a   #172, Drano Series



  


Barb's Revised
Appeal of the Judgment of Dismissal
of her case
 Barb v. the BBO, OBC, Bar Counsel Daniel C. Crane,
and Assistant Bar Counsel Susan Strauss-Weisberg

  in Superior Court
on the Grounds of Immunity:
Massachusetts Tort Claims Act,
SJC Rule 4:01, § 9(3), and
Common Law, or
Sovereign Immunity,
Prosecutorial Immunity, and
Absolute Immunity
~~~~~~~~~~~~~~~~
Barb included here also the cover, the brief,
and the Superior Court judge's two memoranda:
one on the defendants' Motion to Dismiss [Paper #27]
and the other on the denial of
Barb's motions to strike the appearance of the attorney-general for the defendants
[Paper #28]
~~~~~~~~~~~~~~~~
Barb's case had four counts of defamation and one count of intentional interference with prospective advantageous business relationships

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1/8/07

Around New Years I filed a lengthy brief in this, MY case against the BBO, OBC, the Bar Counsel and the prosecutor.
An appeal judge denied my motion for leave to file a brief in excess of 50 pages.
Ironically, he did me a favor.
I had slapped the brief together from documents previously filed.
Assembled the appendix and the addendum and T of C, all in about a week.
Too fast.
Too imprecise.
When I went to shorten it, I saw how IMprecise, how sloppy it was.
MORAL: Do Not Try to Write Appellate Brief in a Few Days, etc. etc. etc.
Here is the revised one.
Much better.
It's at the printer now as I html the revised and short brief for this file..
Have fun.
ALLLLLLL on immunities.



PAPER 27

Superior Court of Massachusetts.

Barbara C. JOHNSON

v.

BOARD OF BAR OVERSEERS OF MASSACHUSETTS, Office of Bar Counsel, Daniel Crane, Susan Strauss-Weisberg, and the Commonwealth of Massachusetts.

No. CIV.A. 05-1907.

 

Aug. 4, 2006.

 

 

MEMORANDUM AND ORDER ON DEFENDANTS' MOTION TO DISMISS

THOMAS P. BILLINGS, Associate Justice
.

*1 For the following reasons, the defendants' Motion to Dismiss is ALLOWED.

FACTS

 

The Motion to Dismiss is brought under Rule 12(b)(6). The following facts, as alleged in the complaint and/or as apparent from the exhibits thereto, are therefore taken as true for present purposes.

 

The plaintiff, Barbara Johnson (“Johnson”), is a member of the Massachusetts bar. She is the respondent in several complaints before the defendant Board of Bar Overseers (“BBO”) which, at least indirectly, are the genesis of the present proceeding. She also maintains a website at falseallegations.com.

 

Defendant Daniel Crane (“Crane”) has been, at all material times, the Bar Counsel for Massachusetts. Defendant Susan Strauss-Weisberg (“Strauss-Weisberg”) has been an Assistant Bar Counsel.

 

Johnson ran for governor unsuccessfully, in 2002, on a platform of court reform and the abolishment of judicial and quasi-judicial immunities. On January 24, 2003 the OBC filed a petition for discipline against her at the BBO, with (the Complaint alleges) the intention of interfering with her livelihood and intimidating her from using her website to criticize the judiciary. The three-count petition was based on the aforementioned four complaints.FN1

 

 

FN1. It bears noting here that once Bar Counsel filed a petition for discipline, the proceedings became public. S.J.C. Rule 4:01, §  20.

 

The Complaint further alleges that the defendants are responsible for four separate defamatory communications, as follows.

 

 

1. BBO Website.

 

The BBO maintains a website on which members of the public can look up the status of any attorney licensed in Massachusetts. On or about the date the petition for discipline was filed the BBO added the notation, on the record pertaining to Johnson, “Disciplinary Proceedings Pending.”

 
 

2. Boston Herald, March 2003.

 

In the first week of March, 2003 the Boston Herald ran an article headlined, “Bar better be prepared for battle.” The story covered the petition for discipline, and led off with a quote from Johnson:


“The bar is a kangaroo court, and I want it spread wide open from sea to sea. I campaigned on a platform of court reform. I should be concerned about it, but I'm not. I suffer no guilt and no remorse. Their goal is to discredit me so I won't be listened to.”

 

The article then noted that the petition contained allegations including “posting confidential information about clients on her Web site [and] commingling client funds.” It inquired:Did she really, as assistant bar counsel Susan Strauss-Weisberg claims, post “highly sensitive” information on her Web site-“falseallegations.com”-about a child in a paternity action in which Johnson represented a father who was accused of sexually abusing the boy?


According to Weisberg, the information included “particulars of the boy's evaluation and therapy ... the therapists' finding concerning the abuse and ensuing trauma.”

 

After reporting Johnson's qualified denial,FN2 the article continued with “Weisberg's view” that “it was wrong” and that “the only' substantial purpose' Johnson had in posting the photos [of the child; see fn. 1] was to ‘embarrass or burden’ the boy and his mother.” The article also attributed to Strauss-Weisberg the statement “that Johnson spent part of a $10,000 client retainer on her own personal expenses.”

 

 

FN2. Johnson is quoted in the article as saying, “It's a complete lie, and I defy anyone to prove that.” This is followed, however, with her admission that she had posted information about the case on her website, which included her statement that the mother was a perjurer who had falsely accused the father of sexual abuse, as well as photographs of the boy.

 

3. Lawrence Eagle-Tribune, December 19, 2003.

 

*2 A hearing on the petition for discipline was scheduled for December 2, 2003, and apparently commenced that day. On December 19, 2003 the Lawrence Eagle-Tribune ran a story headlined, “Bar counsel cracks down on Andover lawyer.” This quoted Crane as saying that “he expects the Office of Bar Counsel to announce Johnson's fate within two to four months,” and then quoted Johnson as saying she was “convinced she will be disbarred. ‘I expect they will revoke my license quickly,’ Johnson said yesterday. ‘They can't wait to get rid of me.’ “

 

The article went on to report that the hearing, originally scheduled for three days, began and ended December 2, shortly after [Johnson] began her opening statement. The proceedings were closed to the public, and Johnson's supporters and witnesses were ordered to leave after Johnson repeatedly mentioned the names of children and others whose identities were protected by law, despite numerous warnings to stop, Crane said.

 

The article does not always explicitly attribute its information to particular sources, but the Complaint alleges that Crane was the source for the following, in addition to the statements just quoted:• That the OBC “was seeking a disciplinary hearing stemming from complaints from two of Johnson's former clients.”


• That Johnson had “said mentioning the names of the ‘protected’ individuals was ‘a slip of the tongue.’ “


• That Johnson “later posted on her Web site the names of the people she mentioned at the hearing, at least one of whom was under the protection of a court order”;


• That “Johnson published confidential information about the ex-wife of a client accused of sexually and physically abusing his young son. The information was posted on the Internet to ‘embarrass or burden’ the boy's mother, who was at the time running for public office in Bristol County, the complaint alleges.”


• That “the complaint further alleges Johnson withheld $7,575 from a client without securing a signed fee agreement,” and that after “her client complained to the Bar about the bill, Johnson posted confidential information about the case on her Web site.”

 

4. Certificate of Good Standing.

 

On March 14, 2005 Johnson applied to the SJC for a Certificate of Good Standing, and to the BBO for a clearance letter, all in furtherance of Johnson's application for admission pro hac vice in a court proceeding in another state. When the SJC issued the certificate on March 21, it included a notation, “Open disciplinary grievances pending,” with ten docket numbers listed, and also: “A public proceeding against her is currently pending before a special hearing officer.” Four of the docket numbers corresponded to those that had led to the petition for discipline. The BBO had notified Johnson of three others; of the remaining three, she had no notice. The information concerning the ten grievances came from the clearance letter, which Strauss-Weisberg prepared and Crane approved.

 

*3 Johnson left a voice mail message for Strauss-Weisberg, asking for details concerning the open grievances. Strauss-Weisberg responded in a letter to Johnson, marked “Personal and Confidential,” confirming that four of the grievances were the subject of the petition for discipline, and that the remaining six were “in ‘held’ status in which no action has been taken in light of the current disciplinary proceedings.” For each of these, the letter identified the source of the grievance (one client complaint, four referrals by judges, and one file opened in response to a published opinion of the Appeals Court in a case in which Johnson was the defendant / appellant). As to three, Strauss-Weisberg noted that the OBC had determined that no response from Johnson was required as yet (and so, apparently, had not notified her of them).

 

On April 4, 2005 Johnson wrote to the Clerk of the SJC to request a new letter that did not reference to the BBO complaints, on the grounds (a) that the complaints were politically motivated and (in some cases) had not been investigated by the OBC or the BBO, and (2) that “[p]articularly where the form [on which the certificate is printed] states that private reprimands are not covered by the certification, certainly uninvestigated complaints also must not be covered by it.” The SJC refused to issue a new certificate without the docket numbers, thus “both violating Johnson's right to equal protection [and] also defaming her,” and also interfering with her advantageous or contractual business relations with a client. Johnson was not admitted pro hac vice in the out-of-state proceeding, and thus was deprived of a paying client.

 

On the basis of the foregoing allegations, the Complaint pleads the following claims:

Count 1: Defamation by the Commonwealth, the BBO, and the OBC (publication on the BBO website).

Count 2: Defamation by Strauss-Weisberg (statements republished in the Boston Herald ).

Count 3: Defamation by Crane (statements republished in the Lawrence Eagle-Tribune ).

Count 4: Defamation by the Commonwealth, Crane, Strauss-Weisberg, the BBO, and the OBC (Clearance Letter and Certificate of Good Standing).

Count 5: Intentional Interference with Prospective Advantageous Business Relations with a Client by the Commonwealth, Crane, Strauss-Weisberg, the BBO, and the OBC (Clearance Letter and Certificate of Good Standing).

 

The defendants, moving to dismiss the Complaint for failure to state a claim upon which relief may be granted, assert various immunity defenses, discussed below. They also invite judicial notice of the decision in Johnson v. Board of Bar Overseers of Massachusetts, et al., 324 F.Supp. 276 (D.Mass.2004). The facts underlying the federal case overlap with, and in two instances replicate, FN3 those pleaded in this case.

 

 

FN3. As described in the district court's decision, the complaint in that court asserted: “six Counts seeking declaratory judgments that various rules and procedures of the Board of Bar Overseers are unconstitutional (Counts 1-6), two Counts for violation of her civil rights under 42 U.S.C. §  1983 (Count 7) and (Count 9), one Count for conspiracy to violate her civil rights under 42 U.S.C. §  1985(3) (Count 8), and one count of defamation under state law (Count 10). Much of the relief sought was declaratory in nature. “Additionally,” however, “Johnson seeks money damages from Bar Counsel for making allegedly defamatory statements about her to a reporter that were subsequently published in a local newspaper, as well as money damages from the Board of Bar Overseers for posting on its website that disciplinary proceedings are pending against her.” 324 F.Supp.2d at 281 (citations to paragraphs in Complaint omitted).

 

In his reported decision, Chief Judge Young held that the YoungerFN4 abstention doctrine precluded the federal court from granting the requested declaratory relief regarding Johnson's BBO proceeding. With regard to the claims for damages, the court held that the Commonwealth, state agencies, and the individual defendants sued in their official capacities were immune from suit by virtue of the Eleventh Amendment to the United States Constitution, and that to the extent sued individually, the individual defendants enjoyed quasi-judicial or quasi-prosecutorial immunity under the caselaw decided under 42 U.S.C. §  1983. Finally, having dismissed all of the federal claims, the court declined to exercise pendent jurisdiction over the state-law defamation claims, and so dismissed the case.

 

 

FN4. See Younger v. Harris, 401 U.S. 37 (1971) (federal courts may not intervene in ongoing state criminal proceedings), and Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982) (applying Younger to bar disciplinary proceedings).

 

DISCUSSION

 

*4 Not having reached Johnson's state law claims, the federal court decision leaves for this Court the determination of whether the defendants, any or all, are immune from suit. They assert that they are all immune, on the following grounds:

1. That SJC Rule 4:01, §  9(3) explicitly provides that the BBO, the OCB, and their employees “shall be immune from liability for any conduct in the course of their official duties”;


2. That even apart from the rule, Crane and Strauss-Weisberg would enjoy absolute common-law prosecutorial immunity; and


3. That the Commonwealth, the BBO, and the OCB are immune from suit under G.L. c. 258 §  10(c).

 

These three arguments are considered here somewhat out of order.

 

 

A. Prosecutorial Immunity.

 

Massachusetts law affords absolute immunity to prosecutors for acts taken “in the discharge of their official duties.” The doctrine embodies “a tradition of judicial and prosecutorial immunity rooted in history and based upon sound considerations of public policy.” Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 252 (1985).


The same policy considerations supporting an absolute immunity for judges under Massachusetts common law ... justify a similar protection for public prosecutors. “The public interest requires that persons occupying such important positions as did these defendants and being so closely identified with the judicial department of the government should not be liable to private suits for what they do in the discharge of their official duties, and such officers are entitled to the protection that the law gives them, not because of concern for their personal immunity, but because such immunity tends to insure zealous and fearless administration of the law.”

 

Id. at 251, quoting Andersen v. Bishop, 304 Mass. 396, 400 (1939).

 

The court in Chicopee Lions Club held that a prosecutor was not liable in damages for having threatened to have the state police raid a “Monte Carlo Night” planned by the Club as a fundraiser, causing the event's cancellation. In so holding, the court found it unnecessary to decide whether to adopt the “functional” approach of the federal courts to prosecutorial immunity, being content with the observation “that the scope of prosecutorial immunity under State common law and under [the Massachusetts Civil Rights Act] is at least as broad as under [42 U.S.C.] §  1983.”

 

The “functional analysis” employed by the federal courts distinguishes between “quasi-judicial” activities that are “closely related to the judicial phase of a criminal proceeding, or involve[ ] the skills or judgment of an advocate” (as to which the prosecutor is absolutely immune from suit), versus cases in which “the challenged conduct is beyond the realm of trial preparation and involves the prosecutor in roles other than that of an advocate,” as to which “the conduct is protected only by a qualified immunity.” 396 Mass. at 248-49 (citations omitted). Using this approach, the U.S. Supreme Court has held that a prosecutor was not absolutely immune from liability in a Section 1983 suit alleging that he had made false statements at a press conference announcing the return of an indictment. Buckley v. Fitzsimmons, 509 U.S. 259, 276-78 (1993). Although comments to the media “may be an integral part of a prosecutor's job, and they may serve a vital public function,” the court noted, they “have no functional tie to the judicial process just because they are made by a prosecutor”; therefore, they merit only qualified immunity.  Id . at 277-78 (citation omitted).

 

*5 The Chicopee Lions Club holding, conferring immunity on a district attorney for conduct in a case where no crime had yet been committed, arguably bespeaks a broader notion of prosecutorial immunity than is applied in the federal cases, perhaps including Buckley v. Fitzsimmons. Whether or not the Massachusetts conception of prosecutorial immunity would apply to statements made to the press concerning a pending proceeding, and if so, whether it would extend to the accusatory arm of an administrative body, need not be resolved here,FN5 however, because as it happens, the SJC has spoken explicitly on these subjects as they relate to the BBO, the OCB, and their employees.

 

 

FN5. Nor is it necessary to decide whether, if the functional approach were followed, the more ministerial actions alleged against various of the defendants-the notation on the BBO website that Johnson had a pending disciplinary proceeding, and the reporting of these proceedings to the SJC in the clearance letter-would fall within or outside the privilege.

 

B. SJC Rule 4:01, §  9(3).

 

The BBO and the OBC are constituted and governed by Chapter Four of the Rules of the Supreme Judicial Court; specifically, sections 5 and 7, respectively, of SJC Rule 4:01. Section 9 of the same Rule addresses immunities; subsection (3) provides as follows:


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

 

The Rule is plain and unambiguous. It contains no hint of a “functional analysis,” or of any other qualification on the immunity conferred on the entities and persons named, save only that the challenged conduct must have been committed “in the course of their official duties.”

 

The Complaint neither makes, nor leaves any room for, the suggestion that the BBO, the OBC, Crane, or Strauss-Weisberg acted outside the scope of their official duties with respect to any of the conduct alleged.


The general respondeat superior test involving intentional torts considers whether the act was within the course of employment, and in furtherance of the employer's work. The scope of an employee's employment is not construed restrictively.... “[A] servant is authorized to do anything which is reasonably regarded as incidental to the work specifically directed or which is usually done in connection with such work.”

 

Howard v. Burlington, 399 Mass. 588, 590-91 (1987) (citations omitted). The complaint must therefore be dismissed as against these defendants.

 

 

C. Chapter 258.

 

The liability of the Commonwealth in tort is governed by the Massachusetts Tort Claims Act, Chapter 258 of the General Laws. In section 10(c), the Act provides that its provisions shall not apply to “any claim arising out of an intentional tort, including ... libel, slander, ... interference with advantageous relations or interference with contractual relations.”

 

No reported case has considered whether the BBO or the OBC is a “public employer.” Johnson maintains that they are not,FN6 and her Complaint eschews any claim that the Commonwealth is derivatively liable for the actions of these entities or their employees. Instead, the Complaint alleges that the Commonwealth is liable (a) because it lent its website for use by the BBO, including the attorney “lookup” function and the page pertaining to Johnson that mentioned her pending disciplinary proceeding, and (b) for the actions of the SJC in including reference to Johnson's BBO proceedings on its Certificate of Good Standing, and then refusing her request for a sanitized certificate.

 

 

FN6. Her argument finds support in the statute itself, and the caselaw under it. See c. 258, §  1 (Act does not apply to “any ... independent body politic and corporate”); Karlin v. Massachusetts Turnpike Auth., 399 Mass. 765, 766-67 (1987) (noting that “[a]s an independent entity, supported by its own nontax revenue sources and without the Commonwealth's credit pledged on its behalf, the Authority's circumstances do not present the need for the protection of public funds which underlay the reason for governmental immunity.” The BBO and the OBC are likewise supported by nontax revenues; in their case, attorney dues.

 

*6 Both of these actions, and the defamation and intentional interference claims that flow from them, fall squarely within the section 10(c) exemption for intentional torts. Johnson argues, however, that Article V of the Massachusetts Constitution,FN7 which provides that public officials are the “substitutes and agents” of the people, from whom official power is derived, and “are at all times accountable to them” renders all common-law immunities, and all limitations on liability under and the Tort Claims Act, unconstitutional.

 

 

FN7. “All power residing originally in the people, and being derived from them, the several magistrates and officers of government, vested with authority, whether legislative, executive, or judicial, are their substitutes and agents, and are at all times accountable to them.”

 

One has the sense that equating “accountable” with “liable in damages, without qualification” would have grated on the eighteenth century ear at least as much as on the modern one. In any event, the argument reads far more into Article V than any reported case brought to my attention, and ignores the long line of cases upholding-and discussing the respectable antiquity of-the judicial, prosecutorial, and sovereign immunities. See, as to judicial and prosecutorial immunity, Anderson v. Bishop, 304 Mass. 396 (1939) and cases cited at 398-99, particularly Allard v. Estes, 292 Mass. 187, 189-90 (1935), and as to sovereign immunity, Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 618-19 (1973).

 

To be sure, in Morash & Sons and, four years later, in Whitney v. Worcester, 373 Mass. 208 (1977), the SJC criticized the doctrine of blanket sovereign immunity in tort, and urged legislative action to waive immunity in appropriate cases. The court stressed that sovereign immunity is a judge-made doctrine and could be judicially abolished, but that “[a] legislative approach is preferable.” Morash & Sons, 363 Mass. at 624.

 

Nowhere in either opinion did the court suggest, however, that this or other governmental immunities were unconstitutional. It did state that whatever the merits and demerits of blanket immunity, “[c]learly, there should be limits to governmental liability and exceptions to the rule of liability, based upon considerations of justice and public policy.... [T]he need for limits on the liability of governmental units is generally recognized, even where immunity is judicially abrogated.” Id. at 623.

 

The legislative action suggested by the SJC was taken in 1978, with the passage of the Massachusetts Tort Claims Act. As the Morash & Sons opinion anticipated, the Act incorporates a number of policy-based limits on governmental liability, including section 10(c)'s exemption for intentional torts. No reported case has suggested that these provisions offend the Constitution, and I hold that they do not. The Commonwealth, therefore, like the other defendants, is immune from liability for the conduct alleged against it in this case.

 

 

ORDER

 

For the foregoing reasons, the defendants' Motion to Dismiss is ALLOWED. Judgment to enter, dismissing the Complaint.

 

Mass.Super.,2006.

Johnson v. Board of Bar Overseers of Massachusetts

Not Reported in N.E.2d, 21 Mass.L.Rptr. 320, 2006 WL 2423300 (Mass.Super.)

 

END OF DOCUMENT

 




MEMORANDUM AND ORDER BY THE COURT -- PAPER 28

COMMONWEALTH OF MASSACHUSETTS


ESSEX, ss.                                                       SUPERIOR COURT
CIVIL ACTION
No.
05-1907

BARBARA C. JOHNSON

vs.

BOARD OF BAR OVERSEERS OF MASSACHUSETTS,

OFFICE OF BAR COUNSEL,

DANIEL CRANE, SUSAN STRAUSS-WEISBERG,

and the COMMONWEALTH OF MASSACHUSETTS

****

MEMORANDUM AND ORDER ON

PLAINTIFF'S MOTIONS TO STRIKE

APPEARANCES OF THE ATTORNEY GENERAL

 

For the following reasons, (1) the plaintiffs Motion to Strike Appearance of Attorney General for Daniel Crane and Susan Strauss-Weisberg, and (2) the plaintiffs Motion to Strike Appearance of Attorney General for Board of Bar Overseers and Office of Bar Counsel, are both DENIED.

BACKGROUND

 

In this action, the plaintiff has sued the Board of Bar Overseers ("BBO), the Office of Bar Counsel ("OBC"), and two OBC employees for defamation and interference with advantageous and/or contractual relations. Her claims arise out of statements concerning disciplinary proceedings against her, pending in the BBO and prosecuted by the OBC. The Attorney General has appeared for these defendants as well as for the Commonwealth, against which claims are also asserted and whose right to be represented by the Attorney General the plaintiff does not contest. She does, however, by these motions challenge the propriety of the Attorney General's appearance on behalf of the other defendants.

DISCUSSION

The power to discipline attorneys admitted to practice in Massachusetts rests with the Supreme Judicial Court, as part of its inherent common law and constitutional powers as the highest constitutional court of the Commonwealth, as well as the powers of superintendence conferred by G.L. c. 211, §3. In re DeSaulnier, 360 Mass. 757, 758-59 (1971). To this end, the SJC has promulgated its Rule 4:01, sections 5 and 7 of which constitute, and regulate the doings of, the BBO and the OBC. The Rule also provides that the expenses of both the BBO and the OBC "may be paid by the Board out of the funds collected under the provisions of Rule 4:04 [i.e., attorneys' annual registration fees] or, where the court deems that appropriate, from state funds as the court may order." SJC Rule 4:01, §19. In short: the BBO and the OBC, although not (except in extraordinary circumstances) supported with tax dollars, are not "private entities" as Johnson contends. Rather, they are creatures, and exercise certain delegated powers, of the judicial branch of government.

The Attorney General, too, has both statutory and common law powers. His statutory powers are principally defined in G.L. c. 12, §3, which provides:

The attorney general shall appear for the commonwealth and for state departments, officers and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said departments, officers and commissions are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds, and in such suits and proceedings before any other tribunal, including the prosecution of claims of the commonwealth against the United States, when requested by the governor or by the general court or either branch thereof. (Emphasis supplied.)

 

Johnson maintains that the italicized language limits the Attorney General to representing clients in the executive and legislative branches. She ignores, however, the fact that the Attorney General "also has a common law duty to represent the public interest and enforce public rights," and

-2-

that this duty, and the concomitant power to carry it out, are "broad." Commonwealth v. CRINC, 392 Mass. 79, 88(1984).

The public surely has an interest in seeing that Bar discipline is carried our effectively and fairly. This interest may be said to extend to defending suits against the participants in the discipline process, and to asserting immunities and other defenses designed to ensure that these persons will carry out their responsibilities effectively, undistracted by fear of personal liability.

That said, no reported case of which I am aware has expressly addressed a challenge to the Attorney General's authority to represent persons employed within the judicial branch in litigation against them. I note, however, that such representation is a frequent occurrence, in courts including the SJC, and does not seem to have attracted comment. See, e.g., the appearances in Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183,184 (1994); Temple v. Marlborough Div. of the Dist. Ct. Dept.. 395 Mass. 117 (1985); Brach v. Chief Justice of the Dist. Ct. Dept.. 386 Mass. 528, 535 (1982), to name but a few.

It is unnecessary, however, to explore these issues further in the present case. By decision of even date, I have allowed the defendants' motion to dismiss the claims against them. The case, therefore, is at an end, at least in this Court. Finally, regardless of whether or not the Attorney General was authorized to defend the case, no rights personal to the plaintiff have been transgressed by his appearance. Cf. Commonwealth v. Ellis. 429 Mass. 362, 372-77 (1999) (fact that AG's Insurance Fraud Bureau was funded by the insurance industry did not violate defendants' right to a disinterested prosecutor).' The issue of the Attorney General's authority to appear for the defendants is therefore moot, and the motion to strike his appearances is, for that reason, denied.

'See also Wellman v. Willis. 400 Mass. 394, 499 n.7 (1987) for a discussion of standing issues in motions to disqualify counsel.

-3-

 

ORDER

For the foregoing reasons, (1) the plaintiffs Motion to Strike Appearance of Attorney General for Daniel Crane and Susan Strauss-Weisberg, and (2) the plaintiffs Motion to Strike Appearance of Attorney General for Board of Bar Overseers and Office of Bar Counsel, are both DENIED.



Thomas P. Billings, Associate Justice


Dated: August 4, 2006


-4-



COMMONWEALTH
OF MASSACHUSETTS

APPEALS COURT

______________________________________________

 

CASE NO. 2006-P-1809

______________________________________________

 

 

Barbara C. Johnson, Esq.
Plaintiff/Appellant
v.

Board of Bar Overseers of Massachusetts

Office of Bar Counsel
Daniel Crane, Esq.,
in his individual and professional capacities,

Susan Strauss-Weisberg
,
in her individual and professional capacities,
Commonwealth of Massachusetts
Defendant/Appellees

__________________________________________________

 

 

On Appeal from Judgment of Motion to Dismiss
and
Order on Plaintiff's Motions to Strike Appearances of the
Attorney General
ESCV-2005-01907-D

__________________________________________________

 

 

BRIEF OF BARBARA C. JOHNSON
PLAINTIFF/APPELLANT

 

_________________________________________________

 

 

                                         Barbara C. Johnson, Esq.
                                          Plaintiff/Appellant, pro se

                                     B.B.O. #549972 (pending appeal)

                                                      6 Appletree Lane
                                 
                    Andover, MA 01810
                                                      978-474-0833

 




STATEMENT OF THE ISSUES\[1]/ 

1.     Where Article V of the Declaration of Rights states that all magistrates and officers of the three branches of government shall be accountable to all the people at all times, and if Daniel Crane and Susan Strauss-Weisberg are deemed public employees, they are not entitled to immunity from any source. 

2.            Absolute immunity is not applicable here, for the alleged “court” of the Board of Bar Overseers is the court of an “Affiliated Entity,” not a court contemplated in 1871, when the Court in Bradley v. Fisher imported the doctrine of judicial immunity from the most reviled court in British history, to wit, the Star Chamber.  Therefore Crane and Weisberg may not enjoy absolute common-law prosecutorial immunity. 

3.            Where the BBO and OBC are not governmental entities, but “affiliated entities,” as identified on the SJC website, and their expenses and salaries are paid by attorneys’ annual dues, they are private entities.  As private entities, they are exempted from the MTCA, c. 258.

4.            Where SJC 4:01, §9(3), is unconstitutional by virtue of article V, Crane and Weisberg "shall [not] be immune from liability for any conduct in the course of their official duties" [Add-11, ¶1] and the case must go to a jury.

5.            Where Crane and Weisberg were acting outside the scope of their official duties, §9(3)——whether constitutional or not and whether Crane and Weisberg are public or private employees——is inapplicable, and Crane’s and Weisberg’s conduct falls outside the penumbra of immunity from liability, absolute prosecutorial immunity, or qualified immunity.

6.             The two natural defendants are not entitled to absolute, prosecutorial, or qualified immunity, for neither Crane nor Weisberg was acting in any capacity contemplated by the Massachusetts or federal constitution, statutes, or rules (a) when they spoke to news reporters and defamed Johnson and (b) when they later caused the issuance of a bastardized Certificate of Good Standing and interfered with Johnson’s livelihood.

  7.           The intersection of the judicially-created
     the doctrine of sovereign immunity, the
     Massachusetts Declaration of Rights, and the
     MTCA (G.L. c. 258) yields only one reasonable
     conclusion, namely, all the defendants here
     are not protected by immunity from any
     source, whether common-law sovereign or
     absolute immunity, §10(c) of the MTCA [see
    
Add-12, ¶3], or §9(3) of SJC Rule 4:01.


a.   Sovereign Immunity

     i.    The Spreading of Sovereign Immunity

b.   The Unconstitutionality of the MTCA

c.   Inapplicability of MTCA to Private Entities

d.   Implicit Admission of SJC That BBO and OBC Are Private Entities and Have No Immunity but for §9(3)

8.    Where (a) the BBO and OBC are financially and politically independent bodies, (b) Crane and Weisberg are private employees, (c) they are exempted from G.L. c. 258, and (d) they caused tortious injury, the defendants are not immune to liability.

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

a.       Where the second prong of the Eleventh Amendment is not a creature of Congress, is inapplicable in a State court, and may not trump Article V of the Massachusetts Declaration of Rights, immunity under it may not be applied to the defendants in this action.

10.  Where the BBO and OBC are private entities, they are not entitled to free legal repre- sentation by the Office of the Attorney General, which is supported by taxpayers’ monies.

11.  The motion judge erred when he concluded that “no rights personal to the plaintiff have been transgressed by [the AG’s] appearance” and therefore she might have had no standing to move to disqualify the AG as counsel for the BBO, OBC, Bar Counsel Crane and Assistant Bar Counsel Weisberg.

STATEMENT OF THE CASE\[2]/

This case arises out of the defamation of Johnson and the intentional interference with her advantageous business relations with prospective clients by two private entities, to wit, the Board of Bar Overseers [“BBO”] and the Office of Bar Counsel [“OBC”], now-the-former Bar Counsel Daniel Crane [“Crane”], an assistant bar counsel, Susan Strauss-Weisberg [“Weisberg”], and the Common- wealth.

The defendants asserted that they were protected from suit on the grounds of immunities explicitly from §9(3) of SJC Rule 4:01,\[3]/ the Massachusetts Tort Claims Act [“MTCA”], and the common law, including sovereign immunity in this Commonwealth, and implicitly (and obtusely) from the Eleventh Amendment.  Johnson challenges the constitutionality of each of these synthetic immunities.

The disputed factual issues arising out of the case below include whether the BBO and OBC are public or private entities, whether Crane and Weisberg are public or private employees, whether Crane’s and Weisberg’s conduct, e.g., speaking to media reporters about Johnson‘s pending disci- plinary case, was outside the scope of their authority, or “official duties.”\[4]/   Johnson contends that the BBO and OBC are private entities with private employees and that any complained-of conduct is outside the penumbra of any umbrella of immunity they claim——regardless of the source of that immunity.  Their other allegedly tortious acts are fully described in the pleadings and throughout this brief.

Writing that it “need not resolve” the issue of whether prosecutorial immunity applied here, because the “SJC has spoken” through §9(3) that Crane and Weisberg have immunity, and that even if immunity were judicially abrogated, there is a need for limits on governmental liability, the lower court disposed of the case by finding that the defendants were immune from suit [Add. 11-12, 13-14, 16-17].  That finding was an error of law, Johnson contends, for Article V of the Massa- chusetts Declaration of Rights controls, and thus makes any immunity from any other source unconstitutional in this Commonwealth.

PRIOR PROCEEDINGS

     Johnson filed a Complaint [App. 11], then a Motion to Strike the Attorney General’s Appearance for the BBO and the OBC [App. 135] and for Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg [App. 177].  The usual volley of pleadings followed.  The AG filed one Opposition for both Motions to Strike [App. 179].  Johnson followed with a Reply to the Opposition [App. 181].

     Subsequently the AG moved to dismiss the Complaint, and Johnson opposed [App. 189]. The AG replied [App. 257] and Johnson surreplied [App. 258].

     After a proceeding at which Johnson and the Assistant AG argued their motions, the judge wrote two memoranda, one in which he denied Johnson’s motions to strike, and the other in which he allowed the defendants’ motion to dismiss.

STATEMENT OF THE FACTS

           Shortly after the election in 2002, when Johnson, a litigator, ran for governor on a platform of court reform, the need for judicial accountability, particularly in the family-law courts, and the abolishment of judicial and quasi-judicial immunity, a Petition for Discipline issued against her.

Around that time, 24 January 2003, the defendants caused to be uploaded next to Johnson’s name on their website notice that disciplinary proceedings against her were pending\[5]/ [App. 31-32].  Around 23 March 2003, a Boston Herald reporter interviewed both ABC Weisberg and Johnson for a column [App. 33].  Around 19 December 2003, a Lawrence Eagle Tribune reporter interviewed both BC Crane and Johnson for an article [App. 34-36].  In March 2005, the defendants caused a defamatory Certificate of Good Standing for Johnson‘s use when seeking pro hac vice admission to a foreign state [App. 37-67].

Synopses of the Two Counts of the Petition out of Which Arose the Underlying Action for Defamation and the Intentional Interference with Johnson’s Livelihood

One count arose out of a complaint filed by “Jane,”\[6]/ a political candidate, on the day she lost her bid for election; she claimed that Johnson’s website caused the loss.  The second count arose out of a de minimus fee dispute.  The very adversarial BBO special hearing officer ultimately found that Johnson owed the complainant nothing.

             Count I involves a custody and paternity action in Probate & Family Court and a care and protection case, both begun in 1988, after which the child’s dad (“John Jones”) was falsely accused of sexual abuse and forbidden to see his child.  Dad came to see Johnson in 1999, around 11 years after his visitation and custody rights were terminated and after six attorneys were unable to get him an evidentiary hearing or an opportunity to address the court or to cross-examine the child’s mother or any of the other social-worker accusers, some of whom he had never met.

            The tot’s mother, Jane, married another man, “Brown,” and falsely accused him, too, of sexual abuse.  The “Browns” were subsequently divorced after 7 years of contentious proceedings.

In May 2000, Johnson filed for Jones an Amended Complaint for Modification of Judgment in the custody and paternity action in Probate & Family Court.\[7]/\[8]/  During that same period, Johnson filed and posted to her website pleadings from Jane's divorce action.\[9]/

             Psychological reports?  When the OBC charged Johnson with uploading psychological report(s) to her website, the OBC failed to identify either the location of the report(s) on her website or the psychologist or the
person who was allegedly the

subject of the report.\[10]/ 

             Given that all the documents in the Drano series are consecutively numbered, identification is simple, but none contains such a report.  Moreover, none of the OBC’s “trial” exhibits contains such a report.  Weisberg and her boss, Bar Counsel Crane, flat-out lied.  

     In fact, no psychological report regarding anyone in Jones’s cases——or anyone else’s cases in State or federal court——was put on Johnson’s website.\[11]/ 

Count II began in March 2000, when “Mary Parker” filed with the OBC\[12]/ a complaint regarding a de minimus fee dispute.\[13]/  Johnson completed the work and then deposited approximately $10,000 received for her services into her personal account.  After making the deposit, Johnson put in 6 more hours of work for Parker. 

     When Johnson completed the accounting [Vol. IX, OBC Exh. 58, filed at SJC County Clerk’s Office], she felt badly about the future legal fees the Parkers were facing to defend Mr. Parker against two evidence-less counts of rape and two counts of assault over about a decade of their mentally challenged 28-year-old daughter (who had the intelligence of a 15-month-old), so Johnson deeply discounted her fees and along with the bills, sent Mary a check for $3174.50.  The refund occurred about four months prior to Mary’s complaint to the BBO.\[14]/ 


     After Johnson was wrongfully accused by the Bar Counsel of having charged an excessive fee [Add. 8], she uploaded to her website both the accounting, or bill, to the Parkers . . . to let the public decide . . . and her Answer to the Bar Counsel’s Petition for Discipline. 

The special hearing officer found that Johnson did not charge an excessive fee, did not owe the complainant a refund of an unearned fee, and did not engage in fraud or deceit or any misrepresentation.

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

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

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

The Four Publications and Republications

     During the course of the proceedings, there were the several publications mentioned at pp. 6-7, supra.  

     In her complaint, Johnson identified those oral and written statements which she asserts are defamatory [App. 16, ¶¶19-20, 22(a-b); App. 17, ¶¶22(c-d), 24;   App. 18, ¶¶29(a-g); App. 18-22, ¶¶30-51; see also Add. 6-10.

     Defendants have not denied that those oral and written statements are defamatory.  Instead, they have asserted that they are immune from suit [Add. 11], on, according to the motion court, the following grounds:

·       That SJC Rule 4:01, §9(3) explicitly provides that the BBO, the OCB [sic], and their employees "shall be immune from liability for any conduct in the course of their official duties";

·           That even apart from the rule, Crane and Strauss-Weisberg would enjoy absolute
common-law prosecutorial immunity; and

·           That the Commonwealth, the BBO, and the OCB [sic] are immune from suit under G.L. c. 258 §10(c).

[Add. 11-12].  Those immunities raise the following disputes of mixed fact and law:

·       whether Crane’s and Weisberg’s conduct complained-of by Johnson occurred in the course of their official duties

·           whether Crane was a prosecutor or merely a titular plaintiff

·           whether speaking to the press is one of the official duties of either Crane or Weisberg

·           whether making oral or written defamatory statements is one of the official duties of either Bar Counsel or an assistant bar counsel

·           whether Crane and/or Weisberg have absolute or prosecutorial or qualified immunity under the common law

·           whether the BBO or the OBC are public or private entities or employers

·           whether Crane and/or Weisberg are public or private employees

·           whether the Commonwealth has sovereign immunity

·           whether intentional torts fall under the penumbra of any of the afore-mentioned immunities

·           whether depriving Johnson of her civil rights falls under the penumbra of any of the immunities

Functions of Crane and Weisberg.  In the disciplinary action, Crane’s function was to play the nonprosecutorial role of a titular plaintiff and that function is not defined in any statute, rule, or regulation.  In the disciplinary action, Weisberg never appeared in a court or questioned witnesses; all her work was in a pseudo-investigatory stage.

Who Are the BBO and OBC?  The BBO and OBC are “Affiliated Entities” i.e., entities that are affiliated with and supervised by the SJC [App. 137].\[15]/  An “Affiliated Entity” is not a court of the type contemplated in 1871, when the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871) imported the doctrine of absolute judicial immunity from Britain.  

SUMMARY OF ARGUMENTS

1.   Assuming arguendo that Crane and Weisberg are public employees, art. V of the Declaration of Rights requires them to be accountable and that guarantee of accountability trumps immunity from any source.  [Issue 1, p.15]

2.   The history of judicial immunity shows the disturbing evolution of the immu­nity doctrine and how it is inapplicable here. [Issue 2, pp. 15-19]

3.   Where the argument that the BBO and OBC are financially and politically independent, private bodies finds support in the statute and the caselaw under it, the private BBO and OBC are exempted from the MTCA, c. 258.  [Issue 3, pp. 20-21]

4.   Where art. V trumps §9(3) of SJC 4:01 (and the MTCA), and if Crane and Weisberg are deemed public employees, a jury trial is required.  If they are private employees, a jury trial is also required to determine liability.  [Issue 4, pp. 21-22]

5.   Where Crane’s and Weisberg’s acts were not intimately associated with the judicial phase of a  criminal process, qualified immunity, at most, is available, resulting in the need for a jury trial. Crane so much as admitted that his speaking to reporters is not one of his official duties.  If outside his official duties, such conduct is outside Weisberg’s, too.  [Issue 5, pp. 23-26]

6.   Whether public or private employees, Crane and Weisberg are not entitled to any kind of immunity for acts performed outside the scope of their official duties, to wit, the acts of defaming Johnson and intentionally interfering with her prospective advantageous and contractual relationships.  [Issue 6, pp. 26-28]

7.    Where (a) sovereign immunity is not lawful in this Commonwealth [pp. 28-32], (b) the MTCA is unconstitutional both facially and as applied [pp. 32-35], (c) where the BBO and the OBC are not public employers, they are not immune from suit under G.L. c. 258 [pp.35-36], (d) SJC implicit admission that BBO and OBC are private entities and have no immunity but for §9(3) [pp. 36-37] [Issue 7, 27-37]

8.   Where there is tortious injury, there is liability.  [Issue 8, pp. 36-37]

9.   The Eleventh Amendment (U.S.) does not only apply to actions for money damages and it does not apply in State court to State claims [Issue 9, pp. 38-40]. Moreover, where the second prong of the Eleventh Amendment is not a creature of Congress, is inapplicable in a State court, and may not trump Article V of the Massachusetts Declaration of Rights, immunity under it may not be applied to the defendants in this action. [Issue 9a, pp. 41-49]

10.  The defendants are not entitled to repre- sentation by the Attorney General. [Issue 10, p. 49-50]

11.  Johnson has standing to challenge the Attorney
     General’s representation of the BBO, OBC, and
     the natural defendants. [
Issue 11, p. 50]  

ARGUMENTS

1.            Where Article V of the Declaration of Rights states that all magistrates and officers of the three branches of government shall be accountable to all the people at all times, and if Daniel Crane and Susan Strauss-Weis- berg are deemed public employees, they are not entitled to immunity from any source. 


NOTE

Johnson incorporates herein in entirety by reference
the issue of immunity as written in her Reply to the
Defendant BBO and OBC’s Opposition to her Motion
to Strike the Appearance of the Attorney General on
behalf of the BBO and the OBC [App. 181].

Article V of the Massachusetts Declaration of Rights is alive and well, and where no legislature in our Commonwealth took part in the birth and development of judicial immunity (spawned in the womb of the Star Chamber), immunity——whether absolute judicial, prosecutorial, or qualified—— cannot trump art. V’s guarantee of accountability since 1780 by all magistrates and officers of all three branches of government to all the people all the time. 

2.   Absolute immunity is not applicable to this case, for the alleged “court” of the Board of Bar Overseers is the court of an “Affiliated Entity,” not a court contemplated in 1871, when the Court in Bradley v. Fisher imported the doctrine of judicial immunity from the most reviled court in British history, to wit, the Star Chamber.  Therefore Crane and Weisberg may not enjoy absolute common-law prosecutorial immunity. 

In 1871, the Court in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 347 (1871), relied on the doctrine of judicial immunity imported from England.\[16]/  Until 1974, when the BBO and OBC were established by the SJC, attorney discipline actions in Massachusetts were held in a court contemplated by Art. III of Ch. 1, §1, of the Constitution of the Commonwealth of Massachusetts, or in Art. III courts in the federal judicial system.

     In fact, the first Massachusetts judicial- immunity case to be heard in the Supreme Court was Randall v. Bingham, 74 U.S. (7 Wall.) 523 (1868),\[17]/ three years before Bradley was decided.  Randall had brought an action against a Massachusetts superior court justice for his alleged wrongful disbarment.  The Court there wrote,

[Judges] are not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, unless perhaps where the acts, in excess of jurisdiction, are done maliciously or corruptly.

Id. at 536 (emphasis supplied).  Significantly, when Randall was decided in 1868, express malice was also not excused in Britain as it has been in this Republic ever since Bradley.  

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

     Under Randall, both Crane and Weisberg would be denied immunity:  (1) Crane, because he was but a titular quasi-prosecutor and (2) both he and Weisberg, because prosecutorial immunity had not yet been created either by a Congress or by judicial fiat.   And this, even though the court in Randall appears not to have considered article V of the Declaration of Rights. . . .

     Bradley v. Fisher, too, was a case that arose out of an attorney discipline action. After he was disbarred, Bradley sued the judge who had deprived him of his right to practice as an attorney in the District of Columbia.  By importing and relying on the Star Chamber case, Floyd and Barker, 12 Co.Rep. 23, 25, 77 Eng.Rep. 1305, 1307 (1607) (a case of conspiracy), the Court in Bradley was able to buttress an extension of the immunity doctrine expressed in Randall in order to protect from liability the judge under legal siege.  The result was that the High Court in Bradley gave judges the right to be malicious and corrupt and be invulnerable to suit by anyone.  The negative effect of the extension totally deprived the governed, the people, the right to recourse against malicious or corrupt judges.  Nothing, however, in the judicially created doctrine, as harsh as it is to the populace seeking remedies for perceived wrongs, contemplates protecting anyone in the three branches of government for tortious acts either in excess of their authority or outside the scope of their official duties, or criminal acts.

     Under Bradley in 1871, the BBO would not have been recognized as a court and the OBC’s Bar Coun- sel and his assistant, being, at most, prosecutors, would not have been recognized as judges, and, therefore, would have not been granted immunity.  And prosecutorial or quasi-prosecutorial or qualified immunity had not yet been inevitably created:

Disturbing evolution. Our Constitution intended that only elected lawmakers be permitted to create law.

Yet judges create their own law in the judicial system based on their own opinions and rulings....  When a judge hands down a ruling and that ruling survives appeal with the next tier of judges, it then becomes case law, or legal precedent.  This now happens so consistently that we’ve become more subject to the case rulings of judges than to laws made by the lawmaking bodies outlined in our Constitution.

This case-law system is a constitutional nightmare because it continuously modifies Constitutional intent ...  The judicial system may begin with enacted laws, but the varia- tions that result from a judge’s application of case law all too often change the ultimate meaning.”

John F. Molloy, “Law loses its way (Tucson, Arizona, Mar. 30, 2005).\[18]/ 

     And under Art. V, which requires magistrates and all officers of all three branches of govern- ment to be accountable at all times to all the people, one of whom is Johnson, both Crane and Weisberg——if they are deemed, as they contend, public employees——must be denied immunity of any kind.

     This leaves Crane and Weisberg with one source of immunity:  the unsustainable §9(3) of SJC Rule 4:01.\[19]/  The inapplicability of qualified immunity is discussed, infra, in detail.)        

3.  Where the BBO and OBC are not governmental entities, but “affiliated entities,” as identified on the SJC website, and their expenses and salaries are paid by attorneys’ annual dues, they are private entities. 
As private entities, they are exempted from the MTCA, c. 258
.

As the motion judge wrote: “No reported case has considered whether the BBO or the OBC is a “public employer”\[20]/ [Add. 15] and

[Johnson’s] argument finds support in the statute itself, and the caselaw under it. See c. 258, §1 (Act does not apply to “any ... independent body politic and corporate”); Karlin v. Massachusetts Turnpike Auth., 399 Mass. 765, 766-67 (1987) (noting that “[a]s an independent entity, supported by its own nontax revenue sources and without the Commonwealth's credit pledged on its behalf, the Authority's circumstances do not present the need for the protection of public funds which underlay the reason for governmental immunity.” The BBO and the OBC are likewise supported by nontax revenues; in their case, attorney dues.

Add. 10 n. 6.  Thus, where the BBO and OBC are financially and politically independent bodies, they are private entities.  As private entities, they are exempted from c. 258.\[21]/  See also Issue 7a.   Clearly this is an issue of first impression.

4.   Where SJC 4:01, §9(3), is unconstitutional by virtue of article V, Crane and Weisberg "shall [not] be immune from liability for any conduct in the course of their official duties" [see Add-11, ¶1] and the case must go to a jury.

Neither may SJC Rule 4:01, §9(3), which has neither constitutional nor statutory support, trump art. V’s guarantee of accountability.  If Crane and Weisberg are public employees, as they contend, then art. V has effect upon them and they have no immunity from liability and it was error to dismiss Johnson’s complaint on immunity grounds. 

If Crane and Weisberg are private employees, art. V has no effect upon them,\[22]/ leaving them protected only by §9(3).\[23]/  If §9(3) is deemed constitutional, the question as to whether Crane and Weisberg were acting within the scope of their official duties (a) when they spoke to the media and (b) when they interfered with Johnson’s livelihood must go to a jury.  If §9(3) is unconstitutional, then only the ultimate questions of defamation and interference need go to a jury.

5.   Where Crane and Weisberg were acting outside the scope of their official duties, §9(3) of SJC 4:01——whether constitutional or not and whether Crane and Weisberg are public or private employees——is inapplicable, and Crane’s and Weisberg’s conduct falls outside the penumbra of immunity from liability, absolute prosecutorial immunity, or qualified immunity.

Massachusetts law does not necessarily “afford[] absolute immunity to prosecutors for acts taken ‘in the discharge of their official duties’” [Add. 12].  Common-law prosecutorial immunity is absolute when a prosecutor is performing a function “intimately associated with the judicial phase of the criminal process” [Imbler v. Pachtman, 424 U.S. 409, 430 (1976)]\[24]/ but only qualified immunity when a prosecutor is acting in “an investigatory or administrative capacity.” Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 2615 (1993).  Michaels v. State of New Jersey, 50 F.Supp.2d 353, 359 (D.N.J. 1999) (“Where a prosecutor is acting in an investigative capacity, however, only qualified immunity is available”).  Barbara v. Smith, 836 F.2d 96, 99 (2d Cir. 1987) (“when a prosecutor performs an investigative or administrative function rather than a prosecutorial one, absolute immunity is not available”); Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir.1981); Lee v. Willins, 617 F.2d 320, 322 (2d Cir.), cert. denied, 449 U.S. 861 (1980).  “Where the challenged conduct is beyond the realm of trial preparation and involves the prosecutor in roles other than that of an advocate, the conduct is protected only by a qualified immunity.”  Chicopee Lions Club v. District Atty. for Hampden Dist., 396 Mass. 244, 249 (1985).

But, the allegations do, in a limited and rather general way, identify certain actions of the defendants that, if proven, go somewhat beyond purely prosecutorial undertakings and are therefore outside the range of prosecutorial immunity. It is alleged that these defendants attempted to create false evidence during the investigation . . .; that they disseminated false information about plaintiffs to the media and others.... While it is clear that these defendants are immune from suit for their decision to prosecute [plaintiff] as well as for other acts closely related to the initiation of charges ... it is equally clear that the activities are outside the sphere of protected activity and may, if proven, form the basis of a § 1983 action. Accordingly, the court cannot dismiss the Deputy Attorney General defendants at this time.

Lawson v. Abrams, No. CV-84-4325, 1988 WL 49244, (E.D.N.Y. May 6, 1988) (emphasis supplied).

As under Imbler, Buckley, Michaels, Barbara, Talor, Lee, Lawson, Chicopee, and literally multiple scores of other cases, where prosecutors are not protected by immunity for acts performed during their investigation, they certainly are not protected by immunity when they are voluntarily making comments and/or responding to questions by newspaper reporters. 

In fact, Crane was aware that speaking to reporters about pending cases is not one of his official duties; e.g., although he claimed in the case below that his speaking to the Eagle Tribune reporter was one of his official functions (thus implicating the OBC as a co-tortfeasor), he later told a reporter that he was “forbidden to comment on pending or future disciplinary investigations.” 

.

“Chief judge seeks bar discipline for Connolly’s lawyer,”
by Ralph Ranalli, Boston Globe staff, November 23, 2005

Thus it is reasonable to conclude both that he defamed Johnson while acting in his personal capacity and that his defense that he was acting within the scope of his employment must fail.  The same argument applies to Weisberg.\[25]/  Thus it does not matter whether Crane and Weisberg were public or private employees, a jury is required.

6.   The two natural defendants are not entitled to absolute, prosecutorial, or qualified immunity, for neither Crane nor Weisberg was acting in any capacity contemplated by the Massachusetts or federal constitution, statutes, or rules (a) when they spoke to news reporters and defamed Johnson and (b) when they later caused the issuance of a bastardized Certificate of Good Standing and interfered with Johnson’s livelihood.

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

     Clearly the SJC recognized that the doctrine of absolute or judicial immunity is inapplicable to the BBO and OBC and so promulgated SJC Rule 4:01, §9(3) specifically for the purpose of bestowing the grant of immunity from liability upon persons employed at and associated with the BBO and OBC.  With §9(3) in place, Crane and Weisberg have had unfettered and unbridled boundless power to do whatever they have wanted to do at any time in the name of the OBC.  See n. 29, infra.

Here Crane and Weisberg could as individuals speak to news reporters under the First Amendment, but that amendment does not allow them to state falsities in order to justify to the public the bringing of a disciplinary petition against Johnson for the purpose of silencing her about the need for court reform, particularly in the family-law courts, and with the aim of both ruining both her personal and professional reputa- tions and intentionally interfering with her prospective advantageous and contractual relationships.\[26]/  Those tortious acts are outside the scope of the authority of the Bar Counsel and his assistant.\[27]/

7.   The intersection of the judicially-created doctrine of sovereign immunity, the Massa- chusetts Declaration of Rights, and the MTCA (G.L. c. 258) yields only one reasonable conclusion, namely, all the defendants here are not protected by immunity from any source, whether common-law sovereign or absolute immunity, §10(c) of the MTCA [see Add-12, ¶3], or §9(3) of SJC Rule 4:01.

     a.   Sovereign Immunity.  Every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws."  Mass. Const. Art. XI (1780).  To limit and control the ability of subjects to exercise their right to legal recourse [Alden v. Maine, 527 U.S. (Me.) 706, 729 (1999), the judiciary created the common-law concept of sovereign immunity.  Morash, 363 Mass. at 615.

Several colonial charters, including those of Massachusetts,... expressly specified that the corporation body established thereunder could sue and be sued.... If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found

Alden, 527 U.S. at 764 (emphasis supplied).\[28]/
 

     There is also the postulate that States of the Union . . . shall be immune from suits, without their con­sent, save where there has been “a surrender of this immunity in the plan of the convention.”  [Principality of Monaco v. Mississippi,] 292 U.S. [313], 322-323 (1934)] (quoting The Federalist No. 81) (footnote omitted).

Alden, 527 U.S. at 729 (emphasis supplied).\[29]/

     In this Commonwealth, that surrender and consent to suit by its citizens never had to be reached; sovereign immunity was never part of the plan of the 1780 Massachusetts convention.  With accountability having been mandated at the convention, any claim today by Massachusetts or its branches of government to sovereign or absolute or judicial immunity is misleading, if not unlawful.\[30]/     

To waive that constitutional mandate for accountability in Massachusetts, the procedures for an initiative petition, described in Article LXXIV of the Articles of Amendment to the Massachusetts Constitution, must be followed.\[31]/\[32]/  Those procedures have never been invoked vis-à-vis article V, leaving in effect the unequivocal mandate by the forefathers of Massachusetts memorialized in article V of the Declaration of Rights for our Commonwealth, to wit, the mandate that all three branches of government at all times must be accountable to the people.  Thus the State’s waiver of the so-called “ancient” common-law doctrine of sovereign immunity has been effectuated since the inception of the Commonwealth.

(i)  The Spreading of Sovereign Immun- ity.\[33]/  The doctrine of sovereign immunity spread nationwide in the maelstrom following Hans v. Louisiana in 1890, when the Court judicially created what became the unratified second prong of the Eleventh Amendment, which precluded citizens from suing their own State in federal court.\[34]/

Sovereign immunity and immunity provided by the Eleventh Amendment, while distinct concepts, are related in that both are designed to protect state government: sovereign immunity protects states from being sued in their own courts, whereas the Eleventh Amendment shields states from federal judicial intervention.... The Supreme Judicial Court has noted, however, that even though the Eleventh Amendment is directed at the judicial power of the federal government rather than the states, states may claim immunity from suit in their own courts where the Eleventh Amendment would bar the suit in federal court.

Kyle v. Com., 2 Mass.L.Rptr. 241, 1994 WL 879700 at 4 n. 7 (Super. 1994) (Lenk, J.) (internal cites omitted).

b.  The Unconstitutionality of the MTCA.  Solely by virtue of its enactment in 1978, the MTCA has perpetuated the myth that sovereign im­munity has existed in Massachusetts.  The Legislature had heeded a warning sent by the justices in Whitney v. Worcester, 373 Mass. 208 (1977), in which the Court announced its intention to abrogate the sovereign immunity doctrine retroactively to the date of the decision in Morash, namely, 1973, should the Legislature have failed to act by the conclusion of its 1978 session.\[35]/ 

The Legislature, where political decisions are made, ignored Article V, assumed a legitimate birth of the sovereign immunity of which the SJC spoke, and loosened the rigid, imagined sovereign immunity into the form we see today in the MTCA, c. 258.  Specifically, the legislature waived sovereign immunity, then consented to the Commonwealth being sued for certain causes of action, and next carved out explicitly certain exceptions, which it set out in §10 of c. 258.

              Even after the enactment, this Court was uncomfortable with the judicially-made doctrine of immunity, which had crossed the pond from England and spread nationwide after the Court in Hans created new law and audaciously called it “the Eleventh Amendment,” and henceforth used it to delude the public.  A “disturbing evolution,” as Judge Molloy wrote.  Following the voice of Morash saying sovereign immunity is “logically indefensible” [Morash, at 618-619], came Irwin v. Commissioner of the Dept. of Youth Services, 388 Mass. 810, 816 (1983) (same).  Then Kargman v. Boston Water & Sewer Comm'n, 18 Mass.App.Ct. 51 (1984) (same); Irwin v. Town of Ware, 392 Mass. 745, 768 (1984) (same); Hallett v. Town of Wrentham, 398 Mass. 550, 558 (1986) (same); and Forbush v. City of Lynn, 35 Mass.App.Ct. 696, 700 (1994) (same).

     Our present disposition does not lead to the grossly disparate results criticized in Morash ... and Whitney....  If the entity is not excluded from the definition of public employer (G.L. c. 258, §1), it may be sued for its tortious conduct but only in accordance with the Act.  It may be that no third category exists and that the governmental immunity doctrine is replaced by the ordinary rule that if there is tortious injury there is liability.

Id. at 58 n. 8.

That the MTCA violates article V——and has yet to be deemed unconstitutional——appears to have escaped challenge.\[36]/  For the MTCA to be “constitutional” ab initio, article V would have had to be repealed or amended before the MTCA was passed in 1978.

Historical evidence, however, supports Johnson’s contention that sovereign immunity has never constitutionally existed in Massachusetts [Morash, 363 Mass. at 615] and that the MTCA has been unconstitutional since its inception in 1978, for art. V of the Declaration of Rights has never been amended.

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

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

d.  Implicit Admission of SJC That BBO and OBC Are Private Entities and Have No Immunity but for §9(3).   The act itself of drafting §9(3) is, in effect, evidence of the SJC’s knowledge and admission that immunity derived from any source was inadequate to protect the entities ultimately described in §9(3).

8.   Where (a) the BBO and OBC are financially and politically independent bodies, (b) Crane and Weisberg are private employees, (c) they are exempted from G.L. c. 258, and (d) they caused tortious injury, the defendants are not immune to liability<.

Johnson incorporates herein the argument in Issue 3, supra, re the motion judge’s comments supporting Johnson on this issue at Add. 15 and in n. 6 on Add. 15].  See also App. 22..

“It is only the subset of independent bodies corporate and politic that do not enjoy immunity from intentional torts under §10(c).” Lafayette, Mass. at 529.  Where the BBO and OBC have no enabling statute, are financially independent, private entities, and by statute are exempted from c. 258, “the ordinary rule” applies to them: i.e., “If there is tortious injury thereis liability.”  Kargman, 18 Mass.App.Ct. at 58 n. 8.

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

NOTE

It is curious why the motion judge court

invoked the federal abstention doctrines
in his opinion, where the underlying case
raised no federal claims, i.e., nothing that
would provoke discussion of those doctrines.

             Because his reason is obscure to Johnson, she has felt compelled as a precautionary measure to respond to the motion judge’s comments on those issues.

Like the doctrine of judicial immunity, the nascence of the second  It was birthed almost 100 years after the duly-ratified first prong of the Eleventh Amendment, which has no application here whatsoever, by a court acting outside the scope of its authority; viz, the court in Hans It was a court that, when circumventing the legislature by usurping its law-making power, transformed our government into one that oppressed the governed.

Although the Eleventh Amendment has——allegedly——no effect on a State claim, the motion court and the defendants still placed their apparent reliance on Chief Judge Young’s opinion [324 F.Supp. 276] in May 2004 for the proposition that the Eleventh Amendment applied in the State court.  On 25 February 2004, however, Judge Young had held just the opposite about the Eleventh Amendment:

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

Johnson v. BBO et al, [App. 140, Feb. 25, 2004].\[37]/ 

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

<>     In fact, in Issue 3 of her appellate brief filed in the First Circuit Court of Appeals [App. 219], Johnson addressed (a) the inconsistency of Judge  Young’s conclusions as to the nature of a bar disciplinary hearing in the Commonwealth, (b) the relief sought by Johnson, and (c) Judge Young’s misinterpretation of Maymó-Meléndez v. Álvarez- Ramírez, 364 F.3d 27, 34 (1st Cir. 2004), and Van Arken v. City of Chicago, 103 F.3d 1346, 1349 (7th Cir. 1997), as to when Rooker-Feldman is applicable and when it is not.  The misrepresen- tation required Johnson to challenge the constitu- tionality of the BBO Rules and to prove that her reliance on District of Columbia Court of Appeals v. Feldman was not misplaced, contrary to the Judge Young’s assertion.\[38]/

a.   Where the second prong of the Eleventh Amendment is not a creature of Congress, is inapplicable in a State court, and may not trump Article V of the Massachusetts Declaration of Rights, immunity under it may not be applied to the defendants in this action.

A primary question in this case is whether judicially-created immunity doctrines can be used by the defendants as a defense for defaming Plaintiff and interfering with her livelihood.

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

               By applying these doctrines, courts have rendered meaningless the Framers’ plain and express intent to restrict bad behavior.  Thus, courts have allowed public officials and court-appointed private persons to escape liability and accountability \[39]

This was contrary to what our Framers intended.[40]/To prevent such oppression, the Framers gave the public the right to return those oppressing the governed to private life. U.S. Const., Art. 3, §1. Mass. Decl. of Rights, art. VIII.  It is reasonable, therefore, to conclude that the Framers considered that the public would choose from the full spectrum of sanctions: from the giving of relief for one identifiable wrongdoing to the harsh sanction of impeachment. Thus when Judge Young changed his opinion that the Eleventh Amendment was not applicable to money damage suits (App. 140-141) by later holding that Eleventh Amendment immunity did bar Johnson’s §1983 money-damage claims against the natural defendants in their official capacities in Counts 7, 8, and 9,\[41]/ and the First Circuit affirmed, the two federal courts used power that was not theirs to use.

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

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

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


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

Even assuming arguendo that the doctrine of judicial immunity may legitimately protect judges, “absolute judicial immunity does not apply to non-judicial acts, i.e., the administrative, legislative, and executive functions that judges may on occasion be assigned to perform.” Duvall v. County of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), citing Forrester v. White, 484 U.S. 219, 227 (1988). See also Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per curiam) (“a judge is not immune from liability for non-judicial acts, i.e., actions not taken in the judge's judicial capacity.  Second, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction”) (citations omitted).

Johnson contends, therefore, that absolute immunity may not properly be extended to functionaries employed or appointed to “affiliated entities”—— not a government entity, but “affiliated entities”—–to oversee administratively those who practice law.   At the Massachusetts BBO and OBC, there are no disclosed definitions of duties and no duly enacted rules of evidence or procedure,\[42]/\[43]/ so we must assume that the obvious is true: that telling falsities to news reporters is not amongst Crane’s and Weisberg’s official duties.

Even were we to assume that Crane’s and Weisberg’s acts of speaking to news reporters and adding questionable items to the Certificate of Good Standing were administrative in nature, where those acts altered Johnson’s rights and potential liabilities, absolute immunity is inapplicable.  Johnson v. Turner, 125 F.3d 324, 333 (6th Cir. (Tenn.) 1997) (“a judge may be liable . . . for an action that is administrative in nature and that does not alter the rights and liabilities of the parties”), citing Morrison v. Lipscomb, 877 F.2d 463, 464-466 (6th Cir. 1989). 

By having neither an existing statute nor a constitutional provision upon which absolute immunity or the second or Hans prong of the Eleventh Amendment is based, and no ordinary constitutional analysis——using strict or inter- mediate scrutiny or a rational basis test——of the facts of the case or of Johnson’s legal arguments, the decisions leave unsettled the critical conflict between the judicially-created law and the exquisite United States and Massachusetts constitutions.

Further, where judicial and/or prosecutorial immunity and the second prong of the Eleventh Amendment have never been scrutinized and cannot be attributed to the Framers or to any Congress, the application of the judicially-created doctrines of judicial and prosecutorial immunity and the unratified second or Hans prong of the Eleventh Amendment must not be continued as de facto constitutionalized policies or practices. \[44]/

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

10.  Where the BBO and OBC are private entities, they are not entitled to free legal representation by the AG’s Office, which is supported by taxpayers’ monies. 

     There was no evidence proffered to demonstrate that §9 of SJC Rule 4:01 has ever been the subject of interpretation or referred to in any caselaw.

That the motion judge misapprehended Johnson’s argument is clear by his referral to Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183,184 (1994); Temple v. Marlborough Div. of the Dist. Ct. Dept., 395 Mass. 117 (1985); Brach v. Chief Justice of the Dist. Ct. Dept., 386 Mass. 528, 535 (1982), for the proposition that the AG has represented “persons employed within the judicial branch.”  [Add. 25].  The motion judge’s misapprehension is that Bar Counsel and his Assistant Bar Counsel are employed within the judicial branch, when in fact, they are not employed within the judicial branch.  They are employees of a private entity that is only affiliated in an undefined manner with the SJC.

11.  The motion judge erred when he concluded that “no rights personal to the plaintiff have been transgressed by [the AG’s] appearance” and therefore she might have had no standing to move to disqualify the AG as counsel for the BBO, OBC, Bar Counsel Crane and Assistant Bar Counsel Weisberg.

     As a taxpayer and as a member of the public, Johnson was entitled to expect the AG to protect her interest in her livelihood and in her reputation, which has been wrongfully defamed by the unlawful activities of the Bar Counsel and his Assistant Bar Counsel. "[T]he Attorney General ‘also has a common law duty to represent the public interest and enforce public rights.’”  [Add. 24]. Johnson therefore contends that the AG had a duty also to enforce Johnson’s interest and rights as a member of the public.

    WHEREFORE, Plaintiff prays that this Court vacate the judgment of dismissal, reverse the decision regarding the AG’s appearance, and restore Johnson’s case to the list.

                 Respectfully submitted,

            Barbara C. Johnson, Pro se
          

                    
                                         
                __________________________

8 January 2007  Barbara C. Johnson, Esq., Pro se

            6 Appletree Lane

                   Andover, MA 01810-4102

                978-474-0833

                    B.B.O. #549972 (on 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)Mass.R.A.P. 16(e) 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) (pertinent findings or memorandum of decision); (references to the record).

 
                            _________________________

8 January 2007       Barbara C. Johnson, Esq.

 

 

CERTIFICATE OF SERVICE

I hereby certify that on this day served two true and accurate copies of the above pleading and record appendix in hand on op­posing counsel of record, Assistant Attorney General Ronald Kehoe, One Ashburton Place, Room 1813, Boston, MA 02108.

                                                                   ___________________________
9 January 2007        Barbara C. Johnson, Esq.


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

[2]  The motion judge’s “Statement of the
Case,” which includes the defamatory statements by the now-former Bar Counsel Daniel Crane and Assistant Bar Counsel Susan Strauss-Weisberg is at
Add. 6 et seq.

[3]    SJC Rule 4:01, § 9(3), explicitly provides that the BBO, the OBC and their employees “shall be immune from liability for any conduct in the course of their official duties.”

[4]    Crane and Weisberg were allegedly
responding to press inquiries about a pending proceeding brought by the Office of Bar Counsel,
which is presumptively within the course of their employment and in furtherance of the work of OBC.
  Johnson contends there is no such presumption. [App. 258-259]. See n. 6, infra. 

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

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

[6]   There is no valid reason why a pseudonym was used for that complainant by the OBC. 

[7]   The Amended Complaint, an exhibit in BD-2006-0039 in the single-justice session, was OBC “Trial” Exh. 23.  It is on Johnson’s website at Drano Series #22.

[8]   The Complaint was filed two years after §13 of c. 209C was amended, and as such, the Complaint was not an impounded document [see Peckham v. Boston Herald, 48 Mass.App.Ct. 282 (1999)]. Weisberg, however, kept improperly alleging that the Complaint was not public.

[9]    BD-2006-0039: Vol. VIII, OBC Trial Exhs. 24-26, Drano ## 23-25.

[10]   On 19 October 2006, at a contempt trial before Judge Spina in the SJC single-justice session, Johnson asked Weisberg, In which file or at which URL was the so-called psychological report?  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.  Certainly, the reasonable inference was that there was no psychological report on Johnson’s website. 

Left penurious by the outrageous attack by the OBC and BBO against her 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 SJC for Suffolk County.

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

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

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

[14]   Later, when the bill was recalculated, Johnson returned to Mary an additional $343 [OBC’s Appendix SJC County Court, Vol. I, Tab 46, Count II, ¶84].

[15]  At <http://www.state.ma.us/courts/-
courtsand
judges/courts/supremejudicialcourt/about.-
html#affiliated>, the SJC lists the BBO and the OBC as “Affiliated
Entities” that were established by rule in 1974.

[16]  It appears that in the British Commonwealth, judicial immunity from charges of constitutional violations has become obsolete or has fallen into desuetude. John E. Wolfgram, “How the Judiciary Stole the Right to Petition,” 31 U. West L.A. L. Rev. 14 n. 28 (Summer 2000), citing See The Digest of British, Commonwealth and European Cases, Note 3641, "No Liability for acts done in Judicial Capacity—Unless Interference with Rights or Freedoms Under Constitution.”  The date when this occurred in Britain is unknown to this author.

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

[18]  John Fitzgerald Molloy was elected to the Arizona Court of Appeals, where he served as chief justice and authored more than 300 appellate opinions.  Molloy wrote the final Miranda decision for the Arizona Supreme Court. The article briefly elucidates his observations and conclusions memorialized in his book, The Fraternity: Lawyers and Judges in Collusion [Paragon House, St. Paul, MN: 2004].

  [19] A search from <http://www.state.ma.-
us/legis/laws/mgl/mgllink.htm> does not produce any statutory authority for the promulgation of the BBO rules.  There is also no reference to the promulgation of the SJC Court Rules in either the statutes or the SJC’s website.  The BBO does not appear on the Commonwealth’s list of “Authorities & Quasi-public Agencies.” 

At <http://www.state.ma.us/courts/courtsand-
judgescourts/supremejudicialcourt/about.html#-
sjcrules>,
the SJC wrote that the SJC established the BBO, the OBC, and the Clients' Security Board (CSB) by rule in 1974 [see also App. 137-139].

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

     [20]   The judge continued:. . . and her Complaint eschews any claim that the Commonwealth is derivatively liable for the actions of these entities or their employees.  Johnson contends that when read together, the Preamble to the Massachusetts Constitution and §7 of G.L. c. 4, demonstrate that there is no sovereign immunity in Commonwealth and that the MTCA, c. 258, is unconstitutional.  See Issue 7, infra, for a detailed discussion of the effect of the confluence of sovereign immunity, the Massachusetts Declaration of Rights, and the MTCA (G.L. c. 258).

[21] Further, the only link between the BBO/OBC with state government is the admitted fact that an SJC rules committee created the BBO and the OBC.  Were the BBO and OBC part of the SJC, there would be a violation of the separation of powers provision in the state constitution.  Judges are in the judicial branch and prosecutors are in the executive branch of government. 

Moreover, where the SJC admits supervising the BBO and the OBC, [App. 137], the SJC has a continuing conflict of interest, for the SJC is the ultimate arbiter of disciplinary disputes.  And where the SJC is the supervisor of both the BBO and OBC as well as the ultimate arbiter, any decision the SJC has rendered or renders in disciplinary disputes was or is void ab initio.

[22] If Crane and Weisberg are private employees, neither does MTCA (c. 258) afford them any protection.

[23]   The SJC committee that inserted §9(3) into the rules knew that employees such as Crane and Weisberg were private employees; otherwise there would have been no need to cover them in §9(3).  See Issue 7, infra.

Further, where the SJC never issued an Opinion of the Justices regarding §9(3), one may reasonably assume that the constitutionality of §9(3) is an issue of first impression.

Moreover, one now asks, Having created the rule, may the SJC determine the constitutionality of §9(3) without the appearance of a conflict of interest?

[24]   Neither Crane nor Weisberg performed any type of function related to a judicial function contemplated by the State and federal constitutions or statutes.  Neither acted in a judge-like manner, and neither was at any time a judge or quasi-judge.  Crane was the plaintiff and, at most, a titular quasi-prosecutor, clearly a conflict of roles.  Weisberg was the so-called prosecutor or quasi-prosecutor, the one doing the so-called investigating and the one who was supposed to act questions: Not having witnesses, she never did ask any.  Crane was never physically present at any proceeding in the board discipline case. 
 

[25]  Noting that §9(3) neither qualifies “immunity” nor provides immunity from suit; it provides immunity from liability only for “any conduct in the course of their official duties,” the motion judge wrote, 

The Complaint neither makes, nor leaves any room for, the suggestion that the BBO, the OBC, Crane, or Strauss-Weisberg acted outside the scope of their official duties with respect to any of the conduct alleged.

Add 14
. Given that defamation is clearly outside Crane’s or Weisberg’s functions, it was literally needless to say that defamation was outside the scope of their employment.”   Mass.R.Civ.P. 8(a).  “Indeed, the complaint need not even ‘state the correct substantive theory of the case.’”  Jensen v. Daniels, 57 Mass.App. Ct. 811, 815 n. 11 (2003), quoting Gallant v. Worcester, 383 Mass. 707, 709, (1981). 

[26]   Assuming arguendo that Crane and Weisberg were public employees, where Crane’s function was ministerial and Weisberg’s was as a pseudo-prosecutor and where they conspired with each other and others to and did deprive Johnson of her constitutional rights——her clearly established First Amendments rights to political expression and free speech, the right to defend herself, as well as her rights to due process and equal protection——neither Crane nor Weisberg was entitled to immunity derived from any source or of any kind. 

     But for the wrongly bestowed immunity, Crane and Weisberg could be defendants in a §1983 action.  When an official's conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known,” the official is not shielded by qualified immunity. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Neither is protection available when the official's conduct is ministerial in nature or not related to a judicial function.  Laubinger v. Dept. of Rev., 41 Mass.App. Ct. 598, 603 (1996). 
 
    
Where qualified immunity is unavailable, absolute immunity is also unavailable.
Thus, but for the impervious §9(3), created and enforceable by the SJC, Crane and Weisberg are not protected by any immunity for any of their conduct.

[27]    If Crane and Weisberg are deemed public employees, the following rule might apply:

[In] Massachusetts [a] rule is that public officers engaged wholly in the performance of public duties are personally liable only for their own acts of misfeasance in connection with ministerial matters. 


Morash & Sons, Inc. v. Com
., 363 Mass. 612, 624 n. 7 (1973), and cases gathered.

[28]  Alden describes the history of the duly-ratified Eleventh Amendment after Chisholm v. Georgia, 2 Dall. 419 (1793), but drops the ball on the second prong, created by the judges in Hans v. Louisiana, 134 U.S. 1(1890), almost 100 years after the ratification of the first prong. The short story is that although after Chisholm, there was some concern in Massachusetts about being sued in federal courts, the legislators chose not to change Article V, which predated the federal constitution by 14 years.  

According to the majority in Alden, the second prong of the Eleventh Amendment was never intended to have effect in any State.  It was to have effect only in the federal courts.  It is out of that rationale the language regarding “surrender” or “waiver” and “consent” developed.  For all intents and purposes, each State could make its own determination as to whether it would allow itself to be sued.  Massachu- setts, already having guaranteed accountability, which precluded immunity, in article V, needed to do nothing.  Not ever having allowed “immunity” and deeming the Commonwealth a voluntary association of its people (read together, the Preamble to the constitution and G.L. c. 4 §7) and giving the people of the Commonwealth the right to govern themselves “as a free, sovereign, and independent State” [article IV, Decl. of Rights], there was no “sovereign immunity” to waive.  And we know article V has never been repealed or amended.

The first reference to the Eleventh Amendment does not appear in the caselaw of the Commonwealth until 1973, in Morash, at 618, but it referred to the duly-ratified prong, not the second, or unratified, prong.

After the second prong bloomed in Hans, in 1890, another 90 years passed before our SJC, in Whitney, infra, in 1977, said there was no rational basis for sovereign immunity and threatened to act by judicial fiat in 1978 to abrogate the alleged “sovereign immunity” if the legislature did not act by the end of the 1978 term.  Thus the birth of the MTCA.  Later the Court in Hallett, in 1986, wrote (see infra), that sovereign immunity was “logically indefensible.” 

The problem that arose is——so it appears——that neither the Court nor our legislators nor any of the legal practitioners looked into the history of immunity: they all evidently assumed that there was sovereign immunity in place to limit suits against the Commonwealth, but that was wholly untrue. 

[29]      See also Federalist Paper No. 80 (McLean's ed., June 21, 1788, NY) (Hamilton). 

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

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

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

[33]  See note 33, supra.

[34]  For example, in Hatfield v. Gnazzo,1993 WL 818653 at 1 (Super. 1993), the superior court judge wrongly applied the Eleventh Amendment immunity to what appears to have a State claim.

[35]
  To be sure, in Morash & Sons and, four years later, in Whitney v. Worcester, 373 Mass. 208 (1977), the SJC criticized the doctrine of blanket sovereign immunity in tort, and urged legislative action to waive immunity in appropriate cases. The court stressed that sovereign immunity is a judge-made doctrine and could be judicially abolished, but that “[a] legislative approach is preferable.”  Morash & Sons, 363 Mass. at 624.


Add. 16
.  He who maketh can breaketh.


[36]   The motion court, too, noted that “[n]owhere in either opinion [Morash OR Whitney] did the court suggest that this or other governmental immunities were unconstitutional” [Add. 9].  Johnson adds, “and nowhere in either opinion did the court suggest that this or other governmental immunities were constitutional.”  It is an issue of first impression.

[37]   Weisberg was not a defendant in the federal case.

[38]   The motion judge here noted that Judge Young held that the Younger abstention doctrine precluded the federal court from granting the requested declaratory relief regarding Johnson's BBO proceeding [Add. 11].  But the reason was invalid: he stated that Younger v. Harris, 401 U.S. 37 (1971) held that federal courts may not intervene in ongoing state criminal proceedings, but in Massachusetts, board discipline proceedings are deemed to be administrative in nature, and not deemed to be either judicial or criminal in nature.  In re Abbott, 437 Mass. 384, 391 (2002), citing Matter of Jones, 425 Mass. 1005, 1007 (1997).  In fact, the SJC has rejected In re Ruffalo, 390 U.S. 544, 551 (1968), in which the Supreme Court stated that attorney disciplinary proceedings are adversarial and quasi-criminal in nature. 

Also noted by the motion judge [Add. 11] is that Judge Young also relied on Middlesex County Ethics Committee v. Garden State Bar Ass'n, 457 U.S. 423 (1982), to apply Younger to bar disciplinary proceedings. 

Not noted by either the motion judge or Judge Young is that because of events in the Middlesex proceedings, New Jersey changed its Bar proceedings from administrative to judicial in nature in order to avoid being reversed by SCOTUS [See Add. 11 and App. 176, 229]. 

This the SJC has not done, so Judge Young’s reliance on Middlesex was also reversible error.  Unfortunately, the First Circuit chose to overlook this very fundamental, obvious error.  Judge Young misapprehended or overlooked the egregious, euphemistically, “misrepresentation” by the AAG on the case.

[39]         One has the sense that equating “accountable” with “liable in damages, without qualification” would have grated on the eighteenth century ear at least as much as on the modern one. In any event, the argument reads far more into Article V than any reported case brought to my attention, and ignores the long line of cases upholding—and discussing the respectable antiquity of—the judicial, prosecutorial, and sovereign immunities.


Add. 16
.  The motion judge’s musing in the decision from which Johnson is here appealing is provocative but not persuasive: that is, it is based on there being a “long line of cases upholding” judge-made immunities . . . albeit in contravention of Article V’s guarantee of accountability, which arguably excludes protection by immunity.

To support her position, which is opposite that of the motion judge, Johnson relies on a comment by Messrs. Justices Black, Warren, and Douglas in a dissent in which they concurred in a case later overturned:

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


Cohen v. Hurley
, 366 U.S. 117, 142 n.23 (1961) (Mr. Justice Black, with whom Chief Justice Warren and Justice Douglas concurred, dissenting), a 5-to-4 decision overruled in Spevack v. Klein, 385 U.S. 511, 514 (1967).

[40]    Not having been duly ratified, the second prong of the Eleventh Amendment may not be invoked in federal court against Johnson.  Nor may it supercede the Fourteenth Amendment, duly ratified 22 years prior to the grenade thrown at the civil rights of individuals in Hans.  Nor may it override the plain language of §1983, enacted to enforce the provisions of the Fourteenth Amendment.  Nor may it overrule the intent of Congress not to afford immunity to those judges who deprive citizens of their civil rights.

Nor may judicially-created sovereign immunity override or preempt art. V of the Mass. Declaration of Rights, which has, since 1780, constitutionally guaranteed accountability at all times by all three branches of government to the people, of which she is one.

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

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

[43]   While the federal action was pending in the First Circuit Court of Appeals, the Mass. Bar Association organized a BBO Task force to put the BBO and OBC under scrutiny and issued a report calling for reform.  The ABA later followed suit, issued a report calling for, amongst other things, overseers to oversee the overseers.  Both reports, the MBA’s and the ABA’s merely scratched the surface of the tip of the iceberg of wrongdoing and deviant practices devoid of justice.

[44]   See note 46, supra.