#159, Drano Series

Barb's Appeal of Justice Spina's Judgment of Disbarment
to the
Full Panel of the Massachusetts
Supreme Judicial Court
~~~~~~~~~
There are two documents in this file:
One, the cover letter to the Clerk.
The other, Barb's appellate brief.

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NOTE that Drano ##159, 160, and 161 were sent to the
Massachusetts Supreme Judicial Court for the Commonwealth, where the full panel (minus the judge who sat in the single-justice) will hear the case.
~~~~~~~~~~~~~~~~~~
NOTE that Drano ##162, 163, and 164 were sent to the
Massachusetts Supreme Judicial Court for Suffolk County, where every month a different SJC justice is assigned to sit as a  judge  in the single-justice session.
Amongst the many types of cases heard by a "Single Justice" are petitions invoking the "SUPERINTENDENCY" of the SJC and
Board Discipline cases.

~~~~~~~~~

People have written me, "What can I do to help you?"
It is unlikely anything will help the inevitable,
however, anything is worth trying. 
The "anything" might be letters to the Court:

Supreme Judicial Court
John Adams Courthouse
One Pemberton Square
Boston , MA 02108

________________________________________

Supreme Judicial Court
Justices
(click on names and see photos and profiles)
Send letters by snail mail or email of both.
Snail mail address above.
Email addresses below.

Chief Justice Margaret H. Marshall chiefjustice.marshall@sjc.state.ma.us margaret.marshall@sjc.state.ma.us
Justice John M. Greaney john.greaney@sjc.state.ma.us	Justice Roderick L. Ireland roderick.ireland@sjc.state.ma.us
Justice Francis X. Spina francis.spina@sjc.state.ma.us	Justice Judith A. Cowin judith.cowin@sjc.state.ma.us
Justice Martha B. Sosman martha.sosman@sjc.state.ma.us	Justice Robert J. Cordy robert.cordy@sjc.state.ma.us
Keep the letters going to the Court. I was there on October 6th to file my appeal.   One of the clerks said the letter file was a few inches thick. Whether the judges will ever read them is unknown, but they are sure to know that they are there.  I'll inquire as to whether a "reader" has been assigned. Let's also try emails.  The judges' secretaries will certainly let them know how many are coming in.

Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833      FAX Available upon request barbaracjohnson@worldnet.att.net

6 October 2006                                              


Office of the Clerk
Supreme Judicial Court for the Commonwealth
John Adams Courthouse
One Pemberton Square, Suite 1400
Boston, MA 02108-1724

          Re: SJC-09820

Dear Clerk:

Please find in this package:

1. Appellate Brief (18 copies) with Addendum

2. Volume I of Appendix to Appellate Brief (18 copies)

3.         JOHNSON’S MOTION FOR LEAVE TO FILE BRIEF IN EXCESS OF 50 PAGES

4.         JOHNSON’S COMBINED MOTION:

(1)       MOTION TO PROCEED ONLY ON THOSE PARTS OF THE ORIGINAL RECORD BEFORE THE SINGLE JUSTICE  WHICH ARE JOHNSON’S PLEADINGS AND

(2)       MOTION TO STRIKE THE DOCUMENTS WHICH JOHNSON  HAS NOT  SEEN OR OF WHICH JOHNSON  HAS NOT  BEEN GIVEN COPIES OR WHICH HAVE NOT BEEN PROPERLY AUTHENTICATED

Sincerely,
Barbara C. Johnson

cc:    Assistant Bar Counsel Susan Strauss Weisberg (two copies of brief and appendix)

STATEMENT OF THE ISSUES\[1]/

1. Where the 1998 amendment to §13 of G.L. c. 209C is administrative or remedial, the amendment has retroactive as well as prospective effect, and “Jones,” Johnson, and the public were entitled to access to the entire file of Jones’s chapter 209C custody and paternity action. See Impounded Vol.

VII, Tab 177; Vol. II, Tab 53.

a. That Judge Spina deemed waived the §13 issue
     because Johnson did not appeal the “ruling and
     order of the Probate Court judge” is plain and
     reversible error. See 211:3 petition at
App-TAB-G2 and G1.

2. Where the BBO arbitrarily takes jurisdiction of de minimus fee dispute and contempt cases, it practiced unlawful discrimination on a “class of one” theory when it selectively enforced a de minimus fee dispute and an alleged contempt case against the appellant and not against other attorneys.

3. Where the single justice had before him absolutely no evidence except the say-so of the OBC prosecutor that the complainant was embarrassed and then declared that “no live testimony was required to draw [an] inference [of embarrassment,” the justice abused his discretion, making reversal mandatory.

4. Where G.L. c. 233, §8, is a statute and the BBO Rules are simply rules, §8 trumps Board Rule §4.5 regarding subpoenas, making Johnson’s subpoenas valid, the quashing of them unlawful, and Judge Spina’s decision reversible error.

5. Where the SJC’s private servant, the OBC, sought and was granted, by SJC’s other private servant, the BBO, without hearing, an order for document protection and impoundment by a motion that defied the standards for either a motion for protection or one for impoundment, Johnson reasonably believed that filing such an appeal, as Spina now writes was demanded, would have been futile and that she would have been sanctioned had she filed such an appeal.

a. The Imaginary List of Protected Names.\[2]/

b. The Alleged Dissemination of Impounded Material.

6. Where it is well-settled that Johnson has an obligation to call attention to the public about unscrupulous judges, where Johnson has a right to defend herself both privately and publicly to protect her reputation, where Johnson did raise her First Amendment claims by challenging the transparently invalid court orders (by Lawton and McGregor) by ignoring them (as she also is entitled to do), where she did not disclose impounded material on her website, she neither misconducted herself nor defied valid orders, making reversal of Judge Spina’s order and judgment of disbarment mandatory.

7. Where there is a clear and convincing need for a new determination of the contempt issue because (a) it was not sufficiently foreseeable at the time of the district court action that the issue would arise in the context of a disciplinary action, or (b) appellant, as a result of the conduct of her adversary or other special circumstances, did not have an adequate opportunity to obtain a full and fair adjudication in the initial action, or (c) the application of offensive estoppel would be unfair to the appellant, or (d) a civil contempt adjudication based on a violation of an unlawful court order cannot stand, litigation\[3]/ of the contempt issue at the BBO should not have been precluded.

8. Where Johnson’s constitutional rights to due process and equal protection were absent from each and every stage of the disciplinary proceedings, and the single justice of this Court abused his discretion, if he did not overlook or misapprehend the issues of fact and law of this board disciplinary action, the judgment of disbarment must be reversed or vacated.

9. Where there is no law setting the standard to be applied to an “affiliated entity,” which is what both the Office of Bar Counsel and the Board of Bar Overseers are, any finding or holding by the BBO or by the single justice must be reviewed as to whether the finding or holding is arbitrary or capricious, and where there is a lack of substantial evidence to support the finding or holding, the judgment of disbarment must be reversed.

10. Where the Supreme Judicial Court controls and supervises its “affiliated entities,” the BBO and the OBC, and appointed the Bar Counsel, Daniel C. Crane, the titular plaintiff in the disciplinary action against Johnson, and the General Counsel, Michael Fredrickson, who signed the Information, the SJC, including the single justice, has a conflict of interest——and certainly an appearance of impropriety——in acting on the BBO’s recommendation, the judgment in entirety must be vacated and dismissed with prejudice.

11. Where fairness was totally absent from every phase and aspect of the proceedings and the recommendation, the judgment in full must be vacated and the charges dismissed with prejudice.

STATEMENT OF THE CASE

Shortly after the election in 2002, when Johnson ran for governor on a platform of court reform and the abolishment of judicial immunity, a Petition for Discipline issued against her. As a factual basis for the petition, the OBC used three events: one brought by a political candidate, Robyn Gerry-Sylvia, who, on the day she lost her bid for election, filed at the BBO a complaint claiming that Johnson’s website caused the loss; the second was a de minimus fee dispute, which was ultimately found—–even by the very adversarial BBO special hearing officer—–in favor of Johnson; and the third, a 1998 complaint by Judge Paul McGill, who had found Johnson in contempt of a non-existent order—–an order that was at some unknown future date fabricated. Johnson saw it when the OBC produced it. Johnson then scanned and uploaded the fabricated order to her website. It may be seen at Vol. I, Tab 46, or in color at http://www.falseallega-tions.com/
drano90-part-iii-answer-bbo-count-three-lily.htm.

Count I: Although on her website Johnson published pleadings she had filed in U.S. District Court in Boston and in Bristol County Probate & Family Court, as well as copies of portions of pleadings and affidavits filed by Robyn in her divorce action,\[4]/ the OBC asserted, the BBO found, and Judge Spina held that Johnson

· disseminated material impounded by Juvenile Court, but Johnson contended that there is no evidence demonstrating that the OBC’s assertion is true;

· deliberately disobeyed a Juvenile Court order, but Johnson contended that given that she was never in the Juvenile Court; she had never obtained any documents from Juvenile Court, so there was nothing to return; and the Juvenile Court never had jurisdiction over her. The so-called order was transparently invalid and could be ignored;

· disseminated embarrassing or burdensome information about William, David, and Jane on her website, but Johnson contended that these people never appeared as witnesses to say they were embarrassed or burdened.\[5]/ “Jane” was the complainant. “William” was the husband she was divorcing for 7 years, and “David” was their son, who could not stand Mother Jane, and eventually went to live with his dad in Rhode Island. William and David never made either a written or oral peep to or at the BBO or the OBC, nor to or at Johnson. Only Jane complained, when she lost her first election.\[6]/ After the second election, she moved out of town.

The Embarrassment Issue. Where the OBC called no witnesses to the so-called trial of the case against Johnson at the BBO, there is no testimonial evidence that Jane or anyone else was embarrassed or burdened and certainly no documentary evidence of Jane or anyone else being embarrassed or burdened. To justify the BBO’s finding, Judge Spina wrote that “live testimony” was not needed to prove embarrassment [App. at 10, Decision]; it could be found, the judge’s conclusion was, from the hearsay argument of counsel.\[7]/\[8]/

Alleged Noncompliance with Juvenile Court Order. There is no evidence that there was a Complaint against Johnson in New Bedford Juvenile Court; there is no evidence that Johnson was served with a Complaint filed in Juvenile Court; there is no evidence that the documents listed were filed in that Juvenile Court, and if so, when and by whom and what the paper trail of those documents is [Impounded Vol. VIII, OBC Trial Exhs. 31A, 31B, 32 (Drano ##34 and 37)].

Judge Lawton never heard either informally or formally the young man in question. Because of the private nature of the young man’s history, Johnson will not reveal it here, but she can say with certainty that Deborah Wolf,\[9]/ an attorney upon whose word Judge Lawton was acting, lied to the judge regarding the young man. Johnson could have proved the truth had the BBO not quashed her subpoenas served on both Wolf and Lawton. The Trial Court would have known the truth in 2000 had Judge Elizabeth LaStaiti not dismissed the properly filed Amended Complaint for Modification of Judgment [Impounded Vol. VIII, OBC Trial Exh. 23, Drano #22].

In sum, there was no evidence whatsoever to support Judge Spina rubber-stamping the BBO recommendation and thus depriving Johnson of her rights to due process and equal protection.\[10]/

Count II arose out of a de minimus fee dispute. The hearing officer found that Johnson did not charge an excessive fee and did not owe the complainant, a woman, a refund of an unearned fee. Johnson never met her face-to-face, never represented her or her husband in a court, and never signed an attorney-client fee agreement because the woman and her husband could not decide the scope of the services that they wanted from Johnson. Notwithstanding the aforementioned facts, the OBC, the BBO, and the judge asserted that Johnson

· commingled the retainer payment with her own funds, failed to segregate the disputed portion of their retainer, and failed to account adequately for her application and disposition of the retainer

Johnson’s Counterpoint: Johnson did not commingle funds. By the time Johnson deposited checks, Johnson had earned the money. Given that Johnson owed nothing to the “Parkers,” what was commingled? Nothing. There was never any identification of a dollar amount that was a “disputed portion of their retainer.” There was no complaint of a failure to account. Where the OBC, the BBO’s special hearing officer, and Judge Spina could not identify the amount of the funds not earned, and there was a detailed accounting, the inescapable conclusion is that the charges against Johnson were nothing but arbitrary and capricious inventions by the OBC, which is what provoked Johnson to upload the bill to the “Parkers” to her website for the world to see that the OBC charge was baseless, i.e., totally false.

· revealed confidential information gained in the course of her professional relationship with the Parkers without their consent

Johnson’s Counterpoint: The “Parkers” wrote that they were looking forward to seeing their story on Johnson’s “wonderful educational website.” It was reasonable for Johnson to interpret that written statement as consent to publish. The Parkers never testified at the so-called trial of Johnson at the BBO. The Parkers never personally complained about a violation of their confidentiality.

· demanded the withdrawal of the Parkers’ bar discipline grievance as a condition of removing their confidential information from her website

Johnson’s Counterpoint: Given that the Parkers never testified, the only evidence of this is hearsay evidence and a spin of an alleged message left on an answering machine of someone representing that he was their attorney, but no proof of that relationship was in evidence.

Count III arose out of a whistleblower case remanded from a superior court to a district court in the early ‘90s. In 1995, Johnson and her client, who by then was living in California, were found in contempt of a non-existent order. For almost one year after that finding, the court kept on changing its decisions and orders, none of which was ever clear and unequivocal. None gave a total of what was to be paid, to whom payment was to be made, or by when payment was to be made. They also included in terrorem fines. The orders were transparently invalid. Three years later, in 1998, Johnson was jailed; one of her sons paid ransom to get her out of jail. Johnson had no knowledge of the ransom amount. It had never been on an order prior to her being jailed. How the sum was arrived at is unknown to Johnson.

After the OBC brought the Petition for Discipline, the Assistant Bar Counsel prosecuting the case———Susan Strauss Weisberg———produced an order alleged to be the order of which Johnson and her client were originally found in contempt. The order was fabricated. It may be seen, Johnson has been led to believe, in Vol. V, Tab 83.\[11]/ The “blow-ups” of the fabricated order may be seen in Johnson’s Amen-ded Answer at pages 142-145 [Vol. I, Tab 46] and in color on her website at Drano Series #90C: http://www.falseallegations.com/drano90-part-iii-answer-bbo-
count-three-lily.htm.

     Despite having seen the fabrication, created either by Attorney Mark C. O’Connor [“O’Connor”] or the district court judge himself, the OBC and now the BBO and the single justice assert that Johnson

· knowingly disobeyed the district court's orders of 13 December 1995 after those orders were affirmed on appeal, engaged in contempt of court, and refused to purge her contempt absent the compulsion of incarceration

Johnson’s Counterpoint: On 13 December 1995, a Decision and Memorandum issued, but it did not contain the final order as to Johnson. The underlying case was bifurcated. The contempt against the client issued on that date and the amount was lowered from $3898.25 to $261.25, which Johnson paid on the client’s behalf because the judge said he would restore the case to the list. BUT the judge did not restore the client’s case to the list despite the money having been paid and despite his promise. It was not until 17 January 1996 that Johnson was found in contempt of not paying sanctions for frivolous motions [Vol.II, Tabs 81-82]. Her motions had been filed 11 months earlier, in February 1995. Johnson contends that the one-year delay in concluding Johnson’s motions were frivolous was due to both the judge’s inability to produce the non-existent order and his need to find a basis for having found Johnson in contempt almost a year earlier.

· filed motions without any legal or factual basis and in bad faith, exposing her client to dismissal of her claims and personal liability for sanctions and damages through the respondent’s misconduct, failing to appeal from the contempt judgment against her client, and pursuing a frivolous appeal from the superior court order striking the retransfer request.

Johnson’s Counterpoint: The facts found by the single justice are untrue. See Johnson’s Amended Answer for Count III [Vol. I, Tab 46], where the appeals taken are identified. The motions that the court found frivolous are incorporated into that Answer. They were motions similar to those allowed by Magistrate-Judge R. B. Collings in two other cases in U.S. District Court. Why would a judge decide in December of 1995 that motions he endorsed “Denied” ten months earlier, in February 1995, were suddenly frivolous? Because he needed an excuse for having found Johnson in contempt. The original order never existed. AND it had not yet been fabricated!!

Johnson served on O’Connor a subpoena duces tecum commanding him to appear at the BBO trial on 2 December 2003, but the BBO hearing officer quashed it and immediately excused O’Connor when he arrived. Shortly thereafter O’Connor was himself found in contempt [O'Connor v. O'Connor, 61 Mass.App.Ct. 1109 (2004)],\[12]/\[13]/ but the OBC/BBO did not discipline him. Selective enforcement was alive and well at the BBO.

PRIOR PROCEEDINGS

Shortly after the election in 2002, when Johnson ran for governor on a platform of court reform and the abolishment of judicial immunity, the OBC informed her that a Petition for Discipline would issue against her. At the top of 2003, she was, indeed, served with that petition.

A year prior to bringing the Petition, Assistant Bar Counsel Weisberg, being well aware of Johnson’s activism, moved, in or around February 2002, in Bristol County Probate & Family Court for documents in a closed case, one which Johnson attempted to open with an Amended Complaint for Modification [Impounded Vol. VIII, OBC Trial Exh. 23, Drano #22].\[14]/

Johnson has no personal knowledge of what Weisberg received from that court. According to Judge Spina, Weisberg sought a declaration that all documents filed in that case before and after the amendment of §13 of G.L. c. 209C were impounded. Improperly, according to Johnson, Judge McGregor allowed that motion in total contravention and with intentional disregard of that statute. [See discussion infra.]

After the nascence of the disciplinary action, it became transparent that due process was absent from the OBC/BBO proceedings. Johnson wrote an article, “Are Lawyers Entitled to the Full Sweep of Due Process Protections?,” and uploaded it to her website at

http://www.falseallegations.com/drano102-
bbo-star-chamber-92503-forum.htm.

in it, she itemized the unlawful actions of the OBC and BBO. Given that she has written all of that information now ad nauseam, she would appreciate if this court would just read the article on the website. Johnson is aware that the request is highly unusual, but given that the OBC, the BBO, and Judge Spina are acknowledging improperly “authenticated” files from Johnson’s website as evidence, then this Court should not mind Johnson adding one self-authenticating file: Drano #102, still on the website itself, as evidence. She also authenticates it from afar.

Because the OBC and BBO refused an explicit request from Johnson for one comprehensive document containing a Table of Contents to their Appendix volumes, Johnson is directing this court to Drano #106 at

http://www.falseallegations.com/drano106-motions-
filed-at-bbo-n0603.htm,

in which Johnson compiled in descending chronological order (minus the captions) all her substantive and procedural motions and oppositions filed with the BBO through 10 December 2003.

The OBC and the BBO continuously broke their own rules, deprived Johnson of all her due process rights, deprived Johnson of any hearing at any time, with the exception of one pretrial conference in November 2003, when the special hearing officer [“the SHO”] ordered the reporter to go off the record when Johnson spoke and to go back on the record when he spoke. One such order did remain in the transcript. Inadvertence???

Fig. 1. 11/17/03 Transcript, p. 40, lines 9-12

On the scheduled first day of trial, 2 December 2003, the SHO ordered the public from the hearing room during Johnson’s opening statement. The reason was bogus. He claimed that there was an order commanding Johnson to use pseudonyms for certain people. There was no such order.

HEARING OFFICER: Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg?

MS. WEISBERG: No, we don't actually have a list. We have documents that are protected. That's a name that appears -- I believe the evidence will show that that name is a name that appears in documents that Miss Johnson published on her web site. So they are out there in the public domain.

HEARING OFFICER: I'm going to assume that was an inadvertent slip, Miss Johnson. No more of those. I'm going to have the record redact that name, (name redacted).

       Fig. 2. Transcript, 12/2/03, Day I: 56-57, emphasis supplied.

Despite Weisberg informing the SHO that there was no such order, the SHO and BBO Assistant General Counsel Carol Wagner ignored Weisberg’s admission and demanded that the public leave. Because of the SHO playing around with the transcription, Johnson did not dare stay without the public, so she, too, left the hearing room.

After the so-called trial, which was witnessless, Johnson filed a motion for a new trial, which was denied. She did, however, file Proposed Findings of Fact and Rulings of Law, as did Weisberg.

After receiving the SHO’s decision, Johnson wrote an appeal to the Board. There was no hearing before the Board. The BBO’s decision was sufficiently similar to the OBC’s pleadings that it was either written by Weisberg or essentially copied from the OBC’s pleadings. There was no evidence of independent judgment. It appears that only 7 members of the Board voted. According to the BBO, Elizabeth Mulvey, who approved the filing of the Petition, recused herself. M. Ellen Carpenter’s term had expired and was, so Johnson was led to believe, unavailable to participate in the decision. The three new members of the Board were known by Johnson: one was an opposing counsel on a federal case; a second was an appointed criminal defense counsel for one of Johnson’s clients (the appointment occurred two days after Johnson entered her appearance in the client’s divorce case); the third new member had over the years solicited from Johnson business as an appellate attorney. Johnson was led to believe that the three new Board members also did not participate in the determination of the recommendation. The Board Memorandum, signed by the new Chair (James Re) is essentially a re-iteration of the SHO’s report. The participants, if any, in the determination are not listed.

After the Board’s decision, the BBO filed in the single-justice session the Information, signed by Michael Fredrickson, General Counsel, but written by OBC personnel.

On or around 17 July 2006, Johnson filed her OPPOSITION TO RECOMMENDATION IN INFORMATION, which included RESPONDENT’S MEMORANDUM IN OPPOSITION TO BOARD MEMORANDUM. That was Johnson’s first opportunity to challenge that memorandum.

Justice Francis X. Spina was sitting as single justice and adopting the Board decision in full, wrote a decision. Johnson parried with a Rule 27 Petition for Rehearing, Motion to File Petition of Excess Length, and a Motion to Stay Judgment of Disbarment. Her two motions and her petition for rehearing were summarily denied by Judge Spina.

She then filed a Notice of Appeal and a Motion for Stay of the Judgment of Disbarment in this Court for the Commonwealth. The Motion for Stay was denied allegedly on 11 September 2006 and this pleading is Johnson’s appellate brief.

Her motion to reconsider the Motion to Stay was also denied forthwith.

STATEMENT OF THE FACTS

Count I involves a custody and paternity action in Probate & Family Court and a care and protection case, both begun in 1988, after which the child’s dad (“John Jones”) was falsely accused of sexual abuse and forbidden to see his child.\[15]/ Dad came to see Johnson around 1999, after six attorneys were unable to get him an evidentiary hearing or an opportunity to address the court or to cross-examine the child’s mother or any of the other social-worker accusers, some of whom he had never met.

The child’s mother, “Jane,” married another man (“Brown”) and falsely accused him, too, of sexual abuse.

The “Browns” were subsequently divorced after 7 years of contentious proceedings. Jones’s son and Brown’s son lived with their mother only for a limited time.

On or around 9 May 2000, eleven years after his visitation and custody rights were terminated, John Jones, represented by Johnson, filed an Amended Complaint for Modification of Judgment in the custody and paternity action in Probate & Family Court [Impounded Vol. VIII, OBC Trial Exh. 23, Drano #22]. That filing occurred two years after §13 of c. 209C was amended, and as such the Complaint was not an impounded document. See Peckham, infra. Johnson subsequently posted that Complaint on her website.

During that same period, Johnson filed and posted to her website pleadings from Jane's divorce action [Impounded Vol. VIII, OBC Trial Exhs. 24-26, Drano ## 23-25].

And also during that same period, Johnson filed and posted to her website a Complaint filed in U.S. District Court in Boston [Impounded Vol. VIII, OBC Trial Exh. 17, Drano #5,

http://www.falseallegations.com/

complaint-linn.htm].\[16]/

Johnson had obtained copies of diverse reports from some of those defendants, but only one of which was by a court-appointed individual, an investigator, as well as the transcript of a deposition of that investigator, namely, Christopher Salt. That deposition of Christopher Salt was taken in the Probate & Family Court custody and paternity action, not in the care and protection action. Johnson had and has no knowledge as to whether it was filed in Juvenile Court, and if so, who filed it. (The single justice found it had been filed, although Johnson has seen no evidence of the filing.)

According to a stipulation by the parties, Jack McCar-thy, who was the only psychologist in the Jones case and who was also not court-appointed, was to file a report with the probation office, but he, instead, sent letters to only the mother's and the child's counsel and not directly to any of Jones's six prior counsel [Impounded Vol. VIII, Exh. 30 and exhibits, Drano #32\[17]/]. Johnson obtained McCarthy’s letters from Jones, who had received them indirectly through Deborah Wolf, the child’s alleged counsel.\[18]/

Psychological reports? When the OBC charged Johnson with uploading psychological report(s) to her website, the OBC failed to identify either the psychologist or the person who was allegedly the subject of the report. In fact, no report regarding anyone in Jones’s two cases was put on Johnson’s website. None of McCarthy’s letter/“reports” re Jones’s cases was put on Johnson’s website.\[19]/

Interestingly, according to the Juvenile Court docket sheet sent to Johnson by OBC ABC Weisberg, McCarthy's reports found their way at some unknown time to the judge assigned to sit over both the Care and Protection of Jones's son in Juvenile Court and the Jones paternity and custody case in family court. Those so-called reports were based solely on Newberger and his colleague’s report and were the basis for repeatedly denying Jones either visitation of any kind or custody for many years. Newberger and his colleague, Tishelman, were doctors and, as noted supra, were not court-appointed [see Impounded Vol. VIII, OBC Trial Exhs. 29-30 (Drano #31-32)].

Because, as noted above, Johnson never appeared in the care and protection action, never sought, and never got documents from the Juvenile Court, when she received an alleged order to return documents to that court, she had none to return to that court.\[20]/ And despite Weisberg admitting that Johnson never uploaded Juvenile Court documents to her website,\[21]/  that admission did not stop the BBO and the single justice from finding that Johnson uploaded Juvenile Court pleadings.

As far as Johnson knew at that point was, any writings she had were not ever filed in any court. This Court must be aware that Johnson did not have access to even a Juvenile Court docket sheet and she had no crystal ball. Although Weisberg ultimately forwarded to Johnson a Juvenile Court docket sheet provided to Weisberg by Deborah Wolf, Johnson did not consider it a reliable document. There had been far too many irregularities. The information she has requires a serious investigation of the skullduggery. Johnson will settle for nothing less.

Judge Spina found, also wrongly, that McCarthy treated Jane and Jones's child, “William.” McCarthy did not treat Jane and William.\[22]/ McCarthy saw William once—–according to one of his letters. McCarthy, a widower, saw the exquisitely exotic Jane alone 21 times but billed the insurance company for seeing William, and billed Jones for the uninsured portion of McCarthy’s bills.  McCarthy’s “To Whom It May Concern” letter explains this.  There is no way McCarthy treated William when he never saw him but for the first time. McCarthy later claimed he saw William a few other times, when Jane was present with the child.

As far as Johnson knew, other than the literally few, harmless words quoted from Christopher Salt’s reports, no material was from Juvenile Court records.  Both the Amended Complaint in Probate & Family Court and the Complaint in the U.S. District Court are public records.  Nothing in them was summarized from Juvenile Court records.  The information was from (1) the memory of her client,\[23]/ (2) Christopher Salt’s deposition (taken under the family court caption), (3) the divorce papers of Jane, a public figure (having run for public office) and her then-husband, and (4) a few miscellaneous papers her client had retained.  Other than the literally few words quoted from the two reports of Christopher Salt, a court-appointed investigator, no material was from Juvenile Court records.  The exact quotes were well identified by Johnson at all times [see App-TAB-A3, at pp. 69-70, and Drano #154].

Johnson did write that both boys were conceived out of wedlock, which was true.  Johnson absolutely did not identify both boys as victims of sexual abuse by their respective fathers.  She did identify Jane as a mother who falsely accused both fathers of sexual abuse of their children. Although Johnson did incorrectly call Jane a perjurer, for Jane had not been convicted of the crime, the written evidence was overwhelming that Jane had lied to the courts and to everyone on the case about diverse material facts when it suited her agenda. If Johnson had published untruths about Jane, Jane could or would have sued Johnson for defamation.

The OBC, the BBO, and Judge Spina failed to state which reports Johnson had taken or received from the Juvenile Court.  They failed to identify the material on Johnson’s website that they assert was impounded.  If they had identified the Complaint for Modification filed in 2000, they would have had to deal with c. 209C, §13. If they had dealt with it properly, they would have found that Johnson did not violate any rule of professional ethics because she did not upload any impounded material to her website.

More outrageous is that the OBC, the BBO, and Judge Spina intentionally overlooked ABC Weisberg’s admission that Johnson had not uploaded to her website any such documents. Therefore what they did was malicious and perhaps even corrupt.  Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 355 (1871). And although immunity, tragically, allows judges who are “malicious and corrupt” to remain in office, in Massachusetts a grant of immunity violates Article V of the Massachusetts Declaration of Rights, which mandates that judges, as well as others holding office in any branch of government,\[24]/ be accountable.

Count II began in March 2000, when “Mary Parker,” not the Parkers, filed a complaint with the OBC.\[25]/ The complaint was about a fee dispute.\[26]/ Six billable hours before Johnson completed the work for the Parkers, Johnson put the $10,000 received from Mary’s sister into her personal account, for she had already earned the money. After depositing the $10,000 into her account, she put in the other 6 hours of work for the Parkers. When Johnson completed the accounting [Impounded Vol. IX, OBC Exh. Trial 58], she felt badly about the future legal fees the Parkers would have to pay to defend Mr. Parker against two evidence-less counts of rape and two counts of assault over about a decade of their mentally challenged 28-year-old daughter (who had the intelligence of a 15-month-old), so Johnson deeply discounted her fees and along with the bills, sent to the Parkers a check for $3174.50 (many months prior to Mary’s complaint to the BBO).\[27]/

Her deep discounting of the bill made it appear that she had put into her account money that she had not yet earned, but that was not so. Even the hearing officer at the BBO concluded that Johnson did not owe the Parkers any money and that there was no evidence of Johnson making false, deceptive, or misleading representations to the Parkers about her fees, time, and charges.

That conclusion did not, however, stop Judge Spina from holding that Johnson commingled funds.  Given, however, the hearing officer found that Johnson owed no money to the complainant, what money did she commingle?  This question has never been addressed. She also had accounted adequately. How was her accounting inadequate? The OBC and the BBO never said or wrote. Neither did this Court’s single justice. Therefore the paucity of evidence of commingling makes it reversible error to find that respondent violated Mass.R.Prof.C. 1.15 (a)-(c), 1.16 (d), and 8.4 (c) and (h).

After Johnson was charged wrongfully by the Bar Counsel about charging an excessive fee, she uploaded to her website the accounting, or bill, to the Parkers . . . to let the public decide . . . and her Answer to the Bar Counsel’s Petition for Discipline. 

The OBC then sua sponte complained (1) that Johnson posted materials disclosing confidential, personal, and private information about the Parkers and (2) that Johnson never obtained the Parkers’ permission to disclose or disseminate the information about them on her website. 

That conclusion was specious, because the Bar Counsel, the BBO, and Judge Spina discounted the email to Johnson from Parker’s wife, the sole complainant:  “someday we’ll see our story on your wonderful educational website.” Johnson construed these words as permission to publish. Clearly, Mary’s use of the plural nominative pronoun demonstrates that the written consent was given by all the “Parkers” through their spokesperson, the wife, “Mary Parker.”

Further, none of the Parkers, including their three other daughters and their sons-in-law, testified against Johnson.\[28]/

Therefore, it is reversible error to have found that Johnson published anything about the Parkers without their consent and thus violated Mass.R.Prof.C. 1.6(a) and 1.9 (1) and (2).\[29]/

Retired Judge Simons’ alleged order. Judge Spina, again parroting the BBO, found that Johnson did not follow an alleged order in a letter from Retired Judge William Simons to Johnson.  Simons’ order commanded Johnson to remove the information about the Parkers from her website.  Prior to that letter, Simons had never been identified as the Parkers’ attorney.  The retired judge’s son was the husband’s criminal defense counsel.  Where Simons the Elder was no longer a judge, he had no authority to “order” Johnson. Where Simons’ so-called order was transparently invalid on its face, Johnson ignored it.\[30]/ Johnson was denied any opportunity to litigate the validity of the underlying order.\[31]/

According to Judge Spina, Johnson suggested to Simons in a voice-mail message that she would consider removing the postings if the Parkers first withdrew their complaint to bar counsel, and that such a suggestion is a violation of professional ethics.\[32]/

      Johnson responds, What else would be the incentive to negotiate with a complainant in a disciplinary proceeding, but to have the Complaint dropped?  Money was not involved, so dropping the complaint was the only thing the Parkers could offer in exchange in a negotiation.  They had no other cards to play. For that voice-mail message, Spina ordered Johnson’s disbarment. What alternative did Johnson have? Would Judge Spina have preferred Johnson to have offered the Parkers money to withdraw the false complaint, a payment that would be but a bribe to the Parkers through his colleague from Berkshire County, Retired Judge Simons? Spina’s finding has the appearance of being rooted in impropriety.

Thus Judge Spina’s finding that Simons had authority as either the Parkers’ alleged attorney or as a sitting justice was specious, a travesty of justice, making unlawful the single justice’s finding that Johnson violated Mass.R.Prof.C. 8.4 (d) and (h) and SJC Rule 4:01, §10.

Count III.  In 1992, Johnson filed a wrongful termination action on behalf of a client. The complaint was filed in the Superior Court, and after seven baseless protection orders were entered, the Superior Court remanded the case to the District Court.\[33]/ In January 1995, District Court Judge Paul McGill entered an order permitting Johnson to inspect the defendants' documents. She failed to appear for the scheduled inspection because opposing counsel, Mark O’Connor, of Rich, May, Bilodeau & Flaherty, both threatened and offended Johnson in such a personal way that she omits the graphic details from this iteration.

Fearful, Johnson asked the Concord police to provide her with a two-man detail—–for whose services she would pay——to escort her to the facility and be percipient witnesses if witnesses became necessary. After numerous phone calls from the department, the Chief refused. So she hired a detail from Burns, but O’Connor refused to allow them to accompany her into the facility [Vol. I, Tab 46]. Still fearful of what would happen were she to go alone, she did not.\[34]/

Around the same time, in February 1995, Johnson had filed two motions modeled after two allowed by Magistrate-Judge Robert B. Collings in federal court. The district court judge never found them “brought without legal or factual basis and in bad faith” when he denied them in February 1995. He had simply endorsed them “Denied.” He did not find them to be frivolous until 10 months later, in December 1995, when he must have finally acknowledged to himself that he simply could not produce the mythical order of March 3, 1995, because it never existed.\[35]/

A month later, on 22 March 1995, Johnson and her client (“Lily”) were found in contempt of a non-existent order, one that allegedly but never issued on March 3d.  Johnson challenged the judge, Paul McGill, at every hearing thereafter.  The upshot was that for a year, the judge persisted in modifying his orders, but no version of any order was ever a clear and unequivocal order.\[36]/

Ultimately, in December 1995, McGill decided to change completely the basis of the contempt against Johnson. Specifically, McGill continued to find her client in contempt of the non-existent order of March 3d but reduced the amount due from $3898.25 to $261.25,\[37]/ which Johnson paid on behalf of her client (see discussion, infra).\[38]/ But in order to continue holding Johnson in contempt, he had to find another basis for it. So he said Johnson had filed frivolous motions. Judge McGill never did identify which motions were allegedly frivolous. The only motions left to claim as frivolous—–i.e., motions for which he had not already sanctioned Johnson in one way or another—–were the two filed and decided in February 1995, ten months earlier, . . . but not deemed frivolous ten months earlier, in February 1995.

The iteration in the single justice’s memorandum about McGill’s December order is inaccurate, as explained. Judge Spina also appears to have overlooked or intentionally ignored that in December 1995, Judge McGill bifurcated the case so that he could keep track of the contempts against the client and Johnson; i.e., he bifurcated the client’s alleged contempt from Johnson’s alleged contempt. It took McGill another month to get the case bifurcated officially on the docket. Elaine Whitfield-Sharp represented Johnson, and Johnson continued to represent her client. Whitfield-Sharp did the appeal for respondent, but she forgot to include the February motions in the appendix.

Spina was also incorrect in finding that Johnson did not appeal the amended judgment of dismissal of the case underlying Count III.\[39]/ Because the Complaint for the case had been filed in Superior Court, and was subsequently transferred to District Court, the avenue of appeal over a decade ago (before remand cases became a thing of the past) was through a request for retransfer to the Superior Court, pursuant to G.L. c. 231, §102C. The Superior Court judge ordered the request for retransfer to be stricken because O’Connor lied. This is all written in many pleadings . . . in court, in the BBO, in her opposition to the recommendation in the Information, etc.

Ultimately, Johnson appealed the final judgment and order. The Appeals Court affirmed, held that the appeal was frivolous, and awarded attorney's fees and costs to be determined at a later date. The Appeals Court subsequently awarded $30,000 in fees and $1,071.65 in costs. The amounts ordered were paid by July 2000.

Johnson was shocked and stunned. There was nothing frivolous about her or her client being found in contempt of a non-existent order. There was nothing frivolous about appealing such judicial misconduct. Finding that appeal frivolous was the act of a dishonorable court.

At that time, the district court judge found in favor of Tyco, whose CEO was Dennis Kozlowski, now a convicted felon for having stolen $600 million from the parent company. The only reasonable conclusion possible is that the Appeals Court was covering the bottom of the lower-court judges.

      Because there was never a clear and unequivocal order, Johnson made no payments. Notwithstanding that truth, a final judgment of contempt was entered against Johnson. This Court said that occurred in July 1996. Johnson has no memory of the date. The Appeals Court affirmed the judgment.

      The single justice wrote:

After the judgment of contempt was affirmed, the District Court judge notified the respondent that she could become liable for additional penalties and the matter of her contempt would be referred to the Board of Bar Overseers if she did not purge her contempt by July 30, 1998. The respondent made no payment.

On December 17th, 1998, Johnson was jailed by McGill for beginning a response to him with the word “No.”  One of Johnson’s sons paid ransom to get her out of jail.  It is the jailing and that payment that spawned Count III.  The BBO asserted that Johnson had to be jailed before she complied with the court order.  That was untrue.  Proof of the untruth was despoiled by the court: the court had overwritten the tape so that it was unavailable to Johnson, and the courtroom clerk, a decent man, Ed Suleski, who was in the courtroom that day, had died in the meantime. 

Johnson has no memory of ever receiving any correspondence or having any type of communication with McGill in person or in writing after he jailed her on 17 December 1998. It does appear, however, that McGill complained to the BBO. Johnson does not recall when she learned about his complaint: maybe around the election in 2002 or last year, when she sought a Certificate of Good Standing. In any case, she recalls clearly that Weisberg sent her a copy of his complaint.

      The single-justice’s iteration of what occurred on December 17th, 1998, is untrue. He simply bought Weisberg’s
insupportable version of events on that day bag and baggage. Johnson being jailed had nothing to do with the nonpayment. No finding of contempt was made in her presence. The memo the OBC presented to Johnson had to be a CYA memo written evidently by McGill after Johnson was jailed. Johnson never saw it until Weisberg provided her a copy. As mentioned above, there is no tape of the hearing. Johnson never saw an order as to the amount she was to pay. One of her sons had to spend a day at the court in Concord the day after she was jailed, and to wait until they figured out for how much they should make out an order. It was ransom, clear and simple. Johnson did not bother to appeal. It would have been futile and the law does not require the doing of a useless act. Cheschi v. Boston Edison Co., 39 Mass.App.Ct. 133, 142 n. 10 (1995), quoting Fortune v. National Cash Register Co., 373 Mass. 96, 107-108 (1977), and cases cited. Snow v. Fitian, 1998 Mass. App.Div. 227, 1998 WL 781173 at 5, (1998), quoting Cumnock v. Institution for Sav. in Newburyport, 142 Mass. 342, 347 (1886). Leigh v. Rule, 331 Mass. 664, 668-669 (1954), and cases cited. It was clear from her client’s appeal, the appellate court was going to cover butt and probably make her, too, pay opposing counsel’s fees.

      Thus Johnson had not violated any of the sundry rules and canons Judge Spina sets out. There is no truth supporting his bald assertions and conclusions. In fact, the truth about the events between 1995 and 1998 leads in the opposite direction and causes one to wonder whether $6000 shower curtains were the only unusual items ex-CEO Kozlowski bought. 

      It was a game, it was not reality.  McGill was a judge out of control. Ultimately the mythical March 3d order was fabricated. [Vol. I, Tab 46, ¶¶100-127, in which the scanned fabricated document appears; also in Drano #90C at

http://www.falseallegations.com/
drano90-part-iii-answer-bbo-count-three-lily.htm]

ARGUMENTS

1. Where the 1998 amendment to §13 of G.L. c. 209C is administrative or remedial, the amendment has retroactive as well as prospective effect, and “Jones,” Johnson, and the public were entitled to access to the entire file of Jones’s chapter 209C custody and paternity action. See Impounded Vol. VII, Tab 177, and Vol. II, Tab 53.\[40]/

To reach the decision that Johnson had uploaded impounded “material” to her website, Judge Spina had to ignore G.L. c. 209C, §13, which was amended in 1998. Prior to March 1998, that statute required all documents filed in an out-of-wedlock case to be impounded and if some nonparty wanted access to a filed document, that nonparty had to show “good cause” why the document should be made public, or be unimpounded.  After March 1998, the statute was amended: all documents filed in an out-of-wedlock case were to be public records and would be, only upon a showing of good cause, be impounded.

The question as to whether the amended statute has retroactive or prospective effect or both–—that is, whether it looks at documents filed prior to 1998, at documents filed after 1998, or at all documents——has never been answered by the Massachusetts High Court, the Supreme Judicial Court.\[41]/

By a process of elimination, it appears to Johnson that Judge Spina has bought the argument of the BBO that the Complaint for Modification of Child Custody, which was filed by Johnson on Jones's behalf in 2000, two years after the amendment of section 13, is the allegedly impounded material. 

Johnson vigorously disagrees with Judge Spina.  The law supports her.  To put in a prima facie case, an attorney must (1) produce the order sought to be modified, (2) state the circumstances at the time of the old order, (3) state how the current circumstances are substantially different from the old circumstances, and (4) state what plaintiff seeks in the new order.  Thus Johnson had no choice but to relate what happened during that period prior to 31 March 1998, when out-of-wedlock pleadings were automatically impounded.

Without the answer to the question of whether G.L. 209C, §13, as amended, effective 31 March 1998, has retroactive or prospective effect or both, the BBO, which has no authority or jurisdiction to decide that question, may not rely upon that section to discipline Johnson.\[42]/

Judge Spina did not, of course, consider the law.  Had he done so, he would not have had an excuse to order Johnson disbarred.

a. That Judge Spina deemed waived the §13 issue because Johnson did not appeal the “ruling and order of the Probate Court judge” is reversible error.

In early December 2002, just after the gubernatorial election but prior to the Petition for Discipline being served on Johnson, ABC Weisberg filed in a closed case a Motion for Release of Impounded or Segregated Records in Bristol County Probate & Family Court [App-TAB-H]. Without an open case, a motion was legally incapable of opening a closed case.

In that motion, Bar Counsel also sought absurdly to “impound Johnson’s thoughts and written conclusions.” The order allowing Bar Counsel’s motion in a court that not only did not have jurisdiction to hear the motion but also certainly had no authority to “impound Johnson’s thoughts.”

The express purpose of the OBC was to gather material to use in bar discipline proceedings against Johnson. Because (1) Johnson was not a party to the case, (2) Johnson was not on the case prior to the 1998 amendment, (3) Johnson was not told what the OBC received,\[43]/ (4) Johnson knew she had uploaded to her website nothing filed prior to 31 March 1998, (5) Johnson had no clue as to why the OBC wanted the file—–except to use against her in some unknown manner, and for which reason she opposed the OBC Motion to Release Records [App-TAB-I, Opposition to Release], (6) the appellate period had expired prior to being served with the Petition for Discipline (and prior to her eyes being opened as to what the OBC and the BBO and this Court (having the control over and supervision of those “affiliated entities”) were doing, Johnson had no practical reason to appeal Judge McGregor’s unlawful order, and most significantly the Court had “decline[d] to adopt a construction of our rules which would permit nonparty witnesses to appeal discovery orders.” Cronin v. Strayer, 392 Mass. 525, 530 (1984) (emphasis supplied).

Count I. . . . Nor did she appeal the complementary ruling and order of the Probate Court judge stating that the records filed in the paternity action before 1998 were impounded by operation of law, and papers filed after G.L. c. 209C, §13, was amended in 1998 were impounded by order of the court. The issue is waived and cannot be litigated for the first time in her disciplinary proceedings. An attorney must obey a court order where she has exhausted all appeals. See Florida Bar v. Gerstein, 707 So. 2d 711 (Fla. 1998). The respondent's claim that the 1998 amendment to G.L. c. 209C, §13, has retroactive effect similarly is waived.

                                              Fig. 3. Decision (Spina, J.), at 9.

Under such circumstances, where the court had NO jurisdiction, not only was Judge McGregor’s order transparently invalid on its face and void ab initio [see SJC Rule 3:07, Mass.R.Prof.C. 3.4(c)], there was nothing Johnson had to do (it was an order allowing the release of records to the OBC prosecutor). Although McGregor did allow the motion in which Weisberg wanted to “impound Johnson’s thoughts,” where the judge’s order stopped short of ordering a frontal lobotomy for Johnson, and it did not order Johnson to do anything, Johnson had a right to ignore it. Oakham Sand & Gravel, 54 Mass.App. Ct. at 87. Johnson was denied any opportunity to litigate the validity of the underlying order, although Johnson did write Proposed Findings of Fact and Rulings of Law. And despite Judge Spina saying she waived the issue about §13 because she did not appeal, Johnson did file a Complaint in the Nature of a Petition for a Writ of Certiorari and to Invoke the General Superintendence of the Court (dated 6 March 2003) [App-TAB-G2 and G1 (ToC)], which Johnson deemed appropriate where the case was closed long before the order issued and the court had no jurisdiction to issue that order, she was not party to it, and the order concerned her and not the parties.

Thus Judge Spina abused his discretion by holding that Johnson waived this issue for allegedly failing to appeal.

2. Where the BBO arbitrarily takes jurisdiction of de minimus fee dispute and contempt cases, it practiced unlawful discrimination on a “class of one” theory when it selectively enforced a de minimus fee dispute and an alleged contempt case against the appellant and not against other attorneys.\[44]/

Judge Spina rejected Johnson’s claim that by singling her out for prosecution because of her political speech, she was denied her right to equal protection and to be free of discrimination.  It did not matter, he said, that the OBC and BBO did not bring actions against other lawyers for the same reason they brought an action against Johnson. (Johnson identified specific cases and lawyers against whom charges were not brought. See n. 37 supra and O’Connor’s contempt, infra.)

To reject Johnson’s arguments, Spina had to intentionally ignore the Supreme Court’s decision that a party has a right to bring an equal protection claim as a “class of one.” In fact, he had to intentionally ignore almost a dozen cases cited by Johnson.  In so doing, he abused his discretion. The cases held, for example,

(1)   that a “class of one” may be recognized for constitutional equal protection claims,

(2) that a plaintiff in a “class of one” may claim that “he was singled out for  persecution due to some animosity” on the part of a defendant, 

(3)   that a plaintiff in a “class-of-one” may sustain a claim against a defendant who deliberately sought to deprive the plaintiff of the equal protection of the laws  for reasons of a personal nature unrelated to the duties of the defendant’s position,

(4)   that a plaintiff in a “class of one” nay sustain a claim where there was a  “campaign of official harassment directed against him out of sheer malice,” as applied to the facts in that case,

 (5) that “[a] classification will be considered
      rationally related to a legitimate purpose if
      there is any reasonably conceivable state of
      facts that could provide a rational basis for
      the classification.”

Selective prosecution is discussed in full at App-TAB-A3 on pp. 151-154, 194-197]. Johnson is a member of the legal community. She is someone who is suffering discrimination for exercising her right to political speech. In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the Supreme Court held that the plaintiff property owner had stated an equal protection claim in alleging that a municipality had "irrational[ly] and wholly arbitrar[ily]" refused to connect the plaintiff's property to the city's water system unless plaintiff agreed to grant the city a thirty-three foot easement to install and maintain the connection rather than the fifteen foot easement required of other similarly situated residents.  The Court affirmed the plaintiff's right to bring an equal protection claim as a “class of one,” where the plaintiff alleged that she was intentionally treated differently from others similarly situated and that there was no rational basis for the difference in treatment. Id. (emphasis supplied). See also Burns v. State Police Ass'n,, 230 F.3d 8, 12 n. 4 (1st Cir. 2000); Olech v. Village of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998) (recognizing a “class of one” for constitutional equal protection claims); Bartell v. Aurora Pub. Schs., 263 F.3d 1143, 1149 (10th Cir. 2001) (holding that to make a claim under “class of one” theory, plaintiff must prove “he was singled out for persecution due to some animosity” on the part of defendant); Hilton v. City of Wheeling, 209 F.3d 1005, 1008 (7th  Cir. 2000) (holding to make out a prima facie “class-of-one denial-of-equal- protection” case, “the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant’s position”); Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004) (“class of one” claim required “campaign of official harassment directed against him out of sheer malice,” as applied to the facts in that case), and citing Bartell, 263 F.3d at 1149, quoting Esmail v. McCrane, 53 F.3d 176, 179 (7th Cir. 1995).

In Schultz v. Kelly, 188 F.Sup.2d 38 (D.Mass. 2002), the court

. . . explained that Village of Willowbrook makes clear that plaintiffs must still prove “that [they have] been intentionally treated differently from others similarly situated and that there is no rational basis for the different in treatment.” Id. at 54, quoting Village of Willowbrook, 528 U.S. at 564 (emphasis added). Plaintiffs have not made any showing of improper motive or malicious intent underlying the Pier Corporation's decision to raise fees for recreational excursion boats. Absent such allegation, the equal protection claim must fail.

In addition, plaintiffs premise their equal protection claim on an allegation that the higher licensing fees "are without a rational basis." Because they do not claim to be members of a suspect group or that a fundamental interest is involved, the licensing fees set by Pier Corporation withstands equal protection scrutiny as long as it is supported by a rational basis. Naples v. Comm'r of the Dep't of Employment and Training, 412 Mass. 631, 635 (1992); Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 640 (1993).\[45]/ The rational basis test is lenient. See Walker v. Exeter Region Co-Op. School Dist., 284 F.3d 42, 46 (1st Cir.2002). “A classification will be considered rationally related to a legitimate purpose if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Chebacco Liquor Mart, Inc. v. Alcoholic Beverages Control Comm'n, 429 Mass. 721, 723 (1999) (quotations omitted).

Dolphin Fleet of Provincetown, Inc. v. Provincetown Public Pier Corp., 2004 WL 3152193 * 6, No. 0404 (Mass.Super. Oct. 27, 2004) (Moses, J.). In the instant case, there is “a reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. quoting Chebacco.

3. Where the single justice had before him absolutely no evidence except the say-so of the OBC prosecutor that the complainant, Jane, was embarrassed and then declared that “no live testimony was required to draw [an] inference [of embarrassment,” the justice abused his discretion, making reversal mandatory.

    To countenance the BBO holding a respondent in violation of an ethics rule merely on the basis of an accusation by an OBC prosecutor proves that the ethics rules as written are unconstitutional and deprive attorneys of due process and equal protection. 

More startling is Judge Spina’s holding that  no live

testimony is required to prove “embarrassment” or emotional
distress.   Liability would then be automatically imposed on
the accused. A conclusion such as that of the single jus-
tice smacks of support for strict liability for emotional 
distress by embarrassment based solely on the say-so of the 
lawyer, i.e., without evidence of embarrassment.  Such a 
conclusion will shock the community of litigators.  See
Boston Public Health Comm’n v. Mass. Comm’n Against 
Discrimination, No. 05-P-939 (9/20/2006) (contrasting proof
of emotional distress, all requiring witness testimony and
a causal connection between the act and the alleged harm),
and cases gathered.

Certainly an article III court would have to determine which cause of action was pled—–—for example, negligent or intentional infliction of emotional distress——–in order to determine which standard of proof to apply. For instance in Gutierrez v. Mass. Bay Transp. Auth’y, 437 Mass. 396, 413 (2002), the court wrote that the plaintiff “has not alleged any such manifestations of distress. Tears merely demonstrate upset, anger, or grief, and these feelings alone do not constitute sufficient physical manifestation” of the negligent infliction of emotional distress. Here in the disciplinary proceeding, no evidence whatsoever was offered in the BBO and no evidence was before the justice.

Despite the single justice’s contention that the OBC did not have to prove embarrassment and that Johnson’s purpose was to solely embarrass Jane, Johnson avers that the purpose of uploading to her website Jones’s story as told by pleadings and other documents was not to embarrass Jane or the children but to educate and inform the public about the tragedy of a father being precluded from his child’s life, a tragedy caused by an unscrupulous judge (Ronald D. Harper, now retired) and a judicial system that had gone terribly awry.  This is clear in the Drano files entered into evidence by the BBO.

Further, Jane is incapable of being embarrassed. Were she capable, she would not have found herself in the position to conceive two children out of wedlock and deny their fathers access to them.

As Federal Judge Nancy Gertner found recently when she dismissed a case by a gay male who claimed to be defamed by being called “gay.” Being “gay,” she said in words for all intents and purposes, is so accepted in our society, that it is no longer defamatory to be called “gay.” Albright v. Morton, 321 F. Supp 2d 130 (D. Mass, 2004) (in light of legalization of gay marriage, being identified as gay is not defamatory). “Without some specific claim of actual harm, he is doing nothing more than trading in the same kinds of stereotypes that recent case law and good sense disparage,” Gertner concluded.

This case is analogous to Albright: In light of societal acceptance of single motherhood by natural and unnatural design, being identified as having conceived out-of-wedlock is not defamatory and therefore cannot cause emotional distress. Traditional values and morals have so metamorphosed that even adultery has fallen into desuetude.

[W]hile the "source" of nonmarital birth is still deemed criminal in this Commonwealth, see G.L. c. 272, §14 (1984 ed.) (adultery), and §18 (1984 ed.) (fornication), “[i]t seems beyond dispute that the statutes defining or punishing [these] crimes ... have fallen into a very comprehensive desuetude.” Fort v. Fort, 12 Mass.App.Ct. 411, 417 (1981).

Powers v. Wilkinson, 399 Mass. 650, 658 (1987).

Absent any specific claim by Jane of actual harm, Jane, the OBC, the BBO, and the single justice are doing the same as Albright did: they are trading on stereotypes of single mothers, to wit, that single mothers are victims and can be embarrassed. Such a concept is obsolete today. Our society encourages both artificial and planned live insemination outside of marriage with a goal of conception. Single motherhood planned or unplanned has thus become a condition no longer reserved only for the rich and famous in lieu of marriage and commitment. Many women today, like Jane, use their looks, innate sensuality, and sexuality as a tool to achieve motherhood and obtain child support. And many women, again like Jane, live off the child support by more than one man. How can such a woman be deemed embarrassed? Such a condition has evolved for many, again like Jane, into a business like any other.

        Further, where the Rule of Professional Ethics on 
which OBC and the BBO rely to find Johnson culpable for 
“embarrassing” Jane is really a bastardized version of the
tort of emotional distress. The OBC, the BBO do not 
have jurisdiction over torts. And over bastardized 
versions of torts, they certainly do not have
jurisdiction. Therefore by ruling, with no witness and 
nothing for evidence but the say-so of an OBC 
prosecutor, that Jane was embarrassed, the single justice 
not only abused his discretion, his judgment on that 
issue was void ab initio. The OBC and the BBO have been 
allowed to usurp the role of an Article III court.  That 
is unconstitutional, and in so doing, lawyers, like
Johnson, are being deprived of their constitutional rights
to due process and equal protection of the laws. 

4. Where G.L. c. 233, §8, is a statute and the BBO Rules are simply rules, §8 trumps Board Rule §4.5 regarding subpoenas, making Johnson’s subpoenas valid, the quashing of them unlawful, and Judge Spina’s decision reversible error.\[46]/

The single justice raises an issue of first impression re G.L. c. 233, §8. He finds that because the BBO is not listed in the statute, Johnson has no right to rely on c. 233, §8, and that Board Rule §4.5 trumps Johnson’s right provided by the statute. Johnson disagrees. The list is not absolute; i.e., by containing a list, a statute does not necessarily preclude unlisted entities from the scope of the statute. For example,

Mindful of "the maxim of statutory construction which suggests that a statutory expression of one thing is an implied exclusion of other things omitted from the statute [,]" Harborview Residents' Comm., Inc. v. Quincy Hous. Authy., 368 Mass. 425, 432 (1975), see Aquino v. Civil Serv. Comm’n., 34 Mass.App.Ct. 538, 541 (1993), we think that this argument does not prevail in light of the Legislature's express exception of two occupations from the statute's requirement of a written compensation agreement for professional services. . . . The rationale for carving out these exceptions may have been . . . ; this, however, does not compel the conclusion that the statute applies only to those activities. Indeed, apart from these express exceptions, we do not find in the statute any basis for concluding that the Legislature intended to obviate disputes over claimed commissions for services rendered in certain commercial brokerage contexts, but not others.

Bay Colony Marketing Co., Inc. v. Fruit Salad, Inc., 41 Mass.App.Ct. 662,666-667 (1996). Regardless of the rationale in that statute, the underlying, mandatory concept in each and every statute is constitutional due process:

Right to cross examination. When the council sat on the question of the revocation of the licenses, it was acting in a quasi-judicial capacity. . . . The plaintiffs were entitled to a full and impartial hearing which, although not necessarily conforming to the procedural and evidentiary rules applicable to proceedings in the courts, would assure that substantial justice would be done. . . . As one element of such a hearing, the plaintiffs were entitled to an opportunity to call their own witnesses and cross examine the opposing witnesses in reasonable fashion. . . .

Foster from Gloucester, Inc. v. City Council of Gloucester, 10 Mass.App.Ct. 284, 291-292 (1980)(internal cites omitted) (emphasis supplied).

Johnson also disagrees with the single justice’s holding, in so many words, that the issue just defined “need not be decided because the special hearing officer's order quashing the subpoenas issued by the respondent was proper.”

Clearly the single justice ignored settled law. A private citizen, namely, the special hearing officer, cannot make the final decision that a rule with no legislated authority to be promulgated trumps a duly enacted statute.

5. Where the SJC’s private servants, the OBC and the BBO, sought and were granted, respectively, without hearing, an order for document protection and impoundment by a motion that defied the standards for either a motion for protection or one for impoundment, Johnson reasonably believed that filing such an appeal as Spina now writes was demanded would have been futile and that she would have been sanctioned had she filed such an appeal.

In the motion for a protection and impoundment order, ABC Weisberg identified no documents. The Board Chair allowed it without hearing, notwithstanding Johnson’s opposition and request for the identification of the documents. And Judge Spina faulted her for not appealing the grant of the OBC’s motion for protective and impoundment orders.

What Judge Spina clearly failed to address was that Johnson’s answer was already published when the motion was filed in August of 2003 and that the OBC failed to adhere both to the standards applicable to such motions and to those applicable to banning published works that are political statements. By intentionally failing to apply the proper law, Spina’s holding that Johnson should have appealed the BBO Chair’s order pursuant to Board Rule §3.22(c), must not be affirmed. See App-Decision at 13-14. To reach that decision, Spina had to hold that protective orders that do not identify what they are protecting are valid.

Johnson challenges the single justice to provide a citation to one case in which the appeal of a BBO’s grant of a protective order resulted in the reversal of such an order.

Were Johnson to have taken such an appeal, it would have been one more futile act, which she was not obliged to take. That which the single justice ignored is that every one of Johnson’s well-founded motions for a year and a half had been summarily denied by the BBO. Johnson would have been appealing continuously from the top of 2001 to the middle of 2004, when the special hearing officer’s decision issued. Johnson would not only have been doing little else beside appealing for years but she would also have likely been hit with fees and double costs.\[47]/ See Cronin, 392 Mass. at 530, and cases gathered. Cf. United States v. Arthur Andersen & Co., 623 F.2d 720, 724 (1st Cir.), cert. denied, 449 U.S. 1021 (1980) (“appealability of interlocutory orders suggests that the burden of incurring a contempt citation is not an unreasonable one to impose on a party..."). “Very few inroads have been made on the general rule that pretrial disclosure orders are not appealable.” Cronin, 392 Mass. at 530 n. 7. Because the BBO had repeatedly not complied for a year and a half with its own rules——–because the OBC and BBO knew they could get away with their unlawfulness, given that they had never suffered any consequences meted out by the SJC for acting unlawfully——–Johnson was not confident that the Court would favorably entertain any interlocutory appeal by her.

Support for Johnson’s position may be found in the facts: that no hearing was ever allowed, that the OBC in moving and the BBO in granting the OBC motions rarely, if ever, followed settled law, and that their improper actions were so blatant that they encouraged Johnson to distrust the OBC and the BBO more than she ever distrusted anyone or anything.\[48]/

Further, according to this Court’s own website, the SJC controls and supervises both the OBC and the BBO as well as appoints the 12 members of the Board and both the General and Bar Counsel of the OBC and the BBO. Therefore it would have been futile for Johnson to have appealed . . . assuming that both entities were acting on the orders of the SJC.

Even this appeal seems nonsensical, in that it seems unlikely that the SJC will find against its own soldiers. The denial by this panel of Johnson’s motion to stay judgment of disbarment so that her clients will not be left in the lurch without an attorney is not only a precursor to but a prescience of the inevitable approach of another denial.

Very troubling also is that the single justice ignored ABC Weisberg’s admission that there was no list of individuals whose true names were not to be used at the hearing.  If Spina intentionally ignored the admission, rather than just overlooking it, he held, maliciously and corruptly, that it was proper both to exclude the public from the so-called public trial guaranteed by the Board Rules, and to deprive Johnson of her constitutional rights to due process and equal protection.

Thus, Johnson did not violate, as Judge Spina held she did, Canon One, DR 1-102(A)(5) and (6); Canon Six, DR 6-101 (A)(l) and (2); and Canon Seven, DR 7-101(A)(3).

a. The Imaginary List of Protected Names.\[49]/

McGill lives on. The single justice also ignored ABC Weisberg’s admission that there was no list of true names of individuals which were not to be used at the public hearing, which turned out not being public. [Impounded Vol. VII, Tab 201, Transcript, Day I: 56-57 and APP-TAB-A3, at 29 and 38].

b. The Alleged Dissemination of Impounded Material.

The single justice either overlooked or misapprehended the facts or abused his discretion when he wrote

By disseminating impounded material from the care and protection and paternity actions, by failing to return to the Juvenile Court impounded reports belonging to the court, as ordered by the judge, and by failing to remove impounded material from her website, again as ordered by the judge, the respondent violated Mass.R.Prof.C. 8.4 (d) and (h).

In addition, by deliberately disobeying the Juvenile Court judge's May 1, 2001, order and by engaging in knowing violations of Juvenile Court Standing Order 1-84 and G.L. c. 209C, §13, the respondent violated Mass.R.Prof.C. 3.4 (c) and 8.4 (d) and (h).

(1) Johnson did not knowingly disseminate impounded material from the care and protection and paternity actions, (2) Johnson did not fail to return to the juvenile court impounded reports belonging to the court, for she had neither taken nor received documents from the juvenile court and had no such material to return, (3) Johnson did not fail to remove impounded material from her website, for there was no impounded material on her website.

The OBC, BBO, and Judge Spina failed both to identify the allegedly impounded material on Johnson’s website and to state which reports she had taken or received from the Juvenile Court. They did not because there have been no such materials on Johnson’s website. And Johnson has no crystal ball that can see into their minds. [See APP-TAB-A3, at 87.]

Only after the trial in December 2003 did Johnson receive a list of Juvenile Court documents that the OBC offered at trial on December 2d or 3d of 2003. Only then did Johnson learn that certain documents she had seen had been allegedly filed in Juvenile Court. According to her client, the people who wrote some of the reports were not court-appointed and therefore would not have filed their reports in court. What seems to have happened is that Deborah Wolf took it upon herself to file them in the court. It is unknown and unproven when Wolf did that. The docket sheet provided by ABC Weisberg is not reliable. By December 2003, the documents of which OBC Weisberg complained had been on Johnson’s website for several years.

Further, given that Weisberg had received those documents secretly, Johnson had no knowledge that they had been filed in the Juvenile Court. Johnson also has no knowledge of whether the documents identified in the list are the same as those she saw and read.

Moreover, even assuming arguendo that Johnson disseminated information about William, David, and Jane on her website, there is absolutely no proof that Johnson’s substantial purpose was to embarrass or burden them. Therefore, there is absolutely no proof that Johnson violated Mass.R.Prof.C. 4.4 and 8.4 (h).

Where Johnson did not violate Mass.R.Prof.C. 8.4(d) and (h), it is therefore mandatory to reject the use of an unproven violation of Rules 8.4(d) and (h) as a basis for a judgment of disbarment of Johnson.

6. Where it is well-settled that Johnson has an obligation to call attention to the public about unscrupulous judges, where Johnson has a right to defend herself both privately and publicly to protect her reputation, where Johnson did raise her First Amendment claims by challenging the transparently invalid court orders (by Lawton and McGregor) by ignoring them (as she also is entitled to do), where she did not disclose impounded material on her website, she neither misconducted herself nor defied valid orders, making reversal of Judge Spina’s order and judgment of disbarment mandatory.

Judge Spina, in keeping with the predetermination that Johnson was to be disbarred because she criticized judges, threw the First Amendment and Johnson’s rights according to that amendment out with the bath water.  “Judges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face, see New York Times Co. v. Sullivan, 376 U.S. 254 (1964).”  In the Matter of Michael Palmisano, No. 94-3809 (7th Cir. 2005). “There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment.”  Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991). “‘In Sheppard v. Maxwell, 384 U.S. 333, 350 (1966), we reminded that “[t]he press . . . guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism.”’”  Gentile, at 1035.

An attorney's duties do not begin inside the courtroom door. He or she cannot ignore the practical implications of a legal proceeding for the client. Just as an attorney may recommend a plea bargain or civil settlement to avoid the adverse consequences of a possible loss after trial, so too an attorney may take reasonable steps to defend a client's reputation and reduce the adverse consequences of indictment, especially in the face of a prosecution deemed unjust or commenced with improper motives. A defense attorney may pursue lawful strategies to obtain dismissal of an indictment or reduction of charges, including an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried. [501 U.S. 1030, 1044]

Gentile, at 1043. Here, Johnson was acting pro se. She herself was her client. That is no less reason why she could not defend her own reputation and why she could not “attempt to demonstrate in the court of public opinion that the client does not deserve to be tried.” Id. (This reasoning applies to all counts: Counts I, II, and III in the instant case.)

The four dissenting Justices who would have sustained the discipline said:

Of course, a lawyer is a person and he too has a constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice. But a lawyer actively participating in a trial, particularly an emotionally charged criminal prosecution, is not merely a person and not even merely a lawyer. . . . . .

Gentile, at 1072-1073. Given that there was no pending trial on these cases when Johnson spoke out on her website, she must be considered both a lawyer and a person having a “constitutional freedom of utterance and may exercise it to castigate courts and their administration of justice.” Gentile, at 1073.

Further, in Gentile, the Court wrote, “As turned out to be the case here, exposure to the same statement six months prior to trial would not result in prejudice, the content fading from memory long before the trial date.” Id. at 1044. In the instant case, Johnson statements regarding Jones’s case occurred a dozen years after his cases had been disposed of; her statements regarding the “Parkers” occurred approximately 2 years after the husband’s case had been nolle prossed [Decision at 5 n. 2]; her statements regarding McGill occurred 5-7 years after the cases had reached finality. There was no danger of interfering with the administration of alleged justice. Johnson’s publications were to educate the public about the judicial system, inform the public about unscrupulousness in the judicial system, and to defend herself against false allegations.

If Palmisano had furnished some factual basis for his assertions, then we would need to determine whether either the Constitution or principles of sound judicial administration permit a sanction--for an attorney is not absolutely liable for every statement that turns out to be incorrect. It would unduly quell investigation and exposure of corruption to disbar an attorney who publicized suspicious conduct, just because the suspicions were dispelled.

Palmisano, supra. In the instant case, Johnson has had an abundance of proof of the publicized suspicious conduct of Judge McGill, for example, not only the Clerk’s notice, the docket sheet, but also the fabricated order of 3 March 1995 (although the date of the fabrication is unknown to Johnson). All of these documents were included in Johnson’s Amended Answer at Vol. I, Tab 46, ¶¶100-127.  The single justice appears to have overlooked these proofs.\[50]/

The First Amendment is discussed in full also at App-TAB-A3, at pp. 162-170.

Further, Johnson raised her First Amendment rights from Day 1. She raised the issue even before the OBC brought the petition to discipline her. 

The two court orders the judge appears to be addressing are not valid. One is related to and described in Johnson’s arguments about the c. 209C, §13 issue.  The custody and paternity case had been closed for years.  The OBC/BBO needed a Complaint to open it.  They needed to intervene.  They did not.  Out came an order in a sheer show of blatant power to do things contrary to law and rules. The original and only parties were a man (Jones) and a woman (Jane, the co-complainant of Count I). The issue raised when there was not a Complaint, not an Intervenor, was whether the OBC could act in a closed custody and paternity case to get pleadings to use against Johnson’s personal interest. Johnson was not even given a copy of the pleadings given to the OBC, and Johnson has no knowledge of what pleadings the OBC did receive. Johnson was not even an attorney on the case until 2000, when she filed a Complaint for Modification to open it.  The court dismissed it.  The case was not opened.

It made no sense to appeal.  The moment the court allowed the OBC’s motion to give them the copies, the OBC got the papers that day or the next.  Appealing would not have made them give them back.  The SJC controls and supervises the BBO and OBC.  Johnson would have had to appeal to this Court, the bosses of the OBC and BBO. Not being a party to the case, where was her standing to appeal. Her client, Jones, had no reason to appeal in his name.

The second court order was equally as questionable . . . by a Juvenile Court in which she had never made an appearance.  There was not even a legitimate Complaint. She had no standing to appeal a case between the DSS and a mother she had not represented.

The two court orders——in the Probate & Family and the Juvenile courts cases——arose from acts by the OBC outside the discipline action, from which she did have standing to appeal. That she has been doing, in the single-justice appeal and now.

7. Where there is a clear and convincing need for a new determination of the contempt issue because (a) it was not sufficiently foreseeable at the time of the district court action that the issue would arise in the context of a disciplinary action, or (b) appellant, as a result of the conduct of her adversary or other special circumstances, did not have an adequate opportunity to obtain a full and fair adjudication in the initial action, or (c) the application of offensive estoppel would be unfair to the appellant, or (d) a civil contempt adjudication based on a violation of an unlawful court order cannot stand, relitigation of the contempt issue at the BBO should not have been precluded.

Johnson incorporates herein by reference in entirety App-TAB-A3 and specifically her arguments on pp. 51-54 of that Opposition Memorandum, where she argued that the application offensive collateral estoppel was not only unfair, it would exacerbate the injustice that had occurred in the companion cases underlying Count III. See Smola by Smola v. Higgins, 42 Mass.App.Ct. 724, 727 n. 7 (1997); Com. v. Rin-guette, 60 Mass.App.Ct. 351, 360 (2004), and cases gathered; In re Cohen, 435 Mass. 7, 16-17 (2001), and cases gathered.

In sum,

“Before a party will be precluded from relitigating an issue, a court must determine that (1) there was a final judgment on the merits in the prior adjudication; (2) that the party against whom preclusion is asserted was a party (or in privity with a party) to the prior adjudication; and (3) the issue in the prior adjudication was identical to the issue in the current adjudication.”  Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132, 134 (1998).  In such a case, the court must also find that the party to be estopped had a "full and fair opportunity to litigate the issue in the first action."  Brunson v. Wall, 405 Mass. at 451.  “‘Fairness is the decisive consideration’ in the use of offensive collateral estoppel.”  Smola v. Higgins, 42 Mass.App. Ct. at 727, quoting from Aetna Cas. & Sur. Co. v. Niziolek, 395 Mass. at 745.  See generally Restatement (Second) of Judgments §§ 27-29 (1982).  The question for us is whether the court committed an error of law when it allowed the application of offensive collateral estoppel in these circumstances. .  . .

Com. v. Two Parcels of Land, 48 Mass.App.Ct. 693, 697-698 (2000).

8. Where Johnson’s constitutional rights to due process and equal protection were absent from each and every stage of the disciplinary proceedings, and the single justice of this Court abused his discretion, if he did not overlook or misapprehend the issues of fact and law of this board disciplinary action, the judgment of disbarment must be reversed or vacated.

Justice Spina failed to address (1) Johnson's claims of the deprivation of her constitutional rights to due process and equal protection, (2) the constitutionality ur unconstitutionality of the BBO Rules, (3) the nature of the disciplinary proceedings, (4) the failure of the prosecution to call witnesses at the trial, (5) the quashing of all Johnson's witness subpoenas, (6) the failure of the BBO to allow Johnson to have a public trial, and (7) the absence of fundamental fairness during each and every stage of the disciplinary process at the BBO.

These issues are discussed in:

· Johnson’s Proposed Findings of Fact and Rulings of Law [Impounded Vol. VII, Tab 217],

· Respondent’s Brief on Appeal of the Findings and Recommendation of the Special Hearing Officer (13 June 2005) [App-TAB-B2],

· Johnson’s Opposition to Recommendation in Information (17 July 2006) [App-TAB-A3, passim],

· Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27 (17 August 2006)[App-PETITION],

· Drano #102 (See discussion of this file at pages 12-13, supra.)

which Johnson incorporates in entirety herein by reference.

9. Where there is no law setting the standard to be applied to an “affiliated entity,” which is what both the Office of Bar Counsel and the Board of Bar Overseers are, any finding or holding by the BBO or by the single justice must be reviewed as to whether the finding or holding is arbitrary or capricious, and where there is a lack of substantial evidence to support the finding or holding, the judgment of disbarment must be reversed.

Where there is a broad grant of discretionary authority to the agency, as is commonly true of local licensing authorities for example, see, e.g., G.L. c. 140, §177A, the standard of review is error of law or abuse of discretion, measured by the arbitrary and capricious test. See Caswell v. Licensing Commn. for Brockton, 387 Mass. 864, 877-878 (1983). But where, as here, the authority of the administrative agency (here, the commission) is limited by "narrow and objective criteria," (FN12) id. at 878, judicial review becomes "an assessment of the strength of the evidence supporting the agency's action...." Yerardi's, supra, 19 Mass.App.Ct. at 300.

(FN12.) General Laws c. 31, §2(b), fifth par., authorizes the commission to reverse the decision of the administrator only in those cases where, on the basis of the record before the commission, the mayor's decision is not supported by a preponderance of the evidence.

Thus we must inquire whether there is substantial evidence in the record before the commission to support the commission's decision, see Gloucester v. Civil Serv. Commn., 408 Mass. at 297 --quite aside from the traditional judicial inquiry as to whether it appears from the record that the administrative decision involved a substantial error of law that affects material rights. (FN13)

(FN13.) See Debnam v. Belmont, 388 Mass. 632, 635 (1983).

"[S]ubstantial evidence is 'such evidence as a reasonable mind might accept as adequate to support a conclusion.'" New Boston Garden Corp. v. Assessors of Boston, 383 Mass. 456, 466 (1981), quoting from Boston Edison Co. v. Selectmen of Concord, 355 Mass. 79, 92 (1968). The test is whether experience would permit "the reasoning mind" to make the agency decision. Ibid.

Mayor of Revere v. Civil Service Comm'n, 31 Mass.App.Ct. 315, 322 (1991). Where there is no evidence to support the action of the affiliated BBO entity or the action of the single justice, the judgment of disbarment must be reversed.

10. Where the Supreme Judicial Court controls and
supervises its “affiliated entities,” the BBO and the
OBC, and appointed the Bar Counsel, Daniel C. Crane,
the titular plaintiff in the disciplinary action
against Johnson, and the General Counsel, Michael
Fredrickson, who signed the Information, the SJC,
including the single justice, has a conflict of
     interest———and certainly an appearance of
impropriety———in acting on the BBO’s recommendation,
the judgment in entirety must be vacated and dismissed
with prejudice.

     By failing to address the following significant constitutional issues, which involve rights that form the cornerstone of our system justice, the single justice abused his discretion. The only reasonable conclusion is that the single justice intentionally abused his discretion because of his conflict of interest as a sitting member of the SJC. Simply put, he was not about to find against the recommendation of his own servants. He did not even bother use the standard boilerplate of the courts: We found X, we do not need to reach the constitutional issues. He simply ignored Johnson’s entitlement to the full sweep of due process protections.

· Due process, discussed at App-TAB-A3, on pp. 189-192.

· Board of Bar Rules, discussed at App-TAB-A3,on pp. 187-189, 192-193,

· the nature of disciplinary proceedings, discussed at App-TAB-A3, on pp. 186-187,

· the failure of the BBO to allow Johnson to have a public trial, passim.\[51]/\[52]/

11. Where fairness was totally absent from every phase and aspect of the proceedings and the recommendation, the judgment in full must be vacated and the charges dismissed with prejudice.

The BBO used prior discipline in exactly the manner of which the MBA Task Force on Lawyer Discipline disapproved. One facet of their report, the Task Force recommended the following rule:

Report, p. 48. Count III, in which an invalid order of contempt was found occurred in March 1995, only one month less than 8 years prior to the Petition for Discipline of Johnson having been brought. The private reprimand arising out case in which the opposing counsel who put a lien on a case of a party he did not even know occurred over 10 years prior to the Petition. Under the Task Force recommendations, Count III must be dismissed with prejudice forthwith and the judgment on that basis be vacated.

The costs imposed are also within the orbit of disdain by the Task Force: Respondents are charged photocopy costs while Bar Counsel receives copies for free. Report, 51-52. Johnson was charged for costs, but no itemization was provided. Given that the OBC could not make up its mind and sent boxes full of duplicative documents, Johnson should not be charged for the OBC prosecutor’s incompetence and disorganzation. Adding to the insult is that banker boxes of documents were sent to Johnson after the trial not before, when they might have been useful in preparation. The entire case was made up of secrecy and deception. Fairness could not and certainly still cannot be found.

The difference between the rights of judges to conduct pre-hearing discovery [Report, p. 37] and serve subpoenas and the rights of Johnson and other lawyers also defies the concept of fairness.

Report at 37-38. “In Massachusetts, lawyers are unique in this lack of ability to conduct deposition discovery.” Report at 38. They should have that ability. Id.

The standard of proof, to wit, “preponderance of the evidence,” is obscene for a charge that is, in essence, quasi-criminal. In re Ruffalo, 390 U.S. 544, 551 (1968). It is even more obscene when there was no valid basis to bring the charges; e.g., in Count I, no impounded or confidential information was published which was not already a matter of public record. In Count II, the fee dispute was de minimus and was the result of intentional selective prosecution, resulting in discrimination against Johnson. In her favor is that even with an extremely hostile and adversarial hearing officer, Johnson was found not to owe any money to anyone. In Count III, based on a finding of contempt on a non-existent order, the charge was stale and Johnson was not provided in neither the underlying case nor the OBC/BBO case due process, proper notice or the opportunity to confront her accuser(s).

WHEREFORE, Plaintiff prays that this Court vacate the judgment of disbarment, restore Johnson’s name to the roll of attorneys licensed to practice in the Commonwealth, and vacate the order on costs.

                           Respectfully submitted,

Barbara C. Johnson, Pro se

Barbara C. Johnson

3 October 2006 Barbara C. Johnson, Esq.

6 Appletree Lane

Andover, MA 01810-4102

978-474-0833

B.B.O. #549972

Mass.R.A.P. 16(k) CERTIFICATION

I, Barbara C. Johnson, hereby certify that this brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass.R.A.P. 16(a)(6) (pertinent findings or memorandum of decision); Mass.R.A.P. 16(e) (references to the record); Mass.R.A.P. 16(f) (reproduction of statutes, rules, regulations); Mass.R.A.P. 18 (appendix to the briefs); and Mass.R.A.P. 20 (form of briefs, appendices, and other papers).

     The length of the brief is longer than 50 pages [see Mass.R.A.P. 16(h)], but a motion for leave to file a brief in excess of 50 pages accompanies this brief.

Barbara C. Johnson

4/5 October 2006 Barbara C. Johnson, Esq.

CERTIFICATE OF SERVICE

  <>I hereby certify that on this day served two true and accurate copies of the above pleading and record appendix by first-class mail on opposing counsel of record, Bar Counsel Daniel Crane, 99 High Street, Boston, MA 02110.

Barbara C. Johnson

4/5 October 2006 Barbara C. Johnson, Esq.

---

[1] Johnson incorporates herein by reference all the documents in the Record-Appendix filed herewith this brief and her pleadings in the Original Record before the single justice.

[2] Although the OBC began using pseudonyms in the Petition for Discipline, its alleged reason was false. If it was necessary for privacy reasons to protect the name of both Complainants and clients, then the OBC was the first to violate that privacy ... and that was done in the Petition itself. Further discussion of this issue, at Issue 5(a).

[3] There was no litigation of the issue in district court, there was barely meaningful argument allowed. So relitigation is not an issue here.

[4] After her relationship ended with Johnson’s client, with whom she had a child, Robyn wed another man, a widower, from whom she rather quickly sought a divorce.

[5] Where Jane is a public person, the OBC had to prove that there was malice. There was no evidence to show malice.

[6] Jane had brought sexual abuse charges against Johnson’s client as well as against her husband. It was Jane’s modus operandi to control and get money from these men. Robyn also brought false charges against two city officials, one the Fairhaven school committee chairwoman, which after considerable investigation were dropped by Special Assistant District Attorney Brian Sullivan [Impounded Vol. VIII, OBC Trial Exh. 38 (Drano #81)].

[7] . . . the arguments of counsel were not evidence and could not be considered by them as evidence, while separately cautioning them multiple times that the only evidence they could consider consisted of the testimony of the witnesses at trial and the admitted exhibits; that they were to decide the case solely on that evidence; that anything counsel or the judge himself may have said that was contrary to the jury's recollection of the evidence was to be ignored; and that they could not let their consideration of the evidence be swayed by any sympathy, prejudice, or personal feelings. Further, he repeatedly instructed them concerning the presumption of the defendant's innocence, the Commonwealth's unremitting burden of proof, the requirement that such proof be beyond a reasonable doubt, and that the burden never shifts to the defendant.

Com. v. Correia, 65 Mass.App.Ct. 27, 36 (2005).

[8] “[N]either the arguments of counsel nor questions put to a witness are evidence.” Com. v. Anzalone, 61 Mass.App.Ct. 1104 (2004) (unpublished).

[9] Deborah Wolf had been appointed in the early ‘90s to represent the child. She was co-complainant to the BBO that Johnson’s website caused Jane to lose the race. 

[10] The court may “eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets” [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)] and “periphrastic circumlocutions, unsubstantiated conclusions, and outright vituperation.” United States v. Avx Corp., 962 F.2d 108, 1992.C01.40600 at ¶37 <http://www.versuslaw.com> (1st Cir. 1992). A plaintiff, including such plaintiffs as the OBC and the BBO, “cannot rely merely on allegations set forth in his pleadings or on bald assertions that facts are disputed.” Young v. Boston University, 64 Mass.App.Ct. 586, (2005), citing LaLonde v. Eissner, 405 Mass. 207, 209 (1989), citing Community Natl. Bank v. Dawes, 369 Mass. 550, 554 (1976).

[11] That location is according to the list supplied Johnson by the BBO (Johnson has been unable to see it, for the BBO has refused to provide Johnson with a set of the 12-volume Appendix). At almost 72 years of age and with mobility problems, Johnson cannot stand at a counter in the SJC clerk’s office and read through or take notes from 12 volumes of appendices. That the SJC has given lawyer/appellants fewer rights than those given to other appellants is absurd as well as unconstitutional. That a party’s appendix would not be accepted for filing without a Certificate of Service but the OBC/BBO’s was, Johnson again was deprived of her right to equal protection.

[12] At the end of the deposition of one of Johnson’s clients [“Carla”] in the office of O’Connor, Carla collapsed and was taken to New England Medical Center in an ambulance. O’Connor had been so vicious, Carla had suffered an anxiety attack. When her husband learned of the nature of O’Connor’s threats, he worried all weekend and suffered a heart attack on Monday. He was DOA at Lahey Clinic, leaving Carla a widow with three elementary-school-aged children. Just a week prior to Carla’s collapse, Johnson had filed a complaint at the BBO regarding O’Connor’s despicable behavior. The OBC and BBO did nothing but immediately dismiss the complaint against O’Connor. Given that O’Connor was and still is a partner at an old, “prestigious” lawfirm in Boston, and then representing the now-convicted felon Dennis Kozlowski, ex-CEO of Tyco, one can only wonder, Why did the OBC/BBO not investigate and issue a petition for discipline against O’Connor for his unprofessional behavior?

[13] For details of O’Connor’s role in Count III of the Petition for Discipline, see Vol. I Tab 46, Drano #90C at http://-www.falseallegations.com/drano90-part-iii-answer-
bbo-count-three-lily.htm.

[14] Judge Elizabeth LaStaiti dismissed Johnson’s properly filed Amended Complaint (filed pursuant to Mass.R.Civ.P. 15(a))on behalf of her client and refused to open the case. Then Judge Prudence McGregor allowed OBC Weisberg to file a motion in the closed case over objection.

[15] “Jones” filed a custody and paternity action, not just a paternity action. This is of significance. Without the demand for custody of the child, the Probate and Family Court would not have had exclusive jurisdiction over Jones's action. This is why, contrary to what the single justice asserted, the two matters were not “assigned specially to a judge in the Juvenile Court.” The custody and paternity case was in Probate & Family Court, which had exclusive jurisdiction. A Juvenile Court judge was simply given two hats to wear, one in each court. Johnson has no knowledge as to whether the cases were heard physically in two separate courts or the same court. Johnson does know, however, that when she made her appearance in 2000 in the custody and paternity case, she went physically to the Bristol County Probate & Family Court. A motion by the opponents to move the case to Juvenile Court was denied by the CJAM, then Barbara Dortch-Okara.

[16] Jones’s federal action was against Dr. Eli Newberger (who was not court-appointed and who had concluded that Jones had sexually abused his son), the hospital where the doctor practiced, the court-appointed investigator, the Department of Social Services, and others involved in the original care and protection matter.

[17] Impounded VOl VIII: Exh. 30’s Exhs.A-D: Letter from McCarthy to Mother Jane’s counsel (3/3/94); letter from McCarthy to Jane’s counsel (8/3/94); cc’d to counsel for child; memo for file by Jones’s prior counsel (1/26/95); letter from McCarthy in grandparents’ case “TO WHOM IT MAY CONCERN” (3/10/99) [pages 879-885 in appendix for First Circuit Court of Appeals].

[18] Wolf acted according to Jane’s wishes, not the child’s needs. Johnson’s subpoena for Wolf’s bills to the State was quashed by the BBO hearing officer. Those bills would have provided the dates on which she allegedly met with the child.

[19] In or around 1998, years after the Jones cases were closed, Jones’s parents brought a grandparents’ Complaint.  In a letter addressed “To Whom It May Concern,” McCarthy then put the kibosh on the grandparents’ requested visitation. When Jones’ father died, Johnson highly redacted the letter and uploaded it with the obituary of the grandfather [Impounded Vol. VIII, OBC Trial Exh. 27, Drano #26, http://www.falseallega-tions.com/drano26-obit-jl.htm]. The purpose of uploading the letter is clear and righteous.  There was no humanistic reason to deprive the grandparents of having a relationship with their grandson.

[20] Johnson did not merely “ignore[] the simple fact that Judge Lawton the Son ordered her to return certain materials and to remove certain postings on her website” [Memo, at 10]. First, the judge never identified the materials he sought returned, Johnson had never seen the impounded Juvenile Court docket sheet, and Johnson could not return what she did not have. The OBC knew Johnson’s position on this. It was with total malice that Wolf and subsequently the OBC encouraged an order to issue from the Juvenile Court. Enough of Johnson’s time had been wasted on the OBC’s and the BBO’s bad faith.

What was she going to appeal? Johnson had never been served a valid Complaint filed in that court. What was the docket number? Where was the hearing? It would have been futile to attempt to vacate a nonsensical void judgment, one void ab initio. If the authorities were acting in good faith, the nonsensical void judgment would not have issued.

Given that Johnson had already been targeted for disbarment, it was highly unlikely in extremis that any attempt to vacate the unclear and equivocal order would be successful.

Johnson had no reason to request a hearing in Juvenile Court. With no evidentiary support for the order, with no jurisdiction over Johnson, the order was invalid. Johnson had never disseminated impounded material and had spent months in responding to baseless claims. There is no reasonable basis for the single justice to now state that Johnson should have wasted more time on a futile task.

[21] The special hearing officer, the Board, and Judge Spina, all, ignored Weisberg’s admission that Johnson never uploaded Juvenile Court documents to her website. See Fig. 2, pp. 13-14, supra. They also ignored Johnson's averment that she got no documents from and therefore had no documents to return to the Juvenile Court.

[22] [The] desire to prevent disclosure of children's names was not [a] compelling state interest.” Care and Protection of Edith, 421 Mass. 703, 704-706 (1996).

[23] "Nothing in the impoundment order prevents the witness from "speak[ing] publicly about the proceedings before the commission and about these proceedings." In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002).

An order impounding the papers filed with this court in this matter is not a gag order on the witness or a prior restraint on his speech, and he has in fact spoken out publicly concerning this matter on many occasions without repercussion.  His desire to speak out, however, does not compel this court to open its files on the matter.

In re Enforcement of Subpoena, 436 Mass. 784, 797 (2002).

[24] Johnson contends that the OBC and BBO and their staff, including counsel, are private and not public employees, although it appears the courts have wrongfully allowed them to plead they are public. This will soon be an issue before the court in the appeal of Johnson v. BBO, et al, Essex Sup. Ct. No. 05-CV-01907.

[25] At that time, nothing about the Parkers had been uploaded to Johnson’s website.

[26] Johnson had months earlier suggested to Mary Parker that she go to the Fee Arbitration Board or to use the attorneys to whom she wrote as arbitrators or mediators.

[27] Later, when the bill was recalculated, Johnson returned to Mary an additional $343 [Vol. I, Tab 46, Count II, ¶84].

[28] According to the OBC/BBO Trial Exhibit list provided to Johnson a few weeks after the alleged hearing in December 2003, an affidavit by “Mark Parker” was admitted into evidence. Johnson has never seen that affidavit. Nor does she know who “Mark Parker” is.

[29] As an Internet publisher, Johnson has often received permission to publish without ever having met the person consenting to the potential publication. The single justice abused his discretion here, for otherwise he appears to have approved the OBC and the BBO being simultaneously accuser, prosecutor, and fact-finder. The conflict of interest is offensive, and has deprived Johnson of her constitutional rights to due process and the equal protection of the laws.

[30] . . . [O]nly where the court lacks jurisdiction to make an order or where an order is transparently invalid on its face may a party ignore a court order and attempt to evade sanctions by litigating the validity of the underlying order. Matter of Providence Journal Co., 820 F.2d 1342, 1347 (1st Cir. 1986), modified on reh'g, 820 F.2d 1354 (1st Cir. 1987). See Vakalis v. Shawmut Corp., 925 F.2d 34, 36-37 (1st Cir. 1991).

Oakham Sand & Gravel Corp. v. Town of Oakham, 54 Mass.App.Ct. 80, 87 (2002), cert. denied 437 Mass. 1109 (2002).

[31] Because of page limitations, Johnson incorporates from App-TAB-A3 in entirety herein by reference, her arguments on pp. 135-138 of her Opposition Memorandum.

[32] The issue of the taped message and the transcript [OBC Trial Exh. 75 (tape not included in BBO Appendix) and Impounded Vol. XII, OBC. Exh. 75A], is discussed in several documents, including Johnson’s opposition at App-TAB-A3, at pp. 193-194. Such a decision discourages any negotiation whatsoever. Common sense, where art thou?

[33] Johnson successfully defended against motions for summary judgment in both the superior and district courts.

[34] Note: O’Connor is the same attorney (1) about whom Johnson complained to the OBC/BBO, which then dismissed the complaint, (2) who within a month or so of the complaint being dismissed by the OBC/BBO caused Carla to have an anxiety attack in his law office and be taken to the hospital by ambulance, (3) who, in Johnson’s opinion, caused the untimely death of Carla’s husband by a heart attack within days of that event, (4) who was found in contempt but was not prosecuted by the OBC/BBO as they did Johnson, and (5) who was released from having to testify when the BBO hearing office quashed Johnson’s trial subpoena, and (6) who Johnson believes might be the person who fabricated –maybe or maybe not with Judge McGill’s encouragement – an order to make it appear as if it had issued on 3 March 1995.

[35] Johnson had challenged him at each and every hearing to produce the mythical order of which he had found her in contempt in March 1995. And she ordered and had transcribed the tapes from each of the hearings, which prove he never could. The transcriptions were, of course, precluded by the then-BBO-Chair, M. Ellen Carpenter.

[36] Johnson made a table of all Judge McGill’s orders and commands. [Vol. I, Tab 46, Table C, p. 125 of Amended Answer]. The OBC and BBO ignored the table—–as did apparently Justice Spina—–and as a result, this Court misapprehended or possibly intentionally ignored the facts before him, thereby abusing his discretion. As noted supra, the $3898.25 this Court mentioned was eventually reduced to $261.25, which Johnson paid because the judge promised to restore the case to the list,. . . but he did not. No word of honor.

[37] The $261.25 was alleged to be in payment of fees for O’Con-nor’s alleged paralegal, who was really his secretary, on salary.

[38] “The final judgment in the civil action was amended to reflect that the plaintiff owed the defendants $261.25, plus interest.”

[39] The procedure at this juncture was complicated. Without reviewing yards of 11-year-old pleadings, Johnson sets out here to the best of her memory what happened. The procedure is correctly set out in full in her Amended Answer ¶¶100-127 [Vol. I, Tab 46]. McGill issued only an interlocutory judgment and refused to issue a final judgment. Opposing counsel, O’Connor, argued it was a final judgment. Therefore, treating the judgment as final, Johnson requested a retransfer to Superior Court. Once in Superior Court, O’Connor argued that the judgment was interlocutory. The Superior Court judge sent it back to McGill. McGill modified his order once again.

None of the higher courts 10 years ago, nor the OBC, nor the BBO, nor this Court today ever bothered to look closely at the dishonesty of O’Connor or bothered to try to unravel what had become a Rube Goldberg situation. In fact, the higher courts 10 years ago irresponsibly and unlawfully found Johnson’s client’s appeal frivolous. That appeal was anything but frivolous. And that ruling was a travesty of justice. It haunts Johnson until today, but she, days away from 72, refuses to accept the inanity and the injustice. At some point, the courts–——all of them———must be accountable. Hopefully the higher court will act responsibly today. Two wrongs don’t make a right. Only a right will.

[40] The above issue arose in early December 2002 out of the OBC’s Motion for Release of Impounded or Segregated Records, filed in Bristol County Probate & Family Court, in a closed case James Linnehan v. Robyn L. (Gerry) Sylvia, Docket No. 88W0113-P1. See APP-TAB-A3, at 82 et seq. See also Impounded Vol. VII, Tab 177, and Vol. II, Tab 53.

[41] The only case discussing the amendment is Peckham v. Boston Herald, Inc., infra, but it does not resolve the retroactive-prospective issue addressed in the case at bar.

The plaintiff urges that we treat G.L. c. 209C, §13, as a dispositive legislative pronouncement that paternity proceedings are not matters of legitimate public concern. That statute, as in effect at the time of the publication of the article in question and as amended . . . , made docket entries and other court papers connected with paternity proceedings unavailable for public inspection unless ordered by a judge for good cause shown. (The statute was inverted in 1998: now such documents are available for inspection unless the judge for good cause shown orders otherwise, or if the defendant is adjudicated not to be the father. . . . The difficulty with this approach is the absence in the record of evidence that Nathan unlawfully accessed court records in preparing the news article. (FN9) The possibility of such illegality is not enough to get the plaintiff past a motion for summary judgment.

Peckham v. Boston Herald, Inc., 48 Mass.App.Ct. 282, 289-290 (1999) (regarding a judicial proceeding on a subject of inherent interest and concern to the public).

[42] On App-TAB-A3, pp. 79-86, Johnson discussed c. 209C, §13.

[43] After the so-called trial was finished, Johnson received from Weisberg Trial Exhibits 40-49, which appear to be only some of the Juvenile Court documents included in the OBC’s 12-volume appendix. At some point, Johnson received a trial-exhibit list dated 16 December 2003, roughly two weeks after the trial. The list included the titles of documents from both the Probate & Family and Juvenile court. Johnson has no knowledge whether these are all the documents Weisberg received from the courts or whether, for instance, Weisberg received some documents from Juvenile Court and some from Deborah Wolf, who appeared to have collaborated with Weisberg and the OBC.

[44] Assistant Bar Counsel Christa Arcos wrote to a member of the public, “fee disputes are not generally within the jurisdiction of this office” [App-TAB-E, Exh. D and App-TAB-F1, Exh. D], respectively.

[45] “A classification based on the possession of a sporting license does not burden a suspect group or a fundamental right and is, therefore, subject to review under the rational basis standard.” Animal Legal Defense Fund, Inc. v. Fisheries & Wildlife Bd., 416 Mass. 635, 640 (1993).

[46] The issue of subpoena-quashing is discussed in full at App-TAB-A3, at pp. 154-158].

[47] Spina repeatedly took Johnson to task for not filing appeals. See Johnson’s Amended Answer [Vol. I, Tab 46, re Count III, ¶¶100-127] and count the number of times Johnson attempted in good faith to have McGill’s actions reviewed by higher courts.

[48] The men who are parties in the family court feel similarly, and it is the court proceedings that cause that feeling which motivated Johnson to become an active advocate of fathers’ rights and to establish and maintain her website, falseallegations.com, on behalf of the victims of the family courts.

[49] Bar Counsel used pseudonyms for the people involved in Counts I and II, but not in Count III, primarily because Johnson’s client whose case was the subject of Count III was against the OBC for bringing the petition against Johnson. Her client in Count I also never opposed the publication of his true name. It appears that the OBC and BBO must have felt obliged to use a pseudonym for him since they used pseudonyms for the other folks mentioned in Count I.

[50]
   Fig. 1. Motion #157 and Comments

Fig. 2. Notice of Disposition Made on March 3, 1995. The Notice is dated March 7, 1995; Motion #157 is not on it.

Fig. 3-1. Docket Sheet for Concord District Court Action. See entry for #157: filed in open court

Fig. 3-2. Docket Sheet for Concord District Court Action.

See notice as recorded in docket sheet.

Motion #157 not decided on March 3, 1995.

Table 15. Hearing of 22 March 1995

[51] Johnson discusses in full the issue of her conduct during the disciplinary proceeding at App-TAB-A3, on pp. 148-149. The context of those facts were intentionally overlooked, i.e., ignored, by the single justice.

[52] Johnson discusses the issue of “aggravation” in full at App-TAB-A3, on pp.s 142-148 and “sanctions” at pp. 178-185. Given that her rights were so trampled upon, these two issues are superfluous. They simply do not apply here. The OBC and the BBO are the entities upon which sanctions should be imposed.