#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\[5]/ not to discuss the issues of whether the BBO and OBC are public or private employers and whether Crane and Weisberg are public or private employees, but to support their argument that Johnson should be estopped from relitigating in this action those issues.      Their res judicata argument arises solely out of Judge Young’s conclusion that the BBO and OBC were “arms of the state.”  The defendants offer no other evidence in support of their argument.  The defendants take it only one step further and argue——without supporting authori- ty——that “arms of the state” are equivalent to “boards” or “agencies,” and therefore this court should deem the BBO and the OBC public employers ... even though they are not.      The BBO simply has the word “Board” in its title.  It is not a “Board” enabled by a statute.  It is not an “agency.”  It is but an “affiliated entity,” as is the OBC also [App-200 and <http://www.mass.gov/courts/courtsand- judges/courts/supremejudicialcourt/about.html- #affiliated1>.\[6]/        There has been no case in which this Court has decided whether an affiliated entity is a public or private employer or whether its employees are public or private employees.  Therefore, any analogy drawn by the defendants here from Judge Young’s “arms of the state” to any other governmental entity must fail. Though we do not decline the illumination that these proposals and analyses might offer, we probably cannot do much better in this case than to rely on analogy, that logically imperfect but inveterate tool of the law in tight corners.  See generally Brewer, Exemplary Reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy, 109 Harv.L.Rev. 925 (1996); Levi, An Introduction to Legal Reasoning (1949).  And here the closest analogy to the BRA are the local housing authorities, to which in Commesso\[7]/ we declined to assign independent status for the purposes of §§ 1 and 10(c).   Lafayette Place Assocs. v. Boston Redevelopment Authority, 427 Mass. 509, 530-531 (1998) (finding BRA a public employer immune under G.L. c. 258, § 10(c), from suit arising out of intentional torts), in which opinion there is considerable discourse on what establishes an independent entity——e.g., financial and political independ- ence——in an effort to resolve the conundrum of whether the BRA is a public or private entity and whether it was immune from suit.        The plaintiff, Lafayette Place Associates [“LPA”], “point[ed] out that some of the features urged by the BRA as indicia of a lack of independence . . . apply to the three named authorities as well.”  Id. at 530.  One such indice was “the oversight by the State auditor of its expenditures which the judge mentions” in Kargman.\[8]/  Id. Finally, we resolve whatever indeterminacy this analysis may leave in favor of subjecting the BRA to the general regime of c. 258.  The BRA is certainly a public body, a governmental entity of some sort performing public functions.  Any doubts about the BRA's status under the difficult and uncertain designation of "independent body politic and corporate" should be resolved against such a designation, because of the desirability of making the c. 258 regime as comprehensive as possible, thus avoiding reintroducing the "crazy quilt" of immunities, Rogers v. Metropolitan Dist. Comm'n, 18 Mass.App.Ct. 337, 338-339 (1984), which the Act was meant to replace.   Lafayette, at 533 (emphasis supplied). Out of this analytic morass, the defendants assert that even though the BBO and the OBC are “financially and politically independent,” that fact does not preclude them from being deemed public employers.  Where there is doubt, the defendants parrot, the entity is to be deemed to be a public employer.  Lafayette, at 532.       Johnson contends, the analysis is inappli- cable to the instant case, given that there is no similarity whatsoever between the BRA and the Siamese twins, the BBO and OBC.      There remains only one presently unsolvable puzzle, and that is, To what extent are the Siamese twins politically dependent or independent?  It is undisputed and admitted by the SJC that it controls and supervises the BBO and OBC, but how pervasive is that control and supervision?  How much further than making political appointments to the BBO and OBC does the control and supervision go?   Does the SJC dictate which cases are investigated and which are prosecuted?  Does the SJC dictate what sanctions should be applied in certain or all the cases?  Does the SJC dictate in which cases an Information should be filed at the single-justice session of the SJC?       If the answer to these questions is Yes, then two facts must be deemed true: (1) the BBO and OBC are not politically independent, and the possibility exists that the Court might deem them public employers——despite their financial independence——and (2) the SJC has a conflict of interest when passing final judgment on those cases filed by the BBO and OBC at the SJC.      If the answer to these questions is No, then this court must deem the BBO and OBC to be private employers and Crane and Weisberg to be private employees.      #12. Defendants’ Erroneous Conclusion re res judicata, at p. 18:  The phrase “arms of the State” was never adjudicated as such.  The first time the phrase appeared was in Judge Young’s second decision.  Where the issue was not “fully litigated,” the doctrine of res judicata is inapplicable.  #13. Defendants’ Erroneous Conclusion re sovereign immunity, at p. 20:  Where the BBO and OBC are not public employers, the Mass. Tort Claims Act and common-law immunity do not apply to them.  Johnson relies on her brief on the issue of sovereign immunity.  App-142ff. #14. Defendants’ Erroneous Conclusion re the Attorney General’s authority to represent the Defendants BB, OBC, Crane, and Weisberg, at pp. 21-23:  The pleadings relevant to these issues are Johnson’s oppositions and supplements to the defendants’ motions to dismiss.  App-135ff., 177ff., and 181ff. CONCLUSION      Both the Superior Court’s denial of Johnson’s motion to strike the appearance of the Attorney General for all the defendants with the exception of the Commonwealth and the dismissal of Johnson’s action must be reversed, and the case remanded for discovery and trial.                Respectfully submitted,      Barbara C. Johnson 21 March 2007    Barbara C. Johnson, Esq., Pro Se                                      6 Appletree Lane                                            Andover, MA 01810-4102                                      978-474-0833                    BBO #549972 (pending appeal)  Mass.R.A.P. 16(k) CERTIFICATION I, Barbara C. Johnson, hereby certify that this brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass.R.A.P. 16(a)(6) (pertinent findings or memorandum of decision); Mass.R.A.P. 16(e) (references to the record); Mass.R.A.P. 16(f) (reproduction of statutes, rules, regulations); Mass.R.A.P. 18 (appendix to the briefs); and Mass.R.A.P. 20 (form of briefs, appendices, and other papers). The length of the brief is longer than 20 pages [see Mass.R.A.P. 16(h)], but an amended motion for leave to file a brief in excess of 20 pages accompanies this brief.  The original motion was not accompanied by the Reply brief and was decided by a clerk of this Court.  Johnson  prefers that the justices of this Court review her Reply brief and then determine whether it is sufficiently reasonable and meritorious for leave to file a longer Reply be allowed.                            Barbara C. Johnson 21 March 2007          Barbara C. Johnson, Esq.   CERTIFICATE OF SERVICE  I, Barbara C. Johnson, hereby certify that on 23 March 2007 I served two true and accurate copies of the within pleading to opposing counsel, AAG Ronald F. Kehoe, One Ashburton Place, Boston, MA 02108 by hand/ first-class mail/overnight delivery.   Barbara C. Johnson 21 March 2007          Barbara C. Johnson, Esq.   [1]  The disbarment also occurred prior to Johnson’s right of appeal becoming ripe.  Two motions for a stay——one in the single-justice session and one in the full-panel session——were denied, confirming that the decision to disbar Johnson was predetermined.  If there had been the possibility of Johnson’s success before the full SJC bench, the stay would, logically, have to have been granted.  [2]  “While we cannot conclude that the Legislature intended to incorporate the definition of agency found in G.L. c. 30A into G.L. c. 258, we believe that the exclusion of the judicial department from the definition of agency under c. 30A is instructive in this instance.”  Kinan, at 585. [3]  Chapter 30A, however, explicitly excludes the judiciary or an arm of the judiciary from the definition of "agency".   G.L. c. 30A, § 1.  The MTCA, by contrast, does not exclude the judicial branch from the definition of "public employer".  G.L. c. 258, § 1.      Moore v. McManus, 1998 WL 77904 *6.  This adjudication makes the Board of Bar rules, which purport to be based on c. 30A, an anomaly. [4]  Unlike entities which are independent bodies, CPCS's enabling statute does not give it independent body politic status, and CPCS is financially dependent on the Commonwealth.  It lacks an "existence apart from and distinct from the Commonwealth."   Moore v. McManus, 1998 WL 77904 *6. [5]   Kobrin v. Board of Registration in Medicine, 444 Mass. 837 (2006) (physician convicted of Medicaid fraud).  Blan-chette v. School Committee of Westwood, 427 Mass. 176 (1998) (discusses claim preclusion and judicial estoppel).    Bagley v. Moxley, 407 Mass. 633 (1990) (res judicata).  Heacock v. Heacock, 402 Mass. 21 (1988) (res judicata). [6]     Since Johnson first identified the URL for the Supreme Judicial Court, the manner in which the URL was identified has changed: The string “www.state.ma.us” was changed to “www.mass.gov” and the string of the target “affiliated” was changed to “affiliated1”.   [7]   Commesso v. Hingham Hous. Auth., 399 Mass. 805 (1987). [8]   Kargman v. Boston Water & Sewer Comm’n, 18 Mass. App.Ct. 51 (1984).