#174, Drano Series

  

Barb's Reply to Defendants' Opposition to Motion for Declaration As to What Constitutes the Unauthorized Practice of Law under G.L. c. 221, §41 and As to Other Related Matters ~~~~~~~~~~~~~~~~ NOTE that Drano ##159, 160, and 161, 167, 168, 169, 170, and 171   were sent to the Massachusetts Supreme Judicial Court for the Commonwealth, where the full panel (minus the judge who sat in the single-justice) will hear the case. ~~~~~~~~~~~~~~~~~~ NOTE that Drano ##162, 163 and 164,  were sent to the Massachusetts Supreme Judicial Court for Suffolk County, where every month a different SJC justice is assigned to sit as a  judge  in the single-justice session. Amongst the many types of cases heard by a "Single Justice" are petitions invoking the "SUPERINTENDENCY" of the SJC and Board Discipline cases. ~~~~~~~~~~~~~~~~ People have written me, "What can I do to help you?" It is unlikely anything will help the inevitable, however, anything is worth trying.  The "anything" might be letters to the Court: Supreme Judicial Court  John Adams Courthouse  One Pemberton Square Boston , MA 02108   Supreme Judicial Court Justices  (click on names and see photos and profiles) Send letters by snail mail or email of both. Snail mail address above. Email addresses below.   hief Justice Margaret H. Marshall chiefjustice.marshall@sjc.state.ma.us margaret.marshall@sjc.state.ma.us Justice John M. Greaney john.greaney@sjc.state.ma.us Justice Roderick L. Ireland roderick.ireland@sjc.state.ma.us Justice Francis X. Spina francis.spina@sjc.state.ma.us Justice Judith A. Cowin judith.cowin@sjc.state.ma.us Justice Martha B. Sosman martha.sosman@sjc.state.ma.us Justice Robert J. Cordy robert.cordy@sjc.state.ma.us   Keep the letters going to the Court. Whether the judges will ever read them is unknown, but they are sure to know that they are there.  I'll inquire as to whether a "reader" has been assigned.  Let's also try emails.  The judges' secretaries will certainly let them know how many are coming in.

COMMONWEALTH OF MASSACHUSETTS Supreme Judicial Court for the Commonwealth   No. SJC-2006-09820   IN RE BARBARA C. JOHNSON ~~~~~~~~~~~    JOHNSON’S REPLY TO BAR COUNSEL’S OPPOSITION TO   JOHNSON’S MOTION FOR DECLARATION AS TO WHAT CONSTITUTES THE UNAUTHORIZED PRACTICE OF LAW UNDER G.L. c. 221, §41 AND AS TO OTHER RELATED MATTERS   Now comes Barbara C. Johnson, Esq., [“Johnson”] and replies to Bar Counsel’s opposition to her motion for a declaration as to what constitutes the unauthorized practice of law under G.L. c. 221, §§41, 46, 46A, and 46B. As grounds for this reply, Johnson states that Bar Counsel complains (1) that Johnson is seeking a declaratory judgment and (2) that she brought it incorrectly by motion rather than by Complaint.    Given that G.L.  c. 231A. the Declaratory Judgment Act,  is “remedial” and “is to be liberally construed” [Gay & Lesbian Advocates & Defenders v. Attorney General [“GLAD”], 436 Mass. 132,  134 (2002)], a procedural error—–if any has been made here—– is venal and not fatal, for the chapter does not state how the declaratory proceedings must be initiated, i.e., whether by motion or formal Complaint.   This Court may, therefore, if so inclined, treat the motion as a Complaint.    Town of Reading v. Goddard Bros., Inc., 54 Mass.App.Ct. 1117 (2002) (unpublished) (“Goddard initiated declaratory judgment action by an emergency motion filed in the plaintiff's underlying enforcement action”).  Johnson also contends that although she has sought the judgment through motion and not by a Complaint, she has pled all the elements in her motion that would be pled in a Complaint to satisfy the need to show that there is an actual controversy in this case.  G.L. c. 231A, §1. The relevant part of §1 allows this Court to “make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred  in any case in which an actual controversy has arisen.”  In this case in the single-justice session, Judge Spina issued a Judgment of Disbarment and ordered Johnson not to practice law in the courts of the Commonwealth.   Therefore, Johnson is entitled under c. 231A to seek a binding declaration before a breach or violation thereof has occurred as to what constitutes the unauthorized practice of law. An actual controversy exists where there is: "a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation." GLAD, 436 Mass. at 134-135, quoting Bunker Hill Distrib., Inc. v. District Attorney for the Suffolk Dist., 376 Mass. 142, 144 (1978) (Bunker Hill ), quoting School Comm. of Cambridge v. Superintendent of Sch. of Cambridge, 320 Mass. 516, 518 (1946).             As described in excruciating details in Johnson’s motion, the single justice disbarred Johnson and ordered her not to practice law.   Given ·       that Johnson must have a livelihood, ·       that the unauthorized-practice-of-law statutes —c. 221, §§41, 46, 46A, and 46B—are both vague and overbroad,   ·       that she is vulnerable to being charged with the unauthorized practice of law [“UPL”]—–given the inherent dishonesty of the BBO, the OBC. the Bar Counsel, the prosecuting Assistant Bar Counsel, Susan Strauss-Weisberg, who have made a mockery of justice by falsely charging Johnson with professional violations and using their unbridled power and existing discriminatory presumptions in their favor in the SJC for Suffolk County to cause her to be disbarred —–and   ·       that “the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation" [id.],   this Court must conclude that an actual controversy exists, and that this Court has the authority to treat Johnson’s motion as a Complaint for a Declaratory Judgment.             Massachusetts courts liberally construe the actual controversy requirement of  G.L.c. 231A, § 1.  Boston v. Keene Corp., 406 Mass. 301, 304 (1989), citing Massachusetts Ass'n of Independent Ins. Agents & Brokers, Inc. v. Commissioner of Ins., 373 Mass. 290, 293 (1977).  The pleading need only set forth a real dispute concerning a legal relation, which if not resolved will likely lead to litigation identical to the present subject matter.  Gay & Lesbian Advocates & Defenders v. Attorney General, 436 Mass. 132, 134-35 (2002); Keene Corp., 406 Mass. at 304, citing Hogan v. Hogan, 320 Mass. 658, 662 (1947).  The purpose of this liberal standard of review is to afford relief from uncertainty and insecurity with respect to legal relations.  Keene Corp., 406 Mass. at 304-05.             Fricke v. Banks, 2006 WL 2424737 at 1, No. 0500422 (Mass.Super. July 11, 2006) (Muse, Christopher, J.).   [I[n order for this Court to have jurisdiction under c. 231A, the controversy at issue must be definite and between the named parties.  Alliance, AFSCME/SEIU AFL-CIO v. Commonwealth, 425 Mass. 534, 537-39 (1997).   Machado v. Leahy, 2004 WL 233335 at 4, No. BRCV-2002-00514 (Mass.Super.  Jan. 3, 2004) (Kane, Robert, J.).               Where Johnson’s pleading set forth a real dispute concerning a legal relation, which if not resolved will likely lead to litigation regarding what constitutes the unauthorized practice of law, the controversy at issue is definite, and the same parties will be involved.             Wherefore, Johnson prays her motion for a declaration as to what constitutes the unauthorized practice of law be allowed.   CERTIFICATE OF SERVICE I, Barbara C. Johnson, hereby certify that on  1 January 2007, I served a true and accurate copy of the within pleading to the opposing OBC counsel, 99 High Street., Boston, MA 02110.   1 January 2007            Barbara C. Johnson Respectfully submitted,   Barbara C. Johnson, Pro Se 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 BBO #549972 (pending appeal)