#158, 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)

Drano #156 contains:  (1) Barb's Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel, (2) the A-G's Opposition (when it is scanned in), and (3) Motion for Leave to File Reply to Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel (intentionally omitted here;  see Drano #157) (4) Barb's Reply to A-G's Opposition Drano #157 contains: (1) Barb's Motion to Strike Appearance of the Attorney General for Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg (2) the A-G's Opposition (when it is scanned in) (3) Rule 9A Notice of Filing (4) Motion for Leave to File Reply to A-G's Opposition (included here only for use as boilerplate) and (5) Barb's Reply to A-G's Opposition This file, Drano #158, contains: (1) the Motion to Dismiss by Board of Bar Overseers, Office of Bar Counsel, Bar Counsel Daniel Crane, and Assistant Bar Counsel Susan Strauss-Weisberg (2) Table of Contents (Including List of Exhibits) of Opposition to Motion to Dismiss by Board of Bar Overseers, Office of Bar Counsel, Daniel Crane, Susan Strauss-Weisberg, and the Commonwealth of Massachusetts and Their Request to Dispense with Hearing (3) Barb's Opposition to Motion to Dismiss by Board of Bar Overseers, Office of Bar Counsel, Daniel Crane, Susan Strauss-Weisberg, and the Commonwealth of Massachusetts (4)  Motion for Leave to File Surreply to A-G's Reply to Barb's  Opposition (included here only for use as boilerplate) and (5) Barb's Surreply to A-G's Reply to Barb's  Opposition

DEFENDANTS' MOTION TO DISMISS
(TO BE SCANNED IN)

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

____________________________________________ 

TABLE OF CONTENTS

(including List of Exhibits)

OF

OPPOSITION TO MOTION TO DISMISS BY
BOARD OF BAR OVERSEERS, OFFICE OF BAR COUNSEL, DANIEL CRANE, SUSAN STRAUSS-WEISBERG, AND
THE COMMONWEALTH OF MASSACHUSETTS

AND THEIR REQUEST TO DISPENSE WITH HEARING

(Plaintiff Requests Hearing)

                                                                                 _______________                                     Page

Table of Contents                                                                                              i

List of Exhibits                                                                                                 ii

Opposition, Grounds, and Facts                                                                        1

Arguments                                                                                                         4

1. Defendants’ reliance on U.S. District Court (Boston) Chief Judge
Young’s opinion in 324 F.Supp.2d 276 (May 26, 2004) is misplaced where Judge Young held in another order and decision (February 25, 2004) a contrary position on the applicability of the Eleventh Amend- ment, and where the May 26th opinion is, internally, explicitly  inconsistent. 4

2. Where Article V of the Declaration of Rights states that all
magistrates and officers of the three branches of government shall
be accountable to all the people at all times, Daniel Crane and Susan
Strauss-Weisberg are not entitled to absolute immunity.                           7

3. Absolute immunity is not applicable to this case, for the alleged
“court” of the Board of Bar Overseers is an “Affiliated Entity,” not
a court contemplated in 1871, when the Court in Bradley v. Fisher
imported the doctrine of judicial immunity from the most reviled
court in British history, to wit, the Star Chamber.                                    9

4. The two natural defendants are not entitled to absolute judicial or
quasi-judicial immunity, for neither Crane nor Weisberg was acting
in any capacity contemplated by the state and federal constitutions
or statutes when they spoke to news reporters and defamed Johnson
and when they caused the Certificate of Good Standing to be issued
in a form that was not contemplated when it was designed and
authorized by another unknown entity, presumably a committee.            12 

5. The second prong of the Eleventh Amendment, which was not a
creature of Congress, may not trump Article V of the Massachusetts
Declaration of Rights, and therefore immunity under it may not be
applied to the defendants in this action.                                                   13

Figures 1a and 1b                                                                           16

6. The intersection of the Eleventh Amendment, the Massachusetts
Declaration of Rights, and the Massachusetts Torts Claims Act
(G.L. c. 258) yield only one reasonable conclusion, namely, all
the defendants here are not protected by immunity from any source,
whether the Eleventh Amendment, sovereign immunity, or the
MTCA, or §9(3) of SJC Rule 4:01.                                                        17

7. Where the BBO and OBC are financially and politically independ-
ent bodies, they are exempted from c. 258.                                             20

8. Where Johnson did not have a full and fair opportunity to litigate
the issue in the disciplinary action or in the U.S. District Court in
Boston, and other circumstances justify affording her an opportunity
to litigate the issue, collateral estoppel or issue preclusion does not
apply.                                                                                                      21

9. Where all the cases cited by the Defendants are distinguishable
from the instant case, they are irrelevant not only to the issues in
this oppositional memorandum but also to the issues in the defen-
dants’ supporting memorandum.                                                             22

Certificate of Service                                                                                     25

Exhibits                                                                                                          26

LIST OF EXHIBITS

EXHIBIT A A webpage from the BBO website and an

                                    excerpt from the OBC website

EXHIBIT B Chief Judge Young’s Order of February 25, 2004
                                    (2 pages)

EXHIBIT C Issue 3, excerpted from Johnson’s Appellate Brief, filed in the First Circuit Court of Appeals (4 pages)

Where federal district courts have jurisdiction over
“general challenges to state bar rules, promulgated
by state courts in nonjudicial proceedings” and the
disciplinary proceeding against Johnson is admini-
strative and nonjudicial in nature, dismissal of
Johnson’s challenges was reversible error.

EXHIBIT D(1) Opposition to Motion to Dismiss Federal Complaint
                                    (19 pages)

EXHIBIT D(2) Supplemental Opposition to Motion to Dismiss Federal Complaint (2 pages)

EXHIBIT D(3) Opposition to Defendants' Second Motion to Dismiss Federal Complaint (8 pages)

EXHIBIT E History of Absolute Immunity (9 pages)

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 in any form, there is no valid reason to
deprive plaintiff of his rights under the Massachusetts
Declaration of Rights, Massachusetts Constitution, on
the basis of judicial immunity.

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

____________________________________________ 

OPPOSITION TO MOTION TO DISMISS BY
BOARD OF BAR OVERSEERS, OFFICE OF BAR COUNSEL, DANIEL CRANE, SUSAN STRAUSS-WEISBERG, AND
THE COMMONWEALTH OF MASSACHUSETTS

AND THEIR REQUEST TO DISPENSE WITH HEARING

(Plaintiff Requests Hearing)

Now comes Plaintiff, Barbara C. Johnson [“Johnson”], and opposes the Motion to Dismiss by Defendants Board of Bar Overseers [“BBO”], Office of Bar Counsel [“OBC”], Daniel Crane [“Crane”], Susan Strauss-Weisberg [“Weisberg”], and the Commonwealth of Massachusetts [“Commonwealth”].

As grounds, Johnson states that the defendants are not entitled to absolute immunity, for (1) assuming arguendo that all the defendants are public entities, Article V of the Declaration of Rights states that all magistrates and officers of the three branches of government shall be accountable to all the people at all times, (2) the Eleventh Amendment does not apply to actions for money damages, (3) where SJC Rule 4:01, §9(3) has no constitutional or statutory support, that rule is inapplicable anywhere, (4) where the BBO and the OBC are not public employers, they are not immune from suit under G.L. c. 258, (5) issue preclusion does not apply,\[1]/ and (6) all the defendants here are liable for intentional torts.

Johnson further states that the defendants mis-iterated significant facts. For example:

1. Defendants wrongly assert that the BBO, the OBC, Crane, and Weisberg are public entities. They are private entities. (This is argued in this opposition and extensively in Johnson’s Reply to the Opposition to her Motion to Strike the Appearance of the AG, which she incorporates herein by reference.)

2. Defendants state that the disciplinary hearings at the BBO were public. That is not wholly true. Only a pretrial conference was public. During Plaintiff’s Opening Statement, the BBO, through its appointed special hearing officer, ordered the public out of the room in which the so-called trial was to take place. \[2]/

3. Three of the four defamation claims were pled in one cause of action in the United States District Court in Boston. When the court refrained from exercising supplement-al jurisdiction, it dismissed the count for defamation without prejudice.

4. Defendants state, on page 4 of their memorandum, that the defamation claims are the subject of the reported decision included in the defendants’ addendum. The extent of the inclusion of the defamation claims is one sentence: “With all federal claims dismissed, the Court exercises its discretion to refrain from exercising supplemental jurisdiction over Johnson’s remaining claim for defamation.”

5. Defendants rely on Chief Judge Young’s opinion that was published as 324 F.Supp. 276 (May 26, 2004) for asserting that the Eleventh Amendment applies here. See Exhibit B, another of Judge Young’s decisions, dated 25 February 2004. There, Judge Young held just the opposite about the Eleventh Amendment (emphasis supplied):

In particular, Claims 7 through 9, insofar as they seek money damages against Defendants Carpenter, Phillips, and Crane in their individual capacities, are not barred by Eleventh Amendment immunity. These are federal civil rights claims that fall squarely within this Court’s subject matter jurisdiction.

Given, therefore, Judge Young’s vacillation, the opinion relied upon by the AG and the defendants is misplaced . . . and if not misplaced, certainly on shaky ground. Johnson contends that Judge Young was correct the first time around. <>

In fact, in Issue 3 (on pages 22-26) of her appellate brief, filed in the First Circuit Court of Appeals, (a) Johnson addressed the inconsistency of Judge Young’s conclusions as to the nature of a bar-disciplinary hearing in the Commonwealth,   (b) the relief sought by Johnson, and (c) misinterpretation of Maymó-Meléndez v. Álvarez- Ramírez and Van Arken v. City of Chicago, as to when Rooker-Feldman is applicable and when it is not, required Johnson to challenge the validity—i.e., the constitutionality —of the BBO Rules and prove that her reliance on District of Columbia Court of Appeals v. Feldman was not misplaced, contrary to the lower court’s assertion. [Exhibit C, Excerpt of Issue 3 from Johnson’s appellate brief filed in the First Circuit Court of Appeals.]

6. Defendants erred by contending that absolute immunity is applicable to this case, for the alleged “court” of the Board of Bar Overseers is defined by the Supreme Judicial Court as an “Affiliated Entity,” not as a court of the type contemplated in 1780 by the Framers or in 1871, when the Court imported the doctrine from the Star Chamber.

7. The two natural defendants are not entitled to absolute judicial immunity for acting in quasi-prosecutorial capacities.\[3]/ Neither performed a type of judicial function contemplated by the state and federal constitutions or statutes. Neither has acted in a judge-like manner, and neither Crane nor Weisberg was at any time a judge or a quasi-judge. Crane was the plaintiff and, at most, a titular quasi-prosecutor, clearly a conflict of roles. Weisberg was the so-called prosecutor or quasi-prosecutor, the one doing the so-called investigating and asking the questions. Crane was never present physically at any proceeding. Only his name was . . . on the caption of the OBC petition.

8. Defendants contend that the BBO and OBC are public employers. That is unsustainable. The only link between the BBO/OBC with the state government is the admission that an SJC rules committee created the BBO/OBC. Were the BBO and OBC part of the SJC, there would be a violation of the separation of powers provision in the state constitution. Judges are in the judicial branch and prosecutors are in the executive branch of government. Further, if the SJC supervises the BBO and the OBC, as the defendants contend, the SJC has a continuing conflict of interest, for the SJC is the ultimate arbiter of disciplinary disputes. And if the SJC is the supervisor of both the BBO and the OBC as well as the ultimate arbiter, any decision it has rendered or does render in disciplinary disputes is void ab initio.

ARGUMENTS

1. Defendants’ reliance on U.S. District Court (Boston) Chief Judge Young’s opinion in 324 F.Supp.2d 276 (May 26, 2004) is misplaced where Judge Young held in another order and decision (February 25, 2004) a contrary position on the applicability of the Eleventh Amendment, and where the May 26th opinion is, internally, explicitly inconsistent.

Johnson incorporates herein by reference her Reply to Opp. to Mot. to Strike the AG’s Appearance for BBO/OBC, Exh. C and Exhibit D, attached hereto, an excerpt from her Opposition to Dismiss the federal complaint, in entirety, on the issue of whether quasi-judicial and quasi-prosecutorial immunity are inapplicable to this issue [1st Cir. Appeal, Appdx. 469-508].

The district court relied upon Bettencourt v. Board of Registration in Medicine, 904 F.2d 772, 782 (1st Cir. 1990),\[4]/ and Butz v. Economou, 438 U.S. 478, 508 (1977), to find that the natural defendants in this case were “‘quasi-judicial’ agency officials who . . . perform[ed] functions essentially similar to those of judges or prosecutors, in a setting similar to that of a court.” Bettencourt, 904 F.2d at 782 [Defs. Add. at 12]. To make that finding, Judge Young applied a three-part test [Defs. Add. at 13].

First, the judge concluded that the Chair and the hearing officer were “performing a traditional adjudicatory function by determining whether to recommend Johnson for disciplinary sanctions after making factual and legal determinations.”\[5]/ Id. In contrast, Crane and Weisberg did not decide facts, did not apply law, and did not perform functions in any way similar to those of judges or prosecutors in a court. Even were we to assume arguendo that judicial immunity is constitutional, the factual dispute as to whether Crane or Weisberg were performing judicial functions as judges do in a court setting is within the purview of a jury to resolve, not within that of the bench when considering a motion to dismiss.

Second, Judge Young concluded that were the BBO to recommend discipline, the attorney would be incited to become litigious, “making the need for absolute immunity apparent.” Id. There being no evidence of the likelihood of such litigiousness, this is a bald assertion. In fact, most attorneys, fearful of the power of the BBO and OBC, roll over for those political entities, and if they do not, they lose again on appeal. Those recommending discipline are not at all in need of immunity. They are protected by Power.

I ... never believed there was one code of morality for a public, and another for a private man.

Thomas Jefferson to Valentine de Foronda, 1809, The Writings of Thomas Jefferson, Monticello (Memorial Edition), 12:320; (Washington ed.) v, 475; (Ford ed.) ix, 260.

The Judicial Branch must be independent of other branches of government, but not independent of the nation itself. It is rightly responsible to the people for irregular and censurable decisions, and judges should be appointed for limited terms with reappointments resulting from approved conduct.

Eyler Robert Coates, Sr., in The Writings of Thomas Jefferson, chapter 29, Metairie, Jefferson Parish, Louisiana. \[6]/

Mr. Madison thought it indispensable that some provision should be made for defending the Community agst (against) the incapacity, negligence or perfidy of the chief Magistrate.

James Madison, Friday, July 20, 1787, The Framers' Debates on the Impeachment Provisions (from the notes of James Madison, taken at the Constitutional Convention in Philadelphia on Friday, July 20, 1787). Massachusetts had already taken that precaution seven years earlier by ratifying article V of the Declaration of Rights.

But 200 years later, the SJC burdened the people with Rule 4:01, §9(3), which reads,

The Board, members of the Board and its staff, members of hearing committees, special hearing officers, and the bar counsel and members of his or her staff shall be immune from liability for any conduct in the course of their official duties,

by throwing accountability out of the window. By so doing, §9(3) has become but brazen perfidy to article V’s guarantee of accountability to the people at all times by all officers of the three branches of State government.\[7]/

Third, Judge Young equated “multiple safeguards designed to protect a physician's constitutional rights” with “multiple levels of review” existing up to and including review by the full Supreme Judicial Court. [Defs. Add. at 13]. This was, Johnson contends, reversible error. (1) It is too little too late. Multiple levels of review after a disciplinary recommendation do not cure the harm and damages suffered prior to any disposition of the disciplinary action, which were the basis of Johnson’s counts 7-10 in the federal action. (2) The BBO has no jurisdiction over claims for declaratory judgments and torts and civil rights. “Multiple levels of review exist” for the disciplinary action, but the federal district-court case was not a disciplinary action. Nor did Johnson seek the district court to modify, amend, or vacate any BBO decision, ruling, or order.

Fourth, Judge Young wrote that Johnson made “no allegations of conduct of these defendants outside their roles as adjudicators of her case.” That was astonishing, given the recitation of a large number of facts describing how Defendant Chair and Special Hearing Officer acted outside the scope of the authority given to them only by the suspect Rules of the Board [App: passim].

Fifth, the nonprosecutorial role Crane played is not described in any statute, rule, or regulation. Therefore, contrary to that which the district court and the court in Bettencourt held, absolute immunity did not bar Johnson's claims for damages against the Board members. In fact, Crane did not act as a prosecutor in the state disciplinary proceeding. He acted only as a titular plaintiff. Therefore Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), and Wang v. New Hampshire Bd. of Reg. in Med., 55 F.3d 698, 701 (1st Cir. 1995), both relied upon by Judge Young for the proposition that Crane was entitled to absolute prosecutorial immunity, did not apply and thus did not form the basis for the dismissal of Johnson’s Complaint.

Further, given the conditions of birth of the doctrine, judicial immunity and its progeny, the derivative “quasi” immunities, are unconstitutional and did not apply not only to the federal case but also to any other. The doctrine fosters secrecy, sloth, and unscrupulousness. The doctrine is contrary to well-settled law: (1) Congress did not intend judges to be immune against civil rights deprivation claims, (2) article 6 of the U.S. Constitution should not have been invoked, for Congress neither was a party at the Bradley v. Fisher bench [see Exhibit E] nor had the intention to immunize judges or the Commonwealth, (3) judicial immunity is violative of the Ninth Amendment of the U.S. Constitution, (4) judicial immunity is against public policy, and (5) judicial immunity unlawfully barred Johnson’s §1983 claims and her pendent common-law claim for defamation. See Exhibit E, attached hereto this pleading, for the history of absolute immunity.

2. Where Article V of the Declaration of Rights states that all magistrates and officers of the three branches of government shall be accountable to all the people at all times, Daniel Crane and Susan Strauss-Weisberg are not entitled to absolute immunity.

NOTE

Johnson incorporates herein in entirety by reference the issue of immunity as written in her Reply to the Defendant BBO and OBC’s Opposition to her Motion to Strike the Appearance of the Attorney General on behalf of the BBO and the OBC.

This issue is one of competing constitutions. Article V of the Massachusetts Declaration of Rights is alive and well, and where no United States Congress took part in the birth and development of either the judicially-created second prong of the Eleventh Amendment (from the ribs of Hans v. Louisiana, 134 U.S. 1 (1890)) or the judicially-created doctrine of judicial immunity (from the womb of the Star Chamber), the federal Supremacy Clause cannot trump art. V’s guarantee of accountability since 1780 by all magistrates and officers of all three branches of government to all the people all the time.

Neither can SJC Rule 4:01, §9(3), trump art. V’s guarantee of accountability . Rule 4:01, §9(3), simply has neither constitutional nor statutory support. That rule is inapplicable. When the SJC rules committee wrote those rules, the SJC never issued an Opinion of the Justices, so one may reasonably assume, the constitutionality of that set of rules for the Board of Bar Overseers is an issue of first impression. But having created those rules, may the SJC rule on the constitutionality of them? To do so would invoke the appearance of impropriety.

Further, where 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 was not entitled to immunity derived from any source or of any kind. When an official's conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known,” the official is not shielded by qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Neither is it when the official's conduct is ministerial in nature. Laubinger v. Dept. of Rev., 41 Mass.App.Ct. 598, 603 (1996). Where qualified immunity is unavailable, certainly absolute immunity is.

In fact, but for §9(3) of SJC Rule 4:01, Crane is not under the umbrella of immunity for “any conduct” of his.\[8]/

In this instant action, his defamation of Johnson was done in his personal capacity. Speaking to reporters about pending cases is not one of his official duties. If he claims that his speaking to the newspaper reporter was one of his official functions, then he implicates the OBC as a co-tortfeasor. The same argument applies, of course, to Weisberg.

3.         Absolute immunity is not applicable to this case, for the alleged “court” of the Board of Bar Overseers is an “Affiliated Entity,” not a court contemplated in 1871, when the Court in Bradley v. Fisher imported the doctrine of judicial immunity from the most reviled court in British history, to wit, the Star Chamber.

First of all, defamation of Johnson by Crane and Weisberg was not within the scope of their official duties. Second, the intentional interference with Johnson’s prospective business relationships might have been the ulterior motive for the complained-of acts by Crane and Weisberg.

With that said, the history of the doctrine of absolute immunity, of which Crane and Weisberg seek protection for their tortious acts, follows. It makes clear that nothing in the judicially created doctrine, as harsh as it is to the populace seeking remedies for perceived wrongs, contemplates protecting anyone in the three branches of government for tortious acts either in excess of their authority or outside the scope of their official duties, or criminal acts.

A brief history. In 1871, the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), imported the doctrine of judicial immunity from England. Until 1974, when the BBO and OBC were established by the SJC, attorney discipline actions in Massachusetts were held in a court contemplated by Article III of Ch. 1, Sec. 1, of the Constitution of the Commonwealth of Massachusetts, or in Article III courts in the federal judicial system.

In fact, the first Massachusetts judicial-immunity case to be heard in a federal court was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\[9]/ three years before Bradley was decided. Randall was 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 sup-plied). \[10]/ Significantly, at that time, in 1868, when Randall was decided, express malice was also not excused in Britain as it has been in this Republic ever since Bradley.

The holding in Randall was more defensible than that in Bradley, for Bradley allowed judges to be malicious and/or corrupt, to stay in office, and to continue to be malicious and corrupt.

Under Randall, both Crane and Weisberg would be denied immunity: (1) Crane because he was but a titular quasi-prosecutor and (2) both he and Weisberg because prosecutorial immunity had not yet been created either by a Congress or by judicial fiat. And this, even though the court in Randall appears not to have considered article V of the Declaration of Rights . . . for there is no reference to it in the case.

Bradley v. Fisher, too, was a case that arose out of an attorney discipline action. After he was disbarred, Bradley sued the judge who had deprived him of his right to practice as an attorney in the District of Columbia. By importing and relying on the Star Chamber case, Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (a case of conspiracy), the Court in Bradley was able to buttress an extension of the immunity doctrine expressed in Randall in order to protect the judge under legal siege from liability. The result was that the high Court in Bradley gave judges the right to be malicious and corrupt and be invulnerable to suit by anyone. The negative effect of the extension totally deprived the governed, the people, the right to recourse against a malicious or corrupt judge.

Under Bradley in 1871, the BBO would not have been recognized as a court and the BBO Chair and the Special Hearing Officer would not have been recognized as judges. Even under the Bradley standard, both Crane and Weisberg would have been denied immunity. Neither were judges, and prosecutorial or quasi-prosecutorial or qualified immunity had not yet been created.

And under Article V, which requires magistrates and all officers of all three branches of government to be accountable at all times to all the people, one of whom is Johnson, both Crane and Weisberg should be denied immunity of any kind.

            This leaves Crane and Weisberg with only one source of immunity: the unsustainable §9(3) of SJC Rule 4:01. \[11]/

           The reasonable conclusions that can be obtained from the facts in note 11 are the following:

(1) The BBO and OBC are only “Affiliated Entities.” An “Affiliated Entity” is not a court of the type contemplated in 1871, when the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871) imported the doctrine from Britain;

(2) SJC Rule 4:01 has no cognizable juridical source that can authorize the promulgation and legal effect of §9(3), which bestows upon the staff of the BBO and OBC immunity from liability for conduct during their official duties. Even the superior and the inferior courts that have during the last century and a quarter perpetuated the Bradley doctrine of judicial immunity would require a legal basis for bestowing any type of immunity on private individuals who are employed by or associated with “Affiliated Entities” of the SJC;

(3) Crane and Weisberg may not rely on §9(3) as the source of their defense of absolute immunity for §9(3) may not overrule the duly ratified article V of the Massachusetts Declaration of Rights;

(4) Crane and Weisberg may also not rely on judicially-created judicial (or absolute) or quasi-judicial (or absolute) immunity, for they are not functioning in an entity that may or can pass for a court of any kind; and

(5) when they were defaming Johnson, they were acting outside the scope of their official duties, and therefore §9(3)—whether constitutional or not— is inapplicable.

4. The two natural defendants are not entitled to absolute judicial or quasi-judicial immunity, for neither Crane nor Weisberg was acting in any capacity contemplated by the state and federal constitutions or statutes when they spoke to news reporters and defamed Johnson and when they caused the Certificate of Good Standing to be issued in a form that was not contemplated when it was designed and authorized b, presumably, an SJC committee.

Crane and Weisberg are not entitled to absolute judicial or quasi-judicial immunity for acts performed outside the scope of their official duties, to wit, the acts of defaming Johnson and intentionally interfering with her prospective advantageous and contractual relationships.

Clearly the SJC recognized that the doctrine of absolute or judicial immunity is inapplicable to the BBO and OBC and so promulgated SJC Rule 4:01, §9(3) specifically for the purpose of bestowing the grant of immunity from liability upon persons employed at and associated with the BBO and OBC. With §9(3) in place, Crane and Weisberg have had unfettered and unbridled boundless power to do whatever they have wanted to do at any time in the name of the OBC.

Here Crane and Weisberg could as individuals speak to news reporters under the First Amendment, but that amendment does not allow them to state falsities in order to justify to the public the bringing of a disciplinary petition against Johnson for the purpose of quieting her about the need for court reform, particularly in the family-law courts, and with the aim of both ruining both her personal and professional reputations and intentionally interfering with her prospective advantageous and contractual relationships. Those tortious acts are not within the scope of their authority as Bar Counsel and Assistant Bar Counsel, respectively.

5. The second prong of the Eleventh Amendment, which was not a creature of Congress, may not trump Article V of the Massachusetts Declaration of Rights, and therefore immunity under it may not be applied to the defendants in this action.

A primary question in this case is whether judicially-created doctrines—the doctrine of the “second prong of the Eleventh Amendment” and the “immunity from liability” of §9(3) of SJC Rule 4:01—can be used to strip Plaintiff of her First Amendment rights to petition and to seek redress for her grievances.\[12]/\[13]/

These doctrines nullify the plans of the Framers of both the Massachusetts and United States constitutions to assure that these constitutions protect the people from the government, that the public may petition and seek redress, that the laws will not be suspended except as provided in the constitutions, and that all magistrates and officers of all three branches of government shall be accountable to the people at all times. U.S. Const. First, Fifth, and Fourteenth Amendments. Mass. Const., Decl. of Rts., arts. V, VIII, XI, XX, XXIX, XCVIII.

By applying these doctrines, the courts have rendered meaningless the Framers’ plain and express intent to restrict bad behavior.\[14]/ Thus, the courts have allowed public officials and court-appointed private persons to escape liability and accountability.

Like the doctrine of judicial immunity, the nascence of the second prong of the Eleventh Amendment was without the potency of any Congress. It was birthed almost 100 years after the duly-ratified first prong of the Eleventh Amendment, which has no application here whatsoever, by a court acting outside the scope of its authority. Hans v. Louisiana, 134 U.S. 1 (1890), which by judicial fiat enhanced the Eleventh Amendment by holding that a citizen cannot sue his/her own State in federal court. It was a court that, when circumventing the legislature by usurping its law-making power, transformed our government into one that oppressed the governed.

This was contrary to what our Framers intended.\[15]/ To prevent such oppression, the Framers gave the public the right to return those oppressing the governed to private life. U.S. Const., Art. 3, §1. Mass. Decl. of Rights, art. VIII. It is reasonable to conclude that the Framers considered that the public would choose from the full spectrum of sanctions: from the giving of relief for one identifiable wrongdoing to the harsh sanction of impeachment. Thus when Judge Young changed his mind (see Exhibit B) and held that Eleventh-Amendment immunity barred Johnson’s §1983 claims against the natural defendants in their official capacities in Counts 7, 8, and 9 (counts for money damages),\[16]/ and the First Circuit affirmed, they used power that was not theirs to use.

Moreover, where Article V of the Massachusetts Declaration of Rights explicitly guarantees accountability by all magistrates and officers of each branch of government to all the people at all times, and where it does not distinguish between the Commonwealth of Massachusetts or the individuals in their individual or official capacities, article V constitutes the state’s express and unequivocal consent to suit by the people. See The Federalist, Paper No. 81. Thus the Eleventh Amendment may neither override the Commonwealth's constitutional guarantee of accountability nor bestow sovereign immunity on the Commonwealth where there was no immunity ab initio. Id. Certainly the Eleventh Amendment cannot preempt article V of the Declaration.

Notwithstanding the obvious issue of competing constitutions, Article VI of the federal constitution would have to be invoked, and that is impossible. To invoke the supremacy clause of Article VI, the intent of the United States Congress to preempt the Massachusetts Declaration of Rights would have to be shown, and where no United States Congress took part in the birth or the development of the Eleventh Amendment, no such intent can be shown and thus the Supremacy Clause may not be invoked. “Whether a Federal law preempts a State law is a question of congressional intent.” Com. v. Burgess, 426 Mass. 206, 221-222 (1997), citing English v. General Elec. Co., 496 U.S. 72, 78-79 (1990).

Under the supremacy clause in art. 6 of the Constitution of the United States, we are obligated to declare invalid any State statute or regulation that purports to regulate a field that Congress has reserved exclusively to itself. Com. v. Federico, 383 Mass. 485, 488-489, 419 N.E.2d 1374 (1981). The touchstone of preemption is congressional intent. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 208 (1985). See Malone v. White Motor Corp., 435 U.S. 497, 504 (1978). “To discern Congress’ intent we examine the explicit statutory language and the structure and purpose of the statute.” Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138 (1990).

Com. v. College Pro Painters (U.S.) Ltd., 418 Mass. 726, 728 (1994). Certainly if congressional intent is required to preempt a state statute, in the absence of congressional intent, a judge-made “amendment” cannot preempt a constitutional article of the Massachusetts Declaration of Rights.

Even assuming arguendo that the doctrine of judicial immunity may legitimately protect judges, “absolute judicial immunity does not apply to non-judicial acts, i.e., the administrative, legislative, and executive functions that judges may on occasion be assigned to perform.” Duvall v. County of Kitsap, 260 F.3d 1124, 2001.C09.0000732 at ¶29 <http://www.versuslaw.com> (9th Cir. 2001), citing Forrester v. White, 484 U.S. 219, 227 (1988). See also Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam) (“a judge is not immune from liability for non-judicial acts, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction”) (citations omitted).

Johnson contends, therefore, that absolute judicial immunity may not properly be extended to functionaries employed or appointed to “affiliated entities”— not an agency, department, or division of government, but “affiliated entities”—to oversee administratively those who practice law. At the Massachusetts BBO and OBC, there are no disclosed definitions of duties and no duly enacted rules of evidence or procedure apply,\[17]/\[18]/ so we must assume that the obvious is true: that telling falsities to news reporters is not amongst Crane’s and Weisberg’s official duties.

Even were we to assume that Crane’s and Weisberg’s acts of speaking to news reporters and adding questionable items to the Certificate of Good Standing were administrative in nature, where those acts altered Johnson’s rights and potential liabilities, judicial immunity is inapplicable. Johnson v. Turner, 1997.C06.281 at ¶55, No. 94-5919 <http://www.versuslaw.com> (6th Cir. 1997) (“a judge may be liable for action that is administrative in nature and that does not alter the rights and liabilities of the parties”), citing Morrison v. Lipscomb, 877 F.2d 463, 464-466 (6th Cir. 1989).

By having no existing statute or a constitutional provision upon which absolute immunity or the second prong of the Eleventh Amendment are based, and no ordinary constitutional analysis—using strict or intermediate scrutiny or a rational basis test—of the facts of the case or of Johnson’s legal arguments, the decisions leave unsettled the critical conflict between the judicially-created law and the exquisite United States and Massachusetts constitutions.

Further, where quasi-judicial and/or quasi-prosecutorial immunity and the second prong of the Eleventh Amendment have never been scrutinized and cannot be attributed to the Framers or to any Congress, the application of the judicially-created doctrines of quasi-judicial and quasi-prosecutorial immunity and the unratified second prong of the Eleventh Amendment must not be continued as de facto constitutionalized policies or practices.

Lastly, the second prong of the Eleventh Amendment also unconstitutionally interferes with Johnson’s rights to the full sweep of due process and equal protection of the laws, and her enforceable right to sue the defendants for the complained-of tortious acts. Lawyers should also enjoy first-class citizenship. Spevack v. Klein, 385 U.S. 511, 516 (1967).

6. The intersection of the Eleventh Amendment, the Massa- chusetts Declaration of Rights, and the Massachusetts Torts Claims Act (G.L. c. 258) yield only one reasonable conclusion, namely, all the defendants here are not protected by immunity from any source, whether the Eleventh Amendment, sovereign immunity, the MTCA, or SJC Rule 4:01, §9(3).

Every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const. Art. XI (1780).

Several colonial charters, including those of Massachusetts, ... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.

Alden v. Maine, 119 S.Ct. at 2271 (emphasis supplied).

Manifestly, we cannot . . . assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. . . . There is also the postulate that States of the Union, . . . shall be immune from suits, without their consent, save where there has been “a surrender of this immunity in the plan of the convention.” 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted).

Alden, 119 S.Ct. at 2254 (emphasis supplied).

That surrender and consent to suit by its citizens was the plan of the Massachusetts convention.\[19]/ See also Federalist Paper No. 80 ( McLean's ed., June 21, 1788, NY) (Hamilton). With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.

To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.\[20]/\[21]/ Those procedures have never been invoked vis-à-vis article V, leaving in effect the unequivocal mandate by the forefathers of Massachusetts memorialized in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State’s waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated.

The Massachusetts Tort Claims Act [“MTCA”], G.L. c. 258, enacted in 1978, implies that sovereign immunity exists in Massa- chusetts with certain exceptions set out in that statute—meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates article V—and has yet to be deemed unconstitutional— appears to have escaped challenge. For the MTCA to be “constitutional” ab initio, article V would have had to be repealed or amended before the MTCA was passed in 1978.

The Legislature had heeded a warning sent by the justices in Whitney v. Worcester, 373 Mass. 208 (1977), in which the Court announced its intention to abrogate the sovereign immunity doctrine, retroactively to the date of the decision in Morash & Sons, Inc. v. Com., 363 Mass. 612 (1973), should the Legislature have failed to act by the conclusion of its 1978 session. “[T]he doctrine of sovereign immunity is ‘logically indefensible.’” Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986), quoting Morash. The Legislature, where political decisions are made, ignored Article V—if, in fact, the members were even aware of its existence—and clearly assumed the existence of the sovereign immunity of which the SJC spoke, and loosened the rigid imagined sovereign immunity into the form we see today in the MTCA, c. 258.

Johnson contends, however, that the historical evidence supports her contention that sovereign immunity has never constitutionally existed in Massachusetts and that the MTCA has been unconstitutional since its inception in 1978, for art. V of the Declaration of Rights has never been amended.

Notwithstanding the argument above—that the doctrine of sovereign immunity is inconsistent with the Declaration of Rights and the Constitution—chapter 258 does not apply here, for where the BBO and the OBC are private entities and private employers, c. 258 may not provide them the protection of either the immunity or indemnification they seek. Cf. Lafayette Place Assocs. v. Boston Redevelopment Auth., 427 Mass. 509, 527 (1998), in which the Court found that the BRA was lacking the “indicia of financial independence” necessary to be deemed a private employer, so it deemed the BRA a public employer and thus, under §10(c) of c. 258, held it immune from suit for “any claim arising out of an intentional tort, including . . . interference with contractual relations.”

And whether Crane and Weisberg are public employees is irrelevant. For the same reasons, they have no immunity under c. 258 for the intentional torts alleged in the complaint. See Moore v. McManus, 1998 WL 77904 at 9, No. CIV.A. 94-6780-E (Mass.Super. Feb. 17, 1998) (McManus denied immunity for intentional torts, whether or not he was a public employee).

Moreover, as stated infra, the SJC rules committee would not have had to bestow immunity onto the BBO, OBC, and its staff in §9(3) had it believed that any of the many immunities lawfully—i.e., constitutionally—protected them from suit or liability. The act itself of drafting §9(3) is, in effect, evidence of the SJC’s knowledge and admission that immunity derived from any source was inadequate to protect the entities ultimately described in §9(3).

7. Where the BBO and OBC are financially and politically independent bodies, they are exempted from c. 258.

The Superior Court judge ruled that the BRA was not an “independent body politic and corporate.” Neither the statute [c. 258, the MTCA] itself nor our prior decisions allow a ready answer to the controversy the parties raise about this classification. Certainly the term is not self-defining. The leading case on this matter, the learned opinion of the Appeals Court in Kargman v. Boston Water & Sewer Comm'n, 18 Mass.App.Ct. 51 (1984), see Commesso v. Hingham Hous. Auth., 399 Mass. 805, 808 (1987), traces the history of the term "body corporate and politic" from its original appearance in the Preamble to our Constitution to its present usage to designate "a legal entity [created by the Legislature] to perform specified tasks deemed to be essential public functions." Kargman, at 55.

Lafayette, 427 Mass. at 528-529 (emphasis supplied). In Kargman, the Court stated,

“[W]e are of opinion that by use of the words "independent body politic and corporate" the Legislature intended to exempt a class of entities which, like the Port, Turnpike, and MBTA, exist as independent financial and political corporate bodies performing special public functions.

Kargman, 18 Mass.App.Ct. at 58-59.

“It is only the subset of independent bodies corporate and politic that do not enjoy immunity from intentional torts under §10(c).” Lafayette, 427 Mass. at 529. Because the BRA lacked “indicia of financial independence,” the Court in Lafayette concluded that the BRA was “significantly less autonomous than either the MBTA, Turnpike, or Massport.” Id. at 529-530.

Where the BBO and OBC have no enabling statute and are financially independent, they may be deemed nothing but private entities, and as such, “the ordinary rule” applies to them. The “ordinary rule” is simple: “if there is tortious injury there is liability.” Kargman, 18 Mass.App. Ct. at 58 n. 8.

8. Where Johnson did not have a full and fair opportunity to litigate the issue in the disciplinary action or in the U.S. District Court in Boston, and other circumstances justify affording her an opportunity to litigate the issue, collateral estoppel or issue preclusion does not apply.

Johnson incorporates herein by reference this issue in entirety as written in her Reply to the Defendant BBO and OBC’s Opposition to her Motion to Strike the Appearance of the Attorney General on behalf of the BBO and the OBC.

NOTE

Because the Motion to Dismiss has been brought by the BBO, the OBC, Crane and Weisberg, and because Weisberg, who was the prosecutor in the pending disciplinary action, was not one of the defendants in the federal action, Johnson states that the incorporated issue applies now to Weis- berg as well as to the other defendants.

Where the federal action involved six counts for declaratory judgments, three civil rights claims, and one intentional tort, the latter being dismissed without prejudice, and where the issues raised by the defendants were never raised in the federal action, issue preclusion or collateral estoppel does not apply to this action.

Counts 4 and 5 in the instant action, of course, did not arise until after the federal Complaint had been dismissed and the First Circuit appeal and the petition for a writ of certiorari had been denied. Therefore issue preclusion or collateral estoppel also does not apply to them.

9. Where all the cases cited by the Defendants are distinguishable from the instant case, they are irrelevant not only to the issues in this oppositional memorandum but also to the issues in the defendants’ supporting memorandum.

Moore v. McManus, 1998 WL 77904, No. CIV.A. 94-6780-E (Mass.Super. Feb. 17, 1998). Defendants wrongly rely on Moore to persuade this court that because CPCS was found to be a public employer, then so, too, must BBO and OBC be found to be “public employers” for purposes of c. 258. Defendants omitted, however, from their brief the significant differences between the duo, BBO and OBC, and CPCS, namely, that in Moore, the court found (1) that CPCS is a committee created by G.L. c. 211D. and (2) that CPCS's chief counsel and staff attorneys are paid by the state. G.L. c. 211D, § 13. Unlike CPCS, neither the BBO nor the OBC was created by the legislature, and neither the BBO general counsel and his staff attorneys nor the Bar Counsel and his staff attorneys are paid by the state.

. . . CPCS is dissimilar from those entities specifically exempted in G.L. c. 258, § 1 from the provisions of the MTCA. Nor can CPCS be characterized as an “independent body politic”. Unlike entities which are independent bodies, CPCS's enabling statute does not give it independent body politic status, and CPCS is financially dependent on the Commonwealth. It lacks an “existence apart from and distinct from the Commonwealth.” McNamara, 406 Mass. at 47, quoting Opinion of the Justices, 334 Mass. 721, 734 (1956). See also Kargman v. Boston Water and Sewer Commission, 18 Mass.App.Ct. 51, 56-59 (1984). CPCS does not exist as an independent financial or political corporate body, but rather, is a public employer subject to the provisions of the MTCA.

Moore, 1998 WL 77904 at 6 (emphasis supplied). See Reply to Opp. to Mot. to Strike Appearance of AG for BBO/OBC, Exh. A. On the BBO and OBC websites, Exhibits A(1) and A(2), attached hereto, the BBO and OBC publish that they are, unlike CPCS, independent administrative bodies:

The Board of Bar Overseers was established by the Supreme Judicial Court in 1974 as an independent administrative body to investigate and evaluate complaints against lawyers. Although both the Board is an official body subject to the supervision of the Supreme Judicial Court, no public funds are spent to support it. The Board's expenses come solely from
the annual registration fees paid by lawyers.

http://www.mass.gov/obcbbo/board.htm.\[22]/

The Office of Bar Counsel (OBC) was established in
1974 by the Supreme Judicial Court under S.J.C. Rule 4:01 as an independent administrative body to investigate, evaluate and prosecute complaints
against lawyers. The OBC is not a voluntary bar association or trade group. Although the office is an official body subject to the supervision of the Court,
no public funds are appropriated for its expenses.
The Office of Bar Counsel is entirely supported by
the annual registration fees paid by lawyers.

http://www.mass.gov/obcbbo/obc.htm.\[23]/

Kinan v. Trial Court, 400 Mass. 582 (1987). While the Trial Court is deemed a public employer, the Trial Court does not compensate the employees of the BBO and OBC.

Kobrin v. Board of Registration in Medicine, 444 Mass. 837 (2005). Kobrin states nothing that Johnson has not already argued in her Reply to the Defendant BBO and OBC’s Opposition to her Motion to Strike the Appearance of the Attorney General on behalf of the BBO and the OBC.\[24]/ She, therefore, incorporates herein by reference that issue in entirety as written in that brief.

Kargman v. Boston Water & Sewer Commission, 18 Mass.App.Ct. 51 (19984).   Defendants rely on Kargman for the proposition that there is doubt whether the BBO and the OBC are financially and politically independent, and if there is doubt, the BBO and OBC must be deemed to be public employers [Defs. Mem. Dism., p. 8]. But there is no doubt. Johnson refers this court to the material paragraphs displayed above at pp. 23-24 and seen in Exhibits A(1) and A(2), and admitting that they are financially independent. Whether they are politically independent is an issue that remains a conundrum, one with much depending on how the phrase “political independence” is defined [see line 3 of ¶1 of Defs. Mem. Dism., p. 8]..

             The SJC itself—through Maura Doyle, Ruth Cullen, and Christine Burak [Comp. ¶¶30-51; Comp. Exhs. D-G, and K]— clearly declined to rein in the OBC, Crane, and Weisberg by ordering them to correct the unlawful, defaming Certificate of Good Standing, which is the subject of Count 5 in the instant case. The clerks stated that the complained-of problem appeared to be a Rules Committee problem and suggested that Johnson ask the committee to waive §20(2)(d) of SJC Rule 4:01. Although Johnson did not see that section as the origin of the problem, she performed as the clerks suggested. She sought a waiver, and that waiver was ultimately denied [Comp. Exh. K].

So, we are left with the conundrum: Was the SJC concealing that the Court did not want to issue a proper filled-out Certificate of Good Standing and faulted the OBC for the unclean certificate? Or was the SJC not concealing a thing, it simply does not “control” the BBO and the OBC? If the SJC does control the BBO and the OBC, to what extent and in what matters?

             Thus the “control” of which Defendants speak on lines 7-10 of ¶1 of Defs. Mem. Dism., p. 8 either does not exist—if the clerks and SJC attorney are to be believed (and Johnson chose to believe them)—or does exist, as the defendants assert, and creates more than just an appearance of impropriety by the SJC. “Control” infers that there are regular communications between the SJC and the BBO and the OBC. Those would be ex parte communications.

WHEREFORE, for all the above reasons, the defendants’ Motion to Dismiss must be DENIED.

---

[1] Johnson incorporates herein by reference her argument on this issue in Johnson’s Reply to Opposition to Motion to Strike Appearance of the Attorney General for the Board of Bar Overseers and the Office of Bar Counsel.

[2] In November 2003, Johnson served upon the BBO, the OBC, Crane and other defendants a Complaint filed in U.S. District Court in Boston. The final decision in that case is included in the Addendum to the Defendants’ Motion to Dismiss. A month later, on 3 December
2003, during Johnson’s Opening Statement on 3 December 2003, the
first day of the scheduled trial in the disciplinary action against her, the Special Hearing Officer [“SHO”] quashed all Johnson’s witness subpoenas and ordered the public out of the hearing room.

There was no legitimate factual or legal reason for the expulsion of the public. SHO Phillips stated that the real names of certain folks mentioned by Johnson during her Opening Statement were subject to a protective order. The assistant bar counsel, who was Susan Strauss-Weisberg, one of the defendants in the instant case, told him there was no such protection order, but he ignored her, too. The desired result had been predetermined by the BBO and Phillips wanted to be sure that he could reach it without interference and, obviously, embarrassment.

           The so-called “trial” continued after Johnson left with her contingent and other members of the public. The OBC/BBO action against Johnson is still pending.

[3] Where prosecutors are not protected by immunity for acts performed during their investigation, they certainly are not protected by immunity when they are being voluntarily making comments and/or responding to questions by news-paper reporters In fact, since having been served with the complaint in this case, Crane has been reported to have said that he is forbidden to speak to the press on pending cases. The reasonable inference is that he received legal advice.

.

“Chief judge seeks bar discipline for Connolly’s lawyer,”

by Ralph Ranalli, Globe staff, November 23, 2005

[4] Bettencourt was a civil rights action arising out of the revocation of the plaintiff physician’s medical license by the Board of Registration in Medicine.

[5] The Chair was nowhere to be seen. She decided certain motions: dispositive (as the BBO rules allowed her to do) and nondispositive motions (which the BBO rules did not allow her to do).

[6] A judiciary independent of a king or executive alone is a good thing; but independence of the will of the nation is a solecism, at least in a republican government.

Thomas Jefferson (1743-1826), in a letter to Thomas Ritchie, Decem-
ber 25, 1820, The Writings of Thomas Jefferson, Memorial Edition, 15:298.

[7] There is no justification for the Board, its members and its staff, the members of hearing committees, special hear-ing officers, and Bar Counsel and members of his staff to be given absolute immunity at all times, and thus be treated differently than all other quasi-governmental appointees in the Commonwealth. Thus §9(3) of SJC Rule 4:01 is unconstitutional in that it violates Article V of the Massachusetts Declaration of Rights.

[8] In the disciplinary action, his function was to play the nonprosecutorial role of the titular plaintiff and that function is not defined in any statute, rule, or regulation.

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

[10] It appears that in the British Commonwealth, judicial immunity from charges of constitutional violations has become obsolete or has fallen into desuetude. John E. Wolfgram, “How the Judiciary Stole the Right to Petition,” 31 U. West L.A. L. Rev. 14 n. 28 (Summer 2000), citing 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.” The date when this occurred in Britain is unknown to this author.

[11] An electronic search from <http://www.state.ma.us/legis/- laws/mgl/mgllink.htm> does not produce any statutory authority for the promulgation of the BBO rules. There is no reference to the Supreme Judicial Court Rules of their promulgation in either the statutes or the SJC’s website. The Board of Bar Overseers does not appear on the Commonwealth’s list of “Authorities & Quasi-public Agencies.” At <http://www.state.ma.us/courts/courtsandjudgescourts/supreme- judicialcourt/about.html#sjcrules>,  the SJC wrote, “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” [emphasis supplied] [Motion to Strike Appearance, Exh. A]. According to <http://www.state.ma.us/- courtscourtsandjudges/courts/supremejudicialcourt/about.html#- rules1>, the SJC Rules Committee is “[m]ade up of three SJC Justices (excluding the Chief Justice). It oversees uniform rules (e.g. Mass. R. Civ. P., Mass. R. Crim. P., Mass R.A.P., Mass. R. Prof. C.) and approves rules of all lower courts and various agencies (e.g. Judicial Conduct Commission; Clients' Security Board). It also considers proposals for new rules—e.g. foreign legal consultants, rules of evidence, mandatory malpractice insurance, etc. [Motion to Strike Appearance, Exh. A]. At <http://www.state.ma.us/courts/courts- andjudges/courts/supremejudicialcourt/about.html#affiliated>, the SJC lists the BBO and the OBC as “Affiliated Entities” that were established by rule in 1974 [Motion to Strike Appearance, Exh. A].

[12] Johnson is a litigator against whom the OBC brought disciplinary charges before the BBO two months after the November 2002 election, in which she ran for governor on a platform of court reform, the need for judicial accounta-bility, particularly in the family-law courts, and the abolishment of judicial and quasi-judicial immunity.

Johnson also maintains a website, falseallegations.com, which has drawn the attention of millions across our nation. For her audience, she publishes fundamental legal “how-to” and “what-is” information, some of her state and federal pleadings, and opinions . . . hers and occasionally some of diverse courts.

The charges brought against her by the OBC primarily concern her website because cenSURing her is easier than cenSORing her website.

[13] Important to note here is that §9(3) does not qualify the word “immunity,” that it does not provide immunity from suit, but only immunity from liability for “any conduct in the course of their official duties.”

[14] The notion that a violation of the plain language of the Constitution can gain legal stature by long-continued practice is not one I can subscribe to. A majority group, as de Tocqueville observed, too often "claims the right not only of making the laws, but of breaking the laws it has made." De Tocqueville, Democracy in America, Vol. 1, at 261.

Cohen v. Hurley, 366 U.S. 117, 142 n.23 (1961) (Mr. Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting), a 5-to-4 decision overruled in Spevack v. Klein, 385 U.S. 511, 514 (1967). “[L]awyers also enjoy first-class citizenship.” Id
at 516.

[15] Not having been duly ratified, the second prong of the Eleventh Amendment may not be invoked against Johnson. Nor may it override or preempt art. V of the Mass. Declaration of Rights, which has, since 1780, constitutionally guaranteed accountability at all times by all three branches of government to the people, of which she is one. Nor may it supercede the Fourteenth Amendment, duly ratified 22 years prior to the grenade thrown at the civil rights of individuals in Hans. Nor may it override the plain language of §1983, enacted to enforce the provisions of the Fourteenth Amendment. Nor may it overrule the intent of Congress not to afford immunity to those judges who deprive citizens of their civil rights.

[16] Mireles v. Waco, 502 U.S. 9, 11-12 (1991),(where the quasi-judge and quasi-prosecutor were acting in a non-juridical capacity or in excess or outside their jurisdiction, they are not
immune from suit seeking monetary damages).

[17] In the disciplinary action against Johnson, the absence of due process was admitted and blatant (one of many examples: no witnesses were to be called in the OBC’s case-in-chief, so there would be no opportunity for cross-examination), statutes and
common law had no stature, and defenses were improperly
precluded.

[18] While the federal action was pending in the First Circuit Court of Appeals, the Mass. Bar Association formed a BBO Task force to put the BBO and OBC under scrutiny and issued a report calling for reform. See Figs. 1(a) and (b).

Figure 1(a). Excerpt from Mass. Lawyers Weekly, 10/1/2004	Figure 1(b). Excerpt from Mass. Lawyers Weekly, 10/1/2004

[19] John Adams, one of a committee of 30, drafted “‘a Declaration of Rights, and the Form of a Constitution,’ to be laid before the Convention at its second session (Mass. Constitutional Convention, 1779-1780), Jour., p. 26).” The adopted instrument “is still in force today as the organic law of the Commonwealth of Massachusetts.” L. H. Butterfield, ed., The Adams Paper: Diary and Autobiography of John Adams, vol. 2, p. 401 n. 1 (Cambridge, Mass. Belknap Press of Harvard University, 1962).

[20] Article LXXIV was ratified by the voters in 1944.

[21] According to Atascadero State Hospital v. Scanlon, 473 U.S. at 238 n. 1, a waiver of a State's constitutional mandate may be effectuated by a State statute or constitutional provision. This, clearly, is not wholly true in Massachusetts.

[22] The violation of the separation of powers is evident by the admissions that the SJC supervises both entities . . . and then later adjudicates suits brought before it by the BBO. For instance, in Board of Bar Overseers v. Bar Counsel, 420 Mass. 6 (1995). In ordinary court cases, adjudication is done by the judicial branch and prosecu-
tion by the executive branch. In disciplinary actions, the powers of adjudication and prosecution are exercised solely by the judicial branch. What is wrong with this picture? It demonstrates that the disciplinary process creates a violation of art. 30 of the Part the First of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts.

[23] See note 21.

[24] Similarly for Blanchette v. School Committee of Westwood, 427 Mass. 176 (1998), and Bagley v. Moxley, 407 Mass. 633 (1990), and Heacock v. Heacock, 402 Mass. 21 (1988).

Respectfully Submitted,
                                                            Barbara C. Johnson, Pro se

27 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 27 December 2005 served by first-class mail
on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

27 December 2005 ______________________

Barbara C. Johnson, Esq.

EXHIBIT A

A webpage from the BBO and OBC website

Board of Bar Overseers

Office of the Bar Counsel

	FREE! Trust Account Training from the the Office of Bar Counsel and the Boston Bar Association. Learn more. Lawyer Discipline in Massachusetts The Board of Bar Overseers and the Office of the Bar Counsel were established by the Supreme Judicial Court in 1974 as independent administrative bodies to investigate and evaluate complaints against lawyers. Although both the Board and Bar Counsel are official bodies subject to the supervision of the Supreme Judicial Court, no public funds are spent to support them. The Bar Counsel's and the Board's expenses come solely from the annual registration fees paid by lawyers. The links at the side of this page will take you to the most frequently used portions of the site. The drop-down list box found at the bottom of every page will give you to access to any area of the site. Looking for a new challenge in your career? Please view our open positions on the Employment Opportunities page.
Site Index Home Board of Bar Overseers Office of the Bar Counsel Attorney-Client Assistance Program Clients' Security Board What’s New Employment Opportunities Upcoming Public Hearings How to File a Complaint Registration Department Look Up a Lawyer Change your Address Ethical Questions & Articles Rules Disciplinary Decisions since 1999 Search this Site Lawyer Referral Services Links and Resources BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org. © 2005. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.

	Board of Bar Overseers of the Supreme Judicial Court
	The Board of Bar Overseers was established by the Supreme Judicial Court in 1974 as an independent administrative body to investigate and evaluate complaints against lawyers. Although both the Board is an official body subject to the supervision of the Supreme Judicial Court, no public funds are spent to support it. The Board's expenses come solely from the annual registration fees paid by lawyers. The Board of Bar Overseers consists of twelve volunteer members who are appointed by the Court for four-year terms. Eight of the members are lawyers; the other four are public members. The activities of the Board are governed by Supreme Judicial Court Rule 4:01 and the Rules of the Board of Bar Overseers. The Board acts as an administrative tribunal to consider disciplinary charges brought by Bar Counsel. When a lawyer is found guilty of misconduct the Board either imposes discipline or recommends to the Supreme Judicial Court that more serious discipline be imposed. Correspondence can be addressed to the Board at the address below: Board of Bar Overseers 99 High Street Boston, Massachusetts 02110 (617) 728-8700 Directions BOARD OF BAR OVERSEERS Alan D. Rose, Chair Constance L. Rudnick, Vice Chair Mark I. Berson James P. Carey Marguerite T. Grant Francis P. Keough Linda R. McKenzie J. Charles Mokriski Elizabeth N. Mulvey James B. Re David Rind, M.D. Francis J. Russell GENERAL COUNSEL Michael Fredrickson ASSOCIATE GENERAL COUNSEL Karen D. O'Toole ASSISTANT GENERAL COUNSEL Carol Wagner ASSISTANT GENERAL COUNSEL Lisa A. Yee ASSISTANT GENERAL COUNSEL Paul M. Rezendes BOARD ADMINISTRATOR Laurie Aaron
Site Index Home Board of Bar Overseers Office of the Bar Counsel Attorney-Client Assistance Program Clients' Security Board What’s New Employment Opportunities Upcoming Public Hearings How to File a Complaint Registration Department Look Up a Lawyer Change your Address Ethical Questions & Articles Rules Disciplinary Decisions since 1999 Search this Site Lawyer Referral Services Links and Resources BBO/OBC Privacy Policy. Please direct all questions to webmaster@massbbo.org. © 2004. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.

EXHIBIT B

Chief Judge Young’s Order of February 25, 2004

EXHIBIT C
Issue 3, excerpted from Johnson’s Appellate Brief,
filed in the First Circuit Court of Appeals

3. Where federal district courts have jurisdiction over “‘general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings’” and the disciplinary proceeding against Johnson is administrative and nonjudicial in nature, dismissal of Johnson’s challenges was reversible error.

Johnson argued below that District of Columbia Court of Appeals v. Feldman permits her to attack the validity of the BBO rules in the district court [Add: 15, citing App: 509-510]. Then after stating,

“The Court carefully distinguished between 'general challenges to state bar rules, promulgated by state courts in nonjudicial proceedings' -- for which there is jurisdiction in the lower federal courts -- and ‘challenges to state-court decisions in particular cases arising out of judicial proceedings,’ -- for which there is not.” Schneider,917 F.2d at 628 (quoting Feldman, 460 U.S. at 486).

[Add. 16, Defs. Addendum, page 11 (emphasis supplied by Johnson)], the court stated, “Were Johnson not engaged in state administrative proceedings involving the same rules as those cited in her complaint, Feldman might well permit her to challenge the constitutionality of those rules in federal court” [Add: 16 (emphasis supplied)].  Therein lies the district court’s error.   “‘In conducting [a Rooker-Feldman] analysis, we must pay close attention to the relief sought by the federal-court plaintiff.’”  Maymó-Meléndez v. Álvarez-Ramírez, 364 F.3d 27, 2004.C01.0000167 at ¶37 <http://www.versuslaw.com> (1st Cir. 2004), citing Kenmen Eng'g v. City of Union, 314 F.3d 468, 476 (10th Cir. 2002). 

The district court slid over both the relief sought by Johnson and the nature of the administrative proceedings. In Maymó- Meléndez, the plaintiff’s “challenge [was] an attack on the Puerto Rico Circuit Court of Appeals's decision affirming the suspension and [was] therefore barred by Rooker-Feldman.” Maymó-Meléndez, 2004.C01.0000167 at ¶38 <http://www.versuslaw.com>. In the instant case, Johnson’s challenge is not to a decision or judgment out of the Bar disciplinary proceeding, for there has been no decision or judgment, and is therefore not barred by Rooker-Feldman on those grounds.

In Maymó-Meléndez , the court assumed that all administrative proceedings were judicial in nature.   In Massachusetts, bar disciplinary proceedings, like disciplinary proceedings for judges, are nonjudicial.   Matter of McKenney, 384 Mass. 76, 88 (1981) (re discipline of judges).   Matter of London, 427 Mass. 477, 482 (1998) (re discipline of lawyers), citing Matter of Eisenhauer, 426 Mass. at 454  special protections afforded to criminal defendant are not applicable in bar discipline proceedings as they are administrative in nature and respondent is not entitled to full panoply of rights afforded criminal defendant) (emphasis supplied).  See also Matter of Jones, 425 Mass.at 1007.

“Younger, even where it presumptively applies, is not implicated where the federal claims cannot be raised and resolved somewhere in the state process. ”Maymó-Meléndez, 2004.C01.000- 0167 at ¶53 <http://www.versuslaw.com>, citing Middlesex County Ethics Comm., 457 U.S. at 432.  

“The scope and conditions of the various Younger exceptions remain uncertain. Underneath the surface is an unspoken policy debate as to how much should be done by federal courts and how far state courts are to be trusted.”  Maymó-Meléndez, 2004.C01.0000167 at ¶58.  “About all that is certain is that there is some reason for interim federal court intervention where core constitutional values are threatened during an ongoing state proceeding and there is a showing of irreparable harm that is both ‘great and immediate.’ Id., citing Younger, 401 U.S. at 46.

            Further, the Rooker-Feldman doctrine does not extended to administrative judgments.  Van Harken v. City of Chicago, 103 F.3d 1346, 1997.C07.3 at ¶14 <http://www.versuslaw.com> (7th Cir. 1997). And where there has been no judgment against Johnson in the state disciplinary proceeding, Rooker-Feldman is inapplicable. Id.

           Insofar as the plaintiffs merely seek a declaration that the procedures under which the parking charges against them were, or in the case of those members of the class whose cases have not yet been heard will be, adjudicated are constitutionally inadequate, they are not barred by Rooker-Feldman because they are not challenging the judgment in any parking case. Buckley v. Illinois Judicial Inquiry Board, 997 F.2d 224, 227 (7th Cir. 1993); see also Nesses v. Shepherd, 68 F.3d 1003, 1005 (7th Cir. 1995); Dubinka v. Judges of Superior Court, 23 F.3d 218, 222 (9th Cir. 1994); Centifanti v. Nix, supra, 865 F.2d at 1429. But insofar as they are seeking refunds of the parking fines imposed upon them, they are barred. The Feldman decision illustrates the distinction.  It allowed the plaintiffs in that case to challenge the constitutionality of the rule under which they had been denied admission to the bar, 460 at 487-88, while refusing to allow them to challenge the denial itself. If they prevailed on their challenge to the rule, they might or might not be able to get a new hearing on the denial of their applications for admission, and to that extent the Rooker-Feldman doctrine does not prevent a form of collateral attack upon -- or, better perhaps, an oblique swipe at -- a state court judgment by a suit brought in a federal district court. Our case is the same so far as the declaratory relief sought by the plaintiffs is concerned, and no more is necessary to support jurisdiction.

Van Harken, 103 F.3d at 1346, 1997 C07.3 at  15 <http://www.versuslaw.com>. 

So, when quoting [Add: 16] from  Maymó-Meléndez, 364 F.3d at 34, for the proposition that “Rooker-Feldman does not insulate from federal challenge administrative rulings standing alone,” the district court here committed a “Totem Pole reversible error.”  The first error was by the First Circuit: in Maymó-Meléndez, it misread Van Harken,103 F.3d at 1349, for there appears to be no language in Van Harken which supports the proposition set forth in Maymó-Meléndez regarding when Rooker-Feldman is applicable and when it is not.   And the misreading by the appellate panel in Maymó-Meléndez of Van Harken caused Judge Young to err. 

Notwithstanding the Totem Pole error, the district court also erred by stating that “Johnson's challenge emanates from the proceeding currently underway in the Massachusetts Board of Bar Overseers.”  That is not true.  While there is a pending state disciplinary proceeding against Johnson, she does not seek anything to be vacated or modified or amended.   She seeks declaratory judgments.

               Johnson’s collateral attack or oblique swipe at or challenge of the Bar rules, by seeking declaratory judgments, arises from her reading and learning the rules and seeing them in practice.  It is clear that the rules Johnson challenged are unconstitutional “standing alone.”  And her claims for money damages for the harm and damages she has suffered as a result of the wrongful and/or unlawful application of those rules provide the controversy required to make claim to a declaratory judgment. 

Lastly, the BBO does not have jurisdiction over civil rights claims pursuant to 42 U.S.C. §1983 and common-law or First Amendment claims.

Exhibit D(1)

Opposition to Motion to Dismiss Federal Complaint
(19 pages)

Same as Drano Series #114: drano114-bbo-opp-dismiss-1-23-04.htm

Exhibit D(2)

Supplemental Opposition to Motion to Dismiss Federal Complaint

(2 pages)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS

C.A. No. 03-CV-12314-WGY

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers,
M. Ellen Carpenter, Esq.
in her individual and professional capacities,
including her capacity as Chair of the Board of Bar Overseers,

Herbert P. Phillips, Esq.,

in his individual and professional capacities,

Office of Bar Counsel,

Daniel Crane, Esq.,

in his individual and professional capacities,

Commonwealth of Massachusetts
Defendants
~~~~~~~~~~~~~~~~~~~~~~~~~~~~

PLAINTIFF’S SUPPLEMENT MOTION TO DISMISS

(with Affidavit, Local Rule 7.1(A)(2) Certification,
and Certificate of Service)

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and submits this supplemental memorandum in support of her opposition to Defendants’ Motion to Dismiss.

             Johnson has alleged that the Defendant Bar Counsel, Daniel Crane, brought the disciplinary action in bad faith in retaliation for her exercising her First Amendment rights. See Cullen v. Fliegner, 18 F.3d 96, 104 (C.A.2 (N.Y.) 1994), citing Lewellen v. Raff, 843 F.2d 1103, 1109-10 (8th Cir.1988), cert. denied, 489 U.S. 1033, (1989), for that identical proposition: bad faith prosecution where brought in retaliation for exercise of First Amendment rights.

In such cases, a showing of retaliatory or bad faith prosecution establishes irreparable injury for the purposes of the Younger doctrine, Bishop v. State Bar of Texas, 736 F.2d 292, 294 (5th Cir.1984); Shaw v. Garrison, 467 F.2d 113, 119-21 (5th Cir.), cert. denied, 409 U.S. 1024 (1972), and the expectations for success of the party bringing the action need not be relevant. See, e.g., Lewellen, 843 F.2d at 1109-10 (injunction justified regardless of expectations where prosecution brought to discourage exercise of constitutional rights). Abstention would serve no purpose because a state cannot have a legitimate interest in discouraging the exercise of constitutional rights, see, e.g., id. at 1110, or, equally, in continuing actions otherwise brought in bad faith, thereby reducing the need for deference to state proceedings.

Cullen v. Fliegner, 18 F.3d 96, 104 (C.A.2 (N.Y.) 1994). That court concluded:

Because the State of New York cannot have a legitimate interest in the disciplinary proceeding, permitting it to continue would not serve the purposes of the Younger doctrine, and so the district court's decision not to abstain is affirmed.

Id.

WHEREFORE, Plaintiff prays this court DENY Defendants’ Motion to Dismiss.

Respectfully Submitted,
                                                            Barbara C. Johnson, Pro se

31 January 2004                                 _________________________

Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

BBO #549972

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.

31 January 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 attempted to confer with AAG John Hitt; with AAG William Porter, Chief of the Administrative Division of the Government Bureau; and with AAG David Kerrigan, Chief of the Government Bureau, in a good faith attempt to resolve or narrow the issues raised by the instant motion. Neither Hitt nor Porter nor Kerrigan returned Johnson’s phonecalls.

31 January 2004 Barbara C. Johnson, Esq.

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 2 February 2004, I caused to be served in hand a true and accurate copy of the within pleading on opposing counsel, Assistant Attorney General John R. Hitt, Government Bureau, One Ashburton Place, Boston, MA 02108-1598

___________________________

2 February 2004 Barbara C. Johnson, Esq., Pro Se

Exhibit D(3)

Opposition to Defendants' Second Motion to Dismiss Federal Complaint (8 pages)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS

C.A. No. 03-CV-12314-WGY

Barbara C. Johnson, Esq.

Plaintiff

v.

Board of Bar Overseers,
M. Ellen Carpenter, Esq.
in her individual and professional capacities,
including her capacity as Chair of the Board of Bar Overseers,

Herbert P. Phillips, Esq.,

in his individual and professional capacities,

Office of Bar Counsel,

Daniel Crane, Esq.,

in his individual and professional capacities,

Commonwealth of Massachusetts
Defendants
~~~~~~~~~~~~~~~~~~~~~~~~~~~~

PLAINTIFF’S OPPOSITION AND MEMORANDUM IN SUPPORT OF OPPOSITION TO FURTHER MOTION TO DISMISS

(with Affidavit and Certificate of Service)

Now comes Plaintiff Barbara C. Johnson ["Johnson"] and submits this opposition and memorandum in support of her opposition to Defendants’ Further Motion to Dismiss Johnson’s Amended Verified Complaint. A supporting affidavit is included at the bottom of this opposition.

As grounds, Johnson states the seven grounds set out in her “Brief Asserting Neither Quasi-judicial Nor Quasi-prosecutorial Immunity Is Applicable” and incorporates them by reference as if set forth herein this opposition.

As an eighth ground, Johnson states that absolute immunity is not applicable to this case, for the alleged “court” of the Board of Bar Overseers is defined by the Supreme Judicial Court as an “Affiliated Entity,” not as a court of the type contemplated in 1871.

As a ninth ground, Johnson states that the three natural defendants are not entitled to absolute judicial immunity for acting in quasi-judicial capacities. None performed a type of judicial function contemplated by the state and federal constitutions or statutes. None has acted in a judge-like manner, and Defendant Crane was at no time a judge or a quasi-judge.

8. Absolute immunity is not applicable to this case, for the alleged “court” of the Board of Bar Overseers is an “Affiliated Entity,” not a court contemplated in 1871, when the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), imported the doctrine of judicial immunity from the most reviled court in British history -- the Star Chamber.

In 1871, the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), imported the doctrine of judicial immunity from England. Until 1974, when the BBO and Office of Bar Counsel were established by the Supreme Judicial Court of Massachusetts, attorney discipline actions in Massachusetts were held in a court contemplated by Article III of Ch. 1, Sec. 1, of the Constitution of the Commonwealth of Massachusetts, or in Article III courts in the federal judicial system.

In fact, the first Massachusetts judicial-immunity case to be heard in a federal court was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\[1]/ three years before Bradley was decided. Randall was 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).\[2]/ Significantly, at that time, in 1868, when Randall was decided, express malice was also not excused in Britain as it has been in this Republic ever since Bradley.

The holding in Randall was more defensible than that in Bradley, for Bradley allowed judges to be malicious and/or corrupt and stay in office and continue to be malicious and corrupt. Yet, any reference to article V of the Declaration of Rights of the Commonwealth of Massachusetts was overlooked in Randall.

Bradley v. Fisher, too, was a case that arose out of an attorney discipline action. After he was disbarred, Bradley sued the judge who had deprived him of his right to practice as an attorney in the District of Columbia. By importing and relying on the Star Chamber case, Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (a case of conspiracy), the Court in Bradley was able to buttress an extension of the immunity doctrine expressed in Randall and to protect the judge under legal siege from liability. The result was that the high Court in Bradley gave judges the right to be malicious and corrupt and be invulnerable to suit by anyone. The negative effect of the extension totally deprived the governed, the people, the right to recourse against a malicious or corrupt judge.

Under Randall, Defendant BBO Chair M. Ellen Carpenter would be denied immunity, where she acted outside the scope of her authority as defined in the BBO’s own rules. Under Randall, Defendant Herbert P. Phillips would be denied immunity, where he failed to act independently, in that the Board circumscribed Phillips’ role to that of a mere puppet. The Board continually instructed Phillips as to what to do at the pretrial and trial hearings through its messenger, BBO Assistant General Counsel Carol Wagner (see details below). Under Randall, Defendant Bar Counsel Daniel Crane would be denied immunity, where he was but a titular quasi-prosecutor, and prosecutorial immunity had not yet been created either by a Congress or by judicial fiat.

Article V requires magistrates and all officers of all three branches of government to be accountable at all times to all the people, one of whom is Johnson. Under article V, Defendants Carpenter, Phillips, and Crane would be denied immunity.

Under Bradley in 1871, the BBO would not have been recognized as a court and Carpenter and Phillips would not have been recognized as judges. Phillips and Carpenter were never duly appointed in a procedure set out by constitution or statute. Phillips and Carpenter never took a juridical oath of office. And even under the Bradley standard, Defendant Bar Counsel Daniel Crane would have been denied immunity, where he was but a titular quasi-prosecutor, and prosecutorial immunity had not been created either by a Congress or by judicial fiat. The only source of absolute immunity alleged for Crane is in §9(3) of Supreme Judicial Court Rule 4:01 and

· after doing an electronic search from
<http://www.state.ma.us/legis/laws/mgl/mgllink.htm>,
there appears to be no statutory authority for the promulgation of those rules

· there is no reference to the Supreme Judicial Court Rules of their promulgation in either the statutes or the SJC’s website

· the Board of Bar Overseers does not appear on the Commonwealth’s list of “Authorities & Quasi-public Agencies”

· at <http://www.state.ma.us/courts/courtsandjudges/courts
/supremejudicialcourt/about.html#sjcrules> the SJC wrote, “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” [emphasis supplied] [Exhibit A attached]

· the SJC Rules Committee, according to <http://www.state.ma.us/courts/courtsandjudges/courts\
/supremejudicialcourt/about.html#rules1>, is “[m]ade up of three SJC Justices (excluding the Chief Justice). Oversees uniform rules (e.g. Mass. R. Civ. P., Mass. R. Crim. P.,
Mass R.A.P., Mass. R. Prof. C.) and approves rules of all lower courts and various agencies (e.g. Judicial Conduct Commission; Clients' Security Board). Considers proposals
for new rules – e.g. foreign legal consultants, rules of evidence, mandatory malpractice insurance, etc. [Exhibit A attached]

· at <http://www.state.ma.us/courts/courtsandjudges/courts
/supremejudicialcourt/about.html#affiliated>, the SJC lists the BBO and the OBC as “Affiliated Entities” that were established by rule in 1974 [Exhibit A attached]

The reasonable conclusions that can be obtained from the
above facts are the following:

(1) The BBO and OBC are only “Affiliated Entities.” An “Affiliated Entity” is not a court of the type contemplated in 1871, when the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871) imported the doctrine from Britain.

(2) SJC Rule 4:01 has no cognizable juridical source that can authorize the promulgation and legal effect of §9(3), which bestows absolute immunity upon the members of the BBO and OBC and their staffs. Even the superior and the inferior courts that have during the last century and a quarter perpetuated the Bradley doctrine of judicial immunity would require a legal basis for bestowing absolute judicial or quasi-judicial immunity on private individuals who are employed by or associated with “Affiliated Entities” of the SJC.

(3) Carpenter, Phillips, and Crane may not rely on §9(3) as the source of their defense of absolute immunity for §9(3) cannot overrule the duly ratified article V of the Massachusetts Declaration of Rights.

(4) Carpenter, Phillips, and Crane may also not rely on the judicially-created judicial or quasi-judicial immunity, for they are not functioning in an entity that may or can pass for a court of any kind.

9. The three natural defendants are not entitled to absolute judicial immunity for acting in quasi-judicial capacities, for none was the type of judge contemplated by the state and federal constitutions or statutes and none has acted in a judge-like manner, and one, Crane, was at no time a judge or a quasi-judge.

The three natural defendants -- M. Ellen Carpenter, Herbert P. Phillips, and Daniel Crane -- are not entitled to absolute immunity for acting in quasi-judicial capacities for reasons including but not limited to the following.

(1) Carpenter, as set out in Johnson’s Brief on Quasi-judicial and Quasi-prosecutorial Immunity, was but a “Shadow Judge.” She had no reference of appointment. She was not appointed to serve on a hearing panel or committee or as a special hearing officer. The Board Rules allowed her to decide dispositive motions, but only if they were filed by Johnson. What kind of a judge can decide the motions of only one of the parties? That is not to say that there are no judges who only have the opportunity to decide motions from one party – for instance, circuit judges who see the parties only one time for a particular motion hearing -- but not because they do not have authority to hear the other parties.

Additionally, notwithstanding the Board Rules, Carpenter did also step outside of her authority and decide nondispositive motions. Carpenter’s deciding nondispositive motions, Johnson contends, was not only a Board policy but also a Board practice intended and designed to deprive respondent attorneys of the right to produce testimonial and documentary evidence and cross-examine their adversaries. The veil behind which these practices take place is maintained by SJC Rule 4:01, §9(3), the immunity provision covering the natural defendants here.

Johnson contends that it is crystal clear that the SJC recognized that the doctrine of judicial immunity is inapplicable to the BBO and so promulgated SJC Rule 4:01, §9(3), specifically for the purpose of bestowing the grant of immunity upon persons employed at and associated with the BBO and OBC. With §9(3) in place, Carpenter, Phillips, and Crane have been able to believe that they have unfettered and unbridled and unlimited boundless power to do what they have wanted to do during BBO hearings!

(2) For the reasons stated in Johnson’s companion Brief on the quasi-immunities, Herbert P. Phillips was also not a “judge” as contemplated by either the doctrine of judicial immunity or by the Board Rules. Like a puppet, Phillips was advised and counseled continuously throughout the pretrial and trial hearings by BBO Assistant General Counsel Carol Wagner. She prompted him by whispering in his ear during those hearings. After Johnson queried what was going on, Wagner responded – on the record – that she was Phillips’ counsel. Thereafter Wagner and Phillips called “Time-out,” went off the record, left the hearing room, and went into a room adjacent to the hearing room in order to converse in private. It appeared that Wagner was orchestrating the hearing so that Phillips would make predetermined rulings in the OBC and BBO’s favor. For instance, each of Johnson’s motions was denied summarily, without any consideration of the facts or the law. The process was unlike that of any court. It resembled more a Theatre of the Absurd. Phillips had the role of the BBO’s messenger and Wagner was writing the messages. To be discovered is the identity of the person or persons whose bidding Wagner was doing.

(3) And Crane was both a prosecutor and a plaintiff in the disciplinary action at the same time. That which was unusual about his role is that he was performing his alleged duties for the judicial branch, as opposed to the executive branch. What is still unknown is the name of his employer and out of which account he is paid – the State coffers or the BBO or OBC coffers. Johnson otherwise rests on her brief for the issues raised herein on the three possibilities:

· no immunity because Crane was performing ministerial functions in the case against Johnson. Assistant Bar Counsel Susan Strauss-Weisberg was the active quasi-prosecutor;

· qualified immunity if he was policy making – which he was not doing when he was the titular plaintiff;

· absolute immunity. Given that Crane’s performance was not 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).

Thus, where Defendant Crane pled only absolute judicial immunity, which he did not have, and failed to plead that he was entitled to qualified immunity, that portion of the Further Motion to Dismiss that applied to him must be denied.

WHEREFORE, Plaintiff prays this court deny the defendants’ Further Motion to Dismiss.

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

/s/ Barbara C. Johnson <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

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/ Barbara C. Johnson <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/ Barbara C. Johnson <barbaracjohnson@worldnet.att.net>

16 March 2004 Barbara C. Johnson, Esq.

Exhibit E

History of Absolute Immunity

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 his rights under the Massachusetts Declaration of Rights, Massachusetts Constitution, on the basis of judicial immunity [Counts 2-6]. 

. . . 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).\[2]/ 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, upon which the motion judge in the instant case relied to protect the defendants with
judicial immunity, 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.\[3]/ Not only does that proposition allow judges to be malicious and corrupt (which meant not adhering to the law
and the facts), 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.\[4]/

. . . 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.

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.\[5]/

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. And 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? 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 declares in a footnote that “in truth the whole set of Judges were then so corrupt that the King was forced to try [Judge Thorp] by commission.”
Id.

The report tends with another note:

. . . 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 not
revealed, of course, 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 Postrevolutionary 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),\[6]/ 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).

It was in Bradley v. Fisher, supra,\[7]/ 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.” And, ridiculously, the Court in Bradley gave as an example of “excess jurisdiction” the act of a judge convicting a defendant of a non-existent crime, an act for which the judge would be immune:

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 sovereign immunity, is “logically indefensible.” See Whitney, supra.

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: for example, 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. See Mr. Justice Douglas’s dissent in Pierson (and Issue 5 below where parts of it are included within this brief). There he cites the Congressional Record, showing that Congress fully intended that judges would not be immune when they deprive people of their civil rights.

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. Here, therefore, it was self-serving and in bad faith for the Court to call attention to the lack of a record that Congress intended to abolish judicial immunity, because the court in Pierson knew 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 19th century. Congress was not at their party! Congress had already had its party, decided judges would not be immune to prosecution under §1983, and the 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 was 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 First Circuit Court of Appeals, which prides itself on thorough and principled opinions. This circuit should bravely herald that there is no history of a sound rationale in support of judicial immunity.

And the Court in Pulliam, 466 U.S. at 540, 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 in his dissent:

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).

The defendant judges in Gouin’s case knowingly, voluntarily, intelligently, and conspiratorially acted outside M.G.L. c. 215 §56A, M.G.L. c. 208 §30, and M.G.L. c. 209B §5(a) (the Mass. Child Custody Jurisdiction Act), to deprive him (and many others) unlawfully of the equal protection of the law, allowed his children to be kidnapped (i.e., taken to a foreign State without his consent and without an evidentiary hearing), essentially robbed him of many thousands of dollars, and
thereby violated his civil rights under 42 U.S.C. §1983. Outside their jurisdiction because no legislature contemplated that the judges would intentionally conspire to violate these statute, as evidenced by Memo #14 [Appendix, pages 53A-12 through 53A-15], as well as by the chief judge’s failure to perform his statutory duties under M.G.L. c. 211B §10 and §17, and M.G.L. c. 217 §8.

---

[1] References cited by The Encyclopedia Brittanica for the history
of the Star Chamber: Sir Thomas Smith, Commonwealth of England (1633); Lord Bacon, History of Henry VII, edited by J. R. Lumby (Cambridge, 1881); William Hudson, "Treatise of the Court of the Star Chamber," Collectanea Juridica, vol. ii; H. Hallam, Constitutional History of England (1876); W. S. Holdsworth, History of English Law (fol. 1902); G.W. Prothero, Statutes and Constitutional Documents 1559-1625 (1894); W. Busch, England under the Tudors (1895); S. R. Gardiner, History of England 1603-1642 (1883-84); D. J. Medley, English Constitutional History (1907); and A. V. Dicey, The Privy Council.

[2] “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.

[3] A state official in her personal capacity is a “person” for purposes of §1983. Hafer, 502 U.S. at 31 (rejecting Will). The Eleventh Amendment does not bar §1983 personal-capacity suits against state officials in federal court. Id., at 22, citing Scheuer, 416 U.S. at 237-238. "[S]tate officials may [ ] be held liable in their personal capacity for actions they take in their official capacity." Hafer, at 27.

<>[4] The Star Chamber was established after an act in 1341. The Encyclopaedia Britannica, 11th 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. 11th 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).

[5] “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.

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

[7] 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.

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 FOR LEAVE TO FILE SURREPLY TO

DEFENDANTS’ REPLY TO PLAINTIFF’S OPPOSITION TO

DEFENDANTS’ MOTION TO DISMISS COMPLAINT

Now comes Plaintiff Barbara C. Johnson [“Johnson”] and moves for leave to surreply to the Reply by the Defendants to Johnson’s Opposition to their Motion to Dismiss Complaint.

As grounds, Johnson states that lest this Court accede to the defendants’ request that the Court dispense with a hearing of their dispositive motion, Johnson finds it necessary to correct  the few inaccurate statements that the defendants made in their reply and Rule 9A Notice of Filing (they failed to note whether they submitted the Plaintiff’s Opposition to the Motion to Dismiss).

WHEREFORE, Plaintiff prays this motion be allowed.

Respectfully Submitted,
                                                            Barbara C. Johnson, Pro se

8 January 2006                                   _________________________

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 10 January 2006 served by first-class mail
on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

8 January 2006                                   _________________________

                                             Barbara C. Johnson, Esq. 

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

_____________________________________

PLAINTIFF’S SURREPLY TO REPLY OF DEFENDANTS
TO PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS
BY BOARD OF BAR OVERSEERS,
OFFICE OF BAR COUNSEL,
DANIEL CRANE, SUSAN STRAUSS-WEISBERG, AND
THE COMMONWEALTH OF MASSACHUSETTS

AND THEIR REQUEST TO DISPENSE WITH HEARING

(Plaintiff Requests Hearing)

Now comes Plaintiff, Barbara C. Johnson [“Johnson”], and submits this surreply in response to the defendants’ reply to her opposition to their Motion to Dismiss.

First, Johnson wants to be reassured that her Opposition to the defendants’ Motion to Dismiss was included in the Rule 9A package filed by the defendants in the court.  Its absence in the list in the defendants’ Rule 9A Notice of Filing might simply have been an inadvertent oversight.

With that caveat said, Johnson calls attention to the following errors or misrepresentations:

1. Defendants’ statement on page 2: “Crane and Weisberg were allegedly responding to press inquiries about a pending proceeding brought by the Office of Bar Counsel, which is presumptively within the course of their employment and in furtherance of the work of OBC.”

Plaintiff’s surreply on several points:

(a) On page 12 of her Opposition, Plaintiff wrote (with emphasis supplied here): “. . . Crane and Weisberg could as individuals speak to news reporters under the First Amendment, but that amendment does not allow them to state falsities . . . .”

(b) Defendants state that speaking to the press is “presumptively within the course of their employment and in furtherance of the work of OBC.” 

(i) What is the authority for the proposition that functions of someone’s employment may be presumptively proven? 

(ii) If speaking to the press were within the course of their employment, why then did Daniel Crane inform Ralph Ranalli of the Globe staff, on or around 23 November 2005 that “he [Daniel Crane] was forbidden to comment on pending or future disciplinary investigations”?  See Plaintiff’s Opposition at note 3 on page 3.

(iii) Plaintiff anticipates the defendants will respond to the question in “(ii)” with the reason asserted by the Defendants on page 3 of their Reply, to wit, that after a petition for discipline is filed, the discipline proceedings are “open to the public.”

(iv) If that were true, then why did Susan Strauss- Weisberg try to intimidate and threaten Johnson—during the “post-petition” stage— with more disciplinary charges were Johnson to upload to her website the facts supporting Johnson’s defense to what she deemed and still deems false accusations?  

2. Defendants’ statement on page 3: “Crane’s alleged statements to the Eagle-Tribune were made in December 2003 after a public hearing had been held.  Section 20(3) of S.J.C. Rule 4:01 provides that bar discipline

 proceedings are ‘open to the public’ at that stage. . . .”

Plaintiff’s surreply:  There was no public hearing. During Johnson’s Opening Statement at the hearing being held on the petition against Johnson, the Special Hearing Officer [“SHO”] ordered the public—around 10 observers—out of the room commandeered for the hearing.  Unwilling to continue in a nonpublic hearing, Johnson left with the public.\[1]/\[2]/  The alleged hearing appears to have continued until the next day: no witnesses were called by the OBC to testify.   In sum, the hearing was a sub-species of a Kangaroo Court.  Had the SHO had Assistant AG Kehoe’s brief on the important public policy of holding public hearings, perhaps the BBO’s SHO would not have excluded the public from the trial.

Moreover, as stated in her Opposition to the Motion to Dismiss, the SJC Rules Committee would not have had to bestow immunity onto the BBO, OBC, and its staff in §9(3) of Rule 4:01 had it believed that any of the many immunities lawfully—i.e., constitutionally—protected them from suit or liability.  The act itself of drafting §9(3) is, in effect, evidence of the SJC’s knowledge and admission that immunity derived from any source was inadequate to protect the entities ultimately described in §9(3).

WHEREFORE, for all the above reasons, the defendants’ Motion to Dismiss must be DENIED.

---

[1] The declaration by SHO Herbert Phillips that the hearing would not be held with the public in attendance was unjustified.  When the SHO, aided and abetted by Assistant General Counsel Carol Wagner, ordered the public out of the room in which the trial against Respondent was taking place, the BBO violated Board Rule 3.22(b).  Johnson was entitled to have a public trial, and the public had the right to participate in that trial.  That sanction, of ordering the public out of the room, deprived Johnson of her right to a public hearing not only under Board Rule 3.22(b) but also under the federal and state constitutions.  Such a sanction against Johnson was excessive in that it far exceeded the harm, if any, done.  Keene v. Brigham and Women's Hospital, Inc., 439 Mass. 223, 235 (2003) ("As a general rule, a judge should impose the least severe sanction necessary to remedy the prejudice to the [nonoffending] party").   Such a sanction was also improper against the public, who had a right to participate in the trial. 

[2] During the pretrial hearing on 17 November 2003, SHO Phillips ordered the reporter to go off the record when John-son spoke and go back on when he spoke.  Given that excessiveness and Weisberg’s subsequent distortion of what allegedly occurred at that hearing was sufficient to enhance Johnson’s fear of going forward for trial without any witnesses of her own present at the trial.  Without doubt, it was dangerous to stay in the arena with lions and a tyran-nical puppet of the BBO without a public audience to bear witness as to what happened during the duel of a trial.

Respectfully Submitted,
                                                            Barbara C. Johnson, Pro se

8 January 2006                                   _________________________

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 10 January 2006 served by first-class mail
on Ronald F. Kehoe, Assistant Attorney General, One Ashburton Place, Room 1813, Boston, MA 02108.

8 January 2006                                   _________________________

                                                        Barbara C. Johnson, Esq.