was legally
incapable of opening a closed case. The OBC did not move to
intervene.
Weisberg simply appeared on the scene and the court, having NO
jurisdiction, gave her a hearing on her motion. It was a
sheer show of
power. Where the court had NO jurisdiction, Judge
McGregor’s
order was transparently invalid, was void ab
initio. See
S.J.C. Rule 3:07, Mass. R. Prof. C. 3.4(c).
Without the
answer to the question of whether M.G.L. 209C, §13, as amended,
effective March
31, 1998, has retroactive or prospective effect or both, the BBO, which
has no
authority or jurisdiction to decide that question, may not rely upon
that
section to discipline Johnson. On pages 79-86 of
her opposition to the recommendation, Johnson discussed M.G.L. c. 209C,
§13.
In either
event, Jones’s Complaint for Modification was filed two years after the
amendment
of §13. To put in a prima facie case, an
attorney must (1) produce the order sought to be modified, (2)
state
the circumstances at the time of the old order, (3) state
how the
current circumstances are substantially different from the old
circumstances,
and (4) state what plaintiff seeks in the new order.
Thus Johnson had
no choice but to relate what happened during that period prior to March
31,
1998, when out-of-wedlock pleadings were automatically impounded.
8.
The
single justice either overlooked or misapprehended the facts when he
wrote “By
disseminating impounded material from the care and protection and
paternity
actions, by failing to return to the Juvenile Court impounded reports
belonging
to the court, as ordered by the judge, and by failing to remove
impounded
material from her website, again as ordered by the judge, the
respondent violated
Mass. R. Prof. C. 8.4 (d) and (h). In addition, by
deliberately disobeying
the Juvenile Court judge's May 1, 2001, order and by engaging in
knowing
violations of Juvenile Court Standing Order 1-84 and G. L. c. 209C,
§ 13, the respondent
violated Mass. R. Prof. C. 3.4 (c) and 8.4 (d) and (h).”
(1) Johnson
did not knowingly disseminate impounded material from
the care
and protection and paternity actions, (2) Johnson did not
fail to return to the juvenile court impounded reports belonging to the
court,
for she had neither taken nor received documents from the juvenile
court and
had no such material to return, (3) Johnson did not
fail
to remove impounded material from her website, for there was no
impounded
material on her website.
The
OBC, BBO, and the Court failed to identify the material on Johnson’s
website
that they assert was impounded, failed to state which reports she had
taken or
received from the Juvenile Court, failed to identify the allegedly
impounded
material on her website. They did not because there have been no
such
materials on Johnson’s website. And Johnson has had no
crystal ball. [See page
87 of her opposition to the BBO’s recommendation.]
Only after
the trial in December 2003 did
Johnson receive a
list of Juvenile Court documents that the OBC offered at trial on
December 2d
or 3d of 2003. Only then did Johnson learn that certain documents
she had seen
had been allegedly filed in Juvenile Court. According to her
client, the
people who wrote some of the reports were not court-appointed and
therefore
would not have filed their reports in court. What seems to have
happened is that
Deborah Wolf, the court-appointed attorney for the child, took them and
filed
them in the court. By December 2003, the documents of which OBC
Weisberg complained
had been on Johnson’s website for several years.
Further,
given that Weisberg had received those documents secretly, Johnson had
no
knowledge that they had been filed in the Juvenile Court. Johnson
also has no
knowledge of whether the documents identified in the list are the same
as those
she saw and read.
Therefore
Johnson did not violate Mass. R. Prof. C. 8.4(d) and
(h), making
it mandatory to reject as a basis Rules 8.4(d) and (h) for the
recommendation
by the BBO of disbarment.
9.
Even assuming arguendo that the
Johnson disseminated
information about William, “David,” and Jane on her website, there is
absolutely no proof that Johnson’s substantial purpose was to embarrass
or
burden them. Therefore, there is absolutely no proof that
respondent violated
Mass. R. Prof. C. 4.4 and 8.4 (h).
10.
Count II. The
OBC, the BBO, and the single justice inferred that Johnson had put the
money
received from Parker’s sister into her personal account prior to having
earned
it. That is untrue. Johnson had already earned the money
she received. When
Johnson completed the accounting [BBO Exh. Trial 58], she felt
badly
about the future fees they would have to pay, so she deeply discounted
her fees.
In fact, after depositing the $10,000 into her account, she only put in
another
6 hours of work for the Parkers. So, when she discounted her bill
drastically,
her doing so made it appear that she had put into her account money
that she
had not yet earned, but that was not so.
11.
In March, 2000, Mary Parker,
not the Parkers, filed a complaint with the office of bar
counsel. The
complaint was about a fee. (At that time nothing about any of the
Parkers
appeared on Johnson’s website.) Johnson had months earlier
suggested to Mary
Parker that she go to the Fee Arbitration Board or to use the attorneys
to whom
she wrote as arbitrators or mediators.
It was the
OBC that sua
sponte complained
about the references to the Parkers on Johnson’s
website. There has never been, to Johnson’s knowledge, any
complaint, written
or oral, by any one of the Parkers about anything related to any one of
them on
Johnson’s website.
The OBC,
the BBO, and this Court concluded (1) that
Johnson posted materials disclosing confidential, personal, and private
information that the respondent received in the course of her
professional
relationship with the Parkers and (2)
that Johnson never obtained the Parkers'
permission to disclose or disseminate
the information about them on her
website.
That
conclusion was specious, not only because none of the
Parkers ever complained about information on Johnson’s website, but
also
because to reach the conclusion of the OBC, the BBO, and this Court,
all three
entities—the OBC, the BBO, and this Court—had to discount the
email to
Johnson from the accused man’s wife, the sole complainant:
“someday we’ll see
our story on your wonderful educational website,” words which Johnson
construed
as permission to publish. Clearly, Mary’s use of the plural
nominative
pronoun demonstrates that the written consent was given by all the
“Parkers”
through their spokesperson, the wife, “Mary Parker.”
Further,
none of the Parkers, including all their daughters
and sons-in-law, testified against Johnson. According to the
OBC/BBO Trial
Exhibit list provided to Johnson
a few weeks after
the
alleged hearing on December 2d and 3d of 2003, an affidavit by “Mark
Parker”
was admitted into evidence. Johnson has never seen that affidavit.\/
Therefore,
it is reversible error to have found that Johnson
published anything about the Parkers without their consent and thus
violated
Mass. R. Prof. C. 1.6(a) and 1.9 (1) and (2).
12.
On December 23, 2002, Retired
Judge William Simons wrote Johnson and ordered her to remove the
information
about the Parkers from her website, despite the wife having written to
Johnson:
“someday we’ll see our story on your wonderful educational
website.” Simons had
never been identified prior to that letter as the “Parkers’”
attorney. The
retired judge’s son was the husband’s criminal defense counsel.
Where Simons
the Elder was no longer a judge, he had no authority to “order” Johnson.\/
According to this
Court, the respondent answered by
suggesting
that she would consider removing the postings if the Parkers first
withdrew
their complaint to bar counsel. Johnson responds,
Negotiation? What else
would be the incentive to negotiate with a complainant in a
disciplinary
proceeding, but to have the Complaint dropped? Money was not
involved. Even
the special hearing officer, who was very much adversarial to Johnson,
found
that bar counsel had failed to prove that the respondent had charged a
clearly
excessive fee. He also concluded that bar counsel failed to
prove that the
respondent intentionally had made false, deceptive, or misleading
representations to the Parkers about her fees, time, and charges. Bar
counsel
has not appealed those findings. Dropping the complaint was the
only thing the
“Parkers” could do. They had no other cards. Thus, it was a
travesty of
justice to find that the respondent violated Mass. R. Prof. C. 8.4 (d)
and (h)
and S.J.C. Rule 4:01, § 10.
13.
Where the
hearing officer found that Johnson owed no money to the complainant,
what was
commingled? Of course, she had accounted adequately. How
was her accounting inadequate?
The OBC and the BBO never said or wrote. Neither
did this Court. Therefore the paucity of evidence of commingling
makes it
reversible error to find that respondent violated Mass. R. Prof. C.
1.15
(a)-(c), 1.16 (d), and 8.4 (c) and (h).
14.
Count III. In 1992 the
respondent filed a wrongful termination
action on behalf of a client.
The complaint was filed in the
Superior Court and later
remanded to the
District Court. In
January, 1995, a judge
in the District Court
Department entered an
order permitting the
respondent to inspect the
defendants'
documents. The
respondent failed to appear for the
scheduled
inspection because she
was by opposing counsel, Marc C.
O’Connor, of Rich, May
Bilodeau & Flaherty, both threatened and
offended in such a
personal way that she will omit the graphic
details
from this iteration.
Consequently,
Johnson asked the Concord police to provide her
with a two-man detail— for whose services she would pay—to escort her
to the
facility and be percipient witnesses if witnesses became
necessary. The
police after numerous phone calls to and fro refused. So she
hired a private
agency (Burns), but opposing counsel would not let them accompany her
into the
facility. [See
Johnson’s
Answer, Vol.
I, Tab 46.]
Fearful of what would happen were she to go alone, she did not.
In February
1995, she filed two motions modeled after two
allowed by Magistrate-Judge Collings in federal court. The
district court
judge never found them “brought
without legal or factual basis and in bad faith” when he
denied them in February 1995.
He had simply endorsed them “Denied.” He did not find them
to be frivolous
until 10 months later, in December 1995, when he must have finally
acknowledged
to himself—because Johnson challenged him to produce the mythical order
of
which he had found her in contempt in March 1995—that he simply could
not
produce the mythical order of March 3, 1995, because it never existed.
That year,
1995, there was never a clear and unequivocal
order. The district court judge kept on changing the
orders. Johnson made a
table of all his orders and commands. The OBC and the BBO ignored
the table—as
did apparently this Court— and as a result, this Court overlooked or
misapprehended the facts before him. The $3898.25 this Court
mentioned was
eventually reduced to $261.25, which Johnson paid because the judge
said he
would restore the case to the list . . . but he did not. No word
of honor.
Fortunately, she got tapes of all the hearings, all except the one
three years
later, in December 1998, when she was sent to jail. She tried to
get the
December 17th, 1998, tape, but was told by the clerk’s
office that they
overwrote it. And the clerk, a decent man, Ed Suleski, who was in
the
courtroom that day, had died in the meantime.
It is
absolutely untrue that the respondent did
not appeal the amended judgment of dismissal.\/
Because the Complaint for the case
had been filed in Superior Court, and was subsequently transferred to
District
Court, the avenue of appeal over a decade ago (before remand cases
became a
thing of the past) was through a request for retransfer to the Superior
Court,
pursuant to G. L. c. 231, § 102C. The Superior Court judge
ordered the request
for retransfer to be stricken because opposing counsel lied. This
is all
written in many pleadings . . . in court, in the BBO, in her opposition
to the
recommendation in the Information, etc.
In December
1995, McGill modified the prior contempt rulings
by holding the respondent's client in contempt only for nonpayment of
the
paralegal fees ($261.25).\/
McGill’s order in December even changed.
This Court’s
iteration in its
memorandum is inaccurate. Johnson paid the $261.25 on behalf of
her client.
Ultimately,
the respondent appealed the final
judgment and order. The Appeals Court affirmed, held that the appeal
was
frivolous, and awarded attorney's fees and costs to be determined at a
later
date. The Appeals Court subsequently awarded $30,000 in fees and
$1,071.65 in
costs. The amounts ordered were paid by July, 2000. Johnson was
shocked and
stunned. There was nothing frivolous about her or her client
being found in
contempt of a non-existent
order. There was
nothing frivolous about appealing such judicial misconduct. At
that time, the
district court judge, Paul McGill, found in favor of the company owned
by Tyco,
whose CEO was Dennis Kozlowski, now a convicted felon for having stolen
$600
million from the parent company. The only reasonable conclusion
possible is
that the Appeals Court was covering the bottom of the lower-court
judges.
Judge Spina
appears to have overlooked or misapprehended that
in December 1995, Judge McGill said he was bifurcating the case so that
he
could keep track of the contempts against the client and Johnson; i.e.,
he
bifurcated the client’s alleged contempt from Johnson’s alleged
contempt. It
took McGill another month to get the case bifurcated officially on the
docket.
Elaine Whitfield-Sharp represented Johnson and Johnson continued to
represent her
client. Whitfield-Sharp did the appeal for respondent, but she
forgot to
include the February motions in the appendix.
Because
there was never a clear and unequivocal order, the
respondent made no payments. Notwithstanding that truth, a final
judgment of
contempt was entered against Johnson. This Court said that
occurred in July,
1996. Johnson has no memory of the date. The Appeals
Court affirmed the
judgment.
The single
justice wrote that “After the judgment of
contempt was affirmed, the District Court judge notified the respondent
that
she could become liable for additional penalties and the matter of her
contempt
would be referred to the Board of Bar Overseers if she did not purge
her
contempt by July 30, 1998. The respondent made no payment.”
Respondent
has no memory of ever receiving any correspondence
or having any type of communication with McGill in person or in writing
after
he jailed her on December 17, 1998. It does appear,
however, that McGill complained
to the BBO/OBC. Johnson was not told about this until
around the election in
2002. Susan Strauss-Weisberg sent her a copy of his
complaint. In fact, she
may not have learned about his complaint until last year, when she
sought a
Certificate of Good Standing. (If she had more time, she’d check
her records.
But it is not critical because she knows she learned of McGill’s
complaint to
the BBO/OBC at some time from the OBC’s Weisberg.)
The
single-justice’s iteration of what occurred on December
17th, 1998, is untrue. He simply bought Weisberg’s
insupportable
version of events on that day bag and baggage. Johnson being
jailed had
nothing to do with the nonpayment No finding of contempt
was made in her
presence. The memo the OBC presented to Johnson had to be a CYA
memo written evidently by McGill
after Johnson
was jailed. Johnson never saw it until Weisberg provided
her a copy. As
mentioned above, there is no tape of the hearing. Johnson never
saw an order
as to the amount she was to pay. One of her sons had to spend a
day at the
court in Concord the day after she was jailed, and to wait until they
figured
out for how much they should make out an order. It was ransom,
clear and
simple. Johnson did not bother to appeal. It would have
been futile and the
law does not require the doing of a useless act. Cheschi v.
Boston Edison
Co., 39 Mass.App.Ct. 133, 142 n. 10 (1995), quoting Fortune v.
National
Cash Register Co., 373 Mass. 96, 107-108 (1977), and cases
cited. Snow
v. Fitian, 1998 Mass.App.Div. 227, 1998 WL 781173 at 5, (1998),
quoting Cumnock
v. Institution for Sav. in Newburyport, 142 Mass. 342, 347
(1886). Leigh
v. Rule, 331 Mass. 664, 668-669 (1954), and cases cited. It
was clear from
her client’s appeal, the appellate court was going to cover butt and
probably
make her, too, pay opposing counsel’s fees.
Thus
Johnson had not violated
any of the sundry rules and canons Judge Spina
sets out. There in no truth supporting these bald
assertions and
conclusions.
15.
Johnson
discusses the issue of aggravation in full in her opposition at pages
142-148.
The true facts and issues there were either overlooked or
misapprehended by the
single justice.
16.
Johnson
discusses the issue of her conduct during the disciplinary proceeding
in full
in her opposition at pages 148-149. The background of those facts
and issues
were either overlooked or misapprehended by the single justice.
17.
As
to Judge Spina’s discussion of Count I.
Johnson did not merely “ignore[] the simple
fact that Judge Lawton the Son ordered her to return certain materials
and to
remove certain postings on her website” [Memo, at 10].
First, the judge never
identified the materials he sought returned and Johnson could not
return what
she did not have. The OBC knew Johnson’s position on this.
It was with total
malice that the OBC encouraged an order to issue from the Juvenile
Court.
Enough of Johnson’s time had been wasted on the OBC’s and the BBO’s bad
faith. Johnson had never been served a valid Complaint
filed in that court.
What was she going to appeal? What was the docket number?
Where was the
hearing? It would have been futile to attempt to vacate a
nonsensical void
judgment, one void ab
initio.
If the authorities
were acting in good faith, the nonsensical void judgment would not have
issued. Given that Johnson had already been targeted for
disbarment, it was highly
unlikely in extremis
that
any attempt to
vacate the unclear and equivocal order would be successful.
18.
Johnson
had no
reason to request a hearing in Juvenile Court.
With
no
evidentiary support for
the order, with no jurisdiction
over Johnson, the order was
invalid. Johnson
had never
disseminated impounded material and had spent months
in
responding to
baseless claims. There is no reasonable basis for
the single
justice to now
state that Johnson should have wasted
more time on a futile task.
If, as the single justice contends, no live testimony is required
to prove “embarrassment,” then there is no necessity for live
trials whenever emotional distress is pled as a cause of action.
Liability would be automatically imposed on the accused.
Johnson contends that live testimony is required to prove
"embarrassment." A conclusion such as that of the single justice
smacks of supporting holdings of strict liability for emotional
distress by embarrassment based solely on the say-so of the
lawyer, i.e., without evidence of such embarrassment. Such a
conclusion will shock the community of litigators.
Despite the single
justice’s contention that the OBC did not have to
prove embarrassment and that Johnson’s purpose was to solely embarrass
“Jane,”
Johnson avers that the purpose of uploading to her website the
pleadings and a
few other documents about Jim Jones was to educate and inform the
public about
the tragedy of a father being precluded from his child’s life, a
tragedy caused
by an unscrupulous judge and a judicial system that had gone terribly
awry.
Further, “Jane” is
incapable of being embarrassed. Were she
capable, she would not have found
herself in the position to conceive two children out of wedlock and
deny their
fathers access to them. As Federal Judge
Nancy Gertner found recently when she dismissed a case by a gay male
who
claimed to be defamed by being called “gay.” Being
“gay,” she said in words for all intents and
purposes, is so
accepted in our society, that it is no longer defamatory to be called
“gay.” James Albright v. Andrew
Morton, 321 F. Supp 2d 130 (D. Mass, 2004) (in light of
legalization of gay
marriage, being identified as gay is not defamatory). “Without
some specific claim of actual harm,
he is doing nothing more than trading in the same kinds of stereotypes
that
recent case law and good sense disparage,” Gertner concluded.
This case is analogous to
Albright: In light of societal
acceptance of single motherhood by by natural and unnatural design,
being
identified as having conceived out-out-wedlock is not defamatory and
therefore
cannot cause emotional distress. Traditional
values and morals have so
metamorphosized that even adultery has fallen into desuetude.
[W]hile the "source" of
nonmarital birth is still deemed criminal
in this Commonwealth, see G.L. c. 272, § 14 (1984 ed.) (adultery), and § 18 (1984 ed.) (fornication), “[i]t seems beyond dispute
that the statutes defining or punishing [these] crimes ... have fallen
into a
very comprehensive desuetude.” Fort
v. Fort, 12 Mass.App.Ct. 411, 417 (1981).
Powers v.
Wilkinson,
399 Mass.
650, (1987).
Absent
any specific claim by Jane of actual harm, Jane, the OBC,
the BBO, and
the single justice are doing the same as Albright did:
they are trading
on stereotypes of single mothers, to wit, that single
mothers are
victims and can be embarrassed. Such a concept is
obsolete today.
Our society encourages both artificial and planned
live insemination
outside of marriage with a goal of conception.
Single motherhood
planned or unplanned has thus become a
condition no longer reserved
only for the rich and famous in lieu of
marriage and commitment. Many
women today, like Jane, use
their looks and sexuality as a tool to
achieve motherhood and
obtain child
support. And many women, again
like Jane, live off
the child support by
two men, not one. How can
such a woman be
deemed embarrassed? Such a condition has evolved for
many into
a business like any other.
20.
As to Judge Spina’s
discussion of Count II. Johnson cannot accept this
court’s reasoning, for
she had earned all the funds at the time she deposited them into her
personal
account. If not, then why did the OBC, the BBO’s special hearing
officer, and
this court not identify the amount of the funds not earned.
21.
As an Internet publisher,
Johnson has often received permission to publish without ever having
met the
person consenting to the potential publication. The
single justice must have misapprehended the facts here, for otherwise
he
appears to have approved the OBC and the BBO being simultaneously
accuser,
prosecutor, and fact-finder. The conflict of interest is
offensive, and has deprived
Johnson of due process and the equal protection of the laws.
22.
The issue of the taped message
and the transcript [BBO Exhs. 75 and 75A], is discussed in ¶12, supra, and in
Johnson’s opposition at pages 193-194.
Such a decision discourages any negotiation whatsoever.
Common sense, where
art thou?
23.
As to Judge Spina’s
discussion of Count III. The issue of the underlying basis
for the contempt
findings was clearly misapprehended by the single justice. After
McGill first
found on March 22d Johnson and her client in contempt of a non-existent
order
of March 3d, he persisted in modifying his orders. Ultimately, 9
months later,
in December 1995, McGill decided to change the basis of the contempt
against
Johnson and her client. He continued to find her client in
contempt of the
non-existent order of March 3d but reduced the amount due from $3898.25
to
$261.25, which Johnson paid on behalf of her client (see discussion, supra).
But in order to continue holding Johnson in
contempt, he had to find another basis for it. So he said Johnson
had filed
frivolous motions. He never did identify which motions were
allegedly frivolous.
The only motions left to claim as frivolous—i.e., motions for which he
had not
already sanctioned Johnson in one way or another—were two filed and
decided in
February 1995, ten months
earlier, . . . but not deemed
frivolous ten
months earlier, in February 1995.
It was a
game, it was not reality. McGill was a judge out
of control. See Johnson’s Amended Answer [Vol. I, Tab
46, re Count III, ¶¶100-127] and count
the number
of times Johnson attempted in good faith to have McGill’s actions
reviewed by
higher courts. Ultimately the mythical March 3d order was
fabricated [Vol.
I, Tab 46, re Count III, ¶¶100-127,
which include
the scanned document].
24.
Selective Prosecution. This
issue is discussed in full in Johnson’s opposition at pages 151-154 and
194-197. Respondent is a member of the legal community. She
is someone who is
suffering discrimination for exercising her right to political
speech. In Village of
Willowbrook v. Olech,
528 U.S. 562 (2000), the Supreme Court held that the plaintiff property
owner
had stated an equal protection claim in alleging that a municipality
had
"irrational[ly] and wholly arbitrar[ily]" refused to connect the
plaintiff's property to the city's water system unless plaintiff agreed
to
grant the city a thirty-three foot easement to install and maintain the
connection rather than the fifteen foot easement required of other
similarly
situated residents. The Court affirmed the plaintiff's right
to bring
an equal protection claim as a “‘class of one,’ where the plaintiff
alleges
that she has been intentionally treated differently from others
similarly
situated and that there is no rational basis for the difference in
treatment.” Id. (emphasis supplied). See
also Burns
v. State
Police Ass'n,, 230 F.3d 8, 12 n. 4 (1st Cir. 2000); Olech v.
Village of
Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998) (recognizing a
“class of one”
for constitutional equal protection claims); Bartell v. Aurora
Pub.
Schs., 263 F.3d 1143, 1149 (10th Cir. 2001) (holding that to make a
claim
under “class of one” theory, plaintiff must prove “he was singled out
for
persecution due to some animosity” on the part of defendant); Hilton
v.
City of Wheeling, 209 F.3d 1005, 1008
(7th Cir.
2000) (holding to make out a prima
facie
“class-of-one denial-of-equal-protection”
case, “the plaintiff must present evidence that the defendant
deliberately
sought to deprive him of the equal protection of the laws for reasons
of a personal
nature unrelated to the duties of the defendant’s position”); Jennings
v. City of Stillwater, 383 F.3d 1199, 1214
(10th Cir.
2004) (“class of one” claim required “campaign of official harassment
directed
against him out of sheer malice,” as applied to the facts in that
case), and
citing Bartell, 263 F.3d at 1149, quoting Esmail v. McCrane,
53 F.3d 176, 179 (7th Cir. 1995).
In Schultz v.
Kelly, 188 F.Sup.2d 38 (D.Mass. 2002),
the court
explained
that Village of Willowbrook makes clear that plaintiffs must
still prove
“that [they have] been intentionally treated differently from others
similarly
situated and that there is no rational basis for the different in
treatment.”
Id. at 54, quoting Village of Willowbrook, 528 U.S. at 564
(emphasis
added). Plaintiffs have not made any showing of improper motive
or malicious
intent underlying the Pier Corporation's decision to raise fees for
recreational excursion boats. Absent such allegation, the equal
protection
claim must fail.
In
addition, plaintiffs premise their equal protection claim on an
allegation that
the higher licensing fees "are without a rational basis." Because
they do not claim to be members of a suspect group or that a
fundamental
interest is involved, the licensing fees set by Pier Corporation
withstands
equal protection scrutiny as long as it is supported by a rational
basis. Naples
v. Comm'r of the Dep't of Employment and Training, 412 Mass. 631,
635
(1992); Animal Legal Defense Fund, Inc. v. Fisheries &
Wildlife Bd.,
416 Mass. 635, 640 (1993).\/
The rational basis test is lenient. See Walker v.
Exeter Region Co-Op.
School Dist., 284 F.3d 42, 46 (1st Cir.2002). “A
classification will be
considered rationally related to a legitimate purpose if there is any
reasonably conceivable state of facts that could provide a rational
basis for
the classification.” Chebacco Liquor Mart, Inc. v.
Alcoholic Beverages
Control Comm'n, 429 Mass. 721, 723 (1999) (quotations omitted).
Dolphin
Fleet of Provincetown, Inc. v. Provincetown Public Pier Corp., 2004 WL 3152193 * 6,
No. 0404
(Mass.Super. Oct. 27, 2004) (Moses, J.). In the instant case,
there is “a reasonably
conceivable state of facts that could provide a rational basis for the
classification.”
25.
Subpoenas. The single
justice
raises an issue of first impression re G. L. c. 233, § 8. He
finds that
because the Board of Bar Overseers is not listed in the statute,
Johnson has no
right to rely on c. 233, § 8, and that Board Rule §4.5 trumps
Johnson’s
right
provided by the statute. Johnson disagrees. She
also disagrees with the
single justice’s holding, in so many words, that the issue just defined
“need
not be decided because the special hearing officer's order quashing the
subpoenas issued by the respondent was proper.” Clearly the
single justice
misapprehended settled law. A private citizen, namely, the
special hearing
officer, cannot make the final decision that a rule with no legislated
authority to be promulgated trumps a duly enacted statute. The
issue of subpoena-quashing
is discussed in full in Johnson’s opposition at pages 154-158.
26.
Protective
Order.
Respondent
challenges the single justice to provide a citation to one case in
which the
appeal of a BBO’s grant of a protective order resulted in the reversal
of such
an order. Were the respondent to have taken such an appeal, it
would have been
one more futile act. That which the single justice overlooked is
that every
one of Johnson’s well-founded motions had been summarily denied by the
BBO. Johnson
would have been appealing continuously from the top of 2003 to the
middle of
2004, when the special hearing officer’s decision issued.
Protective Orders
are discussed in full in Johnson’s opposition at pages 11-14, 34-35,
55-56, 62,
149-151, 158-162.
27.
The
Imaginary
List of Protected Names. McGill lives
on. The single justice overlooked the OBC Prosecuting
Counsel Weisberg’s admission that there was no list of true names of
individuals which were not to be used at the public hearing, which
turned out
not being public. Transcript, I: 56-57 in Impounded Vol. VII
at Tab 201.
Johnson’s opposition at 29 and 38.
28.
The
single justice
overlooked that the unlawful exclusion—on the grounds that Johnson had
violated
the non-existent order to use pseudonyms at trial—of the public from
the
so-called public trial guaranteed by the Board Rules.
29.
The
single
justice overlooked that when the public was unlawfully thrown out of
the hearing
room, Johnson was denied her constitutional right to equal protection.
30.
The
single
justice overlooked the failure of the BBO to follow its
own rules,
depriving
Johnson of due process and/or equal
protection, depending on the
nature
of the
motion.
31.
First
Amendment. “Judges
should
hesitate to insulate
themselves from
the slings and arrows that they insist other public officials face, see
New
York Times Co. v. Sullivan, 376 U.S. 254 (1964).” In
the Matter of
Michael Palmisano, No. 94-3809 (7th Cir. 2005). “There
is
no question that speech critical of the exercise of the State's power
lies at
the very center of the First Amendment.” Gentile v. State Bar
of Nevada,
501 U.S. 1030, 1034 (1991). “The judicial system, and in
particular our
criminal justice courts, play a vital part in a democratic state, and
the
public has a legitimate interest in their operations.” Gentile,
at 1035,
citing Landmark Communications, Inc. v. Virginia, 435 U.S. 828,
838-839
(1978). “‘In Sheppard v. Maxwell, 384 U.S. 333, 350
(1966),
we reminded that
“[t]he press . . . guards against the miscarriage of justice by
subjecting the
police, prosecutors, and judicial processes to
extensive public scrutiny and
criticism.”’” Gentile, at 1035.
An
attorney's duties do not begin inside the courtroom door. He or she
cannot ignore the practical implications of a legal proceeding for the
client.
Just as an attorney may recommend a plea bargain or civil settlement to
avoid
the adverse consequences of a possible loss after trial, so too an
attorney may
take reasonable steps to defend a client's reputation and reduce the
adverse
consequences of indictment, especially in the face of a prosecution
deemed
unjust or commenced with improper motives. A defense
attorney may
pursue lawful
strategies to obtain dismissal of an indictment or reduction of
charges,
including an attempt to demonstrate in the court of public opinion that
the
client does not deserve to be tried. [501
U.S. 1030, 1044]
Gentile, at
1043.
Here, Johnson was acting pro se. She herself
was her client. That is no less reason why she could not defend
her own
reputation and why she could not “attempt to demonstrate in the court
of public
opinion that the client does not deserve to be tried.” Id.
(This
reasoning applies to all counts: Counts I, II, and III in the instant
case.)
The four dissenting
Justices who
would have sustained the discipline said: [501 U.S. 1030,
1072]
Of course, a lawyer is a
person and
he too has a constitutional freedom of utterance and may exercise it to
castigate courts and their admini- stration of justice. But a lawyer
actively
partici- pating in a trial, particularly an emotionally charged
criminal
prosecution, is not merely a person and not even merely a lawyer.
. . . . .
Gentile, at
1072-1073. Given that there was no
pending trial on these cases when Johnson spoke out on her website, she
must be
considered both a lawyer and a person having a “constitutional freedom
of
utterance and may exercise it to castigate courts and their
administration of
justice.” Gentile, at 1073.
Further,
in Gentile, the Court wrote, "As turned out to
be the case
here, exposure to the same statement six months prior to trial would
not result
in prejudice, the content fading from memory long before the trial
date.” Id.
at 1044. In the instant case, Johnson statements regarding
Jones’s case
occurred a dozen years after his cases had been
disposed
of; her statements regarding the “Parkers” occurred approximately 2
years after
the husband’s case had been nolle
prossed [Memo and Order at 5 n. 2];
her
statements regarding McGill occurred 5-7 years after the cases had
reached
finality. There was no danger of interfering with the
administration of
alleged justice. Johnson’s publications were to educate the
public about the
judicial system, inform the public about unscrupulousness in the
judicial system,
and to defend herself against false allegations.
If Palmisano had
furnished some
factual basis for his assertions, then
we would need to determine whether either the Constitution or
principles of
sound judicial administration permit a sanction--for an attorney is not
absolutely liable for every statement that turns out to be incorrect.
It would
unduly quell investigation and exposure of corruption to disbar an
attorney who
publicized suspicious conduct, just because the suspicions were
dispelled.
Palmisano,
supra.
In the instant case, Johnson has had an abundance of proof of the
publicized
suspicious
conduct of Judge McGill, for example, not only the Clerk’s notice, the
docket
sheet, but also the fabricated order of March 3, 1995 (although the
date of the
fabrication is unknown to Johnson). All of these documents were
included in
Johnson’s Amended Answer at Vol I, Tab 46, ¶¶100-127]. The
single justice
appears to have overlooked these proofs.
·
Figure
1. Motion #157 and Comments
·
Figure
2. Notice of Disposition Made on March 3d, 1995.
The
Notice is dated March
7, 1995; Motion #15
#155, Drano Series