#180, Drano Series

  

Reply Brief  to the BBO, OBC, Crane, and Weisberg's Appellee Brief Against Barb's Appeal of the Judgment of Dismissal of her case in Superior Court including cover and Table of Contents Barb v. the BBO, OBC, Bar Counsel Daniel C. Crane, Assistant Bar Counsel Susan Strauss-Weisberg, and, of course, the Commonwealth of Massachusetts The Appeal is Drano Series #172. ~~~~~~~~~~~~~~~~

  NOTE

A REPLY brief must have a GREY cover.

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   __________________________________________________     REPLY BRIEF OF BARBARA C. JOHNSON DEFENDANT/APPELLANT   _________________________________________________     Barbara C. Johnson, Esq Defendant/Appellant, pro se B.B.O. #549972 (pending appeal) 6 Appletree Lane Andover, MA 01810-4102 978-474-0833

TABLE OF CONTENTS   Table of Authorities .............................  ii Statutes ......................................... iii Rules ............................................ iii Treatises ........................................  iv Miscellaneous ....................................  iv   #1.  Defendants’ Misrepresentation, at      Introduction, p. 1, lines 1-2 .................     1   #2.  Defendants’ Misrepresentation, at      Introduction, p. 1, lines 3-4  ................     1        Fig. 1.  11/17/03 Transcript, p. 40, lines      9-12 ........................................    2        Fig. 2.  Transcript, 12/2/03, Day I: 56-57 ..    2   #3.  Defendants’ Misrepresentation, at      Introduction, p. 1, line 4 ....................  2 #4.  Defendants’ Misrepresentation, at p. 3,      lines 3-5 ....................................   3   #5.  Defendants’ Misrepresentation, at p. 3, ¶2,      lines 2-4 ....................................   4   #6.  Defendants’ Misrepresentation, at p. 6 n. 4 ..   5 #7.  Defendants’ Comments, at p. 8 and 8 nn. 5-7 ..   5 #8.  Defendants’ Comments, at pp. 9; 9 n. 8;      and 10........................................   6   #9.  Defendants’ Misrepresentation, at p. 16, ¶1,      lines 6-9 ....................................   6   #10. Defendants’ Misrepresentation, at pp. 16-20 ..   7   #11. Defendants’ Disjointed Argument, at pp. 18-19..  8   #12. Defendants’ Erroneous Conclusion re res      judicata, at p. 18 ............................ 13   #13. Defendants’ Erroneous Conclusion re      sovereign immunity, at p. 20 .................. 13   <>#14. Defendants’ Erroneous Conclusion re      the Attorney General’s authority to      represent the Defendants BBO, OBC,      Crane, and Weisberg, at pp. 21-23 ............   13   CONCLUSION .......................................   14 Mass.R.A.P. 16(k) Certification ..................   14   Certificate of Service ...........................   14 TABLE OF AUTHORITIES Bagley v. Moxley, 407 Mass. 633 (1990) ..............................     9 Blanchette v. School Committee of Westwood, 427 Mass. 176 (1998) ..............................     9 Ciccone v. Smith, 3 Mass.App.Ct. 733 (1975).........................    4        Clark v. Greenhalge, 411 Mass. 410 (1991) .............................    4   Commesso v. Hingham Hous. Auth., 399 Mass. 805 (1987)..............................   11   Commonwealth v. Garcia, 409 Mass. 675 (1991) ..............................    5   Glenn v. Aiken, 409 Mass. 699(1991) ..............................     4   Heacock v. Heacock, 402 Mass. 21 (1988) ...............................    9 Kargman v. Boston Water & Sewer Comm’n, 18 Mass.App.Ct. 51 (1984) .........................   11 Kinan v. Trial Court, 400 Mass. 582 (1987) .............................   8-9 Kobrin v. Board of Registration in Medicine, 444 Mass. 837 (2006) ..............................   9   Lafayette Place Assocs. v. Boston Redevelopment Authority, 427 Mass. 509 (1998) ............................  11-12 Minaya v. Massachusetts Credit Union Share Ins. Corp., 392 Mass. 904 (1984) ..............................    4   Moore v. McManus, 8 Mass.L. Rptr. 263, 1998 WL 77904 (Mass.Super. 1998) ..................  8-9 Rogers v. Metropolitan Dist. Comm'n, 18 Mass.App.Ct. 337, 338-339 (1984) ...............   12   Siegel v. Kepa Homes Corp., 2000 WL 798639, 2000 Mass.App.Div. 170 (2000) ......................   4   Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562 (1976) ...............................   5   STATUTES   G.L. c. 30A, State Administrative Procedure ....... 8-9 G.L. c. 30A, §1  ...................................  9 G.L. c. 211D, § 13 .................................  9   G.L. c. 258, § 1, Mass. Tort Claims Act .... 8-9, 11-13 G.L. c. 258, § 10(c) ............................... 11   RULES Mass.R.A.P. 16(k) Certification ........................     14 Mass.R.A.P. 16(a)(6) ...................................     14 Mass.R.A.P. 16(e)  .....................................     14 Mass.R.A.P. 16(f).......................................     14 Mass.R.A.P. 16(h).......................................     14 Mass.R.A.P. 18 .........................................     14 Mass.R.A.P. 20 .........................................     14   TREATISES   Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argu- ment by Analogy, 109 Harv.L.Rev. 925 (1996)......... 11   Levi, An Introduction to Legal Reasoning (1949)..... 11   MISCELLANEOUS http://www.mass.gov/courts/courtsand- judges/courts/supremejudicialcourt/- about.html#affiliated1 ............................   10

Now comes Barbara C. Johnson, Esq., [“Johnson”] and replies to the defendants’ appellee brief seeking affirmation of both the denial of Johnson’s motions to strike the appear- ance of the Attorney General for all defendants with the exception of the Commonwealth and the judgment of dismissal of her claims against Defendants.     As grounds for her reply, Johnson states that the defendants’ opposition contains critical misrepresentations, omissions, and specious conclusions.       As a result, Johnson must address each of these offenses lest her silence be used against her.  #1. Defendants’ Misrepresentation, at Introduction, p. 1, lines 1-2:  FALSE:  “This is a tort action brought by a disbarred lawyer” . . .” TRUE:  Johnson was not disbarred when she brought the claim on 31 October 2005.  #2. Defendants’ Misrepresentation, at Introduction, p. 1, lines 3-4:  FALSE:  “... in the course of public proceedings ...” TRUE:  The only proceeding that was “public” was a pretrial conference.  The BBO special hearing officer [“SHO”] ordered the public out of the hearing room during Johnson’s Opening Statement at the scheduled public hearing.  Given that the SHO had previously instructed the “court reporter” to go OFF the record when Johnson spoke and back “ON” when he spoke, Johnson, fearing an artful transcript, left with the public. Fig. 1.  11/17/03 Transcript, p. 40, lines 9-12   The reason for evicting the public was    bogus.  The SHO claimed that there was an   order commanding Johnson to use pseudonyms   for certain people.  There was no such   order.  HEARING OFFICER:  Do you happen to know whether that name [Complainant’s male roommate circa 1988-1989] is on a protection list, Miss Weisberg? MS.  WEISBERG:  No, we don't actually have a list.  We have documents that are protected.  That's a name that appears -- I believe the evidence will show that that name is a name that appears in documents that Miss Johnson published on her web site.  So they are out there in the public domain.  HEARING OFFICER:  I'm going to assume that was an inadvertent slip, Miss Johnson.  No more of those.  I'm going to have the record redact that name, (name redacted).  Fig. 2.  Transcript, 12/2/03, Day I: 56-57, emphasis supplied.      Despite Weisberg informing the SHO that there was no such order, the SHO and BBO Assistant General Counsel Carol Wagner ignored Weisberg’s admission and demanded that the public leave.  #3. Defendants’ Misrepresentation, at Introduction, p. 1, line 4:  FALSE:  “... proceedings which led to plaintiff’s disbarment.” TRUE: The proceedings did not lead to Johnson’s disbarment.  The disbarment was predetermined when Johnson ran for governor in 2002 on a platform of court reform and the abolishment of judicial immunity.\[1]/  Within a few weeks after the election in November, she received notice from the Defendant Assistant Bar Counsel Susan Strauss Weisberg that a Petition for Discipline would issue against her.  In that petition (for which Crane was named as plaintiff), Weisberg charged that Johnson’s speech was “prejudicial to the administration of justice.”  #4. Defendants’ Misrepresentation, at p. 3, lines 3-5: FALSE:  “The petition initiated ... proceedings which were open to the public, and in which public hearing were being held. TRUE:  See item #2, which Johnson incorporates herein by reference.  Only one proceeding—–the pretrial conference——was open to the public.  Aside from that conference and the aborted witnessless “trial,” there were no other proceedings or hearings. #5. Defendants’ Misrepresentation, at p. 3, ¶2, lines 2-4: FALSE:  “... the complaint does not allege conduct outside the defendants’ official roles, or that any defendant acted in bad faith or with malice.” TRUE:  Under notice pleading, “a short and plain statement of the claim showing that the pleader is entitled to relief” is sufficient if it affords the defendant “fair notice” of the nature and basis of the action against him.  Clark v. Greenhalge, 411 Mass. 410, 413 n. 6 (1991); Ciccone v. Smith, 3 Mass.App.Ct. 733, 734 (1975).  That Johnson did.   Notwithstanding that, the substance of ¶¶ 21, 27, 53, 57-58, 62, and 88 demonstrates bad faith and malice. Nor is it essential that the com- plaint allege all elements of a cause of action, Glenn v. Aiken, 409 Mass. 699, 702-703 (1991), or demon- strate the specific causal link between the defendant's acts or omissions and the damages sus- tained.  See Minaya v. Massachu- setts Credit Union Share Ins. Corp., 392 Mass. 904, 908 n. 3 (1984).    Siegel v. Kepa Homes Corp., 2000 WL 798639 *3, 2000 Mass.App.Div. 170 (2000).      #6. Defendants’ Misrepresentation, at p. 6 n. 4: FALSE: “If Weisberg had answered the complaint, she would have ..., quoted by Mulvihill in a journalistic style....” TRUE:  Speculation.  The fact is that Weisberg did not answer the complaint.  The fact is that Mulvihill wrote [App-33], for example, such words as: ·       “Did she really, as assistant bar counsel Susan Strauss Weisberg claims, ... ·       According to Weisberg, the information included ... ·       What about Weisberg’s claim that ... Significant is that Weisberg never argued below what she would have answered had she answered.  This is an issue presented for the first time on this appeal, and must not be considered by this court.  "An issue not fairly raised before the trial judge will not be considered for the first time on appeal."  Commonwealth v. Garcia, 409 Mass. 675, 678 (1991). Trustees of the Stigmatine Fathers, Inc. v. Secretary of Admn. & Fin., 369 Mass. 562, 565 (1976) (same). #7. Defendants’ Comments, at p. 8 and 8 nn. 5-7:  Defendants complain that Johnson did not scan and tip in Defendants’ documents that she considered irrelevant to this appeal.  By complaining, Defendants inferred that those documents were necessary.  Given, however, that Defendants did not produce them in a Supplementary Appendix, which surely would have been accepted by the clerk, this court may conclude that those documents are, as Johnson wrote, irrelevant to this appeal and that Johnson’s record-appendix is not one-sided.  Curiously, Defendants unnecessarily included in their Addendum the Memoranda and Orders of the lower court, for Johnson had included them in her Addendum at pp. 5ff. and 23ff. #8. Defendants’ Comments, at pp. 9; 9 n. 8; and 10:  The documents in Johnson’s appendix, she contends, are not extraneous to her appeal, given that they were invoked by Defendants.  See, for instance, the reference to them in notes 8 and 9. Further, in those documents in Johnson’s Appendix, she discusses and incorporates in her brief by reference thereto the issues of whether Crane and Weisberg are public or private employees and whether they acted outside the scope of their official duties.   App-189ff., 223ff., 244ff., and 258ff.  App-135ff., 177ff., and 181ff.  #9. Defendants’ Misrepresentation, at p. 16, ¶ 1, lines 6-9: FALSE:   “... plaintiff’s case, where a public hearing had been held on a petition for discipline that had been filed after the conclusion of an investigation, and had thereby become public and prompted inquiries from the press.” TRUE:   See Item #2 at 1, supra, where the details of a nonpublic, witnessless “trial” from which the public was excluded.  See App-18, 24, 99, 108, 120, 167, 190, 238, 259-260.  #10. Defendants’ Misrepresentation, at pp. 16-20: FALSE: The BBO and OBC are public employers, they are arms of the state, and Crane and Weisberg are public employees. TRUE:  The BBO and OBC are private employers.  They pay their employees from the money collected as attorneys’ annual licensing fees.  They are not arms of the state.  They are private entities affiliated with the SJC.  They (a) were created by an SJC committee and (b) are being controlled [Defs. Brf. At 19] and supervised by the SJC [App-138], which results in the appearance, if not an actual, conflict of interest for the SJC to act on any recom- mendation by their servants or agents at the BBO and OBC.  Being paid by private money, Crane and Weisberg are private employees.  App-139-140.  Being finan- cially independent, the BBO and OBC are private employers.      The pleadings relevant to these issues are Johnson’s oppositions and supplements to the defendants’ motions to dismiss.  App-189ff., 223ff., 244ff., and 258ff. #11. Defendants’ Disjointed Argument, at pp. 18-19: The cases cited by Defendants in their brief at 18-19 appear to be for the proposition that because the BBO is called a “board,” it is a public employer.  Two of the half-dozen cases are related to the defendants’ argument by virtue of their issue being similar, although not on point: Kinan v. Trial Court, 400 Mass. 582 (1987)\[2]/ and Moore v. McManus, 8 Mass.L. Rptr. 263, 1998 WL 77904 (Mass.Super. 1998). <>     In Kinan, the Trial Court was deemed not an “agency” for purposes of the Massachusetts Tort Claims Act [“MTCA”], but an “other public employer.”  Because it was not an agency under MTCA, no presentment was necessary.  Claims were to be made to the CJAM of the Trial Court.  Unlike persons employed by the BBO and the OBC, who are not paid by the Commonwealth, all persons employed by the Trial Court are paid with money from the Commonwealth’s coffers, making them public employees.      In Moore (cited also by Johnson at App.Brf at 27), the Committee for Public Counsel Services [“CPCS”] was deemed a statutory agency of Commonwealth pursuant to G.L. c. 211D, § 13, and a “governmental entity related to the judiciary,”\[3]/ and not within the executive branch.  The CPCS staff and attorneys are paid by the state.\[4]/  “[W]hether or not McManus [a CPCS attorney] is a public employee, he has no immunity for the intentional torts alleged in . . . the complaint.”      If Kinan or Moore are parallel or analogous to the instant case in any way, the defendants have failed to  discuss it.      Disjointedly, between Defendants citing Kinan and  Moore, Defendants cited the other four cases\