#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).