#171, Drano Series

  

Barb's Appeal of the Judgment of Contempt in the Single-Justice Session by Justice Francis X. Spina of the Massachusetts Supreme Judicial Court ~~~~~~~~~~~~~~~~ Barb included here also the cover and the Table of Contents so that you will know the format to use.  (The alighment here of the numbers is off.  Sorry. The typeface in Massachusetts must be a fixed width, such as Courier New, rather than Times Roman.  I changed it here for the Internet, but the original is in Courier New.) ~~~~~~~~~~~~~~~~ NOTE that Drano ##159, 160, and 161, 167, 168, 169, 170, and 171  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.

 

hief 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.

COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT FOR THE COMMONWEALTH   ______________________________________________   CASE NO. SJC-09866 ______________________________________________     In re BARBARA C. JOHNSON Defendant/Appellant   __________________________________________________     On Appeal from Judgment of Contempt by Single Justice Francis X. Spina in Supreme Judicial Court for Suffolk County BD-2006-039   __________________________________________________     BRIEF OF BARBARA C. JOHNSON DEFENDANT/APPELLANT   _________________________________________________                                               Barbara C. Johnson, Esq.                                              Defendant/Appellant, pro se                                   B.B.O. #549972 (pending appeal)                                                       6 Appletree Lane                                                       Andover, MA 01810                                                       978-474-0833

TABLE OF CONTENTS   Addendum .........................................    iv Table of Authorities .............................     v Constitutions ....................................     x Statutes .........................................    xi Rules ............................................    xi Treatises .......................................  xii Appendix  ......................................   xii        STATEMENT OF THE ISSUES ............................       1 STATEMENT OF THE CASE ...............................      2   Genesis ......................................   2 Board Discipline Action ......................   3 The Recommendation for Disbarment ............   5 The Contempt Hearing .........................   6 Johnson’s Defense: Transparent Invalidity of the Underlying Judgment of Disbarment Migrated to the Contempt .....................   9   PRIOR PROCEEDINGS ...................................  11               Johnson’s Motions to Stay .....................  12 STATEMENT OF THE FACTS ..............................  14 BBO Findings and Recommendation ..............   14 Count I   .............................   14              Count II  .............................   15              Count III .............................   16                Judgment of Disbarment on 9 August 2006 .....    16 Dates of Events ..........................     17      August 11, 2006.......................    17      August 23, 2006.......................    17 August 25, 2006........................    17 August 30, 2006........................    17 September 6-7, 2006....................    17 September 11-12, 2006..................    17                              September 12, 2006.....................    18              September 13-14, 2006 .................    18                                  October 17, 2006, Tuesday – Day 1 of              Contempt Hearing ......................    19              October 18, 2006, Wednesday...........     20  October 19, 2006, Thursday – Day 2 of Contempt Hearing .....................    20   The Commissioner ...........................     21 The Holding Cell in Suffolk Superior Court .     22 Suffolk County House of Correction, a/k/a South Bay ................................       22 ARGUMENTS ....................................          26 1.            Where the Judgment of Disbarment was        transparently invalid or had only a        frivolous pretense to validity, the order issuing simultaneously with that judgment ia void ab initio ......................    26   2.            Where the Single Justice abused his discretion—–as did this Court–—by denying Johnson’s Motion to Stay the Order to withdraw from her clients’ cases, he, in so doing, both deprived her clients of their right to have a counsel of their choice represent them and interfered with the orderly prosecution of their cases, as well as wrongly deprived Johnson of her ability to get compensated for the work she has done for the past few years.  The Single Justice further violated of Section 1 of the Fourteenth Amendment to the United States Constitution, by depriving her of her property and ultimately of her        liberty ...............................     33   3.            Where Johnson’s appeal of the Judgment of Disbarment was pending, the single justice no longer had jurisdiction to hear a contempt complaint, both making the contempt proceedings in the single-justice session unlawful and unconstitutional and allowing Johnson to ignore the order ...........     34   4.            Where Johnson had filed a notice of appeal and the appeal was pending, and the Single Justice did not either stay his order or declare he had no jurisdiction to hear the OBC’s contempt complaint, the Single Justice committed a clear and irreversible error of law and thus deprived Johnson of the benefit of appealing to the full Panel of this Court .........................  41   5.            Where Johnson both sought more time to comply, but was, without reason, not given it, and claimed impossibility to comply, the finding of contempt was an abuse of discretion and must be vacated.  The resulting incarceration was an egregious abuse of discretion and a clear error of law ...........                  ..................    41   6.            Where Johnson did not hold the key to the cell door, the finding that the charge was for civil contempt and not criminal contempt was a clear error of law and must be reversed.....................................   43   7.            Where the charge was for criminal, not civil, contempt in the Supreme Judicial Court for Suffolk County, and Johnson was not allowed a trial by jury, the finding of contempt was a clear error of law and must be reversed and the Judgment of Con- tempt vacated ..............................  44   8.                   Where a comprehensive definition of what constitutes "the practice of law", Massachusetts Rule of Professional Conduct 5.5 is void for vagueness, requiring this Court to reverse the implicit finding that Johnson committed the unauthorized practice of law, and vacate the          Judgment of Contempt ........................    49   Conclusion .......................................   52 Prayer ...........................................   53  Mass.R.A.P. 16(k) Certification ..................   53  Certificate of Service ...........................   54 ADDENDUM   Order of Release, October 23, 2006 ..............  Add-1   AMENDED FINDINGS AND RULINGS ON BAR COUNSEL'S PETITION FOR CONTEMPT (Spina, J.), 10/20/2006 [Paper #64] ........................... Add-3   MITTIMUS ISSUED to the Keeper of the Jail at Boston, County of Suffolk, Commonwealth of Massachusetts for Barbara C. Johnson   (Spina, J.), 10/19/06 [Paper #62] ................ Add-11   ORDER OF CONTEMPT and FURTHER ORDER to the common jail (By Spina, J.), 10/19/06 [Paper #61] ............................. Add-15   Findings and Rulings on Bar Counsel's Petition for Contempt (Spina, J.), 10/19/06 [Paper #60] ............................. Add-17   Judgment of Disbarment Order, August 9, 2006 ..... Add-25   Memorandum of Disbarment, August 9, 2006 ......... Add-31   TABLE OF AUTHORITIES   Aroesty v. Cohen, 62 Mass.App.Ct. 215 (2004) Bates v. State Bar of Ariz., 433 U.S. 350, 97 S.Ct. 2691 (1977)   Berman v. United States, 302 U.S. 211 (1937)   City of Fitchburg v. 707 Main Corp., 369 Mass. 748 (1976)  Com. v. Adkinson, 442 Mass. 410 (2004)  Com. v. Beauchamp, 49 Mass.App.Ct. 591 (2000) (unpublished)   Com. v. Cronk, 396 Mass. 194 (1985)   Com. v. Eresian, 389 Mass. 165 (1983)   Com. v. Martin, 66 Mass.App.Ct. 1102 (2006) (unpublished) Com. v. Montgomery, 53 Mass.App.Ct. 350 (2001) Community Natl. Bank v. Dawes, 369 Mass. 550 (1976) Cozza v. Network Associates, Inc., 362 F.3d 12 (1st Cir. (Mass.) 2004 Dartmouth Review v. Dartmouth College, 889 F.2d 13 (1st Cir.1989) Disabled American Veterans v. U.S. Dept. of Veterans Affairs, 962 F.2d 136 (2d Cir. (N.Y.) 1992)   Edgar v. Edgar, 403 Mass. 616 (1988)   Evans v. Multicon Const. Corp., 6 Mass.App.Ct. 291 (1978) First Merit Corp. v. Rohde, Slip Copy, 2006 WL 2714688, Ohio App. 9 Dist. (2006) Furtado v. Furtado, 380 Mass. 137 (1980)   Godard v. Babson-Dow Mfg. Co., 319 Mass. 345 (1946) Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975)   Goodridge v. Department Of Public Health, 440 Mass. 309 (2003) Green v. Green, 218 F.2d 130 (7th Cir. (Ill.) 1955), cert. denied, 349 U.S. 917, reh’g denied, 349 U.S. 948 (1955). Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) Hilton v. Braunskill, 481 U.S. 770 (1987) Huber v. Huber, 408 Mass. 495 (1990) In re Chimko, 444 Mass. 743 (2005) Note: In Superadio, the case is referred as Matter of Chimko In re Cobb, 445 Mass. 452 (2005) In re Griffiths, 413 U.S. 717 (1973) In re Special Proceedings, Misc. 01-47T, Memorandum and Order (October 2003)(Torres, C.J.) In re Watson, 403 F.3d 1 (1st Cir. 2005)   Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467 1st Cir. (Puerto Rico) (1990) LaLonde v. Eissner, 405 Mass. 207 (1989)   Lowell Bar Ass'n v. Loeb, 315 Mass. 176 (1943)     Maine v. Norton, 148 F.Supp.2d 81 (D.Me. 2001)   Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)   Matter of Alter, 389 Mass. 153 (1983)    Matter of Chimko, 444 Mass. 743 (2005)    NOTE: See In re CHimko Matter of Jadd, 391 Mass. 227 (1984) Matter of Providence Journal Co. [Providence I], 820 F.2d 1342 (1st Cir. 1986), modified on reh'g, 820 F.2d 1354 (1st Cir. 1987) Matter of Shoe Manufacturers Protective Association ,  295 Mass. 369 (1936)  Miller v. Commissioner of Correction, 36 Mass.App.Ct. 114 (1994) Mondrow v. Fountain House, 867 F.2d 798 (3d Cir.1989) Oregon State Bar v. Smith, 942 P.2d 793.   Parker v. United States, 153 F.2d 66 (1st Cir. 1946)    Pierson v. Ray , 386 U.S. 547 (1967) Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54 (1st Cir.2003)   R.W. v. M.G., 64 Mass.App.Ct. 1105 (2005) (unpublished) Sanchez v. Alvarado , 101 F.3d 223 (1st Cir.1996) Shedlock v. Department of Correction, 442 Mass. 844 (2004)   Superadio Ltd. Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330 (2006)   TSA Int'l Ltd. v. Shimizu Corp., 92 Hawaii 243, 990 P.2d 713 (1999) Tucker v. Randall, 948 F.2d 388 (7th Cir.1991)   United States v. Avx Corp., 962 F.2d 108 (1st Cir. 1992)     United States v. Dickinson, 465 F.2d 496 (5th Cir. 1972) U.S. v. Local 6A, Cement and Concrete Works, Laborers Intern Union of North America, 832 F.Supp. 674 (S.D.N.Y. 1993) United States v. Mourad, 289 F.3d 174 (1st Cir. 2002) United States v. Providence Journal, 485 U.S. 693 (1988) U.S. v. Vitek Supply Corp., 151 F.3d 580 (7th Cir. (Wis.) 1998) Vance v. Bradley, 440 U.S. 93 (1979)  Venen v. Sweet, 758 F.2d 117 (3d Cir. 1985) Walker v. Birmingham, 388 U.S. 307 (1967) Walsh v. U.S., Slip Copy, 2006 WL 2529759, (M.D.Pa. 2006) Young  v. Boston University, 64 Mass.App.Ct. 586 (2005)   ................       ................     ................       ................     ................       ................     ................     ................       ................     ................     ................         ................       ................         ................     ................     ................       ................        ................     ................   ................       ................             ................       ................     ................     ................     ................             ................     ................       ................     ................         ................     ................     ................     ................       ................     ................     ................       ................         ................        ................       ................       ................            ................     ................      ................          ................       ................       ................       ................         ................         ................     ................     ................     ................           ................     ................       ................       ................     ................       ................     ................       ................     ................ 44       33     35          27-28         39           31         38         45           31      38-39          3             37            3             47   44-46,     48         31           35     43, 46          43         33           48                 38           35         36         38     50-51              6, 42         33              40         35             47          3      41,  49-51        35           47         42         51           33       29-30,    40          50              24           35         50             43            26              38           43            34           34       43, 51             36         24          3     30, 39                 36         40           40           35         47           35     28, 30           35          3 CONSTITUTIONS United States Constitution Article III  ......................................  37 Article IV, §2  ...................................  34   First Amendment .................................    24 Sixth Amendment ...................................  24 Fourteenth Amendment ..........................  24, 34   Fourteenth Amendment, §1 ......................   1, 33 Fourteenth Amendment, §5 .....................       34   Constitution of Commonwealth of Massachusetts, Massachusetts Declaration of Rights Article V  ...................................              2 Article XII ........................................       47 FEDERAL STATUTES Globe 42nd Congress, 1st Session. March 31, 1866...  26   Senate Judiciary Committee S. 1437. § 1331 ........  39   STATE STATUTES   G.L. c. 211, §3 ......................................     45 G.L  c. 214, s 24 (Ter.Ed.) .........................    41 G.L. c. 215, §16, repealed by St.1986, c. 211, §1..   44 G.L. c. 221, §41, .................................. 49, 51-52 G.L. c. 221, §46  ..............................           49 G.L. c. 221, §46A ...............................   49, 51-52 G.L. c. 221, §46B ...............................          49 RULES Massachusetts Rules of Appellate Procedure Mass.R.A.P. 16(k) Certification ........................      53 Mass.R.A.P. 16(a)(6) ...................................      53 Mass.R.A.P. 16(e)  .....................................      53 Mass.R.A.P. 16(f).......................................      53 Mass.R.A.P. 16(h).......................................      53 Mass.R.A.P. 18 .........................................      53 Mass.R.A.P. 20 .........................................      53   Supreme Judicial Court Rules SJC Rule 2:01 et seq..................................     45   PRACTICE AND PROCEDURE SINGLE JUSTICE, published at http://www.sjccountyclerk.com/singjusprpr.html .... Superior Court Rules Superior Court Rule 76 of 1932 .....................      41   Massachusetts Rules of Criminal Procedure Mass.R.Crim.P. 44(a), 378 Mass. 920 (1979)....   45-46, 48   Massachusetts Rules of Domestic Relations Procedure Mass.R.Dom.Rel.P. 62(d) ..............................    38 Mass.R.Dom.Rel.P. 62(g) ..............................    38   Massachusetts Rules of Professional Conduct Mass.R.Prof.C. 5.5, 426 Mass. 1410 (1998) .....  2, 49, 51   TREATISES Goodale, James, News Media and the Law, New York Law Journal, (Oct. 17, 1977)...........  28, 40   APPENDIX Docket Sheet, In re Johnson, SJC 2006-09820...........   App-1   Docket Sheet, In re Johnson, BD 2006-039  ............   App-3   Johnson's Motion for a Declaration of Citations for Order of 3 November 2006, Paper #79 (11/21/06: DENIED, WITHOUT HEARING (Spina, J.)), 11/16/2006 [Paper#83]..............  App-9   ORDER re designations (Spina, J.), 11/03/2006 [Paper #79]  .......................... App-10   ORDER that no action be taken on Johnson’s Motion to Seek Disposition of Her Motion for a Declaration as to What Constitutes the Unauthorized Practice of Law (Spina, J.), 11/02/2006 [Paper #77] ........................... App-11   Notice of Appeal of Judgment of Contempt 10/31/2006 [Paper #74] ........................... App-13   Johnson's Motion to Seek Disposition of Her Motion for Declaration as to What Constitutes the Unauthorized Practice of Law, 10/31/2006 [ Paper #73] ....................................... App-15   AMENDED FINDINGS AND RULINGS ON BAR COUNSEL'S PETITION FOR CONTEMPT (Spina, J.), 10/20/2006 [Paper #64]..     See Add-3, App-14   MITTIMUS ISSUED to the Keeper of the Jail at Boston, County of Suffolk, Commonwealth of Massachusetts for Barbara C. Johnson (Spina, J.), 10/19/06 [Paper #62] .............  See Add-11, App-14   ORDER OF CONTEMPT and FURTHER ORDER to the common jail (By Spina, J.) 10/19/06 [Paper #61] .................   See Add-15, App-14   Findings and Rulings on Bar Counsel's Petition for Contempt (Spina, J.) 10/19/06 [Paper #60] ..................  See Add-17, App-14   EXHIBIT 13: Complaint in Nature of Writ of Certiorari in Bristol Probate and Family Case # 88W0113-P1, 10/19/2006 [Paper #55] ........   App-17   EXHIBIT 12: Suggested Forms of Compliance generated by Barbara C. Johnson, 10/19/2006 [Paper #54] ..................................... App-33   Memorandum of Decision on Respondent's Motion to Recuse (Spina, J.), 10/18/2006 [Paper #51] ..............     See App-5, App-45   Johnson's Motion for Declaration as to What Constitutes the Unauthorized Practice of Law, 10/13/2006 [Paper #35] ..................... App-47   Johnson's Motion for Jury Trial on Petition for Contempt and a Declaration of Whether a Finding of Civil or Criminal Contempt Is Actually Being Sought by Bar Counsel 10/06/2006 [Paper #34] (10/17/06,Motion for Jury Trial DENIED AFTER HEARING, (Spina, J.))..... App-51   Johnson's Motion to Recuse Justice Francis X. Spina from This Board Disciplinary Action 10/06/2006 [Paper #33] ..........................  App-55   SJC 2006-09820 Johnson's Motion to Stay Judgment of Disbarment DENIED. (By the Court). Notice allegedly sent 9/11/2006 .................  App-59   SJC 2006-09820 Johnson's Reply to Appellee's Opposition to Motion to Stay Judgment of Disbarment, 09/12/2006[Paper #5]..................   App-61   SJC 2006-09820 Johnson's Motion to Stay Judgment of Disbarment, 08/30/2006 [Paper #2] ............  App-69     Johnson's Notice of Appeal to the Full Panel of the Supreme Judicial Court 8/23/06 [Paper #22]..   App-75   Johnson's Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27, 8/23/06  [Paper #20] (08/25/06 DENIED WITHOUT HEARING Spina)..................  See App. SJC-06-09820 & App-76   Johnson's Motion to Stay Judgment of Disbarment. BD 2006-039, 8/23/06 [Paper #19] (08/25/06, DENIED WITHOUT HEARING (Spina, J.)) .............  App-77

STATEMENT OF THE ISSUES\[1]/    1. Where the Judgment of Disbarment was transparently invalid or had only a frivolous pretense to validity, the Order issuing simultaneously with that judgment is void ab initio.   2. Where the Single Justice abused his discretion—–as did this Court—by denying Johnson’s Motion to Stay the Order to withdraw from her clients’ cases, he, in so doing both deprived her clients of their right to have a counsel of their choice represent them and interfered with the orderly prosecution of their cases, as well as wrongly deprived Johnson of her ability to get compensated for the work she has done for the past few years.  The Single Justice further violated of § 1 of the Fourteenth Amendment to the United States Constitution, by depriving her of her property and ultimately of her liberty.   3.Where Johnson’s appeal of the Judgment of Disbarment was pending, the single justice no longer had jurisdiction to hear a contempt complaint, both making the contempt proceedings in the single-justice session unlawful and unconstitutional and allowing Johnson to ignore the order.   4.Where Johnson had filed a notice of appeal and the appeal was pending, and the Single Justice did not either stay his order or declare he had no jurisdiction to hear the OBC’s contempt complaint, the Single Justice committed a clear and irreversible error of law and thus deprived Johnson of the benefit of appealing to the full panel of this Court.\[2]/    5.Where Johnson both sought more time to comply, but was, without reason, not given it, and claimed impossibility to comply, the finding of contempt was an abuse of discretion and must be vacated.  The resulting incarceration was an egregious abuse of discretion and a clear error of law. 6.Where Johnson did not hold the key to the cell door, the finding that the charge was for civil contempt and not criminal contempt was a clear error of law and must be reversed. 7.Where the charge was for criminal, not civil, contempt in the Supreme Judicial Court for Suffolk County, and Johnson was not allowed a trial by jury, the finding of contempt was a clear error of law and must be reversed and the Judgment of Contempt vacated.   8.Where a comprehensive definition of what constitutes "the practice of law", Massachusetts Rule of Professional Conduct 5.5 is void for vagueness, requiring this Court to reverse the implicit finding that Johnson committed the unauthorized practice of law, and vacate the Judgment of Contempt.   STATEMENT OF THE CASE This is an appeal from a Judgment of a Contempt allegedly a civil one.  Johnson’s primary defense is the transparent invalidity of both the Order and the underlying Board Discipline case [App-76]. Genesis.  In 2001, when hoping to crack the judicially created doctrine of judicial immunity by invoking Article V of the Massachusetts Declaration of Rights, Johnson sued in the United States District Court four State-family-court judges who had egregiously contravened mandatory statutes.\[3]/  Judge George O’Toole dismissed the case on the grounds of immunity.  The First Circuit Court of Appeals affirmed. Shortly thereafter, when Johnson ran in the 2002 race for governor on a platform of court reform and the abolishment of judicial immunity and then appeared on two TV debates and demanded "Accountability, Accountability, Accountability," she became a marked woman. In fact, within weeks after election day, Johnson was notified that a Petition for Discipline would issue against her.  Soon after Xmas and the New Year, it did.              Board Discipline Action. The OBC took the buckshot approach in its Petition for Discipline in hopes that some of the shot would stick on her.  Ultimately, the OBC and the BBO were left with “periphrastic circumlocutions, unsubstantiated conclusions, and bald assertions,”\[4]/ Only two accusations morphic in nature remained in play, but there was no evidence to support either of them. One of the two morphic facts is that there was a psychological report that Johnson had uploaded to her website.  Johnson consistently contended: No, she did not upload such a report to her website.  That report allegedly formed the basis of the accusation supporting Count I that Johnson uploaded confidential, private, and privileged material to her website. The second of the two morphic facts was that Johnson commingled funds, despite finding that Johnson owed no client any money and that she did not commit fraud or deceit or any misrepresentation.  At no time did the three entities——the BBO and the OBC, and Single Justice Francis X. Spina—— ever identify how much money was allegedly commingled.  The two-day “trial” beginning on 2 December 2003 at the BBO was indicative of there being no proof of any of the accusations levied at Johnson: ·                   there were no witnesses against Johnson, ·                   despite Johnson being entitled to a public trial, the                  BBO special hearing officer ordered the public out                  of the hearing room on the alleged grounds that                  Johnson violated a protection order                      commanding her not to use the true names of certain                  individuals at trial.   As admitted by the OBC                  prosecutor, there was no list of names in any                  protective order,\[5]/ ·            Johnson left the hearing room with the public,\[6]/ ·            the documentary evidence was primarily                  unauthenticated files  from her website, ·            the other documentary evidence consisted of                  documents Johnson  had and still has not seen, ·            the only persons present at the sham trial was the                  hearing officer,  OBC Assistant Bar Counsel Susan                  Strauss-Weisberg, and BBO  Assistant General                  Counsel Carol Wagner, and ·            the alleged sources of confidential and privileged                  material was not revealed until 16 December 2003,                  two weeks after the sham trial had ended.                  According to the transcript, the information was                  supplied on Chalk B.  Johnson has never seen Chalk                  B. The Recommendation for Disbarment.  Filing the Information with a recommendation for disbarment was against the written policy of the Supreme Judicial Court, for none of the grounds upon which Bar Counsel may file such a petition was alleged by Bar Counsel against Johnson: The grounds upon which bar counsel may petition the single justice for disciplinary action against an attorney include:   ·               misuse or loss of client funds, ·              neglect of client interests, ·               fraudulent conduct, ·               sanction in another jurisdiction, ·                conviction of a crime and ·                misrepresentation to the court.   PRACTICE AND PROCEDURE SINGLE JUSTICE, published at http://www.sjccountyclerk.com/singjusprpr.html (emphasis supplied). In fact, the BBO made explicit findings that Johnson owed no one any money and did not commit fraud or deceit or make any misrepresentation to a court or client.  Given that she had never been sanctioned in another jurisdiction or ever convicted of a crime, the BBO remained silent on those issues. There appears to be no other attorney who was either admonished, suspended or disbarred on facts such as the paucity of those in the instant case. Thus where the basis for disbarment is so markedly disparate from the bases in other disbarment cases, the judgment of disbarment is a violation of Johnson’s right to equal protection.  In re Cobb, 445 Mass. 452, 479 (2005), (“When reviewing a sanction imposed by the single justice we inquire whether it is markedly disparate from judgments in comparable cases”). The Contempt Hearing.  Not having had an opportunity at the so-called “trial” to prove that there was no evidence to support the OBC’s accusations and, even more importantly, that the OBC could not prove even the two morphic facts, Johnson called the OBC assistant bar counsel assigned to her case to the stand on 19 October 2006, Day 2 of the contempt hearing before Judge Spina.  Johnson asked, In which file or at which URL was the so-called psychological report?\[7]/  Objection.  Sustained.  What is the name of the psychologist who wrote the alleged report?  Objection.  Sustained.  Who was diagnosed or treated?  Objection.  Sustained.  Had Judge Spina allowed Weisberg to answer, Johnson would have had definitive proof that the accusation was false. Similarly, when Johnson asked, How much money was it that I allegedly commingled?  Objection.  Sustained.  Had the judge allowed Weisberg to answer, Johnson would, again, have had definitive proof that the accusation was false. Had the judge heard the answers, he would have had not only to find that the OBC charges and the BBO recommendation were transparently invalid but also to admit that his own holdings were also transparently invalid.  One stray piece of buckshot was the accusation that Johnson put on her website impounded material, but the unidentified impounded material was allegedly from a court in which Johnson never was and from which Johnson never got anything.  Even the prosecutor admitted that but the hearing officer, the BBO, and S.J.C. Judge Spina ignored Weisberg’s admission.\[8]/ BBO Special Hearing Officer Herbert G. Phillips, a prevaricator extraordinaire, added not buckshot but barn sweepings to the case.  He said Johnson used the real name of someone when Johnson should have used a pseudonym according to an order.  There was no such order.\[9]/  Nevertheless, he ordered the public out of the trial room.  So, fearful of being falsely accused and not having witnesses to testify to the truth, Johnson said, “I'm leaving, too, then. Good-bye”.  [See note 6, supra.]  When the prosecutor, Weisberg, realized that her only potential witness—– Johnson—–was leaving the so-called trial, the prosecutor admitted—–in order to keep Johnson from leaving\[10]/ ——that there was no such order, but Phillips and Assistant General Counsel Carol Wagner ignored Weisberg’s admission about that, too.          The OBC’s buckshot without evidence and the mendacious self-serving remarks by the BBO’s chosen private attorney, Phillips, were countless, far too many to include in this brief.\[11]/,\[12]/ Johnson’s Defense: Transparent Invalidity of the Underlying Judgment of Disbarment Migrated to the Contempt   Without any factual basis to support the OBC allegations, the BBO recommendation, and Judge Spina’s adaptation of those false allegations, Judge Spina’s order was as transparently invalid as was the BBO’s recommendation.  The Judgment of Disbarment being transparently invalid made, therefore, the Judgment of Contempt equally as invalid. Relying on well-established law allowing a party to ignore a transparently invalid order of contempt [see argument, infra, at 26-30, 33, 36-37, 39], Johnson did not comply with the single justice’s order.  Johnson simultaneously filed her Notice of Appeal and Motion to Stay the Judgment of Disbarment, in which she addressed each facet of the court order [App-75, 77].  Upon denial of the Motion to Stay, she filed another such motion for the full panel to decide [App- 59-74.  That, too, was denied [App-59]. Neither Judge Spina, by ordering her to withdraw from her clients’ cases prior to her appeal being resolved, nor the full panel, by denying the Motion to Stay before them, considered the harm and damage caused her clients.  Thus, only one reasonable conclusion can be drawn, the Judgment of Disbarment appears to have been predetermined, for were this Court neutral and the option to reverse Judge Spina’s decision still open, Johnson would have had and would have the right to continue to represent them.                Given that there was no factual or legal basis to deny Johnson’s clients the counsel of their choice, the denial by the full panel of the Motion to Stay on Monday, 11 September 1006, after or simultaneously with Johnson’s appearance in Northampton Superior Court, is problematic and of some concern.  Particularly where Johnson did not receive notice of the denial until several days later.\[13]/  Justice was denied not only to Johnson but even more significantly to her clients. PRIOR PROCEEDINGS\[14]/    On 9 August 2006, Judge Spina issued a Judgment of Disbarment as well as a Memorandum and Decision [See Judgment an Memorandum, respectively in Appendix for SJC-2006-09820].  In it, he ordered Johnson to write diverse notices and affidavits, e.g., notices were of withdrawal from cases to clients, opposing counsel, and courts, and to close her IOLTA account.    Having anticipated the Judgment of Disbarment, Johnson was less upset at that point in time about her own status than she was for her clients.  The few cases she had were not at stages at which an easy transition from one lawyer to another could be effected.  Her clients had not complained to the OBC or the BBO about her; she was their counsel of choice.  Johnson’s Motions to Stay.  On August 23, she filed the motion to stay the disbarment [App-69].  In it, she described each of the clients’ cases would be horribly and needlessly prejudiced, for much of the information ordered to be written was already known by the intended recipients.  She called attention to her defense, to wit, that the judgment was transparently invalid.  (As noted, supra, she filed her Notice of Appeal of the Judgment of Disbarment the same day. Judge Spina denied the Motion to Stay without hearing on August 25.  Two days later, on August 30, she filed a motion to stay in this Court. Johnson was to stop practicing law in the Commonwealth by Friday, 8 September 2006.  This Court had not yet decided Johnson’s Motion to Stay. Prior to Judge Spina’s Judgment, Johnson had been ordered to attend two status conferences, one in a superior court and the other in a probate & family court, on Monday and Tuesday, 11 and 12 September 2006, respectively.   Johnson had prepared a pretrial conference report for the superior-court case and delivered it as ordered on September 11.  This Court had not yet decided Johnson’s Motion to Stay. She was present in family court for two reasons: (1) to inform the court of a possible immediate settlement and (2) if the proposed settlement fell apart, to notify the court of her client’s need for time to find new counsel.  This Court evidently had decided Johnson’s Motion to Stay on September 11, but she had not received notice of the disposition before leaving for court. Johnson would have complied with some of the items, but she was being papered by other opposing counsel during that critical month and simply did not have the time.  When Johnson ignored Judge Spina’s order, e.g., to prepare and send notices of withdrawal to her clients, opposing counsel, and courts, and send affidavits to the OBC and the County Clerk affiancing that she had complied with the order, OBC Weisberg filed a Petition to Show Cause Why Johnson Should Not Be Held in Contempt. Johnson not only had not received notice from this Court of the disposition of her Motion to Stay, her clients came first.  They had to.  Her duty to them and to their cases were her responsibility and had priority.  She thought the court would understand and not exalt procedure over substance.  Johnson was unwilling to defy justice by sacrificing substance for procedure.             On 17 and 19 October 2006, a contempt hearing was held.  On 19 October 2006, Judge Spina issued Findings and Rulings on Bar Counsel’s Petition for Contempt [Add-17-24, App-14, Paper #60].  On 20 October 2006, he amended the Findings and Rulings [Add-3-10, Paper #64].  STATEMENT OF THE FACTS BBO Findings and Recommendation          Count I.  In Count I, the OBC/BBO/Spina wrote that Johnson uploaded a psychological report.  Johnson had not done so.  If so, in which of her website files was it?  Who was the psychologist?  Who was diagnosed or treated?  These are the questions Johnson asked Judge Spina.  He remained mute.    When Weisberg took the stand, Johnson repeated those questions.  The OBC objected, Spina sustained.  Weisberg could not answer.  The OBC allegation was false.   Smoke and mirrors. Count II.  In Count II, the troika OBC/BBO/Spina wrote that Johnson commingled clients' funds with her personal funds, but the three entities further agreed that Johnson did not owe any money to anyone and that she had not committed fraud or deceit, nor made any misrepresentations.  In fact, the BBO found that when Johnson sent the complainant an accounting, she also returned roughly $3200.\[15]/  The complainant’s husband had been accused of two counts of rape of their mentally challenged daughter and two counts of sexual assault.  Johnson knew the cost of his criminal defense would be steep: There was no evidence of rape and although two of the counts were for molestation that had allegedly occurred more than a decade earlier, their criminal defense counsel foolishly refused to write a motion to dismiss those counts.  So concerned that the man would go to prison for life on what appeared to be bogus charges, Johnson deeply discounted her bill because she not only felt badly for them but also believed they were facing considerable legal fees.    Knowing that when she had deposited the money into her personal account, she had already earned that money, she asked Judge Spina at the contempt hearing was, How much money was commingled?  He again remained mute. Then when Weisberg took the stand, Johnson repeated that question.  The OBC objected, Spina sustained.  Weisberg could not answer, because the allegation was false.  Smoke and mirrors.            Count III.  In Count III, the OBC alleged that Johnson had to be jailed in 1998 to force her to pay money as ordered in 1995.  There was never such an order, Johnson had contended since 1995.  In the Board Discipline case, a FABRICATED order did surface.  Johnson uploaded it to her website.  It can be seen in color in her Answer to Count III in Drano #90, part iii (http://www.falseallegations.com/drano90-part-iii- answer-bbo-count-three-lily.htm) and elsewhere in her pleadings to the Bar and to Spina. Judgment of Disbarment on 9 August 2006 When the final order of judgment of disbarment issued, Johnson saw the transparent invalidity of it and knew she could not abide by many facets of it.  She would ignore them, as permitted under the law.  Other parts Johnson would abide with until the appeal was decided by this Court and if it became necessary, until the U.S. Supreme Court decided her subsequent appeal. August 11, 2006. It was on the 11th that Johnson learned she had been disbarred and that Judge Spina ordered her to withdraw from her current cases in the Commonwealth.  Her clients in the State cases would be prejudiced.  The cases were generally complex and no one could take them over at this time and be effective. August 23, 2006. In her Motion to Stay the Judgment of Disbarment, Johnson wrote that it was premature to send the notices the judge ordered.  What if the full panel reversed his order of disbarment?  August 25, 2006. Judge Spina denied, without hearing, Johnson’s Motion to Stay.  August 30, 2006.  On the 30th, Johnson filed a Motion to Stay directly with the full panel.  September 6-7, 2006. A week later, on the 6th, OBC Weisberg opposed without proper basis Johnson’s Motion to Stay.  On the 7th, Weisberg revised it. September 11-12, 2006. Because several months earlier, Johnson had been ordered by two courts to appear on Monday the 11th and Tuesday the 12th and because she had not received notice by then that this Court had act-ed on her Motion to Stay, she traveled to both courts.  On the 11th, Johnson filed the pretrial conference memorandum as ordered.  Having been informed by the court clerk that defendant failed to appear for the calls of the list, the judge, upon coming onto the bench, immediately awarded Johnson’s client a default judgment and told Johnson to file a motion for an assessment of damages.  Johnson never had to go in front of the bar.  If this Court ultimately denied her motion, a successor counsel would have to file an appearance.  If the motion were allowed, she herself would file the motion for an assessment of damages.    September 12, 2006. On the 12th, the judge knew Johnson had been disbarred.  He asked why Johnson was there.  Johnson answered, “Because you ordered me to be here.”  Then he would not let her speak.  Johnson had no problem with this.  She and her client had spoken about what should be done that day.\[16]/             September 13-14, 2006.  On or around those dates, Johnson received notice of the denial of her Motion to Stay.  From Johnson’s perspective, the denial confirmed that the forthcoming S.J.C. decision had been predetermined.  If not, she would have been allowed to continue representing her clients until her appeal was resolved.  October 17, 2006, Tuesday – Day 1 of Contempt Hearing.  On this day, Johnson stated that she had been ordered to the two courts.  Judge Spina responded: had Johnson sent notices to court, the orders would have been amended.  But where would her clients have been?  The judge appeared not to care.  He made no comment when she said she still had not heard by those dates whether her Motion to Stay had been acted upon. OBC Weisberg gave her opening and then examined   Johnson, who answered unhesitatingly and forthrightly and admitted everything where appropriate. Because Johnson had very little, if anything, on which to cross-examine herself for the purpose of rehabilitation or explanation, she asked if she could take Weisberg out of order.  The judge said, No, and added, if Johnson did not testify, she would waive her testimony, but she could be a rebuttal witness.  Because in Johnson’s experience, judges use inconsistent standards to determine whether to allow or disallow a rebuttal witness, she did not want to take the chance that the judge would change his mind and not let her testify. October 18, 2006, Wednesday.  On the free day, Johnson rewrote and filled out the forms she was alleged to have been ordered to write.  They were forms produced by OBC’s Weisberg under a BBO caption.  The judge’s order did not require the notices to be filled out on OBC or BBO captions.  See App-33-44. October 19, 2006, Thursday – Day 2 of Contempt Hearing. On this day, the judge sounded displeased, appeared not to even look at Johnson’s filled-out forms, and condescendingly accepted them as Exh. 12.  His anger arose because Johnson neither had yet made copies of them nor had addressed the envelopes in which to send them.  Without any consideration, he rejected her explanation that she had had no time to complete the tasks.  As noted above, when Weisberg took the stand, Johnson asked her about the alleged psychological report and the names of the psychologist and the patient, as well as about the allegedly commingled funds. Weisman’s counsel\[17]/ objected to each and every question, and Spina sustained each and every objection.   Smoke and mirrors. Because Weisberg was allowed to say nothing, Johnson had nothing to rebut.  She was fortunate that she used her self-cross-examination to testify to her state of mind—not that it did her any good, but it made the record. When Weisberg stepped down from the court officer’s seat, which was being used as a witness stand, given that Courtroom 2 does not have one, the judge made clear his intention to find Johnson in contempt.  He then asked her if she wanted him to appoint a commissioner. Johnson said, No, she did not want to pay a commission. Within three seconds after Johnson told him that, he ordered her to jail and she was handcuffed [Add-15].  He did not allow questions.  He did not read her forms. The Commissioner.  Johnson saw Spina’s findings for the first time on the weekend, while she was in South Bay, the Suffolk County House of Correction [Add-17].  She noticed that the judge had written that she had refused to cooperate with a commissioner who would assist her.  Surprise!  Johnson did not hear it that way in court. When the judge had asked her about a “commission”——not a “commissioner”–– her immediate reaction was that she did not want to have to deal with some unknown commission, another group of hacks, such as in the OBC and BBO. She did not understand that he was talking about a “commissioner” who would allegedly help her write the notices, that he was giving her a choice between jail or not, and that answering Yes would have meant no jail.\[18]/             The Holding Cell in Suffolk Superior Court.    When Johnson was waiting in a Suffolk County Superior Court holding cell [Add-11], Weisberg had delivered to her another set of her forms.           Suffolk County House of Correction, a/k/a South Bay.   When Johnson got to South Bay—–evening by then—–Johnson was put into the "infirmary" to "protect her" from the general population.  It was isolation.  Clear-ly no one wanted her to give——advertently or inadvertently——any legal advice to the general population. As Johnson made her first walk down the hall to her “cell,” the medical personnel asked her if she wanted her meds.  That shocked Johnson.  They had not even seen Johnson prior to that first walk.  Clearly they were giving "meds" to everyone whether they needed them or not.  When Johnson did not accept the medication, their demeanor signaled that they were upset.\[19]/ Bed was a 2-foot wide metal slab built into the wall with a foam mattress a few inches thick, covered in plastic, and already flat in the middle.  The sheets kept on slipping and the blanket was quite short.  She was let out for 1 hour a day on those days she spoke to her counsel, and perhaps once or twice for 2 hours a day.  The bed was significant because there was nowhere to sit or write, there being neither chair nor table. The food was unrecognizable as food.  It certainly was not in accordance with any accepted dietary laws or recommendations by nutrition professionals. One kind officer did let her use a nonpay phone to call two friends, one an attorney.\[20]/,\[21]/  Each did a yeoman's work getting her information between 2:30 A.M. and 7:30 P.M. on Friday from the gentleman to whom Johnson had given her bag and papers when handcuffed, from her home, and from the bank. The attorney arrived in the morning, stayed with Johnson inside the House of Correction, and helped her fill out some forms and envelopes.  Two security people did not, however, let counsel stay with Johnson to finish the tasks in Spina’s order, or to leave with Johnson the information she needed to comply with it [Add-15-16].  Later Friday evening, a lawyer working at the House of Correction to help inmates appeared like an angel.  Some other unknown angel had sent him to her Friday afternoon.  He went over the notices with her and said he would copy them, and because Johnson arrived without money, he would consider her indigent and charged the cost of the certified forms and green return receipts on the envelopes to the Suffolk County Sheriff.    He then prepared a Power of Attorney and after leaving the H/C Friday night, he generously and graciously delivered the document to her friend’s home so that she could close the IOLTA account on Saturday.  Johnson’s attorney friend arrived at the H/C on Sunday to deliver to her the bank document that confirmed that the IOLTA account had been closed, but thwarted on arrival, she had to try again on Monday to get it delivered to the H/C Records department. Johnson believes she was drugged—–perhaps inadvertently—–on Saturday afternoon.  Then Attorney Dmitry Lev arrived.  Johnson believes it was Saturday evening.  He stayed what seemed to be several hours.  He had read the order with a fine-tooth comb.  He took all the papers, in order to type and deliver the requested lists to Weisberg and the court on Monday.  He apparently stayed with Weisberg while she reviewed them.  Weisberg then wrote an assented-to motion for Johnson’s release.  Lev might also have written one.  He delivered them that afternoon to the S.J.C for Suffolk County.  At 4 P.M. on Monday the 23rd, Johnson was released [Add-1]. Thus, but for five human angels plus a handful of correction officers, Johnson would not have been able to satisfy the order, and would still be incarcerated.   Clearly, nothing Judge Spina wanted Johnson to do could be done from prison.  She was being punished.  She did not hold the key to any door.  But for having friends, she would still be imprisoned.  The contempt was criminal in nature with the possibility of indefinite incarceration. Johnson had been entitled to a jury,\[22]/ for which she asked but was denied [App-51].  The hearing afforded her was unconstitutional. ARGUMENTS 1.                Where the Judgment of Disbarment was transparently invalid             or had only a frivolous pretense to validity, the Order             issuing simultaneously with that judgment is void ab initio.   On 20 October, Judge Francis X. Spina amended his  October 19th Findings and Rulings on Bar Counsel's Petition for Contempt [Add-3 (Amended); Add-17 (Original)]. The original, October 19th, findings read: Finally, the respondent claims that the judgment of disbarment is "transparently invalid."  See e.g., City of Fitchburg v. 707 Main Corp., 369 Mass. 748, 754-755 (1976).  There is nothing remotely flimsy or whimsical about the findings of the Board of Bar Overseers as to the respondent's misconduct. The amended, October 20th, findings read: Finally, the respondent claims that the judgment of disbarment if "transparently invalid."  See e.g., City of Fitchburg v. 707 Main Corp., 369 Mass. 748, 754-755 (1976).  There is nothing facially flimsy or whimsical about the findings of the Board of Bar Overseers that might render the judgment of disbarment transparently invalid.   In other words, there was, at the very least in Judge Spina’s mind, both something that was remotely flimsy or whimsical about the findings of the Board of Bar Overseers as to the respondent's misconduct, and something that was flimsy or whimsical about how the BBO applied the law to find misconduct and render the judgment of disbarment. Although the judge cited Fitchburg for support, he ignored that in Fitchburg, the Court held that transparent invalidity may be found where a court frivolously applied the law, where a statute or other law was based on a frivolous pretense to validity, or where the statute or order was facially void.               But punishment for violation of an injunction enforcing an invalid ordinance may not be appropriate where 'the injunction was transparently invalid or had only a frivolous pretense to validity,' or  where it could be 'assumed that this ordinance was void on its face.'  Walker v. Birmingham, 388 U.S. 307, 315, 317 (1967).\[23]/  In the present case we think it could properly be assumed that the ordinance was void both on its face and as applied.   City of Fitchburg, 369 Mass. at 754-755 (emphasis supplied).\[24]/  The judge made that change to support his oral holding that his order was valid on its face and that any invalidity of the underlying BBO proceeding did not affect the facial validity of his order. Johnson disagreed, for by the judge adopting the BBO’s transparently invalid conclusions without exception, the judge’s order was infected by the transmitted transparent invalidity: Because the master's conclusions were adopted without exception by the district court, they are equivalent to rulings of the district court itself for purposes of our review. See Fed.R.Civ.P. 52(a) (“The findings of a master, to the extent a court adopts them, shall be considered as the findings of the court.”).   AccuSoft Corp. v. Palo, 237 F.3d 31, 39 n. 4 (2001).   Where it can be argued——as a result of the change Jude Spina made in his findings——that there was a frivolous pretense to validity in both the BBO’s conclusions and the judge’s conclusions, his order, too, was transparently invalid.  And because the order required Johnson to surrender irretrievable rights, the judge’s order did not require “blind obedience.” Matter of Providence Journal Co., 820 F.2d 1342, 1347 n. 28 (1st Cir. (R.I.), 1986).              Thus the collateral bar rule must not be applied.  “The unmistakable import of this language is that a transparently invalid order cannot form the basis for a contempt citation.  FN26”\[25]/ Requiring a party subject to such an order to obey or face contempt would give the courts powers far in excess of any authorized by the Constitution or Congress. Recognizing an exception to the collateral bar rule for transparently invalid orders does not violate the principle that “no man can be judge in his own case” FN30 anymore than does recognizing such an exception for jurisdictional defects. The key to both exceptions is the notion that although a court order——even an arguably   incorrect court order——demands respect, so does the right of the citizen to be free of clearly improper exercises of judicial authority. FN30. Walker, 388 U.S [307,] 320-21.   Providence Journal, 820 F.2d at 1347 (emphasis supplied).   Therefore, where the underlying order of disbarment as well as the recommendation of disbarment were transparently invalid or had only a frivolous pretense to validity, Johnson had a right to ignore the order of disbarment and certainly to have an opportunity to prove that the order was transparently invalid or based on a frivolous pretense to validity–—an opportunity she has never had. \[26]/    She reached for that opportunity at the contempt hearing, but the judge sustained a series of objections on questions on material issues.  For example, having contended that the OBC/BBO relied on only periphrastic and unsubstantiated conclusions, “bald assertions,”\[27]/ and “attorney’s argument”\[28]/ to accuse Johnson of violating diverse sections of the professional code, Johnson isolated the only two facts that were morphic.  One, the OBC and the BBO held and Spina adopted the BBO finding that there was a psychological report that Johnson had uploaded to her website.  Johnson consistently contended: No, there was never such a report on her website.  That mythical report allegedly formed the basis of the accusation supporting Count I, viz, that Johnson uploaded confidential or private and privileged material to her website. Two, to support Count II, the OBC alleged, then the BBO found, and next Judge Spina held that Johnson commingled funds.  At no time did the three entities ever identify how much money was allegedly commingled.  So when Johnson called Weisberg to the stand and asked about the so-called psychological report, i.e, in which file it was on her website, and the names of both the psychologist who wrote the alleged report and the person who was diagnosed or treated,\[29]/ had the judge overruled the OBC’s objections, Johnson would had definitive proof that the accusation was false. Similarly, when Johnson asked, How much money was it that Johnson allegedly commingled, had Judge Spina overruled the objections, Johnson would, again, have had definitive proof that that accusation was false. Had Judge Spina heard the answers, he would have had not only to find that the OBC charges and the BBO recommendation were transparently invalid and frivolous pretenses to validity but also to admit that his own holdings were also transparently invalid and based on, at most, frivolous, if not malicious pretenses to validity.  Given the pernicious transparent invalidity and frivolous pretenses to validity and given that Weisberg was allowed to evade answering Where’s the beef?, Johnson was entitled to ignore the judgment and the order of the single justice.         2.        Where the Single Justice abused his discretion—–as did            this Court–—by denying Johnson’s Motion to Stay the Order               to withdraw from her clients’ cases, he, in so doing, both             deprived her clients of their right to have a counsel of their            choice represent them and interfered with the orderly               prosecution of their cases, as well as wrongly deprived Johnson            of her ability to get compensated for the work she has done            for the past few years.  The Single Justice further violated            of § 1 of the Fourteenth Amendment to the United States             Constitution, by depriving her of her property and             ultimately of her liberty.               The Supreme Court of the United States has not yet decided whether the practice of law is a fundamental right protected by the privileges and immunities clause.  We anticipate, however, that the Supreme Court would conclude that the practice of law, an important commercial activity, although that of a "learned profession," is a fundamental right.  See Bates State Bar of Ariz., 433 U.S. 350, 368-372 (1977); Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975); In re Griffiths, 413 U.S. 717, 723-724 (1973). . . .      Courts that have considered the question have concluded that the practice of law is a fundamental right for privileges and immunities purposes. [Internal cites omitted.]  We are aware of no case that holds to the contrary.  (FN6) Matter of Jadd, 391 Mass. 227, 230-231 (1984) (right to practice law, an important commercial activity, protected by the privileges and immunities clause) (law review citations omitted).              Where § 1 of the Fourteenth Amendment to the United States Constitution states, No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protections of the laws. and Congress's power to enforce the substantive guarantees of the Fourteenth Amendment is not unlimited [Shedlock v. Department Of Correction, 442 Mass. 844 (2004), citing § 5 of the Fourteenth Amendment], for a single justice of this Court to have deprived Johnson of her fundamental rights to property and subsequently her liberty before she has had the benefit of an appeal as other members of the populace have was a violation of the privileges and immunities clause of both article IV, section 2, and the Fourteenth Amendment of the United States Constitution.\[30]/              Further, where the single justice knew that there is no written statute or rule or regulation or common law that allows him, knowingly and intentionally, to deprive Johnson of those fundamental rights—her rights to the benefit of appealing his ruling and to her property and her liberty—his action is egregiously in excess of his jurisdiction. 3.       Where Johnson’s appeal of the Judgment of           Disbarment was pending, the single justice no longer           had jurisdiction to hear a contempt complaint, both           making the contempt proceedings in the single-justice           session unlawful and unconstitutional, and allowing           Johnson to ignore the order.   “The filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”   U.S. v. Vitek Supply Corp., 151 F.3d 580, 584 (7th Cir.  (Wis.), 1998), quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982).  See also, e.g., Berman v. United States, 302 U.S. 211, 214 (1937); In re Watson, 403 F.3d 1, 6 (1st Cir. 2005)(same);  Maine v. Norton, 148 F.Supp.2d 81, 83 (D.Me. 2001) (“entry of a notice of appeal divests the District Court of jurisdiction to adjudicate any matter relating to the appeal”); First Merit Corp. v. Rohde, Slip Copy, page 2, ¶8, 2006 WL 2714688, Ohio App. 9 Dist.,2006 (filing of the notice of appeal divested  trial court of jurisdiction).   There are few circumstances in which a district court may continue to exercise authority over a case after the filing of a notice of appeal, an “event of jurisdictional significance [that] confers jurisdiction on the court of appeals and divests the district court of its control over ··· the case.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam). The district court may proceed if the notice relates to a non-appealable order or judgment. Mondrow v. Fountain House, 867 F.2d 798, 800 (3d Cir.1989); Venen v. Sweet, 758 F.2d 117, 120-22 (3d Cir.1985).   Walsh v. U.S., Slip Copy, at 1 n.1, 2006 WL 2529759, (M.D.Pa. 2006) (emphasis supplied).  See TSA Int'l Ltd. v. Shimizu Corp., 92 Hawaii 243, 265, 990 P.2d 713, 735 (1999) (“Notwithstanding the general effect of the filing of a notice of appeal [(i.e., divesting the trial court of jurisdiction over the appealed case)], the trial court retains jurisdiction to determine matters collateral or incidental to the judgment, and may act in aid of the appeal.”).    The Supreme Court has set forth several factors an appellate court must consider in determining whether to stay an order pending appeal:   (1)     whether the stay applicant has made a strong                    showing that he is likely to succeed on the merits; (2)     whether the applicant will be irreparably injured                    absent a stay; (3)      whether issuance of the stay will substantially                     injure the other parties interested in the                     proceeding; and (4)     where the public interest lies. U.S. v. Local 6A, Cement and Concrete Works, Laborers Intern Union of North America, 832 F.Supp. 674, 682 (S.D.N.Y. 1993), citing Hilton v. Braunskill, 481 U.S. 770, 776-777 (1987) and cases gathered.             First, Johnson is likely to succeed on the merits of her appeal if this Court acknowledges that there are no facts supporting the BBO’s recommendation and that the Judge Spina both abused his discretion and relied on clear errors of law:  There was no lawful trial at the BBO and no evidentiary hearing allowed in the single-justice session.  In the absence of due process and equal protection, Johnson could legally ignore the Judgment of Disbarment on the grounds of transparent invalidity and the absence of an opportunity for Johnson to prove the transparent invalidity. Second, absent the stay, Johnson was irreparably injured by the judge both forcing her to withdraw from her cases and thus, knowingly and intentionally, depriv-ing her of her past, present, and future livelihood. Third, the issuance of the stay could bear no adverse impact on the Bar Counsel, but it could have prevented depriving Johnson’s clients of their right to counsel of choice and interfering with their cases.              Finally, given that Johnson has provided considerable pro bono legal services and support to the public, the public interest has been in favor of Johnson being able to continue practicing law.  They would not have been harmed had the stay been allowed.  Together, the factors militated for staying the Order. On the same day the court entered an order that because of the notice of appeal the court was without jurisdiction as to any stay or injunction as requested in their motion for stay or motion for injunction pending appeal. The court on February 10, 1954, approved and ordered filed a supersedeas bond tendered by defendants. Green v. Green, 218 F.2d 130, 135 (7th Cir. (Ill.) 1955), cert. denied, 349 U.S. 917, reh’g denied, 349 U.S. 948 (1955).  The rule is well established in this Circuit that resolution of a complex jurisdictional issue may be avoided when the merits can easily be resolved in favor of the party challenging jurisdiction. Restoration Pres. Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 59 (1st Cir. 2003) (citing cases holding that jurisdictional inquiry is not required unless Article III case or controversy requirement is implicated). Cozza v. Network Associates, Inc., 362 F.3d 12, 14 (1st Cir. (Mass.) 2004). [N]o judgment of contempt against the husband could properly have been entered for failure to pay any installment obligation while his appeal was pending (in the absence of a specific contrary order).  The provision in rule 62(d) that an appeal stays execution on the judgment (except as otherwise provided in rule 62[g] as to certain obligations) should be treated as barring a contempt judgment for failure to comply with the order.  To allow a contempt proceeding in such an instance would undercut the purpose of rule 62(d). Huber v. Huber, 408 Mass. 495, 499-500 (1990) (emphasis supplied). "Once a party enters an appeal ... the court issuing the judgment or order from which an appeal was taken is divested of jurisdiction to act on motions to rehear or vacate."  Commonwealth v. Cronk, 396 Mass. 194, 197 (1985), and cases cited.  The only exception to this rule is the grant of a stay of appellate proceedings by a single justice of an appellate court for the purpose of prosecuting a postjudgment motion.  See Commonwealth v. Montgomery, 53 Mass.App.Ct. 350, 353 (2001) (once appeal is entered in Appeals Court, motion for new trial may be considered only if appellate proceedings are stayed by single justice).  Where there was no stay granted by a single justice of either the Appeals Court or this court, the Superior Court was divested of jurisdiction to hear the motion for a new trial.  Consequently, nothing is before us with respect to the defendant's motion for a new trial.  The denial of the motion for a new trial is vacated "and [that motion is] to be treated as not acted upon and awaiting determination by the Superior Court."  Id. at 355.  Com. v. Adkinson, 442 Mass. 410, 442 (2004).  Thus, where both the full panel and Judge Spina denied Johnson’s motion to stay, and Weisberg did not file a motion to stay, the County Court did not have the required jurisdiction to hear Weisberg’s complaint for contempt, thereby making Judge Spina’s act an act outside his jurisdiction. The Dickinson case\[31]/ has, however, influenced the Senate Judiciary Committee in its attempt to draft a new contempt section for S. 1437.  The section is 1331 and the current draft reads as follows: “It is an affirmative defense to a prosecution under subsection (a)(2) that the writ, process, order, rule, decree, or command was invalid and that the defendant took reasonable and expeditious steps to obtain a judicial review of the validity of the writ, process, order, rule, decree, or command, or a judicial decision with respect to a stay thereof, prior to the disobedience or resistance charged, and was unsuccessful in obtaining such review or decision.” The way this section works is that a Federal court cannot hold the news media in contempt if the news media has appealed a judicial decision not to print and has been unsuccessful in obtaining review of this decision.  In other words the statute concedes that Dickinson is correct, i.e., that an appeal is required.  And if the appeal of the lower court decision is “unsuccessful” the gag order may be disobeyed.   James Goodale, News Media and the Law, New York Law Journal, (Oct. 17, 1977).    Thus, where Johnson, unlike John L. Lewis and unlike Martin Luther King’s supporters, Johnson did appeal the Judgment of Disbarment on the grounds that it was transparently invalid, she could ignore the order until the appeal was resolved——and the appeal is still not resolved——and she has already been incarcerated for ignoring it!  See also U.S. v. Providence Journal, 485 U.S. 693, 698 (1988), which reads, “even those subject to a transparently invalid order must make a good-faith effort to seek emergency appellate relief,” and this is exactly what Johnson did: she timely filed her notice of appeal to seek appellate review of the Order. An order is deemed transparently invalid only if it “had [no] pretense of validity at the time it was issued.” United States v. Mourad, 289 F.3d 174, 178 (1st Cir. 2002) (quoting Providence I, 820 F.2d at 1347). The “transparently invalid” exception does not apply to orders that are “arguably proper.” Providence I, 820 F.2d at 1347. Here, for reasons already stated, the Protective Order in question was, at the very least, “arguably proper.” In re Special Proceedings, Misc. 01-47T (Oct.2003) (Torres, C.J.)  But in the instant case, where there are no supporting facts, only bald assertions and frivolous pretenses at validity, the judgments and orders of disbarment and contempt are anything but proper and the transparent invalidity exception must apply, allowing Johnson to ignore the order of disbarment. 4.          Where Johnson had filed a notice of appeal and the              appeal was pending, and the Single Justice did not              either stay his order or declare he had no juris-              diction to hear the OBC’s contempt complaint, the              Single Justice committed a clear and irreversible              error of law and thus deprived Johnson of the benefit of              appealing to the full panel of this Court.\[32]/    As soon as an appeal has been claimed, and before the final decree is vacated by entry of the appeal in this court, a statutory power arises in the court that entered the decree and also in this Court, to grant any needed injunction and to make any other proper interlocutory order, pending the appeal.     On appeal in equity suit on voluntary report of all the evidence, Supreme Judicial Court is not limited to facts recited in trial judge's findings, even though he undertook to find "all the material facts", but all questions of law, fact, and discretion are open for decision, and reviewing court can find facts not expressly found by trial judge and, if convinced that trial judge was plainly wrong, can find facts contrary to his findings.  G.L. (Ter.Ed.) c. 214, s 24; Superior Court Rule 76 of 1932.   Lowell Bar Ass'n v. Loeb, 315 Mass. at 189-190.  5.        Where Johnson both sought more time to comply, but            was, without reason, not given it, and claimed            impossibility to comply, the finding of contempt was            an abuse of discretion and must be vacated. The            resulting incarceration was an egregious abuse of            discretion and a clear error of law.    Because of Johnson’s schedule, she sought more time to comply.  Because of her lack of available funds, she pled that she could not afford the cost of so many certified mailings with return receipts.\[33]/  Because the OBC and BBO already had all the information it sought from Johnson, she pled that the hurried response was unnecessary and that the requirement was but a form of harassment and punishment.    Had the information been necessary, Judge Spina would not have ordered her incarcerated, where she had no chair and table and none of the information—–such as addresses—–needed to complete and send the notices.             Incarceration was an inappropriate sanction.  It was both an egregious abuse of discretion as well as a clear error of law.  “When reviewing a sanction imposed by the single justice we inquire whether it is markedly disparate from judgments in comparable cases.”  In re Cobb, 445 Mass. 452, 479 (2005), citing Matter of Alter, 389 Mass. 153, 156 (1983).  There appear to be no comparable cases. 6.          Where Johnson did not hold the key to the cell door,              the finding that the charge was for civil contempt              and not criminal contempt was a clear error of law              and must be reversed.   "Contempts have been classified as either criminal or civil....  If the penalty is not imposed wholly for the benefit of the aggrieved party, but in part at least is punishment for the affront to the law, the contempt is deemed criminal.  If ... the power of the court is used only to secure to the aggrieved party the benefit of the decree, either by means of a fine payable to the aggrieved party as a recompense for his loss through disobedience to the decree, or by means of imprisonment terminable upon compliance with the decree, then the contempt is deemed civil."  Godard v. Babson-Dow Mfg. Co., 319 Mass. 345, 347 (1946).   The Superadio Ltd. Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330, 342 (2006). “[C]ivil contempt proceedings are designed to coerce compliance with court orders; criminal contempt proceedings are exclusively punitive.”  R.W. v. M.G., 64 Mass.App.Ct. 1105 (2005) (unpublished), citing Furtado v. Furtado, 380 Mass. 137, 141 (1980).  If imprisonment is imposed in civil contempt proceedings, it cannot be for a definite term.  The respondent can only be imprisoned to compel his obedience to a decree.  If he complies, or shows that compliance is impossible, he must be released. Parker v. United States, 153 F.2d 66, 70 (1st Cir.1946) [citations omitted].      Where there was no benefit whatsoever to accrue to the OBC or the BBO, for the dynamic duo already had all the requested information, the contempt was not civil. In fact, where Judge Spina knew or should have known that it was impossible for Johnson to comply with his order while incarcerated, the contempt was criminal in nature, which entitled her to a jury trial.  Further, where Judge Spina’s order was for, e.g., the production of written notices of withdrawal to clients, opposing counsel, and courts, Johnson’s incarceration made compliance with the order impossible.  Further, where the jailing of Johnson was solely for punishment, the contempt should have been deemed criminal, not civil, and heard by a jury.              In sum, incarceration of Johnson for noncompliance was too harsh, unconstitutional, and certainly a clear error of law, making it mandatory to vacate the finding of contempt. 7.          Where the charge was for criminal, not civil,              contempt in the Supreme Judicial Court for Suffolk              County, and Johnson was not allowed a trial by jury,              the finding of contempt was a clear error of law and              must be reversed and the Judgment of Contempt              vacated. (FN3.) Formerly, under G.L. c. 215, §16, jury issues could be framed in the Probate Courts for trial in the Superior Court.  However, §16 was repealed by St.1986, c. 211, §1.  Edgar v. Edgar, 403 Mass. 616, 618 n. 3 (1988).  Currently in Probate Court, “there is no provision for a jury trial”  Id. at 618.             Currently in Superior Court, jury trials are available for criminal contempts if incarceration imposed shall be for more than 6 months.  "There is no constitutional right to a jury trial in a criminal contempt proceeding in which the penalty is six months' imprisonment or less."  Aroesty v. Cohen, 62 Mass.App.Ct. 215, 219 n. 7 (2004), quoting Edgar v. Edgar, 403 Mass. 616, 618 (1988).\[34]/          Currently there is, however, no statute or case law addressing the issue of incarceration for criminal contempt in the single-justice session. The Supreme Judicial Court for Suffolk County, also known as the single justice session, is that part of the court's business in which an associate justice acts as a trial judge-as was the function of the first justices-or as an administrator of the court's supervisory power under G. L. c. 211, § 3. The county court, as it is often called, has original, concurrent, interlocutory and appellate jurisdiction conferred by the Massachusetts Constitution, statutes, rules of court and case law. Practice before the single justice is governed by the Massachusetts Rules of Civil Procedure, SJC Rule 2:01 et seq. and pertinent Standing Orders.  In reality, however, the practice has diverted from strict compliance with the Massachusetts Rules of Civil Procedure and is presently governed by a hybrid of formal rules and historic customs and practices.  PRACTICE AND PROCEDURE SINGLE JUSTICE, published at http://www.sjccountyclerk.com/singjusprpr.html (emphasis supplied).   In fact, the Commonwealth has “never been squarely presented with the question of the extent to which the Constitution of the Commonwealth requires jury trials of criminal contempt proceedings.” Furtado, 380 Mass. at 142. Thus, where the contempt charge brought against Johnson was criminal, the County Court had no jurisdiction either to hear or sentence Johnson to any incarceration, definite or indefinite.  Even Mass.R. Crim.P. 44(a), 378 Mass. 920 (1979), fails to provide a jury in the Supreme Judicial Court for Suffolk County.  Further, where there is no rational basis for the distinction which permits jury trials in some courts but not in others, Johnson was deprived of equal protection of the laws.  The only basis was set out in Edgar by this Court, viz, that there was a rational basis for permitting jury trials for criminal contempt in Superior Court pursuant to Rule 44(a), but not in Probate Court, because there is no such provision for the latter court.  Edgar, 403 Mass. at 618-619.  That basis is not rational, it is contrived.  Thus, Edgar was, clear- ly, wrongly decided.   Essentially this Court stated, with nothing more than a bald statement such as Well, Probate Court is different than the other courts, that there was a rational basis for the disparate treatment . . . and it relied wrongly on Vance v. Bradley, 440 U.S. 93, 97 (1979), for that proposition. That was reversible error.  In Vance the Supreme Court had stated, “[W]e will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational.”    And Vance relied on Massachusetts Board of Retirement v. Murgia, infra, in which the Supreme Court wrote, [An] equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right FN3 or operates to the peculiar disadvantage of a suspect class.FN4 Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 2566 (1976)\[35]/; Izquierdo Prieto v. Mercado Rosa, 894 F.2d 467, 471 (1st Cir. (Puerto Rico), 1990) (same); Disabled American Veterans v. U.S. Dept. of Veterans Affairs, 962 F.2d 136 (2d Cir. (N.Y.), 1992) (same).   Certainly being charged in one court versus being charged another gives one defendant a peculiar disadvantage.  Assuming arguendo——very hesitantly–—that there was strict scrutiny in Edgar, Johnson, resorting appropriately to the vernacular, asks, What in the world made this Court in Edgar find that the same alleged crime can be punished differently because it was brought in two different courts?  The rational action would have been either to make the rules the same for both courts or to disregard the location of the accidental birth of the crime and allow the crime to be tried in one court. For example, this Court ruled in Goodridge v. Department of Public Health, 440 Mass. 309 (2003), that, in essence, birth as a gay person should not deprive the child of the right to marry. Why, then, should the birth of a criminal-contempt charge in one court deprive the defendant of the jury trial to someone who was lucky enough to be charged in another court with the same crime?  Thus to deprive someone charged in probate court—–or, as in the instant case, in the County Court—–rather than in superior court, of the right to a jury trial is a blatant act of disparate treatment and unequal protection.  Rule 44(a) must then be extended to apply to all courts so that all defendants charged with the same crime are treated equally regardless of the court in which they are charged.  Simple and rational.  No other rational solution exists.  Similarly, §§ 41, 46, 46A, 46B of chapter 221 must be uniformly changed.  Where there is incarceration, (1) the sections must be removed from chapter 221 and inserted into the chapters reserved for criminal statutes, (2) the word “equity” must be stricken, and (3) language providing a jury trial must be inserted.  Uniform charge, uniform sentencing, and uniform rights to a jury trial would be uniformly correct. Where Johnson was deprived of equal protection, the finding of contempt was a clear error of law and must be reversed and the Judgment of Contempt vacated. 8.         Where a comprehensive definition of what             constitutes "the practice of law," Massachusetts             Rule of Professional Conduct 5.5 is void for             vagueness, requiring this Court to reverse the             implicit finding that Johnson committed the             unauthorized practice of law, and vacate the             Judgment of Contempt.  The justification for excluding from the practice of law persons not admitted to the bar is to be found, not in the protection of the bar from competition, but in the protection of the public from being advised and represented in legal matters by incompetent and unreliable persons, over whom the judicial department could exercise little control.    Lowell Bar Ass'n v. Loeb, 315 Mass. at 180.  The proposition cannot be maintained, that whenever, for compensation, one person gives to another advice that involves some element of law, or performs for another some service that requires some knowledge of law, or drafts for another some document that has legal effect, he is practising law.    Lowell Bar Ass'n v. Loeb, 315 Mass. at 181. “It is not easy to define the practice of law."  Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 180 (1943).  "To a large extent each case must be decided upon its own particular facts."  Matter of the Shoe Mfrs. Protective Ass'n, 295 Mass. 369, 372 (1936).  In re Chimko, 444 Mass. 743, 749 (2005). "[T]he mere general dissemination of legal information by nonlawyers does not constitute the unauthorized practice of law."  Oregon State Bar v. Smith, supra at 182, 942 P.2d 793.   Equally significant in our view, however, is the fact that the notice was addressed to the court, and not to the debtor.  Although Chimko included the notice with his initial correspondence to the debtor, seemingly as a courtesy to a party acting pro se, the notice itself made clear that its intended audience was the court.  In such circumstances, we cannot conclude that Chimko furnished legal advice to the debtor and thereby engaged in the unauthorized practice of law.  Matter of the Shoe Mfrs. Protective Ass'n, supra at 372 ("the establishment of the legal rights of others [and] the practice of giving or furnishing legal advice as to such rights ... are ... aspects of the practice of law" [emphasis added] ).  (FN10) Chimko, 444 Mass. at 751.   Here, Johnson wrote a pretrial conference memorandum as ordered by a superior court.  The memo was addressed to the court, not to the plaintiff.  It did not give legal advice to the plaintiff.  Her presence at court was merely a courtesy to tell the court how much time the then pro-se plaintiff would need to find successor counsel.  After all, Johnson would have to explain to successor counsel what the case was, convince potential counsel to take the case, sort the file.  Successor counsel is not simply calling a counsel and saying, Hey, here is a case for you.  Thus Judge Spina’s implicit or inferential finding that Johnson was practicing law by her appearance in court on the Monday after the disbarment order became effective, Friday (“Axe Day”), was clear error [App-11, 15, 47-50; see also App-9-10].    Johnson’s appearance was simply a courtesy to the plaintiff then acting pro se.  The memorandum itself, prepared before the axe fell, made clear that its intended audience was the court.           Further, neither Mass.R.Prof.C. 5.5, 426 Mass. 1410 (1998), nor M.G.L. c. 221, § 46A, defines what constitutes the practice of law.  Lowell Bar, 315 Mass. at 334-335.  Neither, of course, does c. 221, §41. While “[t]he judicial department is necessarily the sole arbiter of what constitutes the practice of law” [id. at 180], the task of doing so is not easy and, in most cases, will depend on the facts of each case.  See Matter of Chimko, 444 Mass. 743, 749 (2005). Superadio Ltd. Partnership v. Winstar Radio Productions, LLC, 446 Mass. 330, 335 (2006).             This Court should have some concern about the effect of the shortcoming of its ruling in Superadio.  A criminal charge must have elements so as not to be vague or overbroad.  If the practice of law cannot be defined, neither can the unauthorized practice of law, making §§41, 46A, 46B, 46C unconstitutionally vague. Conclusion Where the single justice’s order was, e.g., for the production of written notices of withdrawal to clients, opposing counsel, and to courts, the single justice not only intentionally deprived Johnson’s clients of a well-established fundamental right, to wit, the counsel of their choice, which will likely cause the clients not to receive proper remedies from their cases, but also deprived Johnson of her fundamental right to her property, to wit, payment for her work for approximately five years (the last three or four years and the next two), making the sanction of making her withdraw from her cases——about which her clients had no complaint——prior to her appeal subject to strict scrutiny. Strict scrutiny will reveal that it is impossible to establish conclusively the misconduct by Johnson for purposes of discipline, making not only the Judgment of Disbarment and the subsequent Judgment of Contempt transparently invalid, but also making it mandatory to reverse the findings and vacate the contempt judgment.    WHEREFORE, Plaintiff prays that this Court not only vacate the Judgment of Disbarment (as requested in Johnson’s brief in SJC-09820) but also the Judgment of Contempt (the instant case, SJC-09866).    Johnson also prays that this Court provide alternate relief for depriving Johnson of the past and future monetary compensation that she would have received had she not been forced and under duress while in a house of correction to withdraw from her clients’ cases.  Loss of license is one sanction.  The loss of past, present, and future income is another, and Johnson is deserving of a remedy.                                       Respectfully submitted,                                                                                          ____________________ 14 December 2006                  Barbara C. Johnson, Pro se                                        6 Appletree Lane                                        Andover, MA 01810-4102                                        978-474-0833                                        B.B.O. #549972 (pending appeal)   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).                                               ____________________ 14 December 2006                    Barbara C. Johnson, Pro se                   CERTIFICATE OF SERVICE   I hereby certify that on 26 December 2006 served two true and accurate copies of the above pleading and record appendix by first-class mail on op­posing counsel of record, OBC ABC Susan Strauss-Weisberg, 99 High Street, Boston, MA 02110.                                                                                                    ____________________ 26 December 2006                    Barbara C. Johnson, Pro se [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] Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 189-190 (1943).  [3]     Article V provides that all three branches of government—–including officers and magistrates—–are accountable to all the people all the time. [4]    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 “bald assertions, periphrastic circumlocutions, unsubstantiated conclusions, or outright vituperation.”  United States v. Avx Corp., 962 F.2d 108, 115 (1st Cir.  1992) (internal cite omitted).  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). [5]   See pp. 56-57 of the transcript for 2 December 2003, Day 1 of the BBO hearing.  A scanned-in copy of an excerpt appears on p. 14 of Johnson’s appellate brief, SJC-2006-09820. [6]   A month earlier, at a pretrial hearing, the hearing officer had ordered the stenographer to go off the record when Johnson spoke but stay on the record when he spoke.  (See p. 40, lines 9-12, of the transcript for 17 November 2003.  A scanned-in copy of an excerpt appears on p. 13 of Johnson’s appellate brief, SJC-2006-09820.)  Therefore when the public was ordered out of what was a sham trial, Johnson also left, fearing that the hearing officer could then invent what Johnson allegedly said.  [7]  Left penurious by the outrageous, criminal attack by the OBC and BBO against Johnson for the last five years, she cannot afford to contract for a transcript.  The questions asked Weisberg are on the disk for Day 2 of the hearing.  Copies of that disk are available in the clerk’s office for the S.J.C. for Suffolk County. [8]   See the discussion on p. 120 of the transcript for 2 December 2003, Day 1 of the BBO hearing, from which is excerpted: WEISBERG: So I believe the source of her information is either her client or prior counsel, but I have no further evidence to offer in that regard.   [9]    See pp. 56-57 of the transcript for 2 December 2003, Day 1 of the BBO hearing, and p. 14 of Johnson’s appellate brief, SJC-2006-09820. [10]    See p. 63 of the transcript for 2 December 2003. [11]   If the S.J.C. truly has no knowledge of the proceedings at the BBO and OBC, then this Court should sponsor a full-scale investigation, if not immediately pull the plug on the activities of the Siamesely bound entities, the BBO and the OBC. [12]   The injection of Retired Judge William Simons into the fray was another contrivance.  The issue of the taped message and the transcript [OBC Trial Exh. 75 (tape not with BBO Appendix) and Impounded Vol. XII, OBC. Exh. 75A], is discussed in several documents, including Johnson’s opposition at App-TAB-A3, pp. 193-194.  Such a decision discourages any negotiation whatsoever.  Common sense, where art thou? [13]    OBC ABC Weisberg, ignoring the significance of the dates, maliciously contained in her Complaint for Contempt an allegation that Johnson had indulged in the Unauthorized Practice of Law.  She provided no authority either for the proposition that the Single Justice had jurisdiction to act on the Motion to Stay after Johnson’s Notice of Appeal was filed or for the proposition that a Motion for Stay does not stay the Judgment of Disbarment.  Neither did she, of course, provide an authority that allows counsel to be precluded from practicing law before an appeal from a Judgment of Disbarment is final. As was typical with Spina, he ignored Johnson informing him that the Motion to Stay was still pending before this Court when she was in Northampton Superior Court. [14]    OBC ABC Weisberg’s appellee brief, originally due on 9 November 2006, was continued to 22 November 2006 and with the improper consolidation, is now due sometime in January.  No hearing date has yet been set. [15]    After the petition was brought, Johnson found an arithmetic error and sent Weisberg $300+ to send to the complainant.  Johnson had charged $50 an hour for a little over half the hours billed and $250 an hour for the less than half the hours.  (She charged $250 an hour for those tasks that used her legal knowledge.) [16]      According to Weisberg’s Petition for Contempt, Johnson’s appearance in those two courts on the 11th and 12th were contemptuous acts.   [17]   OBC ABC Kaufman made a last-minute appearance as Weisberg's counsel. [18]   When Johnson received the disk (she cannot afford a transcript and none has been provided her), she heard Weisberg mention that the OBC had a meeting about a commissioner.  That was all that was said.  The judge then asked if she wanted a “commission.”  Clearly not understanding the business about either a “commission: or a “commissioner,” Johnson said No.  Three seconds later she was in handcuffs. [19]   Over the next day or two, with dire predictions, the medical personnel insisted Johnson take pills for edema and for high blood pressure (her pressure is usually low), etc.  On Monday morning, they wanted to take an echocardiogram.  Johnson said No.  Neither the doctor nor the nurse explained what it was and Johnson did not ask. Hoping she would be released that day and adding to her anxiety level, which was too high, she feared being given for one day medication that should be taken … and monitored … for a longer period of time. [20]       There were some decent officers, of both genders.  Her uninformed observations were that about one-third of the Correction Officers had IQs hovering well under 100, a handful were borderline sadistic, and the remaining were of, at least, average intelligence. [21]       After a few days, she was given a pin number to use for a phone, but the number did not work.  “Unreasonable restrictions on prisoner's telephone access may violate First, Sixth, and Fourteenth Amendments.”  Mil-ler v. Comm’r of Correction, 36 Mass.App.Ct. 114, 118 (1994) (“[c]ivilly committed patients … may be entitled to greater privileges than prisoners”), citing Tucker v. Randall, 948 F.2d 388, 390-391 (7th Cir. 1991).  On the fourth day of her confinement, the pin number worked. [22]    "When a judge acts intentionally and knowingly to deprive a person of his constitutional rights he exercises no discretion or individual judgment; he acts no longer as a judge, but as a 'minister' of his own prejudices". Pierson v. Ray, 386 U.S. 547, 567 n. 6 (1967) (Mr. Justice Douglas, dissenting). [N]o tribunal is sacred in the eye of existing usurpation, and every character, however excellent, must go down under the baleful progress of despotic power.  Under the provisions of this section (section 1), every judge in the State court and every other officer thereof, great or small will enter upon and pursue the call of official duty with the sword of Damocles suspended over him by a silken thread, and bent upon him the scowl of unbridled power, the forerunner of the impending wrath, which is gathering itself to burst upon its victims. Globe 42nd Congress, 1st Session. March 31, 1866, 365-366, from which the boldfaced and underlined words were excerpted and quoted in Pierson at 562 (dissent). [23]         In Walker, the Supreme Court upheld contempt citations against supporters of Martin Luther King who had chosen to march in a parade (after a court order barring them from doing so) without first appealing from an admittedly unconstitutional order.  The Court upheld the contempt even though it acknowledged that an order “transparently invalid” might well not have to be obeyed. Goodale, News Media and the Law, N.Y.L.J. at 2 (October 17, 1977), citing Walker, 388 U.S. at 315. [24]    In Fitchburg, the City brought action to enforce a licensing ordinance against motion picture theater operators.  The Superior Court found two of defendants to be in contempt and ordered them punished.  This Court, granting direct appellate review, held that the ordinance was unconstitutionally vague on its face and as applied and that the civil contempt adjudications under that invalid ordinance must fall. [25]    FN26. See 3 Wright, Federal Practice & Procedure § 702 at 815 n. 17 (1982) (collateral bar rule does not apply if the order violated was transparently unconstitutional); State ex rel. Superior Ct. of Snohomish County v. Sperry, 79 Wash.2d 69, 483 P.2d 608 (1971), cert. denied, 404 U.S. 939 (contempt citation improper because order violated was transparently void); see also United States v. Dickinson, 465 F.2d 496, 509-10 (5th Cir.1972) (recognizing exception to collateral bar rule for transparently invalid orders); Ex parte Purvis, 382 So.2d 512, 514 (Ala.1980) (same). Providence Journal, 820 F.2d at 1347 n. 26. [26]  Johnson incorporates from SJC-06-09820, App-TAB-A3 in entirety herein by reference, her arguments on pp. 135-138 of her Opposition Memorandum. [27]  See note 4, supra. [28]  “[A]ttorneys' arguments were not evidence.”  Com. v. Martin, 66 Mass.App.Ct. 1102 (2006) (unpublished).  Com. v. Beauchamp, 49 Mass.App.Ct. 591, n. 21 (2000) (unpublished).  Evans v. Multicon Const. Corp., 6 Mass.App.Ct. 291, 296 n. 4 (1978. [29]  Left penurious by the outrageous, criminal attack by the OBC and BBO against Johnson for the last five years, Johnson cannot afford to contract for a transcript.  The questions asked Weisberg are on the disk for Day 2 of the hearing.  Copies of that disk are available in the office for the S.J.C. for Suffolk County. [30]     Judge Spina acted with deliberate, reckless or callous indifference to the rights of both Johnson and her clients.   See Sanchez v. Alvarado, 101 F.3d 223, 228 (1st Cir.1996), and cases cited.  See also note 21, supra. [31]  United States v. Dickinson, 465 F. 2d 496 (5th Cir. 1972). [32] Lowell Bar Ass'n, 315 Mass. at 189-190. [33]  In his Findings and Rulings on Bar Counsel’s Petition of Contempt, at p. 6, Judge Spina wrote, “she has made no request for funds for certified mailing based on her alleged indigency.”  Given that he had adopted in entirety the BBO/OBC’s recommendation, which was so devoid of proven facts and transparently invalid, that his demeanor at the first hearing was so acerbic, and that he had denied her motion to stay——which was filed as both an indication of her distrust and a test of this Court’s intentions——Johnson believed that such a motion would be futile. [34]         However, rule 44(a) now provides that a case of criminal contempt not adjudicated summarily "shall proceed as a criminal case in the court in which the contempt is alleged to have been committed."   This new rule "brings into play the right to jury trial.  Com. v. Eresian, 389 Mass. 165 (1983) [internal cites omitted]. [35]   Article XII, Massachusetts Declaration of Rights, and Sixth Amendment to the United States Constitution.