#162, Drano Series

Barb's Motion to Recuse Justice Francis X. Spina
from this
Board Disciplinary Action
(filed in the
Clerk's Office of Suffolk County
for the single-justice session of the
Massachusetts Supreme Judicial Court)

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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.

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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.

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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.

NOTE
Unless you are a lawyer, you are not going to have the same reason as I had below for asking the judge to recuse himself.
Notwithstanding that difference, it is important that you note that the reason is something OUTSIDE of what the judge did INSIDE the case itself.
The problem with the judge is caused
by something OUTSIDE the disciplinary action.
Cryptic?  Read on.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

of Suffolk County 

Single-Justice Session No. BD-2006-039

IN RE BARBARA C. JOHNSON

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

JOHNSON’S MOTION TO RECUSE JUSTICE FRANCIS X. SPINA FROM THIS BOARD DISCIPLINARY ACTION

Now comes Barbara C. Johnson, Esq., [“Johnson”] and moves this Court to recuse himself from this Board Disciplinary action.

As grounds, Johnson states that where Assistant Attorney General Ronald F. Kehoe on behalf of the Board of Bar Overseers [“BBO”] and the Office of Bar Counsel [“ OBC”] wrote that the “BBO and OBC are ‘public employers’” [Memo, p. 7]\[1]/ and that “the [BBO/OBC] is a creature, and subject in all respects to the control of the Supreme Judicial Court ” [id.], all the present SJC judges, including the single justice in this action, have a conflict of interest.

Further, the SJC appoints its staff, including but not limited to the BBO General Counsel and OBC Bar Counsel. It also supervises the BBO and the OBC. This latter fact derives from the statement in Binns v. Board of Bar Overseers, 369 Mass. 975. 976 (1976), that the SJC promulgated SJC Rule 4:01 pursuant to its power to supervise attorneys, but the SJC does not supervise attorneys—it certainly has never supervised Johnson or other colleagues—it only disciplines attorneys through the OBC and BBO. It follows, therefore, that the SJC supervises the BBO and the OBC. “[A]ctual knowledge may be inferred from circumstances.” SJC Rule 3:09, Terminology Section.

Where the SJC has a relationship interest with a party to this proceeding, to wit, the OBC and the BBO, Judge Spina must avoid the appearance of impropriety, which is a reasonable inference from the circumstances. Cf. SJC Rule 3:09, Terminology Section and Canon3, Sections 3E(1)(a) and (e), and particularly 3E(1)(f)(ii).

Given that the SJC controls and supervises the OBC and BBO, the likelihood is quite high that Single Justice Spina is not going to find against his own servants, the OBC , OBC Assistant Bar Counsel Susan Strauss-Weisberg, and the BBO.  (Where OBC ABC SSW is not a public employee——her paycheck is not from a Commonwealth account——she is but a "servant" of the SJC.   While an argument might be made that she is an agent of the Commonwealth, but were that true, then the SJC hearing any case brought by her private employer, the OBC, who has a private relationship with the SJC, and decided by the BBO, which also has a private relationship with the SJC, would spawn a violation of SJC Rule 3:09, Canon 2, Sections. 2(A) and (B).

Given that Johnson ran for governor on a platform of (a) court reform, which the SJC has refused to endeavor to do, and (b) the abolishment of the judicial and quasi-judicial immunities, which could ultimately affect the judges’ economic interests, out of which arises the prejudice against Johnson and which has spawned a violation of SJC Rule 3:09, Canon 3, Section 3E(1)(f)(i). And to have judicial prejudice against a party, like Johnson, is a violation of SJC Rule 3:09, Canon 3, Section 3E(1)(a).

Where there is an appearance of impropriety, an existing conflict of interest, and inferential prejudice against Johnson, Single Justice Spina must recuse himself. To do otherwise will deprive Johnson of her constitutional rights to due process and equal protection.

WHEREFORE, for the aforementioned reasons, Single Justice Spina must recuse himself. To do otherwise will deprive Johnson of her constitutional rights to due process and equal protection.

Respectfully submitted, Barbara C. Johnson
4 October 2006 Barbara C. Johnson, Esq., Pro Se
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
BBO #549972

CERTIFICATE OF SERVICE

I, Barbara C. Johnson, hereby certify that on 6 October 2006 I served a true and accurate copy of the within pleading to the opposing OBC counsel, 99 High Street, Boston, MA 02110 by first-class mail.

Barbara C. Johnson

4 October 2006 Barbara C. Johnson, Esq., Pro Se