#156, Drano Series

Barb v. Board of Bar Overseers, Office of Bar Counsel, Bar Counsel Daniel Crane,  Assistant Bar Counsel Susan Strauss-Weisberg, and Commonwealth of Massachusetts

Prosecutor for Board of Bar Overseers to step down May 23, 2006, Boston Globe Daniel C. Crane, bar counsel of the state Board of Bar Overseers, will step down June 30 after nearly seven years as the top prosecutor for the state's bar discipline program.  ``I just decided it was time for me to move on, and it was a good time for the organization to move on," said Crane, 55. Crane's successor at the Office of Bar Counsel, which investi- gates, evaluates, and prosecutes complaints against lawyers, will be appointed by the Supreme Judicial Court.  (by Sacha Pfeiffer)

This file, Drano #156, contains:  (1) Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel, (2) Opposition of A-G (when it is scanned in), and (3) Barb's Reply to A-G's Opposition Drano #157 will contain the (1) Motion to Strike Appearance of the Attorney General for the Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg (2) Opposition of A-G (when it is scanned in), and (3) Barb's Reply to A-G's Opposition Lots of discussion of immunity, quasi-immunity, and quasi-prosecutorial immunity. Discussion of what it means to say a proceeding is "judicial in nature" and "administrative in nature." Exhibit D is reason Attorney-General Thomas Reilly must not be elected Governor.  The culture of his office is dishonest.  Any reporter wanting documentary proof of several examples of dishonesty should contact me backchannel.

COMMONWEALTH OF MASSACHUSETTS

Essex, ss.                          CIVIL ACTION:  05-CV-01907 

Barbara C. Johnson, Esq. 
Plaintiff

v. 
Board of Bar Overseers of Massachusetts, 
Office of Bar Counsel, 
Daniel Crane, Esq., 
in his individual and professional capacities, 
Susan Strauss-Weisberg,
in her individual and professional capacities, 
Commonwealth of Massachusetts, 
Defendants

____________________________________________ 

MOTION TO STRIKE APPEARANCE 
OF ATTORNEY GENERAL FOR BOARD OF BAR OVERSEERS AND OFFICE OF BAR COUNSEL

(Plaintiff incorporates by reference the attached exhibits
with the same force and effect as if herein set forth)

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and moves this court to strike the appearance of the Attorney General as counsel for the Defendants Board of Bar Overseers [“”BBO] and Office of Bar Counsel [“OBC”]

As grounds, Johnson states that the Attorney General has no statutory authority to represent the two defending entities.Section 3 of Massachusetts General Laws Chapter 12 defines whom the Attorney General may represent.\/

In support, Johnson states that the two entities, BBO and OBC, are private entities, servicing essentially the judicial branch in a manner resembling that of independent contractors.The website of the Supreme Judicial Court defines the BBO and OBC as “affiliated entities” [Exh. A].They are explicitly not departments or divisions or agencies or commissions or any other known political subdivision of the Commonwealth.The BBO and OBC are funded by the dues of attorneys “licensed” allegedly by the Commonwealth; the staffs and associate attorneys of the entities are funded by attorneys; and the BBO and OBC accept charitable gifts in excess of $15 from entities, including from attorneys and law firms.\/

                                         Respectfully submitted, 
                                         Barbara C. Johnson, Pro se

25 November 2005           _____________________
Barbara C. Johnson, Esq. 
6 Appletree Lane
Andover, MA01810-4102
                                         978-474-0833

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FN1 Chapter 12: Section 3 Appearances for commonwealth, prosecution or defense; rendering of legal services:

Section 3. The attorney general shall appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such depart     ments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction.

FN2 n contrast, the Office of the Attorney General is allowed by statute to accept gifts from everyone and every type of entity.The statute, c. 12, sec. 4A (“Acceptance of gifts or grants of money or property”) does not impose a dollar limitation on the value of the gifts, in money or in kind: 

Sec. 4A. The department may accept any gifts or grants of money or property, whether real or personal, from any source, whether public or private, including but not limited to the United States of America or its agencies, for the purpose of assisting the department in the discharge of its duties

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 25 November 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, Ma 02108.

25 November 2005        ______________________
                                       Barbara C. Johnson, Esq.

EXHIBIT A

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. 

The Clients' Security Board has the duty to "discharge the collective professional responsibility of the bar." To that end, the CSB reimburses clients who have been the victims of embezzlement or misuse of funds by lawyers. These awards are funded entirely out of registration fees assessed against lawyers in the Commonwealth. 

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.

To learn more about the Clients' Security Board, visit their website at www.state.ma.us/clientssecurityboard 
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http://www.mass.gov/courts/courtsandjudges/courts/supremejudicialcourt/about.html#affiliated1

A-G’s Opposition to be scanned in and uploaded

COMMONWEALTH OF MASSACHUSETTS

Essex, ss. CIVIL ACTION: 05-CV-01907

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers of Massachusetts

Office of Bar Counsel

Daniel Crane, Esq., in his individual and professional capacities,

Susan Strauss-Weisberg, in her individual and professional capacities,

Commonwealth of Massachusetts,

Defendants

_______________________________________________________________________

REPLY TO OPPOSITION TO PLAINTIFF’S

MOTION TO STRIKE APPEARANCE OF ATTORNEY GENERAL

FOR BOARD OF BAR OVERSEERS AND OFFICE OF BAR COUNSEL

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and replies to the opposition by Defendants Board of Bar Overseers of Massachusetts [“”BBO] and Office of Bar Counsel [“OBC”] to Johnson’s motion to strike the appearance of the Attorney General [“AG”] as their counsel.

As grounds, Johnson states that the AG has misstated facts and has used them to support specious legal arguments: (1) that G.L. c. 12, §3, is authorizes the AG’s appearance as counsel for these entities, (2) that the Complaint is barred by issue preclusion, which is irrelevant to the motion to strike, (3) that the Commonwealth is interested in the suit for defamation and intentional interference with prospective advantageous business and/or contractual relationships.

1. G.L. c. 12 §3 does not authorize the AG’s Appearance.

For instance, Johnson asserts the BBO and the OBC are private entities. The AG disputes that they are private entities, but fails to state an alternative descriptor. Johnson’s descriptor is consistent with the SJC assertion that the entities are “affiliated entities” [see Exhibit A attached to the motion to strike]. They are not political subdivisions. Were they political subdivisions with public employees, they would be funded by the Commonwealth. They are not.

Further, Johnson’s Complaint includes five causes of action, four for defamation and one for the intentional interference with prospective advantageous business and/or contractual relationships. Even assuming arguendo that the BBO and the OBC are political subdivisions of the Common-wealth as required for the application of M.G.L. c. 12, §3,\[1]/ defamation and the intentional interference with prospective advantageous business and/or contractual relationships may not be deemed “official acts” or “doings” of said political subdivisions of the Commonwealth. Thus c. 12 §3 does not authorize the AG’s appearance as counsel for the BBO and the OBC.

2. Johnson’s motion to strike the AG’s appearance is not barred by issue preclusion.

“The guiding principle in determining whether to allow defensive use of collateral estoppel is whether the party against whom it is asserted ‘lacked full and fair opportunity to litigate the issue in the first action or [whether] other circumstances justify affording him an opportunity to relitigate the issue.’”

Alba v. Raytheon Co., 441 Mass. 836, 841-842 (2004) (internal cites omitted) (emphasis supplied). “To date, however, the Supreme Judicial Court has only approved of the defensive use of collateral estoppel when the prior adjudication was before an administrative agency.” Pena v. Geszpenc, 2002 WL 1275815 *4, No. 00-3172-F (Mass.Super., June 11, 2002) (Gants, J.) (allowing offensive use of collateral estoppel), citing Tuper v. North Adams Ambulance Service, Inc., 428 Mass. 132, 135 (1998) (collateral estoppel not applied). Here, of course, the prior adjudication was before a federal district court, a situation that appears to present a case of first impression.

And where the federal court declined supplemental jurisdiction and the intentional interference claim was not brought there, she has not had an opportunity to try her case on the merits. Thus where Johnson has not had a full and fair opportunity to litigate her issues, the defensive use of collateral estoppel must be denied. Corrigan v. General Elec. Co., 406 Mass. 478, 483 (1990).

THE ELEMENTS OF OFFENSIVE COLLATERAL

WOVEN WITH THOSE OF DEFENSIVE COLLATERAL

Because there is some overlapping of the elements of offensive and defensive uses of collateral estoppel, Johnson addresses below both the offensive and the defensive use, in order to cover all aspects raised by the AG.

The court in Pena also cited the Restatement (Second) of Judgments § 29 (1982), which sets forth eight circumstances in which the offensive use of collateral estoppel would generally not be fair. One of those eight unfair circumstances is when “[t]he issue is one of law and treating it as conclusively determined would inappropriately foreclose opportunity for obtaining reconsideration of the legal rule upon which it was based.” Pena, 2002 WL 1275815 *5 n. 1.

Before applying the doctrine of collateral estoppel, a court must answer affirmatively four questions: (1) whether there was final judgment on the merits in the prior adjudication, (2) whether the party against whom estoppel is asserted was party, or in privity with a party, to the prior adjudication, (3) whether the issue decided in the prior adjudication was identical with the one presented in the action in question, and (4) whether the issue decided in the prior adjudication was essential to the judgment in the prior adjudication.

Factor 1: In the federal case, there was no final judgment on the merits.

Factor 2: The plaintiff here was the plaintiff in the prior adjudication. The BBO and the OBC were two of the defendants in the prior adjudication.

Factor 3: None of the issues in the prior adjudication was identical with the one presented in this action.\[2]/

In the federal case, Johnson brought 10 causes of action. In six counts, she sought declaratory judgments. They were dismissed summarily by operation of the Younger\[3]/ doctrine. Under current Massachusetts law, the dismissal would not have preclusive effect because the dismissal was based on an issue of law. Pena, supra; Tuper, supra.

In three counts, brought pursuant to 42 U.S.C. §1983, she sought money damages. The judge ruled that the Eleventh Amendment absolutely did not apply, which, according to the Chief Judge, left only the issues of quasi-judicial and quasi-prosecutorial immunity. Having raised those issues sua sponte, the judge invited briefs on them. The immunity issues were, therefore, the sole subjects of Johnson’s brief. Subsequently, Judge Young issued his Memorandum and Order of 26 May 2004, i.e., the order to which the AG referred in his memorandum in opposition to Johnson’s motion to strike the AG’s appearance in the instant case.

In the tenth count, Johnson sought money damages for defamation, which the Chief Judge dismissed without prejudice. Had Judge Young deemed estoppel appropriate in the State court, it is reasonable to conclude he would have dismissed Count 10 with prejudice, and not as he did, without prejudice.\[4]/ Four of the five counts Johnson has brought in the instant case are for defamation. The fifth count in the instant case is for intentional interference with a contractual or advantageous business relationship. That count was not included in the federal court case.

As stated supra, the issues in the prior adjudication were identified by Chief Judge Young in his order of 25 February 2004 [see Exhibit B, attached hereto]:

Excerpt from Order, 2/25/2004 (Young, C.J.) [Exhibit B, Order]

Johnson briefed but the AG did not brief the issue.

The “defendants” referred to were the natural defendants.

Judge Young’s memorandum and order issued 5/26/2004

Johnson chose to brief the issue [Exhibit C]. The AG chose not to do so; instead, having received the hint in the court order, he chose to file a motion to dismiss on immunity grounds.

For purposes of the brief in federal court, Johnson assumed arguendo that BBO Chair Carpenter, Special Hearing Officer Phillips, and Bar Counsel Crane—the defendants referred to in the February 25^th order—were quasi-governmental employees. Johnson’s rationale was twofold: (1) that the quasi immunities were unlawful ab initio in the Commonwealth, whether the three natural defendants were governmental or nongovernmental employees, and (2) that the source of the alleged immunity did not arise from a statute or common law, it arose from SJC Rule 4:01, §9(3), which required only that the individuals be employed by the BBO. In sum, whether the BBO was a public or private entity was not only irrelevant, that distinction did not matter.

The seven issues argued in Johnson’s brief in federal court follow:

1. There is no justification for “[t]he 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” to be given absolute immunity at all times, and thus be treated differently than all other quasi-governmental appointees in the Commonwealth.

2. Defendant M. Ellen Carpenter is not entitled to either absolute or qualified immunity derived from any source—whether constitutional, common law, or SJC Rule 4:01, §9(3).

3. Defendant Herbert P. Phillips is not entitled to either absolute or qualified immunity derived from any source—whether constitutional, common law, or SJC Rule 4:01, §9(3).

4. Where Defendant Daniel Crane’s function was ministerial and where he conspired to and did deprive Johnson of her constitutional rights—her clearly established First Amendments rights to political expression and free speech, the right to defend herself, as well as well as her rights to due process and equal protection—Crane is not entitled to immunity derived from any source or of any kind.

5. Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607, at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free them-selves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine of immunity in any form, there is no valid reason to deprive plaintiff of her rights under the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts on the basis of judicial immunity.

6. To deem judges or quasi-judges not persons subject to federal civil rights statutes is contrary to Congressional intent, and would be repugnant to desirable public policy. And where Defendants Carpenter and Phillips, outside their own Board Rules, violated Johnson’s constitutional civil rights, her rights to due process and equal protection, and acted contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate.

7. Where “the central purpose of §1983 is to ‘give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position,” to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create. Therefore, it would make the grant of absolute quasi-prosecutorial immunity inappropriate.

Factor 4: The issue of whether the BBO and OBC were governmental entities was not essential to the judgment in the prior adjudication. The counts involving them had been dismissed on Younger doctrine grounds, which have nothing to do with whether the BBO and the OBC were governmental entities. See the seven issues, supra, and Exhibit C attached to this Reply.

Notwithstanding the arguments of the AG or of Johnson,

. . . under the doctrine of the law of the case, a second judge is not obliged to follow an earlier ruling by another judge. Salter v. Scott, 363 Mass. 396, 402 (1973). The trial judge has the power to revise the earlier ruling in any way that appears just and proper. Ibid. See Shine v. Campanella & Cardi Constr. Co., 342 Mass. 150, 152-153 (1961).

Martin v. Roy, 54 Mass.App.Ct. 642, 644 (2002).

Defendants contend that when Chief Judge Young “ruled that BBO and OBC are ‘arms’ of the Commonwealth,” the ruling was final on the issue of whether the BBO and the OBC were state agencies.\[5]/ In fact, Judge Young did not find the entities to be state agencies. He wrote “the board exists as the disciplinary arm of [the Supreme Judicial Court].” That ruling was not only evasive of the issue as to whether the BBO and the OBC are political subdivisions of the Commonwealth, it was, in fact, contrary to the law of the Commonwealth. Cf. In re Mead, 372 Mass. 253 (1977), in which the Court held that by §1 of the State Administrative Procedure Act, G.L. c. 30A, the Board of Bar Examiners, “as an arm of the judicial department, is excluded from the definition of 'Agency' and is thus not subject to the procedures of c. 30A.” Id. at 255 (emphasis supplied). By analogy, as arms of the judicial department, the BBO and OBC are also excluded from the definition of “Agency.”

Mass.G.L.c. 30A, § 1(2) defines "agency" as: [a]ny department, board, commission, division or authority of the state government, authorized by law to make regulations or to conduct adjudicatory proceedings, but does not include the following: the legislative and judicial departments; the governor and council; military or naval boards; commissions or officials; the department of correction; the department of youth services; the parole board; the division of dispute resolution of the department of industrial accidents; the personnel administrator; the civil service commission; and the appellate tax board.

Widen v. Oxford Housing Authority, 1994 WL 902905 *3 n. 2, No. CA940413 (Mass.Super. Oct. 20, 1994) (Rup, J.) (emphasis supplied).

The word “agency” is defined in a multitude of statutes and the definitions depend on a multitude of facts. Therefore, the failure of the AG to identify that statute which the AG is using as a basis for its assertion that the BBO and the OBC are agencies is fatal.

In Massachusetts Bay Transp. Authority Retirement Bd. v. State Ethics Com'n, 414 Mass. 582 (1993) [“MBTA Retirement Bd.”], the board maintained it is a private entity and not a State agency,\[6]/ and using a test to make the determination, the SJC agreed. The four factors of the test are:

(1) the means by which the board was created (e.g., legislative or administrative action); (2) the board's performance of some essentially governmental function; (3) whether the board receives or expends public funds; and (4) the extent of control and supervision exercised by government officials or agencies over the board.

MBTA Retirement Bd., 414 Mass. at 587. “The test focuses on the method of formation, operation, and purpose of the entity, all factors which the Appeals Court recently noted to be central to the question of an entity's status as an ‘instrumentality’ under the conflict of interest law.” Id. at 588.

Factor 1: Notably absent from the creation of the BBO and OBC is any action by the legislature. They were created by a rules committee of the SJC. As with the MBTA board:

There is no statute, regulation, or executive order which addresses the establishment of the fund or the board. The commission acknowledges that its jurisdictional test calls for some “legislative underpinning” for the creation of a public instrumentality and points to the 1964 statute that abolished the MTA and created the MBTA in its place.

MBTA Retirement Bd., 414 Mass. at 589 (emphasis supplied). There is no legislative action “underpinning” the BBO and OBC.

Factor 2: Arguable is whether the BBO and OBC perform some “essentially governmental function.” From Johnson’s perspective, they perform that function in the absence of due process, thereby depriving attorneys, including the plaintiff, of their fundamental constitutional rights, and in the absence of due process, any judgment coming forth from the BBO is void ab initio. The BBO Rules, too, do not promise much. I.e., they promise only to “conform gener-ally” to the practice under G.L. c, 30A, “State Administrative Procedure,” and even that promise is not kept. See Johnson’s federal complaint.\[7]/

Factor 3: “The [State Ethics] commission appears to have placed significant weight on the third factor, whether the entity receives or expends public funds.” Id. At 590. In the instant case, neither the BBO nor the OBC receives or expends public funds. They receive private funds in the form of annual fees from attorneys, including the plaintiff, and unlimited gifts from attorneys who choose, for one amongst many reasons, to seek special dispensation from the BBO and/or the OBC. The significant private interests of the dues-paying attorneys and their beneficiaries far outweigh any public or governmental interest in the funds from the annual dues. See id. at 591 (“The significant private interests of the pension fund members, and their beneficiaries, far outweigh any public or governmental interest in the funds contributed by the MBTA”).

Factor 4: In MBTA Retirement Bd., the State Ethics Commission considered the extent to which the government controlled or supervised the board. Id. The commission found the board to be a public instrumentality because the board’s voting structure gave the three MBTA-appointed members a significant degree of control, including veto power, over board actions. That veto power over board decisions satisfied the control factor. Id. The commission admitted, how-ever, that the MBTA appointees exercised their individual judgment in accordance with their fiduciary duty and did not always agree with the MBTA’s positions. The Court concluded, “based on [its] application of the commission's jurisdictional test, that the board was not an instrumentality for purposes of the conflict of interest law.” Id. at 592.

One assumes that the employees of the BBO and OBC, too, exercise their individual judgment in accordance with their diverse duties, and that the SJC neither controls nor supervises the board or the office of the bar counsel. If that is true, then, like the Court in MBTA Retirement Bd., this court must find that the BBO and OBC are not public instrumentalities.

Further where the BBO and the OBC have sued in their own names, they have existences apart and distinct from the Commonwealth.\[8]/

… the [Massachusetts Port] Authority is not merely a board or commission of the State government. It is to sue and be sued in its own name. s 3(d). It is to acquire property in its own name, the title to which is to be in it and not in the Commonwealth. s 3(j), (k); ss 4, 5, 6, 13. It is to make contracts, s 3(o), and to issue bonds, s 8, which shall not be the bonds of the Commonwealth. s 11. It seems therefore that the Authority must constitute an entity in itself and must have an existence apart and distinct from that of the Commonwealth.

Opinion of the Justices, 334 Mass. 721, 734 (1956) (emphasis supplied). By analogy, where the BBO and the OBC sue and are sued in their own names, make contracts, accept gifts, the BBO and the OBC constitute entities in themselves and have existences apart and distinct from that of the Commonwealth.

In that same year, 1993, in Globe Newspaper Co. v. MBTA Retirement Bd., 416 Mass. 1007, 1007 (1993)\[9]/, the SJC reiterated its test, first enunciated in MBTA Retirement Bd.

3. Where the Commonwealth is an association of people who have no interest in defending any entity that has defamed or interfered with the business of one of the members of the association, the Attorney General has no authority to represent the BBO and the OBC, and may not volunteer to defend those entities.

The Commonwealth is a “body-politic.” Preamble, Const. of Com. of Mass. “The Body-Politic is formed by a voluntary association of individuals, who shall be governed by certain Laws for the Common good” [id.], and as an association, according to G.L. c. 4, §7, is a person for all purposes under all laws.\[10]/ These are well-known and well-worn words. When interpreting a statute, every word in a statute must be read to have a meaning. Locator Services Group, Ltd. v. Treasurer and Receiver General, 443 Mass. 837, 846 (2005) ("Where the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words”).

There are no means of ascertaining the purpose and effect of a statute except from the words used when given their common and approved meaning. They are to be read in the light of attendant conditions and the state of the law existent at the time of their enactment.

In re Bergeron, 220 Mass. 472, 475 (1915). Where the words upon which Johnson relies were ratified and/or approved at the Constitutional Convention of 1780, we must interpret them with the meaning given them by the drafters of our State constitution.\[11]/

“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 v. Harris, 401 U.S. 37, at 55 n. 2 (1971) (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 may be precluded by pretrial orders, the state interest is minimal. And where the entities, the BBO and OBC, are not public, the AG lacks the authority to volunteer to represent the defendants and the Body-Politic, the people, i.e., the Commonwealth, does not have requisite interest to trigger the AG’s involvement in this action. The AG’s volunteerism may be deemed, as it was in Middlesex, infra, an unwarranted interference with the judicial branch of government by the executive branch and violative of art. 30 of the Declaration of Rights of the Massachusetts Constitution.

Collateral to Quinn v. Rent Control Bd. of Peabody, 45 Mass.App.Ct. 357 (1998), was a suit brought by the AG in the Housing Court. In that suit, the Body-Politic did clearly have an interest: the suit was brought “to correct a rent increase for mobile home occupants that was illegally authorized by a public body, [addressed what] seeme[d] to constitute a housing problem" affecting the welfare of that characteristic population.” Id. at 370.

In contrast, in a case that the AG cited on p. 5, Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154, 163 (1975), the SJC held that the AG may refuse to prosecute an appeal, even though the Governor requested the AG to do so, where the appeal does not further public interest.

Also in contrast, in Clerk of Superior Court for Middlesex County v. Treasurer and Receiver General, 386 Mass. 517, 526 (1982), the AG declined to represent the clerks, who were public employees. There, in that case, the AG stated “that, in his discretion, he decided that the cause of the plaintiffs was not a proper one for him to pursue.” In Middlesex, 14 of 15 Superior Court clerks sought declaratory and injunctive relief in the SJC against both the Treasurer and the Chief Administrative Justice of Trial Court seeking to enjoin implementation in Superior Court of centralized bank account and funds transfer system whereby monies received by them would be consolidated and invested for benefit of Commonwealth or for such other beneficiaries as law required. Because the proposed system’s advantages were “the ability to invest monies received by the judicial branch at higher interest rates than those previously being earned\[12]/ and an increased ability to account for the monies collected and processed through the judicial branch,” the AG voluntarily decided to represent the defendants and not the clerks. Middlesex, 386 Mass. at 521. That volunteerism was deemed

. . . not an unwarranted interference with the judicial branch of government by the executive branch and does not violate art. 30 of the Declaration of Rights of the Massachusetts Constitution, which provides: "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men."

Id.

As to the voluntary nature of the proposed system, the Attorney General concedes, we think correctly, that the constitutional issue here would be a more difficult one to face if it were mandated that monies paid into the court would be deposited to a central account managed by the Treasurer. However, there is no such mandate here. The proposed system is a cooperative venture between the Chief Administrative Justice and the Treasurer.

Id., at 525. In contrast to that case, there is no cooperative venture between Johnson and the defendants, and the AG’s obligation is to the people who are members of the association known as the Body-Politic, not to the nonpublic “affiliated entities,” the BBO and OBC, and not to their private staff. And the Body-Politic, the people, have no interest in condoning defamation, whether committed by public or private persons. Even assuming arguendo that the BBO and OBC are public entities, the AG has abused his discretion in voluntarily choosing to interfere with what must be, unquestionably, the wish of the Body-Politic, the people, to have a society free of defamation and the interference with the fundamental right of all persons, to conduct business for their livelihoods.

That the AG’s obligation to the Body-Politic, the people, is Supreme was demonstrated in Alliance, AFSCME/SEIU, AFL-CIO v. Com., 425 Mass. 534 (1997), where the office of the AG agreed with the plaintiffs and declined to defend the action for the governor. Id. at 537. “[T]he Attorney General does not operate in a wholly subordinate role to the Governor, but may exercise independent judgment as to whether an executive action is so unlawful or against the interests of the public and Commonwealth that he will not undertake to defend it in court.” Alliance, 425 Mass. at 538 n. 6. See also Feeney v. Com., 373 Mass. 359 (1977) (AG has a common-law duty to represent the public interest as well as that of state officers), citing G.L. c. 12 § 3.

WHEREFORE, Plaintiff prays this court, in the interest of justice, allow her motion to strike the appearance of the AG on behalf of the private defendants.

Respectfully Submitted,

Barbara C. Johnson, Pro se

18 December 2005 ______________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that a true copy of this motion was served on 19 December 2005 served by first-class mail on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

19 December 2005 ______________________

Barbara C. Johnson, Esq.

ENDNOTES

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[1] Chapter 12: Section 3 Appearances for commonwealth, prosecution or defense; rendering of legal services:

Section 3. The attorney general shall appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. Writs, summonses or other processes served upon such officers shall be forthwith transmitted by them to him. All legal services required by such departments, officers, commissions and commissioners of pilots for district one in matters relating to their official duties shall, except as otherwise provided, be rendered by the attorney general or under his direction.

[2] Attached hereto Judge Young’s order of 25 February 2004, as Exhibit B, and the brief which was requested by the court on 25 February 2004, as Exhibit C, out of which arose the Memorandum and Order to which the assistant AG referred in the defendants’ oppositional memorandum.

[3] Younger v. Harris, 401 U.S. 37 (1971).

[4] “As to Count 10, the state law claim for defamation against the Board of Bar Overseers and Bar Counsel Crane, the Court declines to exercise supplemental jurisdiction and dismisses this Count without prejudice.” Memorandum and Order (May 26, 2004) (Young, C.J. ).

[5] Plaintiff finds the word change by the AG reprehensible and a fraud upon this court. The AG’s office appears to have a serious institutional problem of changing words in decisions and/or opinions to suit their purpose. In the federal case, AAG John Hitt changed the State name from New Jersey to Massachusetts to persuade the court that a Massachusetts disciplinary proceeding was “judicial in nature,” when, in fact, a disciplinary proceeding in Massachusetts in “administrative in nature.” [See Exhibit D.]

Thus the appearance of the AG ought to be stricken on the grounds of intentional prevarication alone. Intentional prevarication is a despicable institutional problem and must not be countenanced by any court. Cf. Report of the United States House Subcommittee for Government Reform, 2002, following the sentencing of Defendant FBI Agent John Connolly on 16 September 2002 (calling attention to the problems created within the “institutional culture” of the FBI). (That report also discusses in great and specific detail the pervasive “prosecutorial misconduct.”)

[6] “State agency" is defined by G.L. c. 268A, § 1(p) as: "any department of state government including the executive, legislative or judicial, and all councils thereof and thereunder, and any division, board, bureau, commission, institution, tribunal or other instrumentality within such department, and any independent state authority, district, commission, instru-mentality or agency, but not an agency of a county, city or town."

MBTA Retirement Bd., 414 Mass. at 587.

[7] The federal complaint brought by Johnson against the BBO. OBC, Carpenter, Phillips, and Crane can be found through PACER.

[8] An example of suing in their own name: Bar Counsel v. Board of Bar Overseers, 420 Mass. 6 (1995). Of course, the Bar Counsel is the plaintiff in all the bar disciplinary cases, i.e., all beginning with “In re” or “Matter of,” which are, for public consumption, just a disguise for the Plaintiff Bar Counsel.

[9] In Globe, the SJC held, “Because the board is not a ‘board’ of the MBTA, its records are not public records under G.L. c. 66, § 10.”

[10] “"Person'' or "whoever'' shall include corporations, societies,
associations and partnerships.” G.L. c, 4, §7.

[11] The BBO and OBC cited Bretton v. State Lottery Com'n, 41 Mass.App.Ct. 736 n. 6 (1996), cert. denied 424 Mass. 1103 (1997) (finding the lottery not a person and thus insulating the commission from a suit under c. 93A). The Appeals Court held that for c. 93A purposes, the lottery was not a person, clearly overlooking the definition of association in G.L. c. 4, §7, and the definition of Body-Politic in the Preamble of the Constitution. [The AG has a typo in his Bretton citation on p. 4 of the defendants’ opposition.] Johnson did not sue under c. 93A. “Chapter 93A does not apply to activities which are not performed within a business context.” Barret v. Massachusetts Insolvency Fund, 412 Mass. 774 (1992).

[12] “It is estimated that there is in excess of $20. million being held at any given time by all the Courts of the Commonwealth”; since implementation of the centralized bank account system, the interest earned on the consolidated funds has ranged from 14.91% to 17.75%. This is to be contrasted with the 5.5% interest earned on these funds when deposited by the Clerks in local accounts.

Middlesex, 386 Mass. at 524.

[13] USDC, E.D. Mass., CA #03-CV-12314-WGY, entitled Barbara C.
Johnson, Esq. v. Board of Bar Overseers of Mass., M. Ellen Carpenter, Esq.,
Herbert P. Phillips, Esq., Office of Bar Counsel, Daniel Crane, Esq., Com. of
Mass.

LIST OF EXHIBITS FOR REPLY

EXHIBIT A Supreme Judicial Court, About Us Webpage

EXHIBIT B Chief Judge Young’s Order of February 25, 2004

Page 1 of Exhibit B is very important.  Young admitted, i.e., held that the Eleventh Amendment did not bar cases for money damages.

But he was a turncoat to Justice.  In his written final decision he wrote the opposite.  And then dismissed the case on immunity.  Dishonorable despite his ultra-friendly demeanor in court!

EXHIBIT C  Johnson's "Brief Asserting that Neither Quasi-Judicial Nor Quasi-Prosecutorial Immunity is Applicable

Exhibit C is a reproduction of Drano Series #117, but my html-ing in #117 is terrible.  I did much, much better html'ng of the file in Exhibit C.  Took me two complete days to do it.  Do not know why the Netscape 7.2 Composer software fought me.  Still loads of bugs in it.

EXHIBIT D     Excerpt from page 6 of PLAINTIFF’S OPPOSITION (in U.S. District Court) TO MOTION TO DISMISS AMENDED  COMPLAINT AND SUPPORTING MEMORANDUM, \/ dated 22  January 2004

EXHIBIT A

Same as EXHIBIT A attached to motion

EXHIBIT B

Chief Judge Young’s Order of February 25, 2004

Page 1 of Exhibit B is very important.  Young admitted, i.e., held that the Eleventh Amendment did not bar cases for money damages.

But he was a turncoat to Justice.  In his written final decision he wrote the opposite.  And then dismissed the case on immunity.  Dishonorable despite his ultra-friendly demeanor in court!

EXHIBIT C

Exhibit C is a reproduction of Drano Series #117, but my html-ing in #117 is terrible.  I did much, much better html'ng of the file in Exhibit C.  Took me two complete days to do it.  Do not know why the Netscape 7.2 Composer software fought me.  Still loads of bugs in it.

Caption redacted

drano117-bbo-brief-quasi-judicial-prosecutorial-immunity-31604.htm

PLAINTIFF’S BRIEF ASSERTING THAT

NEITHER QUASI-JUDICIAL

NOR QUASI-PROSECUTORIAL IMMUNITY IS APPLICABLE

            Now comes Plaintiff Barbara C. Johnson ["Johnson"] and submits this brief to assert that neither quasi-judicial nor quasi-prosecutorial immunity is available to M. Ellen Carpenter, Herbert P. Phillips, and Daniel Crane in their individual capacities in this action.

This brief is in three parts and presents seven issues. Part I deals with the state of the law on immunity for government officials, including the judiciary, in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts , Massachusetts common law, and the Supreme Judicial Court Rule 4:01, §9(3). Johnson’s contention is:

1. There is no justification for “[t]he 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” to be given absolute immunity at all times, and thus be treated differently than all other quasi-governmental appointees in the Commonwealth.

Part II addresses “Who Defendants Carpenter, Phillips, and Crane Are.” Johnson’s contentions are:

2. Defendant M. Ellen Carpenter is not entitled to either absolute or qualified immunity derived from any source – whether constitutional, common law, or SJC Rule 4:01, §9(3).

3. Defendant Herbert P. Phillips is not entitled to either absolute or qualified immunity derived from any source – whether constitutional, common law, or SJC Rule 4:01, §9(3).

4. Where Defendant Daniel Crane’s function was ministerial and where he conspired to and did deprive Johnson of her constitutional rights -- her clearly established First Amendments rights to political expression and free speech, the right to defend herself, as well as well as her rights to due process and equal protection -- Crane is not entitled to immunity derived from any source or of any kind.

Part III, entitled “The Lack of Conscience of the Star Chamber and Public Policy,” deals with the history of judicial immunity, beginning with its rise from the Star Chamber:

5. Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607, at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine of immunity in any form, there is no valid reason to deprive plaintiff of her rights under the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts on the basis of judicial immunity.

6. To deem judges or quasi-judges not persons subject to federal civil rights statutes is contrary to Congressional intent, and would be repugnant to desirable public policy. And where Defendants Carpenter and Phillips, outside their own Board Rules, violated Johnson’s constitutional civil rights, her rights to due process and equal protection, and acted contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate.

7. Where “the central purpose of § 1983 is to ‘give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position, to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create. Therefore, it would make the grant of absolute quasi-prosecutorial immunity inappropriate.

PART I: A COMPARISON OF THE STATUS OF THE LAW OF IMMUNITY IN MASSACHUSETTS

1. There is no justification for “[t]he 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” to be given absolute immunity at all times, and thus be treated differently than all other quasi-governmental appointees in the Commonwealth.

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:\[1]/

All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.

Constitution of the Commonwealth of Massachusetts, Part the First, art. V, ratified on 16 June 1780, a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts.

Never has article V been amended. Never has article V been repealed. Never has the word "accountable" as used in article V been interpreted by a Massachusetts court. Never has the Massachusetts Supreme Judicial Court analyzed the confluence of article V and the judicially-created doctrine of judicial immunity. Never has the impact of the doctrine of judicial immunity on article V been considered and determined by a Massachusetts court.

Massachusetts Common Law: The Massachusetts judiciary hopped on board the judicial-immunity bandwagon when no one was looking, when no one was paying attention to the Commonwealth’s fine constitution. The first Massachusetts judicial-immunity case to be heard in a federal court was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868). It is discussed in Issue #5, infra at 19. The judicially-created doctrine giving all judges absolute immunity remains unchecked in Massachusetts, because there still is no entity sufficiently courageous to steer the bandwagon back onto the constitutional track as mandated by article V of the Declaration of Rights.

On the other hand, Massachusetts courts have allowed the governed some leeway in obtaining relief against other public employees:

Apart from judicial immunity, Massachusetts law does not recognize any absolute common-law immunity for public employees. Duarte v. Healy, 405 Mass. 43, 46 (1989). See Breault v. Chairman of the Board of Fire Commissioners of Springfield, 401 Mass. 26 (1987). Massachusetts law does recognize qualified immunity patterned after the federal qualified immunity under 42 U.S.C. § 1983, but that immunity applies only to discretionary functions, not ministerial acts. Duarte v. Healy, 405 Mass. at 46. See also Cady v. Marcella, 49 Mass.App.Ct. 334, 339 (2000). Discretionary functions are limited to “discretionary conduct that involves policy making or planning.” Harry Stoller & Co. v. Lowell, 412 Mass. 139, 141 (1992). As the Supreme Judicial Act has explained, “[G]overnmental immunity does not result automatically just because the governmental actor had discretion. Discretionary actions and decisions that warrant immunity must be based on considerations of public policy.” Id. at 143. Consequently, many decisions made by public employees that we commonly recognize to involve the exercise of discretion, such as whether to remove a drunken motorist from the roadway, how to treat a patient in an emergency room, the implementation of state police disciplinary policies, and the monitoring of a probationer, have been deemed ministerial rather than discretionary for purposes of evaluating qualified immunity. Id. at 143-144, and cases cited.

Doe ex rel. Doe v. Yunits, 2001 WL 664947 * 2, No. 00-1060A (Mass.Super. Feb. 26, 2001) (Gants, J.) (emphasis supplied). In sum, under Massachusetts common law, there is qualified immunity for very limited discretionary functions, and there is no immunity for ministerial functions.

SJC Rule 4:01, §9(3). Section 9(3) 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.” This rule throws accountability out the window. As Johnson’s Amended Complaint makes clear, the individuals in the class protected by §9(3) have been brazenly acting with impunity and have been depriving the class of Massachusetts licensed attorneys, of which Johnson is one, the full sweep of constitutional rights to due process and equal protection. There is no rationale justification or legal basis for this deprivation. Regulatory goals can be met in Article III courts.\[2]/ If people have a problem with an attorney, they can sue that attorney in a court created for the general public. Using a titular plaintiff, such as Daniel Crane [“Crane”], who has no personal knowledge of the facts in the case, denying discovery of the complainant(s), precluding a respondent attorney, such as Johnson, the opportunity to call witnesses and/or to cross-examine her accusers . . . all are overwhelming deprivations, deprivations that cause not one scintilla of fundamental fairness to enter the arena of a disciplinary action brought at the BBO. There is nothing about the OBC/BBO’s disciplinary action that smacks of juridical process. That the OBC/BBO individuals should then be given absolute immunity that applies to duly-appointed judges cannot and should not be tolerated. In the disciplinary action, these defendants knowingly, voluntarily, intelligently, and conspiratorially acted outside the Board of Bar Rules. They did so, to deprive Johnson (and many others) unlawfully of the full sweep of her rights to due process and the equal protection of the law. Any kind of immunity in such a context would be an anathema to any reasonable and rational public policy.

PART II: WHO DEFENDANTS CARPENTER, PHILLIPS, AND CRANE ARE

2. Defendant M. Ellen Carpenter is not entitled to either absolute or qualified immunity derived from any source – whether constitutional, common law, or SJC Rule 4:01, §9(3).

Defendant M. Ellen Carpenter is Chair of the Board of Bar Overseers [“BBO”] [Compl. ¶3]. Under SJC Rule 4:01, §9(3), Carpenter has absolute immunity. The constitutionality of that provision was challenged in Count 4 in the instant action [Compl. ¶¶245-253], a count which has been dismissed. Notwithstanding, however, that count not being presently before this court, the duly-ratified article V of the Declaration of Rights of the State constitution preempts §9(3).

In Defendants’ Further Motion to Dismiss, filed after the Order issued giving the parties the option of filing a brief on quasi-judicial and quasi-prosecutorial immunity, the defendants contend that Carpenter is entitled to “absolute immunity” in her “quasi-judicial capacit[y]” as an “administrative[] adjudicat[or].” They do not state the source of the “absolute immunity” to which they make claim. That is, they are silent as to whether “their” absolute immunity is an outgrowth of the judicially-created doctrine of judicial immunity or whether its source is §9(3).

Johnson contends that article V’s guarantee of accountability trumps the judicially-created-immunity card regardless of its source.

Assuming arguendo that common-law is applicable, a description of Carpenter’s function(s) is in order, to determine whether absolute, qualified, or no immunity whatsoever is appropriate. In actual fact, Defendant Carpenter was, at most, but a “shadow judge”: Carpenter was not appointed pursuant to Board Rule 3.19(a) as a member of a hearing panel or as a special hearing officer. Defendant Herbert P. Phillips was the individual appointed to be the Special Hearing Officer [Compl. ¶4]. Carpenter had under the Board Rules authority to decide only dispositive motions brought by a defending attorney\[3]/ [Compl. ¶80]. Even then, Carpenter never having allowed oral argument on any motion that she was to decide, she never met Johnson. In fact, she and Johnson were never in a room alone or with others present.

Although unhappy with Carpenter’s decisions on her motions to dismiss, Johnson did not complain of Carpenter’s consistent denials of them, for Carpenter did, indeed, have the authority under Board Rule 3.18(b)(1) to make those decisions. Johnson complained only and vigorously of Carpenter’s decisions that were not within her authority to make [Compl., including but not limited to the paragraphs in note 4 in the margin].\[4]/

Carpenter disregarded the Board Rules’ division of responsibility as to dispositive and nondispositive motions [Compl. ¶¶69-71]. By deciding motions that according to the BBO rules, others were to decide, Carpenter acted outside her limited authority to “adjudicate” dispositive motions and did thereby usurp powers or obligations reserved for other Board members and the non-Board hearing officer [Compl. ¶¶71, 114, 190-192].

Carpenter was a shadow judge. She was not a member of a hearing panel. Nor was she the special hearing officer appointed pursuant to Board Rule 3.19(a). As such, Carpenter is not entitled to immunity under the common-law judicially-created doctrine of judicial or quasi-judicial immunity. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).

As stated above, the source of Carpenter’s immunity defense is purportedly based upon SJC Rule 4:01, §9(3), but that rule provides her “immunity from liability for any conduct in the course of [her] official duties.” Section 9(3) (emphasis supplied). Her decisions on motions for so-called protective orders and impoundment and preclusion and trial by jury were decisions on nondispositive motions and were thus outside the scope of her duties as defined in the Board Rules. [Compl. ¶¶51, 54-55, 57-58, 71, 97-98, 100-101, 103, 109-110, 114-115, 190-192, 238, 242-243].

Also in their Further Motion to Dismiss, the defendants contend that Carpenter and Phillips were to “administratively adjudicate the merits of the Petition for Discipline.” That, too, is untrue: It was not the role of either Phillips or Carpenter to adjudicate the merits of the disciplinary action after the formal hearing:

· Phillips was to hear and decide nondispositive motions [Board Rule 3.18(a)],

· Carpenter or a designee was to decide only those dispositive motions filed by the defending attorney, namely, Johnson [Board Rule 3.18(b)(1)],

· Phillips was to report promptly to the Board his findings, conclusions, and recommendations, together with a record of the proceedings before him [Board Rule 3.46].

Where Carpenter acted outside the scope of her authority, §9(3) does not apply. Of course, §9(3) of SJC Rule 4:01 is also violative of article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts, which guarantees accountability to the people at all times by all officers of the three branches of State government.

Moreover, in keeping with the Fourteenth Amendment and the cases holding that where a party has been intentionally deprived of constitutional rights, there is no immunity.\[5]/,\[6]/,\[7]/ Hafer v. Melo, 502 U.S. 21, 28 (1991) (in 1871, Congress enacted §1983 "to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it"), quoting Scheuer v. Rhodes, 416 U.S. 232, 243 (1974), quoting Monroe v. Pape, 365 U.S. 167, 171-172 (1961), and citing Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982). Congress has also intended that judges would be accountable and thus not immune from suit. See Pierson v. Ray, 386 U.S. 547, 563-567 (1967) (Douglas, J., dissenting), for the legislative history of §1983.

In terms of power, there is “no difference between imposing liability on a state police officer (Monroe v.Pape, supra) and on a state judge. The question presented is not of constitutional dimension; it is solely a question of statutory interpretation.” Pierson, at 564-566 (Douglas, J., dissenting).

Thus, where Carpenter intentionally deprived Johnson of her constitutional rights to due process and equal protection, even the judicially-created immunity is not available to Carpenter as a defense to Counts 7, 8, and 9. And where §9(3) of SJC Rule 4:01 is not derived from a federal or state constitution, not derived from a federal or state statute, and not derived from common law, §9(3) has no legal force or authority to override the rights guaranteed Johnson by the Fifth and Fourteenth Amendments of the United States Constitution and enforced by §1983.

3. Defendant Herbert P. Phillips is not entitled to either absolute or qualified immunity derived from any source – whether constitutional, common law, or SJC Rule 4:01, §9(3).

Defendant Herbert P. Phillips was appointed, purportedly pursuant to Board Rule 3.19(a), as the special hearing officer [“SHO”] on Crane’s disciplinary action against Johnson.\[8]/ Like Carpenter, Phillips seeks absolute quasi-judicial immunity for his role as an administrative adjudicator, and the source of his immunity defense is also SJC Rule 4:01, §9(3). Johnson incorporates herein this issue by reference the arguments in Issues ##1 and 2, supra.

Although Phillips alleges that he is performing a quasi-judicial function, he is not doing it independently or fully. “Shadow Judge” Carpenter has made decisions on both dispositive and nondispositive motions [Comp. ¶¶69-71]. Assistant BBO General Counsel Carol Wagner was ever-present at Phillips’ side at the “bench.” She was, literally, physically prodding and whispering to him during pretrial and trial proceedings [Compl. ¶¶33, 285]. When questioned by Johnson during one hearing, Wagner admitted she was advising and counselling him as to how to perform his temporary job as a quasi-administrative judge [Compl. ¶¶185, 238, 285, 287].

Where Phillips deprived Johnson of her constitutional rights to due process and equal protection,\[9]/ §9(3) does not apply and immunity is not available to Phillips as a defense to Counts 7, 8, and 9. Section 9(3) does not override the rights guaranteed Johnson by the Fifth and Fourteenth Amendments to the U.S. Constitution and enforced by §1983. And, of course, §9(3) does not preempt article V of the Massachusetts Declaration of Rights.

4. Where Defendant Daniel Crane’s function was ministerial and where he conspired to and did deprive Johnson of her constitutional rights -- her clearly established First Amendments rights to political expression and free speech, the right to defend herself, as well as her rights to due process and equal protection -- Crane is not entitled to immunity derived from any source or of any kind.

Defendant Crane is both Bar Counsel and the plaintiff in the disciplinary action. He was appointed as Bar Counsel by the BBO, and is serving both at the pleasure and approval of the SJC [SJC Rule 4:01, §5(3)(b)]. (Section 5(3)(b) is ambiguous as to whether he is employed and compensated by the BBO as are such other people identified in the rule.) By the silence -- i.e., the absence of a rule or section of a rule (a) identifying the entity to be named as Plaintiff in a disciplinary action or (b) commanding Bar Counsel Crane to be the Plaintiff in the disciplinary action -- it is reasonable to infer or conclude that SJC Rule 4:01 and the BBO rules imply that Crane volunteered to be Plaintiff on behalf of the alleged complainants in the disciplinary action.

In an Article III court, the absence of a reference of appointment precludes protection of quasi-judicial immunity on the voluntary actor.

A court-appointed attorney, unlike a guardian ad litem or conservator, performs an advocacy function on behalf of the party represented, not a quasi-judicial function on behalf of the court.

Sarkisian v. Benjamin, 2000 WL 1299235 *1, No. CA995448 (Mass.Super. May 2, 2000) (Fabricant, J.) (a legal malpractice case).

In his official capacity, Crane is the alter ego of the OBC,\[10]/ which is the administrative prosecuting body. Like Attorney Roberta Benjamin in Sarkisian, Crane, at most, can be said to be filling an advocacy role on behalf of the alleged complainant(s). And like Benjamin, in an Article III court, Crane would not have immunity. Yet, like Carpenter and Phillips, Crane seeks absolute “quasi-judicial” immunity for his role as the administrative prosecutor. But one of his assistants, Susan Strauss-Weisberg, is acting as the quasi-prosecutor of the disciplinary action. (She is not a defendant in this action.)

In sum, in the BBO action, Crane is merely both the titular administrative prosecutor and the titular plaintiff. Whether it be absolute quasi-judicial or quasi-prosecutorial immunity he should seek, Crane would not be afforded absolute immunity under either category of derivative immunity. The reason is well-settled: the nature of Crane’s prosecutorial activity in the State Bar case has been strictly ministerial. If it were administrative and closely associated with the trial process, his conduct might warrant, at most, qualified immunity. Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (certain administrative or investigative conduct might warrant only qualified immunity).

Were Crane and Strauss-Weisberg acting as administrative or trial prosecutors in the real courts of the Commonwealth, they would be in the executive branch of government and not in the judicial branch, where they find themselves in the State action. Com. v. Gordon, 410 Mass. 498, 501 (1991) (dicta: district attorneys and their assistants are in the executive branch of government); Com. v. Super, 431 Mass. 492, 499 (2000) (same). Given, however, that Crane and Strauss-Weisberg are employed under the auspices of the SJC, and not the governor, their classification is like that of a mutant sitting on a fence dividing the judicial and executive branches. Given, however, that it is the nature of their function which is the basis of this analysis, this court may conclude that Crane’s function is quasi-prosecutorial and not quasi-judicial in nature. Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 248 (1985) (“the scope of immunity depends not merely on the status or title of the public official, but on the nature of the official behavior challenged”).

Notwithstanding the mutancy of the birth of Crane’s function, he is a so-called “public official” in an independent body born of the judicial branch. His role as titular plaintiff\[11]/ in the disciplinary action appears to be, at most, ministerial in nature. A ministerial role does not suffice to trigger protection under the umbrella of generic immunity. Breault v. Chairman of the Bd. of Fire Commrs. of Springfield, 401 Mass. 26, 38 (1987), cert. denied sub nom. Forastiere v. Breault, 485 U.S. 906 (1988) (holding, “where intentional ministerial acts of public officials are involved, there is no basis to conclude, under the relevant statutes and case law, that immunity from suit should be granted”).

The doctrine of qualified immunity shields public officials who are performing discretionary functions, not ministerial in nature, from civil liability in §1983 actions if at the time of the performance of the discretionary act, the constitutional or statutory right allegedly infringed was not “clearly established.”

Laubinger v. Department of Rev., 41 Mass.App.Ct. 598, 603 (1996), quoting from Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis supplied).

That statement in Laubinger leads to the question, Were Johnson’s rights "clearly established"? Yes, as a lawyer as well as a citizen, Johnson had a clearly established First Amendment right to political expression and free speech on her websites, in her court pleadings, and during her gubernatorial campaign regarding the need for court reform and accountability of the judiciary and those appointed by it. See Howcroft v. Peabody, 51 Mass.App.Ct. 573, 595 (2001) (“Howcroft's right to speak out regarding tobacco smoke in the station house was ‘clearly established’ when the defendants allegedly undertook their retaliatory actions”). See also Connick v. Myers, 461 U.S. 138, 147-148 (1983) (constitutional right of speaking “as a citizen upon matters of public concern”). Waters v. Churchill, 511 U.S. 661, 668 (1994) (“To be protected, the speech must be on a matter of public concern”) Pickering v. Board of Educ., 391 U.S. 563, 568 (1968) (where court determines the speech to be on a matter of public concern, then the court must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees”). In Pickering, “the Supreme Court determined that a letter written by a public school teacher to a newspaper attacking the school board's construction bond issue proposals was speech on a matter of public concern.”

Perry v. Sindermann, 408 U.S. 593, 595 (1972), considered the case of a State college professor who testified before the Legislature that a college be elevated to four-year status, to same effect. In Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 284, (1977), the Court reached the same conclusion in a case concerning a public school teacher who released to a radio station the substance of a memorandum dealing with teacher dress and appearance. Givhan v. Western Line Consol. Sch.Dist., 439 U.S. 410, 414 (1979), concerned a teacher who complained to a school principal about school board policies and practices relating to racial discrimination. The Supreme Court described these and other matters of “public concern” as those "dealing in some way with ‘the essence of self-government,’ Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964), matters as to which ‘free and open debate is vital to informed decisionmaking by the electorate,’ Pickering [v. Board of Educ., 391 U.S. 563,] 571-572 [(1968)], and matters as to which ‘debate ... [must] be uninhibited, robust, and wide-open,’” Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 755 (1985) (plurality opinion), quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). In short, speech on matters of public concern is that speech which lies “‘at the heart of the First Amendment's protection.’” Rankin v. McPherson, 483 U.S. 378, 395 (1987) (Scalia, J., dissenting), quoting First Nat'l Bank v. Bellotti, 435 U.S. 765, 776 (1978).

Pereira v. Commissioner of Social Services, 432 Mass. 251, 258-259 (2000) (emphasis supplied).

Like that of Carpenter and Phillips, however, the source of the immunity implicitly invoked by Defendant Crane, too, is §9(3) of SJC Rule 4:01 and not common law.

That the OBC, Crane, and his minions, performing “executive” functions, share space, telephone system, receptionist, as well as restroom keys, with the BBO, performing “judicial” functions, gives an appearance of impropriety.

PART III: THE LACK OF CONSCIENCE OF THE STAR CHAMBER AND PUBLIC POLICY

5. Where (a) judicial immunity arose out of a case of conspiracy decided in the Star Chamber in 1607, at the height of the abuse and misuse of judicial power, (b) our Forefathers left England, fought a revolution, and wrote a Constitution to free themselves of abusive medieval English legal practices, and (c) no legislature in a U.S. capitol or in the Commonwealth of Massachusetts ratified the doctrine in any form, there is no valid reason to deprive plaintiff of her rights under the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts on the basis of judicial immunity.

The doctrine of judicial immunity was born in England in 1607 from the womb of a devil court, the reviled Star Chamber,\[12]/ and in the United States around 200 years later from the rib of the Star Chamber case when the Supreme Court, in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), usurped a legislative function in violation of the separation of powers. Given those conditions of birth, the doctrine of 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.

With such repugnant roots, the federally-nurtured doctrine may not override the duly ratified and never amended article V of the Massachu- setts Declaration of Rights. The doctrine must not be countenanced by this court, for judicial immunity inappropriately and unconstitutionally precludes the appropriate scrutiny and accountability of the courts, the BBO, the OBC, and the natural defendants in the instant case. The doctrine fosters secrecy, sloth, and unscrupulousness.

Of particular significance are (1) that Congress intended judges not to be immune against civil rights deprivation claims, (2) that article 6 of the U.S. Constitution may not be invoked, for Congress not only was not at the party at the Bradley v. Fisher bench but also did not have the intention to immunize judges or the Commonwealth, (3) that judicial immunity is violative of the Ninth Amendment of the U.S. Constitution, (4) that judicial immunity is against public policy, and (5) that it cannot bar Johnson’s §1983 claims and her pendent common-law claim for defamation.

Johnson further argues that under 42 U.S.C. §1983, judges are also subject to suit both in law and at equity, as that statute explicitly provides and the Fourteenth Amendment guarantees. Although the Fourteenth Amendment has been routinely overridden by the Eleventh Amendment, it has been overridden by that prong of the amendment which was not duly ratified and which was born out of the bench without the participation of Congress, despite the contrary intention of Congress to hold judges accountable as all other government officers are when they deprive citizens of their civil rights. See Justice Douglas’s dissent, infra at 22, in Pierson v. Ray, 386 U.S. 547.

. . . As early as 1872, the Court recognized that it was "a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, [should] be free to act upon his own convictions, without apprehension of personal consequences to himself."

Stump v Sparkman, 435 U.S. 349, 355 (1978), quoting Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871).\[13]/ But Justice Field misstated history in Bradley. Judicial immunity was not to protect the judges for some lofty ideal – as is touted today -- it was to protect the King himself. The purpose was to avoid entrenching the King in the middle of a scandal. Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (case of conspiracy).

Figure 1. Allegations of corruption “will trench to the scandal

of the King himself”

Floyd and Barker was decided in the Star Chamber in 1607, when the Chamber was at its height of corruption. Its reputation of misuse and abuse having grown, the Chamber was abolished in 1641, during the reign of King Charles I (Stuart). Charles, a man of allegedly private virtue and public vice, “a man of blood,” was found guilty of treason during the First English Civil War and beheaded on a scaffold outside the Banqueting House at Whitehall on 30 January 1649.

Not only from a moral perspective should no court in our land follow the law arising out of a judicial chamber of horrors, to follow the law of the Court of Star Chamber is more odious because we fought the Revolution to free ourselves from that tyranny and have earned the right to keep ourselves free from institutions and people who want to escape accountability and threaten our liberties.

Despite that verity, the Court in Stump, supra, wrote,

. . . the Court held that "judges of courts of superior or general jurisdiction are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 613 Wall., at 351.

Stump, 435 U.S. at 355-356.\[14]/ Not only does that proposition allow judges to be malicious and corrupt (which meant not adhering to the law and the facts, such as was done in Johnson’s case), the statement in Stump is a bald statement of half-truth.

In England, during a period when “[a] number of courts challenged the King’s Bench for authority” [Pulliam v. Allen, 466 U.S. (Va.) 522, 530 (1984)], judicial immunity originally protected only the “higher judges of the King’s courts.” Id., at 531.

But in a writ of false judgment, the plaintiff shall have a direct averment against that which the Judges in the Inferior Court have done as Judges, quia recordum non habent; and with this accords 21 H. 6. 34.

Floyd and Barker, 12 Co.Rep. at 24, 77 Eng.Rep. at 1307.

. . . in Floyd and Barker, 12 Co.Rep. 23, 77 Eng.Rep. 1305 (1607), Coke and his colleagues of the Star Chamber had declared the judges of the King's Bench immune from prosecution in competing courts for their judicial acts. In doing so, they announced the theory upon which the concept of judicial immunity was built.

Pulliam, 466 U.S. at 530.

. Although the court in Pulliam iterated the history of judicial immunity, it did so ambiguously. For instance, the court in Pulliam failed to state what Barker did, what the conspiracy was about, who the co-conspirators were, and who Floyd was. That failure arose because of the secrecy that was the hallmark of the Star Chamber. The reasonable inference that may be drawn is that someone by the name of Floyd learned the truth of corruption and conspiracy (from the heading on the case) in the court, and that corruption had to be covered up. See Figure 2, infra.

Figure 2. A Case of Conspiracy

So, the inescapable conclusion from Pulliam must be that the entire authority for the modern ‘doctrine’ of judicial immunity is based on royal prerogative and edicts emanating from the Star Chamber, which was dissolved and outlawed in 1641, and remains a blot on the landscape of England’s juridical history.

In fact, Floyd and Barker reveals that William Price was indicted by a grand jury. He pled not guilty, but was tried by a jury and convicted. After his execution, the jurors who convicted him “were charged in the Star-Chamber for conspiracy against him, and indicted and convicted.” Floyd, 12 Co. at 1306, 77 Eng.Rep. at 23.\[15]/

The report identifies Floyd only as “Rice ap Evan ap Floyd,” with nothing more and notes that the suit occurred after William Price was convicted in Judge Richard Barker’s court for murder and executed by the sheriff. The reason Floyd sued Barker and others in the Star Chamber for conspiracy – at that time a cause of action allowed for diverse reasons – is not revealed. But that is key to knowing and understanding the basis of the then-created doctrine of judicial immunity! Did Barker commit a wrong, outside the scope of his authority? Did he violate an existing statute? Was he simply a loyalist to the Royal family and under its protection? Or was he acting on orders from the King, the chancellors, or the justices of the Chamber?

The ruling chief justices, Popham and Coke (after whom Coke’s King’s Bench Reports are named), did not convict Barker. Instead, they established judicial immunity for the King’s judges. Their rationale was that if the judges were convicted it would “trench to the scandal of the King himself.” Floyd, 12 Co. at 1307, 77 Eng.Rep. at 25.

Despite the new declaration of judicial immunity, the Floyd report includes two declarations of judicial corruption: “. . . in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission.” Id. And the other:

. . . Thomas Weyland, Chief Justice of the Common

Bench, Sir Ralph Hengham, Justice of the King's Bench; and the other justices, were accused of bribery and corruption; and their causes were determined in Parliament, where some were banished, and some were fined and imprisoned.

Floyd, 12 Co. at 1308, 77 Eng.Rep. at 25.

The facts on which the judges were convicted are also, of course, not revealed in Floyd, the report of which was written by the chief justices of the most corrupt court in English history. A few years later, the monarch was executed.

That medieval England in 1607 established judicial immunity to insulate its nobility from accountability does not highly support the continuation of that doctrine in Post-revolutionary America, it, instead, recreates the causes of the Revolution.

Floyd v. Barker reached our shores in a case involving a Massachusetts attorney. The case was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\[16]/ an action against a Massachusetts superior court justice for the alleged wrongful disbarment of an attorney. The Court there wrote, “[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously

or corruptly.” Id., at 536 (emphasis supplied).\[17]/ Article V of the Declaration of Rights was not cited.

It was in Bradley v. Fisher, supra,\[18]/ another case in which an attorney was suing a judge for the deprivation of his right to practice as an attorney in the District of Columbia, that Mr. Justice Stephen Field, a bald-headed man with a foot of facial hair, declared on behalf of the Court, in words for all intents and purposes meaning, “The Randall Court was wrong. Judges can be malicious or corrupt. It does not matter. They must remain independent, so they should not worry about being interfered with even when they act maliciously and corruptly.”

In Bradley, the Court illustrated the distinction between lack of jurisdiction and excess of jurisdiction with the following examples: if a probate judge, with jurisdiction over only wills and estates, should try a criminal case, he would be acting in the clear absence of jurisdiction and would not be immune from liability for his action; on the other hand, if a judge of a criminal court should convict a defendant of a nonexistent crime, he would merely be acting in excess of his jurisdiction and would be immune.

Stump, 435 U.S. at 357 n. 7, citing Bradley at 352.

It is shocking to the average lawyer as well as the average layperson that the highest Court of our land should find it acceptable that a judge knowingly convict a person of a non-existent crime. Is not this something Hitler and Stalin and other tyrants have done since time immemorial? Is this the common law that this prestigious court should honor as stare decisis? It, too, like the doctrine of sovereign immunity, is “logically indefensible.” Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986) (internal cite omitted).

That the majorities of those in the highest court of our land should use a doctrine born out of the womb of a devil court, the Star Chamber, both to defy the public demand for accountability and to defeat article V of the Massachusetts Declaration of Rights, which guarantees us accountability by the judiciary, is unfathomable and shameful, . . . and undoubtedly reflects pejoratively on the courts, even the honorable ones, which unfortunately have written extensively only as parts of the minorities: e.g., The Honorable Justices Brennan, Stevens, Black, Douglas and others.

Curiously, at least two Courts -- Pierson v. Ray, supra, and Stump v Sparkman, supra – have concluded that:

. . . we held that this doctrine of judicial immunity was applicable in suits under §1 of the Civil Rights Act of 1871, 42 U.S.C. §1983, for the legislative record gave no indication that Congress intended to abolish this long-established principle.

Stump, 435 U.S. at 356, citing Pierson.

That was a full untruth. The Congressional Record shows that Congress fully intended that judges would not be immune when they deprive people of their civil rights. Mr. Justice Douglas had traced the legislative history of §1983 (in Cong. Globe, 42d Cong., 1st Sess.) and confirmed that the congressional intent was to hold judges, as well as every other person, liable for the deprivation of a citizen’s civil rights.\[19]/

The rationale of the Court is specious on other grounds, too. For instance, a first-year law student is taught that he cannot sue for breach of duty if there is no duty; he cannot sue for breach of contract if there is no contract. Thus, the Court in Pierson had to have known or should have known that Congress did not state that it “intended to abolish judicial immunity” because it had never established judicial immunity. It was men in black robes who brought judicial immunity to our shores in the 19^th century. Congress was not at their party! Congress had already had its party: it had decided judges would not be immune to prosecution under §1983. And that section was on the books fully eight months prior to Bradley being decided. Skullduggery might have been afoot. Certainly it had to be an affront to Congress when the Court decided to follow the English courts rather than its own United States Congress!

Granted, the action in Bradley was not brought under any of the Civil Rights Acts” [Pierson, at 549 n. 3 (dissent)], but the debate in Congress regarding judicial immunity was expansive. With the passing of the Act that same year, the Court had to know the majority in Congress were for accountability to stem the tide of personal interests and corruption.

So that statement by the Court in Pierson and acknowledged by the Court in Stump is valueless, hollow. It is a statement made only by a result-oriented court, not an intellectually courageous, principled court. It should hold no weight with this court, which prides itself on thorough and principled opinions. This court should bravely herald that there is no history of a sound rationale in support of judicial immunity.

The Court in Pulliam, 466 U.S. at 540, was more honest: it cited the dissenting opinion in Pierson, at 558-564 for the proposition that “every Member of Congress who spoke to the issue assumed that judges would be liable under §1983.” And in Pierson itself, Mr. Justice Douglas wrote the rationale behind his own understanding:

The statute [42 U.S.C. §1983], which came on the books as §1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, provides that “every person” who under color of state law or custom “subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” To most, “every person” would mean every person, not every person except judges.

Pierson, at 559 (Douglas, J., dissenting).

In sum, What are “rights” if Government can violate them with impunity under the penumbra of immunity? Nothing, if redress for their violation is not available. “Rights means Accountability of Government directly to their own people for violations of their own people's rights. That is the public policy of the United States, by treaty and by Constitution.” John E. Wolfgram, “How the Judiciary Stole the Right to Petition,” 31 U. West L.A. L. Rev. 12 (Summer 2000). Wolfgram was referring to The Universal Declaration of Human Rights, Gen. Assem. Res. 217, A(III), 10 Dec. 1948, a cornerstone human rights treaty between the United States and the United Nations. “Its Preamble sets out the important role that government accountability to its own people plays in international peace: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.’” Wolfgram, 31 U. West L.A. L. Rev. at 12 n. 19.

6. To deem judges or quasi-judges not persons subject to federal civil rights statutes – contrary to Congressional intent – would be repugnant to desirable public policy. And where Defendants Carpenter and Phillips, outside their own Board Rules, violated Johnson’s First Amendment rights, other constitutional civil rights such as her rights to due process and equal protection, and acted contrary to public policy, the defense of immunity is not available to them, making dismissal inappropriate.

Johnson incorporates herein by reference the facts throughout her Complaint and opposition briefs for this proposition. Johnson further states that where the defendants knowingly violated her clearly established rights, the defendants are not entitled to absolute immunity.

The argument that the actions of public officials must not be subjected to judicial scrutiny because to do so would have an inhibiting effect on their work, is but a more sophisticated manner of saying " The King can do no wrong." [5] Chief Justice Cockburn long ago disposed of the argument that liability would deter judges:

“I cannot believe that judges . . . would fail to discharge their duty faithfully and fearlessly according to their oaths and consciences . . . from any fear of exposing themselves to actions at law. I am persuaded that the number of such actions would be infinitely small and would be easily disposed of. While, on the other hand, I can easily conceive cases in which judicial opportunity might be so perverted and abused for the purpose of injustice as that, unsound principles, the authors of such wrong ought to be responsible to the parties wronged.” Dawkins v. Lord Paulet, L.R. 5 Q. B. 94, 110 (C. J. Cockburn, dissenting).

Pierson, at 564-566 (Douglas, J., dissenting) (emphasis supplied).

“What about the judge who conspires with local law enforcement officers to “railroad” a dissenter?” Justice Douglas asked. Pierson, at 566 (Douglas, J., dissenting). This resonated with Johnson, who contends she was being railroaded because it was easier to cenSURE her professionally than to cenSOR her websites. [Compl. ¶47].

“What about the judge who knowingly turns a trial into a “kangaroo” court?” Id. This, too, resonated with Johnson. [Compl. ¶253, p. 45-46 n. 37]. When SHO Phillips, at the suggestion of BBO Assistant General Carol Wagner, ordered the public from “public trial” in the BBO hearing room, a kangaroo court was being created [Compl. ¶¶185, 238, 185, 187]. This was a reasonable conclusion given that Phillips two-weeks earlier, on 17 November 2003, frequently told the court reporter – when Johnson was speaking -- that the hearing would proceed “off the record” [Compl. ¶134].

“Or one who intentionally flouts the Constitution in order to obtain a conviction?” Id. Given that the Constitutions – both federal and state – were flouted with abandon during the course of the proceedings of the disciplinary action, this last question by Justice Douglas resonated as the others did.

The negative effect of allowing immunity through §9(3) – or the judicially-created doctrine of judicial immunity and its derivatives -- has encouraged the Board and its staff, members of hearing committees, special hearing officers, the Bar Counsel, and his staff to run amok. They know the respondent attorneys have no recourse against those persons granted immunity. And should the instant case be dismissed, the lesson this court would teach those employed at or associated with the BBO and OBC is that they can continue to disregard not only the BBO rules but also the federal and state constitutions.

Congress, I think, concluded that the evils of allowing intentional, knowing deprivations of civil rights to go unredressed far outweighed the speculative inhibiting effects which might attend an inquiry into a judicial deprivation of civil rights. [fn6]

Pierson, at 567 (Douglas, J., dissenting).

Where Congress intended justices to be deemed persons, as every other person is, for the purposes of §1983, the defendants here have no immunity, and where absolute judicial immunity was the only basis upon which the defendants sought relief in their SECOND motion to dismiss, both of the defendants’ motions must fail in entirety.

7. Where “the central purpose of § 1983 is to ‘give a remedy to parties deprived of constitutional rights, privileges and immunities by an official’s abuse of his position, to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create, making the grant of absolute quasi-prosecutorial immunity inappropriate.

Quasi-prosecutorial immunity “extend[s] unaccountability far beyond where even the Court ever dreamed it would go.”\[20]/ By providing government officials any immunity from the governed, the judiciary by fiat makes officials of a government unaccountable to its own people for abuse of power. This is contrary to chapter 61 of the Magna Carta,\[21]/ which grants the “natural” right to petition for redress of grievances, to complain about and to the government.\[22]/ Most of all, immunity of any kind usurps substantive just redress, or substantive due process, by denying the procedural due process right to petition for redress.\[23]/

Congress attempted to address the "[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law" [Imbler, 424 U.S. 409, 433 (1976), quoting United States v. Classic, 313 U.S. 299, 326 (1941)] by enacting 42 U.S.C. §1983. Thus “the central purpose of § 1983 is to ‘give a remedy to parties deprived of constitutional rights, privileges and immunities by an official's abuse of his position.’” Imbler, at 433, quoting Monroe v. Pape, 365 U.S. 167, 172 (1961). “It is manifest then,” the Court continued, “that all state officials as a class cannot be immune absolutely from damage suits under 42 U.S.C. §1983 and that to extend absolute immunity to any group of state officials is to negate pro tanto the very remedy which it appears Congress sought to create.” Imbler, at 433-434, citing Scheuer v. Rhodes, 416 U.S. 232, 243 (1974).

Accordingly, we have declined to construe §1983 to extend absolute immunity from damage suits to a variety of state officials, Wood v. Strickland, 420 U.S. 308 (1975) (school board members); Scheuer v. Rhodes, supra (various executive officers, including the State's chief executive officer); Pierson v. Ray, 386 U.S. 547 (1967) (policemen); and this notwithstanding the fact that, at least with respect to high executive officers, absolute immunity from suit for damages would have applied at common law. Spalding v. Vi-

las, 161 U.S. 483 (1896); Alzua v. Johnson, 231 U.S. 106 (1913). Instead, we have construed the statute to extend only a qualified immunity to these officials, and they may be held liable for unconstitutional conduct absent “good faith.” Wood v. Strickland, supra, at 315. Any other result would “deny much of the promise of §1983.” Id., at 322.

Imbler, 424 U.S. 409, 434 (1976) (Mr. Justice White, with whom Mr. Justice Brennan and Mr. Justice Marshall join, concurring in the judgment) (Mr. Justice Stevens took no part in the consideration or decision of Imbler.) The Court in Imbler did note the exception for “state legislators ” and “state judges,” all of whom had been previously held “to be absolutely immune from liability for damages under 1983” for their respective legislative and judicial acts. Imbler, at 434-435 (internal cites omitted).

Where Defendant Bar Counsel Crane, as titular-plaintiff/titular-quasi-prosecuting attorney, chose to suppress, with the approval of the quasi-administrative adjudicators, exculpatory documents and preclude witnesses with potentially exculpatory testimony, no immunity can be allowed, even under the majority decision in Imbler.

“As a matter of principle, we perceive no less an infringement of a defendant's rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information. The conduct in either case is reprehensible, warranting criminal prosecution as well as disbarrment.” Imbler, at 431.\[24]/\[25]/

“[U]nless the threat of suit is also thought to injure the governmental decisionmaking process, the other unfortunate consequences flowing from damage suits against state officials are sufficient only to extend a qualified immunity to the official in question.” Imbler, 424 U.S. at 437 (White, J., with whom Mr. Justice Brennan and Mr. Justice Marshall joined concurring).\[26]/

A prosecutor faced with a decision whether or not to call a witness whom he believes, but whose credibility he knows will be in doubt and whose testimony may be disbelieved by the jury, should be given every incentive to submit that witness' testimony to the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.

Imbler, 424 U.S. at 440. In this case, the plaintiff/quasi-prosecutor, Defendant Crane, had the incentive to put witnesses on, but did not, thereby depriving Johnson the opportunity to cross-examine her accusers, the complainants to the BBO/OBC.

“Absolute privilege has been conceded on obvious grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist. It is essential to the ends of justice that all persons participating in judicial proceedings . . . should enjoy freedom of speech in the discharge of their public duties or in pursuing their rights, without fear of consequences.”

Imbler, 424 U.S. at 440 (internal cite omitted) (emphasis supplied). Defendant Bar Counsel Crane brought a Petition for Discipline against Johnson [Compl. ¶13]. Over half of the exhibits are pages from Johnson’s website, leading to the reasonable conclusion that Crane’s primary purpose is to silence Johnson by intimidation and to punish her for enjoying her right to speak freely and express her political views. The second of the three counts consists of a de minimus fee dispute. The third is for Johnson’s alleged contempt of a non-existent order.\[27]/

I concur in the judgment in this case. However, insofar as the majority's opinion implies an absolute immunity from suits for constitutional violations other than those based on the prosecutor's decision to initiate proceedings or his actions in bringing information or argument to the court, I disagree. Most particularly I disagree with any implication that the absolute immunity extends to suits charging unconstitutional suppression of evidence. Brady v. Maryland, 373 U.S. 83 (1963).

Imbler, 424 U.S. at 441 (concurrence).

Immunity from a suit based upon a claim that the prosecutor suppressed or withheld evidence would discourage precisely the disclosure of evidence sought to be encouraged by the rule granting prosecutors immunity from defamation suits. Denial of immunity for unconstitutional withholding of evidence would encourage such disclosure. A prosecutor seeking to protect himself from liability for failure to disclose evidence may be induced to disclose more than is required. But, this will hardly injure the judicial process.*fn8 Indeed, it will help it. Accordingly, lower courts have held that unconstitutional suppression of exculpatory evidence is beyond the scope of "duties constituting an integral part of the judicial process" and have refused to extend absolute immunity to suits based on such claims.

Imbler, 424 U.S. at 443 and cases gathered.

Equally important, unlike constitutional violations committed in the courtroom -- improper summations, introduction of hearsay evidence in violation of the Confrontation Clause, knowing presentation of false testimony . . . the judicial process has no way to prevent or correct the constitutional violation of suppressing evidence. The judicial process will by definition be ignorant of the violation when it occurs; and it is reasonable to suspect that most such violations never surface. It is all the more important, then, to deter such violations by permitting damage actions under 42U.S.C. § 1983 to be maintained in instances where violations do surface.

Imbler, 424 U.S. at 443-444, and cases gathered. To suppress evidence is exactly what OBC Bar Counsel Crane moved Defendants Chair Carpenter and SHO Phillips to do. [Compl. Exh., passim]. They used the Administrative Practice Act as an excuse for being able:

(a) to suppress evidence,

(b) to deny Johnson the opportunity to confront the complainants,

(c) to use only hearsay evidence against Johnson [Crawford v. Washington, -- U.S. --, No. 02-9410 (March 2, 2004) (holding that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation, and thus overturning Ohio v. Roberts, 448 U.S. 56 (1980), which allowed a hearsay witness statement if a judge found it trustworthy)],\[28]/ and

(d) to preclude Johnson from offering evidence – testimonial or documentary.

“It is apparent that the injury to a defendant which can be caused by an unconstitutional suppression of exculpatory evidence is substantial, particularly if the evidence is never uncovered.” Imbler, at 444. This latter scenario, too, contributed significantly to the deficient administrative process at the BBO/OBC [Compl. ¶140, Compl. Figure 3].

Johnson had documentary evidence of a fabricated document [Compl. Figure 2a-2e at ¶116]; she subpoenaed one of the contributors to that fabricated evidence to trial; he arrived at the trial pursuant to Johnson’s subpoena; Defendant Phillips told him the lawful subpoena was invalid and excused him as a witness [Compl. ¶179].

. . . The procedural difference between the absolute and the qualified immunities is important. An absolute immunity defeats a suit at the outset, so long as the official's actions were within the scope of the immunity. The fate of an official with qualified immunity depends upon the circumstances and motivations of his actions, as established by the evidence at trial. See Scheuer v. Rhodes, 416 U.S. 232, 238-239 (1974); Wood v. Strickland, 420 U.S. 308, 320-322 (1975).

Imbler, at 419 n. 13 (emphasis supplied).

… Out of concern for the integrity of the judicial system, the Supreme Court in Imbler thus extended absolute immunity to those prosecutorial activities “intimately associated with the judicial phase of the criminal process,” such as initiating a prosecution or presenting the State's case. [Imbler], at 430, 96 S.Ct. at 994. It specifically left unanswered the question whether prosecutorial activity which is not closely associated with the trial process, such as certain administrative or investigative conduct, might warrant only a qualified immunity.

Chicopee Lions Club v. District Atty. for Hampden Dist., 396 Mass. 244, 248 (1985) (emphasis supplied). In the BBO action, Crane was the titular plaintiff and titular quasi-prosecuting attorney. Strauss-Weisberg was the quasi-prosecuting attorney, and is not a defendant in the case at bar.

NOTE

Johnson incorporates herein by reference the arguments in her

Opposition to Defendants’ Further Motion to Dismiss

WHEREFORE, Plaintiff prays this court deny the defenses of quasi-judicial and quasi-prosecutorial immunity in the interest of justice.

<>Respectfully submitted,
<>Plaintiff Barbara C. Johnson, pro se,

/s/ barbaracjohnson@worldnet.att.net>

16 March 2004 Barbara C. Johnson, Esq., Pro Se

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

BBO #549972

---

[1] It does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities. The article constitutes the state’s express and unequivocal consent to suit by the people.

[2] Federal courts derive authority from Article III of the U. S. Constitution. The Commonwealth’s courts are erected out of Article III of Ch. 1, Sec. 1, of the Constitution of the Commonwealth of Massachusetts.

[3] Whether the division of responsibility as to dispositive and nondispositive motions [Compl. ¶¶69-71] occurs in the other 49 State “Boards of Bar Overseers” is unknown. Whether the constitutionality of the division of responsibility has been tested is unknown. Whether they have “shadow judges” is unknown.

[4] ¶¶ 51, 53-58. 66, 69, 71, 97-98, 103-105, 109, 111, 114-116, 190-192, 238, 242-243, 276, 284, 288-291, note 2, and the related exhibits, called out in the respective paragraphs.

[5] Cf. Hopper v. Callahan, 408 Mass. 621, 635 n. 8 (1990) (“there is substantial doubt that either of the two State statutes we have discussed would be effective to grant immunity against a §1983 claim based on the deprivation of due process rights protected by the Fourteenth Amendment”), citing Martinez v. California, 444 U.S. 277, 284 & n. 8 (1980).

[6] Having been approved by Congress in 1866 and completely ratified in 1868, the Fourteenth Amendment was passed to provide people with the rights to due process and equal protection: It reserved the right of citizens and noncitizens alike to sue a State if a federal question was raised in the suit: that is, federal-question cases are not touched by the Eleventh Amendment. The Court in Scheuer, 416 U.S. at 237, reaffirmed by noting that since Ex parte Young, 209 U.S. 123, in 1908, “‘it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.’”

[7] Section 1983 should be "liberally and beneficently construed ... [and] be broadly construed against all forms of official violation of federally protected rights." Monell v. New York City Dept. of Social Services, 436 U.S. 658, 684, 700-701 (1978), quoted in Dennis v. Higgins, 498 U.S. 439 (1991).

Langton v. Secretary of Public Safety, 37 Mass.App.Ct. 15, 19 (1994).

[8] Phillips’ qualifications are unknown, other than those revealed on his and the BBO’s websites. Phillips’ website reveals he is primarily a tax attorney in private practice with two other attorneys in Haverhill, Massachusetts. The BBO’s website gives his office address and the year of his admission to the Bar. Phillips, himself, told attendees that he is 72 years of age and that his wife winters in Florida.

[9] The paragraphs that describe how Phillips deprived Johnson of her constitutional rights to due process and equal protection include but are not limited to ¶¶48, 61, 79, 125, 127-141, 143-150, 164, 175, 179, 185-187, 193-195, 238, 274, 287.

[10] The OBC is an independent body created by the SJC for attorney disciplinary purposes [Compl. ¶5].

[11] Curious is that Crane is both the plaintiff and a prosecutor in the employ of the judiciary’s child, viz, the BBO.

[12] The Star Chamber was established after an act in 1341. The Encyclopaedia Britannica, 11^th ed. (1911), vol. XXV, p. 795. Over time, the composition and jurisdiction of the court became uncertain, but “[i]n practice its jurisdiction was almost unlimited.” Id., citing William Hudson, “Treatise of the Court of the Star Chamber,” in vol. ii. of Collectanea Juridica. Certainly its jurisdiction had superseded that of the ordinary courts of law in cases where the ordinary courts were too weak to act. Encyc. Brit. 11^th ed., vol. XXV, p. 795.

After the act of 1487, “the Star Chamber became the great engine of the royal tyranny.” Id. Although the court had been initially a court of appeal, Henry VIII, Chancellor Wolsey, and Archbishop of Canterbury Cranmer encouraged plaintiffs to bring their cases directly to the Star Chamber, bypassing the lower courts entirely and within 25 years of 1487, under the leadership of Wolsey and Cranmer, the Chamber not only performed the very necessary and valuable work in punishing powerful offenders who could not be reached by the ordinary courts of law [id.], it also became a political weapon for bringing actions against opponents to suppress opposition to royal policies of Henry VIII.

Originally open to the public, the Court of Star Chamber sessions came both to be held in secret and to represent the misuse and abuse of power by the king and his circle. “Its procedure was not according to the common law.” Id. There were no witnesses (it could proceed on rumor alone), no juries, no right of appeal, and punishment was swift, flexible, and severe to any enemy of the crown. (“It could apply torture; it could inflict any penalty but death.” Id.)

Between 1628 and 1640, the Court of Star Chamber became a substitute for Parliament. Court of Star Chamber proceedings were used extensively to persecute dissenters, including Puritans who fled to New England, and gain not only arbitrary convictions, but also arbitrary acquittals for guilty parties whom the crown wished to protect. The abuses of the Star Chamber by Charles I were one of the rallying cries for those who eventually beheaded him in 1649.

In sum, because it “characteristically departed from common-law traditions . . . and . . . specialized in trying ‘political’ offenses, the Star Chamber has for centuries symbolized the disregard of basic individual rights.” Faretta v. California, 422 U.S. 806, 821 (1975).

[13] “A judge will not be deprived of immunity because the action he took was in error, was done maliciously, or was in excess of his authority; rather, he will be subject to liability only when he has acted in the ‘clear absence of all jurisdiction,’” Stump, 435 U.S. at 356-357, quoting Bradley, at 351.

[14] A state official in her personal capacity is a “person” for purposes of §1983. Hafer v. Melo, 502 U.S. 21, 31 (1991) (rejecting Will). Personal-capacity §1983 suits against state officials in federal court, not being barred by the Eleventh Amendment [Hafer, at 22, citing Scheuer v. Rhodes, 416 U.S. 232, 237-238 (1974)], "state officials may [ ] be held liable in their personal capacity for actions they take in their official capacity." Hafer, at 27.

[15] “There is no room for wonder at any verdict that could be returned by a jury, when we consider what means the government possessed of securing it. The sheriff returned a pannel, either according to express directions, of which we have proofs, or to what he judged himself of the crown's intention and interest. If a verdict had gone against the prosecution in a matter of moment, the jurors must have laid their account with appearing before the star-chamber; lucky, if they should escape, on humble retraction, with sharp words, instead of enormous fines and indefinite imprisonment.’”

Cohen v. Hurley, 366 U.S. 117, 139 n. 16 (1961) (dissenting note), quoting Hallam, The Constitutional History of England, Vol. I (2d ed.), at 316 n. 15 for the proposition that juries then were controlled by the King’s men.

[16] The year is variously given as 1868 or 1869.

[17] In fact, in 1868, when Randall v. Bingham was decided, express malice was also not excused in Britain as it has been in this Republic ever since Bradley. And it appears that in the British Commonwealth, judicial immunity from charges of constitutional violations has became obsolete or has fallen into desuetude. The date when this occurred in the British Commonwealth is unknown to this author.

… Chief Justice Lord Denman stated that law in Kendillon v Maltby, 174 Eng. Rep. 562, 566 (N.P. 1842) as follows: "I have no doubt on my mind, that a magistrate, be he the highest judge in the land, is answerable in damages for slanderous language, either not relevant to the cause before him or uttered after the cause is at an end; but for words uttered in the course of his duty, no magistrate is answerable, either civilly or criminally, unless express malice and absence of reasonable or probable cause be established." Today, constitution based commonwealth countries have no judicial immunity for violation of Constitutional Rights. See The Digest of British, Commonwealth and European Cases, Note 3641, "No Liability for acts done in Judicial Capacity—Unless Interference with Rights or Freedoms Under Constitution.”

John E. Wolfgram, “How the Judiciary Stole the Right to Petition,” 31 U. West L.A. L. Rev. 14 n. 28 (Summer 2000) (emphasis supplied).

[18] Messrs. Justice Davis and Clifford dissented, writing that if a judge acts maliciously and corruptly, he is, in their opinion, “subject to suit the same as a private person would be under like circumstances.” Bradley, at 357.

[19] Yet despite the repeated fears of its opponents, and the explicit recognition that the section would subject judges to suit, the section remained as it was proposed: it applied to “ any person." [2] There was no exception for members of the judiciary. In light of the sharply contested nature of the issue of judicial immunity it would be reasonable to assume that the judiciary would have been expressly exempted from the wide sweep of the section, if Congress had intended such a result.

The section's purpose was to provide redress for the deprivation of civil rights. It was recognized that certain members of the judiciary were instruments of oppression and were partially responsible for the wrongs to be remedied. The parade of cases coming to this Court shows that a similar condition now obtains in some of the States. Some state courts have been instruments of suppression of civil rights. The methods may have changed; the means may have become more subtle; but the wrong to be remedied still exists.

Pierson, 386 U.S. at 563 (Douglas, J., dissenting) (emphasis supplied). Mr. Justice Douglas continued expressing his disdain of applying a common-law immunity rule as a defense to liability which Congress had imposed upon “any officer or other person,” as in Ex parte Virginia, or upon “every person.” Id.

[20] Wolfgram, “How the Judiciary Stole the Right to Petition,” supra, at 16.

[21] About eight hundred years ago King John of England and his upper class nobility had a running dispute with the lower nobility, the barons. The barons had the loyalty of most of the common people and that gave them an advantage at the “ballot box” that consisted of mostly swords and bows and arrows. The people siding with the barons gave them the military power to strongly suggest to King John that it would be in his interests to negotiate a bargain on June 15, in the year 1215 AD at Runnymede. The Great King bowed to the will of a people angered at his incursions against common decency. King John agreed to the terms of what is now the cornerstone of both British and American Constitutional Law: The Magna Carta.

Wolfgram, at 20.

[22] Id. at 21 n. 42, citing Corwin, Constitution of the United States, 1914 (2d ed. 1964). (The Magna Carta is written in Latin and has diverse translations.)

[23] Historically, “[t]he right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government.” Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907). This, too, is derived from the Magna Carta. “Chapter 61 guarantees that the King and his heirs shall never interfere with the petitioning process or punish or intimidate anyone for assisting the barons to coerce just redress from the government.” Wolfgram, supra at 23 n.49.

[The right to petition] is designed to bring government to account under the law of the land, . . . for the violation of other rights. . . . It is intended to subject government to the compulsory process of law when government does not want to fairly redress the grievance. It is so important that “law” without it, is “law without justice”, and that is another name for oppression.

. . . We in America, whose right of petition is so abridged and burdened by government created immunities from redress and accountability, are on notice of government’s intent to progressively and relentlessly oppress us into tyranny.

. . . What we are talking about is the natural and inevitable result of increasing abridgment of petition rights, whether protected by a constitution or not. That’s what it means to be a “natural” or “unalienable right.”

. . . The reason government abridges it is to allow its officers to violate all other rights with impunity and unaccountability. When government does that, there is only one just and proper response: To throw off such government by any means necessary. That is the bottom line of the “unalienable right of petition for redress.”

Wolfgram, “How the Judiciary Stole the Right to Petition,” supra at 23-24.

[24] MR. JUSTICE WHITE, concurring in the judgment, would distinguish between willful use by a prosecutor of perjured testimony and willful suppression by a prosecutor of exculpatory information. In the former case, MR. JUSTICE WHITE agrees that absolute immunity is appropriate. He thinks, however, that only a qualified immunity is appropriate where information relevant to the defense is "unconstitutionally withheld . . . from the court." Post, at 443.

We do not accept the distinction urged by MR. JUSTICE WHITE for several reasons. As a matter of principle, we perceive no less an infringement of a defendant's rights by the knowing use of perjured testimony than by the deliberate withholding of exculpatory information. The conduct in either case is reprehensible, warranting criminal prosecution as well as disbarment. See supra, at 429 nn. 29 and 30.

Imbler, at 431 n.34.

[25] Mr. Justice disagreed:

that “the knowing use of perjured testimony is as reprehensible as the deliberate suppression of exculpatory evidence. This is beside the point. The reason for permitting suits against prosecutors for suppressing evidence is not that suppression is especially reprehensible but that the only effect on the process of permitting such suits will be a beneficial one -- more information will be disclosed to the court; whereas one of the effects of permitting suits for knowing use of perjured testimony will be detrimental to the process -- prosecutors may withhold questionable but valuable testimony from the court.

Imbler, at 446 n.9 (concurrence footnote). Seeing no distinction between perjury and suppression, Justice White wrote, “The constitutional obligation of the prosecutor remains utterly unchanged. We would simply not grant him absolute immunity from suits for committing violations of pre-existing constitutional disclosure requirements, if he committed those violations in bad faith.” Id.

[26] Mr. Justice White, addressing the reservation by the majority in footnote 34, wrote at 432-433:

. . . I believe that the Court's opinion may be read as extending to a prosecutor an immunity broader than that to which he was entitled at common law; broader than is necessary to decide this case; and broader than is necessary to protect the judicial process. Most seriously, I disagree with any implication that absolute immunity for prosecutors extends to suits based on claims of unconstitutional suppression of evidence because I believe such a rule would threaten to injure the judicial process and to interfere with Congress' purpose in enacting 42 U.S.C.1983, without any support in statutory language or history.

[27] Johnson was doing discovery on a “whistleblower” type case. In 1994-1995, she was looking for more evidence of fraud by an environmental company on major government projects, such as the Big Dig. Tyco International, whose CEO, Dennis Koznowski, was recently tried for “removing” $600 million from Tyco’s coffers, took over the company in 1995. Koznowski’s lawyer repeatedly asked the court to jail Johnson. The court did . . . on 17 December 1998. This is some of the evidence precluded by the BBO.

[28] A 9-0 opinion potentially disallows hearsay evidence that courts had increasingly allowed as exceptions during the past 25 years and boldly reinforces a defendant's right to confront witnesses under the Sixth Amendment of the U.S. Constitution.

AFFIDAVIT OF BARBARA C. JOHNSON

I, Barbara C. Johnson, hereby swear and say that all the statements and observations I attribute to myself in the within pleading are true and accurate. Sworn under the pains and penalties of perjury.

/s/ <barbaracjohnson@worldnet.att.net>

16 March 2004 Barbara C. Johnson, Esq., Pro Se

PLAINTIFF'S CERTIFICATION PURSUANT TO LOCAL RULE 7.1(A)(2)

I, Barbara C. Johnson, hereby certify, pursuant to Local Rule 7.1(A)(2), that I did not confer with AAG John Hitt because this brief was allowed by the court in its order of 25 February 2004. There was no need to “narrow” the issues.

/s/ <barbaracjohnson@worldnet.att.net>

16 March 2004 Barbara C. Johnson, Esq.

EXHIBIT D

Exhibit D is reason Attorney-General Thomas Reilly must not be elected Governor.  The culture of his office is dishonest.  Any reporter wanting documentary proof of several examples of dishonesty should contact me backchannel.

Excerpt from page 6 of PLAINTIFF’S OPPOSITION TO

MOTION TO DISMISS AMENDED COMPLAINT AND SUPPORTING MEMORANDUM\[1]/

(Dated 22 January 2004)

Moreover, there appear to be no cases in which Massachusetts has declared a bar disciplinary proceeding to be “judicial in nature.” The most the SJC has declared is, 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, 1008 (1997) (emphasis supplied)\[2]/. 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. Middlesex County Ethics Committee v. Garden State Bar Association, 457 U.S. 423, 433-434 (1982). But see id. at 429, where the USSC reminds the reader of the Third Circuit’s determination that disciplinary proceedings are “administrative, ‘nonadjudicative’ proceedings.”

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, 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.\[3]/ 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.

---

[1] USDC, E.D. Mass., CA #03-CV-12314-WGY, entitled Barbara C.
Johnson, Esq. v. Board of Bar Overseers of Mass., M. Ellen Carpenter, Esq.,
Herbert P. Phillips, Esq., Office of Bar Counsel, Daniel Crane, Esq., Com. of
Mass.

[2] In Jones, at 1008, the Court reiterated that “[b]ar discipline cases are not criminal in nature.”

[3] [Footnote omitted here, for lack of relevance to this case . . . at this moment.]