a   #182, Drano Series





Barb's Rule 27.1
Application for
Further Appellate Review


This file has five parts:

  • front cover
  • table of contents
  • application for further appellate review
  • addendum (which includes the Appeals Court order causing Barb to seek further appellate review
  • back cover


   COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH
 
______________________________________________

ESSEX, SS.
CASE NO.  FAR-________

__________________________________________

 

BARBARA C. JOHNSON
Plaintiff/Appellant

  v.
BOARD OF BAR OVERSEERS OF MASSACHUSETTS,
OFFICE OF BAR COUNSEL,
DANIEL CRANE, ESQ.,
SUSAN STRAUSS-WEISBERG, AND
COMMONWEALTH OF MASSACHUSETTS
Defendant/Appellees

__________________________________________________

 
Application for Further Appellate Review


of Appeals Court Case No. 2006-P-1809

__________________________________________________

 
BRIEF OF
BARBARA C. JOHNSON
PLAINTIFF/APPELLANT

_________________________________________________

 
Barbara C. Johnson, Pro Se
6 Appletree Lane,
Andover, MA 01810-4102
978-474-0833

 

 In Mass., a RUle 27.1 cover is to be WHITE.


The TABLE OF CONTENTS WAS IMPOSSIBLE TO
FORMAT PROPERLY.  I AM INCLUDING IT HERE
ONLY TO SHOW WHAT WAS INCLUDED.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

TABLE OF CONTENTS

 
Addendum .........................................   ii

Table of Authorities .............................    ii

Constitutions ....................................  iv

Statutes .........................................   v

Rules ............................................    v

Papers ...........................................    v

Record-Appendix  ..................................   v

     Part One .....................................   v

     Part Two .....................................   x

 

REQUEST FOR LEAVE TO OBTAIN

FURTHER APPELLATE REVIEW ........................     1

 

STATEMENT OF PRIOR PROCEEDINGS ..................     1

 

STATEMENT OF FACTS RELEVANT TO THE APPEAL .......     2

 

Figure 1.  12/02/2003, “Trial” Transcript,

I: 56-57, emphasis supplied]................    10

 

STATEMENT OF POINTS WITH RESPECT TO WHICH

FURTHER APPELLATE REVIEW IS SOUGHT ..............    17

 

BRIEF STATEMENT WHY FURTHER APPELLATE REVIEW

IS APPROPRIATE ..................................    19

 

1.   Article V of the Declaration of Rights,
the Constitution of Massachusetts, commands
that everyone in all three branches of
government be accountable at all times to
all of the people ...........................   19

 

2.   The Mass. Tort Claims Act [“MTCA”],
G.L. c. 258, enacted in 1978, is
unconstitutional.  There was no rational
bases for the Legislature to adopt the
judicially created doctrine of sovereign
immunity and to enact c. 258 to protect
the Commonwealth and its public employers
from being sued by the people, a right
given them by Article XI, Massachusetts
Declaration of Right, and the First and
Fourteenth Amendments of the United State
Constitution. Therefore, the dismissal of
Johnson’s claims against the BBO, OBC, and
the Commonwealth on grounds of sovereign
immunity was error ..........................   23

 

3.   Where there is no enabling statute for the
BBO and OBC, they are excluded from G.L.
c. 258, and even assuming arguendo that the
BBO and OBC are included in § 10(c), that
fact does not immunize their employees for

     intentional torts ............................  26

 

4.   Assuming arguendo that Crane and Weisberg
are public employees, S.J.C. Rule 4:01,
§ 9(3) would not have had to be included
in S.J.C. Rule 4:01.  They would have been
protected under the penumbra of the MTCA,
c. 258, of which the unconstitutionality
has gone unchallenged.  The very existence
of § 9(3) circumstantially sufficiently
demonstrates that  Crane and Weisberg are
private employees and are vulnerable to suit
by the people, of which Johnson is one ........ 27

    

5.   Section 1 of G.L. c. 258 does not include
in its definitions the BBO and the OBC or
the positions of Crane and Weisberg. Therefore,
the dismissal of Johnson’s claims against
the BBO, the OBC, the Commonwealth, Crane, and
Weisberg on grounds of sovereign immunity was
error ......................................... 28

.

RELIEF SOUGHT ...................................... 29

 

Certificate of Service ...........................   29


 ADDENDUM

JOHNSON v. BOARD OF BAR OVERSEERS OF MASS., et al

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28,

12/3/07 ........................................      ADD-1


TABLE OF AUTHORITIES



Alden v. Maine,

527 U.S. 706, 119 S.Ct. 2240 (1999)............. 21, 23-24

 

Alpert v. Com.,

357 Mass. 306, 258 N.E.2d 755 (1970) .............    3

Apsey v. Chattel Loan Co.,

216 Mass. 364, 103 N.E. 899 (1914) ...............    2

Brennan v. Western Nat. Mut. Ins. Co.,

99 F.R.D. 660, 49 Fed.R.Serv.3d 604, 662

(D.S.D., March 09, 2001) (NO. CIV 99-4092) .......   13

 

Chisholm v. Georgia,

2 Dall. 419, 2 U.S. 419, 1793 WL 685 (1793).......   20

Forbush v. City of Lynn,

35 Mass.App.Ct. 696, 625 N.E.2d 1370 (1994).......   26

Hallett v. Town of Wrentham,

398 Mass. 550, 499 N.E.2d 1189 (1986) ........... 25-26


Hannigan v. New Gamma-Delta Chapter

of Kappa Sigma Fraternity, Inc.,

367 Mass. 658, 327 N.E.2d 882 (1975)..............    5


Irwin v. Commissioner of the

Dept. of Youth Services,

388 Mass. 810, 448 N.E.2d 721 (1983) .............    20, 25

Irwin v. Town of Ware,

392 Mass. 745, 467 N.E.2d 1292 (1984)............    25-26

 

Kargman v. Boston Water & Sewer Comm'n,

18 Mass.App. Ct. 51, 463 N.E.2d 350 (1984)...   7, 25, 27 
       

Lafayette Place Associates v. Boston

Redevelopment Authority,

427 Mass. 509, 694 N.E.2d 820,

1998 WL 251843 *12 (1998)........................    5, 27

Matter of Amendment to S.J.C. Rule 3:07,

398 Mass. 73, 495 N.E.2d 282 (1986)...............   13    


McKenna v. Commissioner of Mental Health,

347 Mass. 674, 199 N.E.2d 686 (1964)...............   2

Miller v. Pruneda,

No. CIVA 3:02-CV-42, 2004 WL 3951292 *6-7

(U.S.Dist.Ct. N.D.W.Va.)(2004).....................  13    

 

Moore v. McManus,

1998 WL 77904 at 9

(Mass.Super. Feb. 17, 1998)(Garsh, J.).............  28

Morash & Sons, Inc. v. Commonwealth,

363 Mass. 612, 296 N.E.2d 461 (1973).......  5-6, 24-25

Principality of Monaco v. State of Mississippi,
292 U.S. 313, 54 S.Ct. 745 (1934)..................  21

Sahin v. Sahin,

435 Mass. 396, 758 N.E.2d 132 (2001)...............  29

 

Sims v. O'Meara,

193 Mass. 547, 79 N.E. 824 (1907)...................   2

Spring v. Geriatric Authy. of Holyoke,

394 Mass. 274, 475 N.E.2d 727 (1985).........   6, 26-28

Tivnan v. Registrar of Motor Vehicles,

50 Mass.App.Ct. 96, 734 N.E.2d 1182 (2000) .....   6, 26

Whitney v. Worcester,

373 Mass. 208, 366 N.E.2d 1210 (1977)..............  25

 

CONSTITUTIONS

 

U.S. Constitution

First Amendment ...........................         18, 20, 23

Eleventh Amendment .........................        18, 20-21

Fourteenth Amendment ...........................    18, 23

 

Constitution of the Commonwealth of Massachusetts,

Preamble ...................................      6, 20, 27

Declaration of Rights, Part the First ......       3-4, 17

Article IV ....................................     3

Article V .........................       1, 3-4, 17, 19-22

Article VI ....................................     4

Article XI ...........................        17, 21, 23-24

Article XV .....................................     17-18

Article XX .......................................    3

Article XXX ......................................     4

Articles of Amendment

Article XLVIII, The Initiative, II, sec. 2 .......    18

 

Article LXXIV ....................................    22

Pt. 2, c. 6, art. 6 ..............................    4-5


STATUTES

Massachusetts General Laws

c, 4, §7 .........................................    20

c. 156D § 1.40, Mass. Business Corporation Act ...    17

c. 258, Massachusetts Torts Claims Act ..........  17-18,
                                             2-23, 26-29

c. 258, § 1 ......................................    18

c. 258, § 10(c) ........................  6-7, 18, 26-27


RULES

S.J.C. Rule 4:01, § 9(3),

425 Mass. 1312 (1997)........................   3, 18, 27

 

BBO Rule 3.22(b)...................................    15

 

PAPERS


Federalist Paper No. 80 (McLean's ed.,

June 21, 1788, New York) (Hamilton).............    21-22 

 

Federalist Paper No. 81 ...........................    21

 

John Adams Jour., p. 26 .............................    21

 

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 Univer-

sity, 1962) )...................................... 21-22 

RECORD-APPENDIX


PART ONE

                                                                                                                                                                     
STATEMENT OF THE ISSUES ..........................    1

STATEMENT OF THE CASE ............................    3

    

PRIOR PROCEEDINGS ................................    6    

 

STATEMENT OF THE FACTS ...........................    6

 

Background Against Which the Defamation and the

Intentional Interference with Johnson’s

Livelihood Arose .................................    7

 

Synopses of the Two of the Three Counts of the

Petition That Were the Subject of the Action

Underlying This Appeal ...........................    8

 

     Count I .....................................    8

Psychological reports? .................    9

 

Count II ....................................   11

 

     Retired Judge Simons’ alleged order ....   13


The Four Publications and Republications .........   14


          During the course of the proceedings ..... 14

 

PUBLICATION #1:

The Commonwealth, BBO, and OBC Website ...........   14

 

PUBLICATION #2:

Boston Herald, 8 March 2003, Maggie Mulvihill ....   14

PUBLICATION #3:

Lawrence Eagle Tribune, 18 December 2003 .............   18

PUBLICATION #4:

Certificate of Good Standing and

Clearance Letter, March 2005  ....................   24

 

ARGUMENTS ........................................   27

 

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,
Daniel Crane and Susan Strauss-Weisberg are
not entitled to absolute immunity.  Therefore
Crane and Weisberg may not be protected by
SJC 4:01, §9(3), which is unconstitutional
by virtue of article  V......................  26

 
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 .............................  29 

     A brief history .............................   30

a.   Where Crane and Weisberg were acting
outside the scope of their official
duties, §9(3)——whether constitutional
or not——is inapplicable and provides no
umbrella of absolute or qualified

     immunity ...............................   34

b.   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 and exempted from the MTCA,c. 258 37

 

3.   The two natural defendants are not entitled to
absolute judicial or quasi-judicial 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 John-

     son’s livelihood ............................   39

 

4.            The intersection of the judicially-created doctrine of
sovereign immunity, the Massachusetts Declaration of
Rights, and the MTCA (G.L. c. 258) yield only one
reasonable conclusion, namely, all the defendants here
are not protected by immunity from any source, whether
sovereign immunity, the MTCA, or §9(3) of SJC Rule 4:01 ..40

 

Sovereign Immunity .....................   40

 

The Making of Sovereign Immunity .......   44

 

The Unconstitutionality of the MTCA ....   44

 

Inapplicability of MTCA to

Private Entities .......................   47

 

Immunity Written into the BBO Rules ....   48

 

a.   Where the BBO and OBC are financially
and politically independent bodies, are
exempted from G.L. c. 258, and caused
tortious injury, there is liability ....   48

 

5.            Where the BBO and OBC are private entities, they
are not entitled to free legal representation by
the Office of the Attorney General, which is
supported by taxpayers’ monies ................ 49

 

6.            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 ....................................... 50

 

7.    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 ....        51

 

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 ......  54

  

P rayer ...........................................   61

 

Mass.R.A.P. 16(k) Certification ..................   61

 

Certificate of Service ...........................   62


ADDENDUM

 

Article V, Mass. Declaration of Rights ............  Add-1

 

NOTE

Because the documents were scanned into
.rtf files, a slight discrepancy in
spacing might have resulted and
signatures might be slightly distorted.
Otherwise the wording is identical to
the original documents.


JUDGMENT ON MOTION TO DISMISS 

(Mass.R.Civ.P. 12b) ............................... Add-3

 

Memorandum and Order on

Defendants' Motion to Dismiss  ...................     Add-5

 

NOTICE OF DOCKET ENTRY

Memorandum of Decision and Order on Motion to

Strike Appearance of AG for Crane and Weisberg .... Add-19

 

NOTICE OF DOCKET ENTRY

Memorandum of Decision and Order on Motion to

Strike Appearance of AG for BBO and OBC ........... Add-21

 

Memorandum and Order on

Defendants' Motion to Strike Appearances

of the Attorney General ........................... Add-23

 
NOTE

For Convenience of the Court

The following documents are herein referenced
but not included in the Appendix of this case. 
The documents are in the Appendix of the Office
of Bar Counsel filed in SJC for Suffolk County
in In re Johnson, BD-2006-039.

 

OBC Vol. I, Tab 46, Count II, ¶84

OBC Impounded Vol. VIII, OBC Exhs. 24-26, Drano ##23-25

  Drano #23, http://www.falseallegations.com/drano23-af-rgs.htm

  Drano #24, http://www.falseallegations.com/drano24-af-ms.htm

  Drano #25, http://www.falseallegations.com/drano25-rgs-ms.htm

  Drano #26, http://www.falseallegations.com/drano26-obit.htm

OBC Impounded Vol. VIII, OBC Exh. 27

OBC Impounded Vol. IX, OBC Exh. 58

  PART TWO


Docket Sheets .........................................   App-1

 

Complaint for Johnson v. BBO, OBC, Daniel C. Crane,

Susan Strauss-Weisberg, Essex Sup. Ct.

No. 05-CV-01907 .......................................   App-11

 

Exhibits Attached to Complaint

 

A1   Massachusetts BBO: Attorney Status Report....    App-31

 

A2   Massachusetts BBO: Attorney Status Report

     for Johnson .................................   App-32

 

B    Maggie Mulvihill, “The Bar better be prepared
for battle,” Boston Herald, March 8,

     2003 ..........................................   App-33

 

C    Shawn Regan, “Bar counsel cracks down on

Andover lawyer,” Eagle-Tribune,

December 19, 2003 ............................   App-34

 

D1   Instructions for Obtaining a Certificate

     of Admission and Good Standing ...............   App-37

 

D2   Application for Certificate of Good

Standing, March 14, 2005 .....................   App-38

 

D3   Clearance Letter Request Form  ...............   App-39

 

E    Certificate of Good Standing,

March 21, 2005 ................................   App-40

 

F     Letter from Susan Strauss-Weisberg to Johnson,
      March 31, 2005, re file numbers on Certificate
     of Good Standing .............................    App-41

 

G     Letter from Barbara C. Johnson to Clerk Maura S.
      Doyle, April 4, 2005, re file numbers on
     Certificate of Good Standing ...................  App-43

 

H    Letter to Six Justices, February 11, 2004: Justices
     Margaret Marshall, Sean Dunphy, Catherine Sabaitis,
     Lisa A. Roberts, Edward Donnelly, and Dorothy
     Gibson ........................................  App-47

 

I    Letter from Barbara C. Johnson to-Susan
Strauss-Weisberg, June 20, 2003, incorporating
Weisberg’s letter of June 13, 2003, re Judge
Allen J. Jarasitis.  No response

     from Weisberg ever received ..................  App-54



J   Letter from Robert Guttentag to Barbara C. Johnson,  September 24, 2004, re dismissal by Commission on Judicial Conduct of complaint again Judge Dorothy   Gibson....................... App-62

 

K    Letter from Christine P. Burak, Secy., SJC Rules
Committee, to Johnson,, April 8, 2005, re Request
to waive Supreme Judicial

     Court Rule 4:01, §20(2)(d)..................  App-63

  

Amended Verified Complaint for Johnson v. BBO, OBC,
M. Ellen Carpenter, Herbert Phillips,
U.S. Dist. Ct., No. 03-CV-12314-WGY .......... App-65    

Exhibits Attached to Amended Complaint 

 

 A   Docket Sheet of BBO bar disciplinary action ..  App-125

 
 B   10/29/03  Page 4 of letter from Asst Bar Counsel
               Susan Strauss-Weisberg to Johnson .............. App-129

 

  C   08/25/03  Letter from June Risk to Johnson requesting
               Johnson not to bind Pleadings ..................App-130

 

 D   07/08/03  Letter from Christa A. Arcos, Assistant

                    Bar Counsel to Member of Public ................App-131

 

 E   05/22/03  Letter from Richard and Renee

               Dann to Board of Bar Overseers ...............  App-132

 

    12/19/03  Shawn Regan, “Bar Counsel cracks down on Andover

                    lawyer,” Eagle Tribune, December 19, 2003, and   

              http://www.eagletribune.com/news/stories/20031219
              /FP_004.htm ...................................  App-134

Motion to Strike the Attorney General’s Appear-

ance for the BBO and the OBC ...................... App-135

 

EXH. A    Supreme Judicial Court, About Us

          Webpage ................................. App-137

 

EXH. B    Chief Judge Young’s Order of February
 25, 2004 .......................           App-140

 

EXH. C    Johnson’s “Brief Asserting That Neither
Quasi-Judicial Nor Quasi-Prosecutorial
Immunity Is Applicable” ..................   App-142

 

EXH. D    Excerpt from page 6 of PLAINTIFF’S
OPPOSITION TO MOTION TO DISMISS AMENDED
COMPLAINT AND SUPPORTING MEMORANDUM,\[1]/
dated 22 January 2004 ......................App-176

 

Motion to Strike the Attorney General’s
Appearance for Bar Counsel Daniel Crane and
Assistant Bar Counsel Susan Strauss-Weisberg ........ App-177

 

Defendants’ Opposition to Johnson’s Reply to
the Opposition to both Motions to Strike Appearance
of Attorney General for Daniel Crane and Susan
Strauss-Weisberg ................................... App-179

 

     Exhibits

 

Johnson’s Reply to the Opposition to both Motions
to Strike Appearance of Attorney General for Board
of Bar Overseers and Office of Bar

Counsel, Daniel Crane, and Susan Strauss-Weisberg . App-181

 

     Exhibits

 

Defendants’ Motion to Dismiss the Complaint ......  App-187

Opposition to Defendants’ Motion to Dismiss the

Complaint ........................................  App-189

 

EXH. A    Webpages from the BBO/OBC websites..........   App-137

EXH. B    Chief Judge Young’s Order of

          February 25, 2004 ......................  App-140

 

EXH. C    Issue 3, excerpted from Johnson’s
Appellate Brief, filed in the First
Circuit Court of Appeals: Where
federal district courts have jurisdiction
over “general challenges to state bar
rules, promulgated by state courts in
nonjudicial proceedings” and the
disciplinary proceeding against Johnson
is administrative and nonjudicial in
nature, dismissal of Johnson’s challenges
 was reversible error ...............   App-219

 

EXH. D(1) Opposition to Motion to Dismiss

          Federal Complaint (19 pages) ............ App-223

 

EXH. D(2) Supplemental Opposition to Motion

          to Dismiss Federal Complaint ............ App-244

 

EXH. E    History of Absolute Immunity:

Where (a) judicial immunity arose out of a case
of conspiracy decided in the Star Chamber in
1607, at the height of the abuse and misuse of
judicial power, (b) our Forefathers left
England, fought a revolution, and wrote a
Constitution to free themselves of abusive
medieval English legal practices, and (c)
no legislature in a U.S. capitol or in the
Commonwealth of Massachusetts ratified the
doctrine in any form, there is no valid
reason to deprive plaintiff of his rights
under the Massachusetts Declaration of Rights,
Massachusetts Constitution, on the

basis of judicial immunity ..............  App-247

 

Defendants’ Reply to Johnson’s Opposition to
Defendants’ Motion to Dismiss the Complaint ....... App-257

 

Johnson’s Surreply to Defendants’ Reply to
Johnson’s Opposition to Defendants’ Motion to
Dismiss the Complaint ............................. App-258

 

Verified Complaint for Johnson v. BBO, OBC,
M. Ellen Carpenter, Herbert Phillips (dated
14 November 2003) Massachusetts, SJ-2003-0512 ..... App-261

 


[1]   USDC, E.D. Mass., CA #03-CV-12314-WGY,
entitled  Barbara C. Johnson, Esq.  v. Board
of Bar Overseers of Mass., M. Ellen Carpenter,
Esq., Herbert P. Phillips, Esq., Office of Bar
Counsel, Daniel Crane, Esq., Com. of Mass.

And at last the Application for Further Appellate Review!!!
Please note that in Massachusetts, the Rule 27.1 pleading must be typed in COURIER 12-point typeface.
The footnotes must also be done in 12-point COURIER.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

REQUEST FOR LEAVE TO OBTAIN FURTHER APPELLATE REVIEW

     Barbara C. Johnson requests leave to obtain further appellate review because the issues presented will affect the public interest or the interest of justice if left unaddressed by the Court.

     The interest of justice which will be affected is the right of all present and future parties and their counsel to rely on the Massachusetts Declaration of Rights, specifically Article V.  This is a sub­stantial reason bound to affect the public interest or the interests of justice.

STATEMENT OF PRIOR PROCEEDINGS

     This action, Barbara C. Johnson v. Board of Bar Overseers of Massachusetts, Office of Bar Counsel, Daniel Crane, Esq., Susan Strauss-Weisberg, and Commonwealth of Massachusetts, arose out of a board discipline case In re Barbara C. Johnson, during which Defendants Crane and Weisberg defamed Johnson in the press; Defendants BBO, OBC, and the Commonwealth defamed Johnson on the BBO website; and Defendant Weisberg defamed Johnson on a Certificate of Good Standing. 

     Johnson initiated action in Essex County Superior Court, Barbara C. Johnson v. Board of Bar Overseers of Massachusetts, et al, No. 05-CV-01907, which case was dismissed on the grounds of immunity.  The Court of Appeals in No. 2006-P-1809 (Grasso, Kafker, & Grainger, JJ.) affirmed the lower court’s judgment.

See pages 1 through 9, docket sheets of the trial court [FAR-APP-1–9], which Johnson incorporates herein in entirety to describe the prior proceedings. 

I, Barbara C. Johnson, am not seeking a rehearing in the Appeals Court.

STATEMENT OF FACTS RELEVANT TO THE APPEAL

See the facts [FAR-APP-12-22] in the Verified Complaint, which Johnson incorporates herein in entirety. 

Other facts, some mixed with law, relevant to this appeal are:

1.  Bar Counsel Daniel Crane [“Crane”} and Assistant Bar Counsel Susan Strauss-Weisberg [“Weisberg”] are private employees whose pay is from funds collected from attorneys for their annual dues [FAR-ADD-3].\[1]/ 

2.  Crane, when Bar Counsel, was not and Weisberg is not paid by the Commonwealth of Massachusetts.

3.   The people of Massachusetts are sovereign.  Mass. Const. Pt. 1, Art. 4.\[2]/ 

4.   Article V of the Massachusetts Declaration of Rights guarantees accountability of employees of all three branches of government.\[3]/

5.   There is no statute enabling the promulgation of the rules of the Board of Bar Overseers [“BBO”].

6.   The insertion of S.J.C. Rule 4:01, § 9(3), as appearing in 425 Mass. 1312 (1997), into the BBO rules, was intended to suspend article V or to suspend the execution of article V, and in so doing violated both articles V and XX,\[4]/ Mass. Const. Pt. 1.

7.   If Crane and Weisberg, too, are deemed public employees by this court, then Article V demands they be accountable, and the case must go to a jury to determine liability and damages.

8.   If Crane and Weisberg are deemed private employees, then the Massachusetts Torts Claims Act is inapplicable to this action, the judicially created doctrine of sovereign immunity does not come into play, and the case must go to a jury to determine liability and damages.

9.   The judicially created doctrine of sovereign immunity was neither used nor adopted in Massachusetts prior to 1780.  Nor was it usually practiced in courts of law in Massachusetts prior to 1780.  The Declaration of Rights' provisions in Pt. 1, art. XXX\[5]/ and pt. 2, c. 6, art. 6, guarantee the traditional role of Massachusetts courts in operation of common law without regard to origin of law before or after 1780.\[6]/

10.  Governmental immunity,  a judicially created concept, was discarded in Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 619, 296 N.E.2d 461, 465 (1973) \[7]/ to the limited extent of holding that the Commonwealth is not immune from liability if it creates or maintains a private nuisance which causes injury to the real property of another.’

11.  The doctrine of sovereign immunity is logically indefensible. Morash, 363 Mass. at 619, 296 N.E.2d at 466.

12.  The customary rule is that if there is tortious injury there is liability. Morash, 363 Mass. at 621, 296 N.E.2d at 467.

13.  There are persuasive reasons why the governmental immunity doctrine applicable to the Commonwealth and its subdivisions should be abolished.  Morash, 363 Mass. at 623, 296 N.E.2d at 468.

14.  “[B]y operation of G.L. c. 258, § 10(c), public employers, but not their employees, are immunized from suit for intentional torts including invasion of privacy.”  Tivnan v. Registrar of Motor Vehicles, 50 Mass.App.Ct. 96, 102, 734 N.E.2d 1182, 1186 (2000), citing Spring v. Geriatric Authy. of Holyoke, 394 Mass. 274, 285, 286, 286 n. 9, 475 N.E.2d 727 (1985)(“While public employers, like the Authority, may not be held liable for intentional torts committed by their employees, the employees may be personally liable for any harm they have caused”).

15.  “[T]he history of the term ‘body corporate and politic’ from its original appearance in the Preamble to our Constitution to its present usage to designate ‘a legal entity [created by the Legislature] to perform specified tasks deemed to be essential public functions.’ It is only the subset of independent bodies corporate and politic that do not enjoy immunity from intentional torts under § 10(c)."  Lafayette Place Associates v. Boston Redevelopment Authority, 427 Mass. 509, 694 N.E.2d 820, 1998 WL 251843 *12 (1998), quoting in Kargman v. Boston Water & Sewer Comm'n, 18 Mass.App. Ct. 51, 55, 463 N.E.2d 350 (1984).

16.  There is no enabling statute for the BBO and OBC.

    17.  There is no document setting forth the duties with specificity of a Bar Counsel or Assistant Bar Counsel, making the appellate panel’s statement that their duties are “reasonably regarded as incidental to the work specifically directed” specious, for there is no evidence of “work specifically directed” [FAR-ADD-2].

18.  None of the statements alleged in Johnson’s complaint to be defamatory was on Johnson’s website prior to those statements having been made to the media by Crane and Weisberg.  Cf.  Note 4 on FAR-ADD-2.

19.  The speculation regarding Johnson’s website in note 4 of the decision is misplaced [FAR-ADD-2], for there is nothing in the record to suggest the truth of the speculation.  Paragraphs 85-89 of the Petition for Discipline, which were relied upon by the appellate panel and of which the panel took judicial notice, were written prior to Crane’s and Weisberg’s defamatory remarks to the press.  Not having had a crystal ball, Johnson could not have foreseen Crane and Weisberg making those defamatory remarks.  Nothing regarding the complained-of statements were on Johnson’s website before Crane’s and Weisberg’s statements were published in the press.

20.  All of Crane’s and Weisberg’s statements complained-of by Johnson were made well after Johnson posted on her website her Answer to the Petition for Discipline, so that none of Crane’s and Weisberg’s statements was on the website when they were made.

21.  “Speaking to the press regarding pending action” [FAR-ADD-2] is different than lying to the press.  See also Verified Complaint, ¶¶ 24-29, 61-66 [FAR-APP-17-18, 24-25], and Exhibit C(1) of the Complaint [FAR-APP-34-36].

22.  Johnson did not accuse Weisberg of writing a defamatory “clearance letter” as suggested by the appellate panel [FAR-ADD-2].

23.  Johnson accused Weisberg of adding to the Certificate-of-Good-Standing form specious information that was not to be put on the form, in contravention of the declaration on the certificate itself [FAR-APP-37-40].

24.  The statement that “incorporating file numbers in a clearance letter are ‘reasonably regarded as incidental’ to the specified tasks of the BBO, bar counsel, and staff” [FAR-ADD-2] is specious.

25.  None of the complained-of statements [FAR-APP-18, ¶29(a) through (g)] was in the Petition for Discipline——contrary to the panel’s assertion in note 5 [FAR-ADD-2].\[8]/ 

26.  Crane’s statement that ”two of Johnson's former clients” complained to the OBC [FAR-APP-18, ¶29(a)] is false.  No client——former or then-current——complained of Johnson to the OBC.  Crane’s statement was not “parroting or paraphrasing the allegations of the Petition for Discipline” [FAR-ADD-2, note 5].

27.  Crane’s statement that the so-called public hearing by the bar counsel began and ended shortly “after Johnson repeatedly mentioned the names of children and others whose identities were protected by law” [FAR-ADD-2, note 5] is false.  Johnson mentioned the true first name of the Count 1 complainant, the mother of her client’s child.  And there were no people whose identities were protected by law.\[9]/  Crane’s statement was not only not “parroting or paraphrasing the allegations of the Petition for Discipline” but also given that the hearing occurred 11 months after the Petition was served on Johnson, it was impossible for the statement to have been in the Petition [FAR-ADD-2, note 5].

28.  Crane’s statement [FAR-APP-18, ¶29(c)] that “[s]he said mentioning the names of the ‘protected’ individuals was ‘a slip of the tongue’” is false in that there was no individual whose name was “protected.”\[10]/  

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).

Figure 1

12/02/2003, “Trial” Transcript, I: 56-57, emphasis supplied].

 

Crane’s statement was not only not “parroting or paraphrasing the allegations of the Petition for Discipline” but also given that the hearing occurred 11 months after the Petition was served on Johnson, it was impossible for the statement to have been in the Petition [FAR-ADD-2, note 5].

29.  Crane’s statement [FAR-APP-18, ¶29(d)] that “[s]he later posted on her Web site the names of the people she mentioned at the hearing, at least one whom was under the protection of a court order” is also false in that there was no individual whose name was “under the protection of a court order.”\[11]/ [See Figure 1, supra.]  Crane’s statement was not only not “parroting or paraphrasing the allegations of the Petition for Discipline” but also given that the hearing occurred 11 months after the Petition was served on Johnson, it was impossible for the statement to have been in the Petition [FAR-ADD-2, note 5].

30.  Crane’s statement [FAR-APP-18, ¶29(e)] 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

is false in that no confidential information regarding the boy’s mother was posted on Johnson’s website. There was no witness who testified to being embarrassed or burdened.  The woman was also not an ex-wife of Johnson’s client.  It is true, however, that she was running for office and was thus a public figure.  The woman never testified and “malice” was never proved. 

31.  Crane’s statement [FAR-APP-18, ¶29(f)] that  “the complaint further alleges Johnson withheld $7,575 from a client without securing a signed fee agreement” is false in that there is no mention of $7,575 or any other dollar amount in any document filed in the BBO or at any hearing.  The number was a total fiction created by Crane during his interview with the newspaper reporter.  The BBO’s special hearing officer found that Johnson owed no one any money.  And Johnson did have a fee agreement signed by a Web client, a client whom Johnson never met.  Johnson never signed the agreement because the client did not define the scope of work she wanted Johnson to do.  Crane’s statement did not “parrot[] or paraphras[e] the allegations of the Petition for Discipline [FAR-ADD-2, n. 5].

32.  Crane’s statement [FAR-APP-18, ¶29(g)] that “her client complained to the Bar about the bill, Johnson posted confidential information about the case on her Web site” is misleading.  Johnson had a right to protect herself in her Answer from scurrilous accusations in the Petition for Discipline, which had become a public record “advertised” on the BBO’s website [FAR-APP-31-32].\[12]/  Further, a bill is not a confidential document.\[13]/

33.  Crane’s statement that he expected the OBC to announce Johnson's fate within two to four months [Verified Complaint ¶24 and Exhibit C(1), FAR-APP-17 and FAR-APP-34] was malicious in that the statement interfered with Johnson’s livelihood by making people believe that she would not be available to handle their cases from two to four months in the future [FAR-APP-17, ¶26].  Crane’s statement was not only not “parroting or paraphrasing the allegations of the Petition for Discipline” but also given that the hearing occurred 11 months after the Petition was served on Johnson, impossibility precluded the statement from being in the Petition [FAR-ADD-2, n. 5].

34.  That so-called “fate” was the awaited-for Recommendation by the Special Hearing Officer, not the conclusion of the Board,\[14]/ for the Board makes its decision only after the appeal, if any, of the Findings and Recommendation of the Special Hearing Officer [“SHO”], and the SHO’s Findings and Recommendation had not yet issued.

35.  The statement, “The remaining statements attributed to Crane merely recount the events that transpired at the public disciplinary hearing and offer an expected date for a decision” [FAR-ADD-2, note 5] is false in that there was no “public disciplinary hearing.”  The public was ordered out of the hearing room, in contravention of BBO Rule 3.22(b), which gave Johnson a right to a public trial.

36.  Weisberg’s statements [FAR-APP-23, ¶58((a) through (d)] seem to paraphrase the Petition, but they are false.

37.  Weisberg’s statement that Johnson posted “‘‘highly sensitive’ information on her Web site . . . about a child in a paternity action. . . [FAR-APP-23, ¶58(a)] is false in that Johnson did not post highly sensitive information about the child, and in the board discipline case, Weisberg never either produced or identified a webpage supporting her false accusation.

38.  Weisberg’s statement that Johnson posted “information includ[ing] ‘particulars of the boy’s evaluation and therapy . . . the therapists’ finding concerning the abuse and ensuing trauma’”  [FAR-APP-23, ¶58(b)] is false in entirety, and in the board discipline case, Weisberg never either produced or identified a webpage supporting her false accusation.\[15]/ 

39.  Weisberg’s statement that Johnson’s “the only  ‘substantial purpose’ Johnson had in posting the photos was to ‘embarrass or burden’ the boy and his mother’”  [FAR-APP-23, ¶58(c)] is false, there is no evidence whatsoever supporting that statement, and Weisberg did not call the boy and his mother to the witness stand to testify to such alleged embarrassment or burden.  The photos of the boy were taken when he was an infant, at his first birthday party, and as a toddler riding a plastic choo-choo train, showing his little mouth mouthing “Choo! Choo!”  The boy was around 18 or 19 years of age at the time of trial.

40.  Weisberg’s statement that “Johnson spent part of a $10,000 client retainer on her own personal expenses” [FAR-APP-23, ¶58(d)] was used pejoratively.   The special hearing officer found that Johnson owed no one any money.  Having earned the money, Johnson, of course, put it into her personal account.\[16]/

41.  The BBO and the OBC {Office of Bar Counsel] are “affiliated entities” [FAR-APP-135, 185, 200-201, 206], not public employers [FAR-ADD-2].\[17]/

42.  There is no evidence in the record demonstrating that the BBO and OBC do not have “financial and political independence characteristic of such independent entities” [FAR-ADD-2].

43.  Nowhere in the General Laws are the words “affiliated entities” defined as ““arms.”\[18]/

STATEMENT OF POINTS WITH RESPECT TO WHICH

FURTHER APPELLATE REVIEW IS SOUGHT

1.   Assuming arguendo that the Bar Counsel and the Assistant Bar Counsel are public employees, Article V of the Declaration of Rights, Part the First of the Constitution of Massachusetts, commands that they be accountable at all times to all of the people, of which Johnson is one.

2.   The Mass. Tort Claims Act [“MTCA”], G.L. c. 258, enacted in 1978, is unconstitutional.  There was no rational bases for the Legislature to adopt the judicially created doctrine of sovereign immunity and to enact c. 258 to protect the Commonwealth and its public employers from being sued by the people, a right given them by Articles XI and XV,\[19]/ Massachusetts Declaration of Right, and the First and Fourteenth Amendments of the United State Constitution. Therefore, the dismissal of Johnson’s claims against the BBO, the OBC, and the Commonwealth on grounds of sovereign immunity was error.

3.   Where there is no enabling statute for the BBO and OBC, they are excluded from G.L. c. 258, and even assuming arguendo that the BBO and OBC are included in the MTCA, G.L. c. 258, § 10(c) does not immunize their employees for intentional torts.

4.   Assuming arguendo that the Bar Counsel and the Assistant Bar Counsel are public employees, S.J.C. Rule 4:01, § 9(3) would not have had to be included in S.J.C. Rule 4:01.  They would have been protected under the penumbra of the MTCA, c. 258, of which the unconstitutionality has gone unchallenged.  The very existence of § 9(3) circumstantially sufficiently demonstrates that the Bar Counsel and the Assistant Bar Counsel are private employees and are vulnerable to suit by the people, of which Johnson is one.

5.   Section 1 of G.L. c. 258 does not include the BBO and the OBC or Bar Counsel or Assistant Bar Counsel. [The relevant part of the statute is parsed in the margin.]\[20]/  Therefore, the dismissal of Johnson’s claims against the BBO, the OBC, the Commonwealth, Bar Counsel Crane, and Weisberg on grounds of sovereign immunity was error.

BRIEF STATEMENT WHY
FURTHER APPELLATE REVIEW

IS APPROPRIATE

1.   Article V of the Declaration of Rights, the Constitution of Massachusetts, commands that everyone in all three branches of government be accountable at all times to all of the people.\[21]/   

Article V of the Massachusetts Declaration of Rights refers to people. It guarantees accountability by people in all three branches of government.  Immunity precludes accountability.  This Court must respect the explicit, unambiguous command of the Constitution.  And this Court must respect the people.  This is why further appellate review is appropriate.

Article V was ratified on 16 June 1780, a little more than fourteen years before the first 10 amendments to the U.S. Constitution were ratified by Massachusetts and thirteen years before the decision in Chisholm v. Georgia, 2 Dall. 419, 2 U.S. 419 (1793).

Only the people were declared “sovereign.”  There was to be no King in Massachusetts.  The Commonwealth, according to the Preamble to the Massachusetts Constitution and coupled with G.L. c, 4, §7, is a voluntary association of the people.

Never has article V been amended. Never has Massachusetts' article V been repealed. Never has the word "accountable" as used in article V been interpreted by a Massachusetts court.  Not even in the account of the history of sovereign immunity set out in Irwin v. Comm'r of Dept.of Youth Services, 388 Mass. 810, 812 (1983) was article V cited nor the second, but unratified, judge-made prong of the Eleventh Amendment [FAR-APP-206 et seq.].\[22]/   

Never has the Massachusetts Supreme Judicial Court analyzed the confluence of article V and the Eleventh Amendment to the United States Constitution. Never has the impact of the Eleventh Amendment of the United States Constitution on article V been considered and determined by a Massachusetts court.

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 nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.

Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2271 (1999). This comports with the notion that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." Mass. Const., Art. XI.

... 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, 54 S.Ct. 745 (1934)](quoting The Federalist No. 81) (note omitted).

Alden, 119 S.Ct. at 2254 (emphasis supplied).

That consent to suit by its citizens was the plan of the Massachusetts convention.\[23]/ See also Federalist Paper No. 80 (McLean's ed., June 21, 1788, New York) (Hamilton).  Without “sovereign immunity,” waiver or surrender of immunity were nonsensical concepts.  With accountability having been mandated at the convention, any claim today by Massachusetts, by its branches of government, or by the employees of those branches to sovereign or absolute  immunity is misleading, if not unlawful.\[24]/

     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.\[25]/

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: to wit, the mandate that public employees in the three branches of government at all times must be accountable to the people. Thus the State's partial waiver of the ancient common-law doctrine of sovereign immunity in c. 258 was superfluous and immaterial, for the so-called waiver of sovereign immunity has long been effectuated. 

To treat the Commonwealth’s political subdivisions and their public employees differently from the Commonwealth itself would be legally indefensible.  So it is written in our Constitution.

As written above,

“If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that Colonies as such enjoyed any immunity from suit.”

Alden, 119 S.Ct. at 2271.

2.   The Mass. Tort Claims Act [“MTCA”], G.L. c. 258, enacted in 1978, is unconstitutional.  There was no rational bases for the Legislature to adopt the judicially created doctrine of sovereign immunity and to enact c. 258 to protect the Commonwealth and its public employers from being sued by the people, a right given them by Article XI,\[26]/ Massachusetts Declaration of Right, and the First and Fourteenth Amendments of the United State Constitution. Therefore, the dismissal of Johnson’s claims against the BBO, OBC, and the Commonwealth on grounds of sovereign immunity was error.

     “[E]very Massachusetts subject "ought to find a certain remedy, by having recourse to the laws, by having recourse to the laws,…" Mass. Const., Art. XI.”  It is common sense to conclude that “every Massachusetts subject,” in seeking justice, expects to have recourse to constitutional law, constitutional laws ratified by our Legislature, not the concept of sovereign immunity made by judges solely to limit and control the ability of subjects to exercise their right to legal recourse. Alden, 527 U.S. at 729;   Morash, 363 Mass. at 615.

The Court in a string of cases repeatedly denounced the doctrine of sovereign immunity brought to these shores by judges, not by the colonials and not by any Massachusetts legislature.

The doctrine of sovereign immunity is logically indefensible. Morash, 363 Mass. at 619.\[27]/ The customary rule is that if there is tortious injury there is liability.  Id., at 621.  There are persuasive reasons why the governmental immunity doctrine applicable to the Commonwealth and its subdivisions should be abolished.  Id., at 623.

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.\[28]/  

In Whitney v. Worcester,373 Mass. 208 (1977), the Court wrote that 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, infra, in 1986, wrote that sovereign immunity was “logically indefensible.” 

Following the voice of Morash finding sovereign immunity “logically indefensible” [Morash, at 618-619], came Irwin v. Commissioner of the Dept. of Youth Services, 388 Mass. at 816 (same).  Then Kargman, 18 Mass.App. Ct. 51  (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).

The problem remained after 1978.  Logically indefensible, unconstitutional sovereign immunity was not abrogated, and the people’s ability to sue has been impaired.  It is time for this Court to cure that impairment. 

Not only because people’s right to find a remedy is impaired, but also given the disputes as to whether the doctrine of sovereign immunity should have been adopted by the Court years ago and whether the MTCA is unconstitutional, further appellate review of this issue is appropriate.

3.   Where there is no enabling statute for the BBO and OBC, they are excluded from G.L. c. 258, and even assuming arguendo that the BBO and OBC are included in § 10(c), that fact does not immunize their employees for intentional torts.\[29]/

[B]y operation of G.L. c. 258, §10(c), public employers, but not their employees, are immunized from suit for intentional torts including invasion of privacy.

Tivnan, 50 Mass.App.Ct. at 102, citing Spring v. Geriatric Authy. of Holyoke, 394 Mass. at 285, 286, 286 n. 9 (“While public employers, like the Authority, may not be held liable for intentional torts committed by their employees, the employees may be personally liable for any harm they have caused”).

[T]he history of the term “body corporate and politic” from its original appearance in the Preamble to our Constitution to its present usage to designate “a legal entity [created by the Legislature] to perform specified tasks deemed to be essential public functions.” It is only the subset of independent bodies corporate and politic that do not enjoy immunity from intentional torts under §10(c). 

Lafayette Place Associates v. Boston Redevelopment Authority, 427 Mass. 509, 1998 WL 251843 *12 (1998), quoting in Kargman, 18 Mass.App. Ct. at 55.

Thus, where the BBO and OBC were not created by the Legislature and they are independent bodies corporate and politic, they do not enjoy immunity from intentional torts under § 10(c).  Id. and Lafayette.

4.   Assuming arguendo that Crane and Weisberg are public employees, S.J.C. Rule 4:01, § 9(3) would not have had to be included in S.J.C. Rule 4:01.  They would have been protected under the penumbra of the MTCA, c. 258, of which the unconstitutionality has gone unchallenged.  The very existence of § 9(3) circumstantially sufficiently demonstrates that  Crane and Weisberg are private employees and are vulnerable to suit by the people, of which Johnson is one.

     Johnson incorporates herein in entirety by reference the argument in Issues 2 and 3.  Whether Crane and Weisberg are public employees is irrelevant, for the same reasons, they have no immunity under c. 258 for the intentional torts alleged in the complaint.  See Spring, 394 Mass. at 286 n. 9, and  Moore v. McManus, 1998 WL 77904 at 9 (Mass.Super. Feb. 17, 1998)(Garsh, J.) (McManus denied immunity for intentional torts, whether or not he was a public employee). Thus, further appellate review of this issue is appropriate.

5.   Section 1 of G.L. c. 258 does not include in its definitions the BBO and the OBC or the positions of Crane and Weisberg. Therefore, the dismissal of Johnson’s claims against the BBO, the OBC, the Commonwealth, Crane, and Weisberg on grounds of sovereign immunity was error.

The relevant part of the statute is parsed in the margin at n. 21, supra.  There is evidence that Crane and Weisberg are paid attorneys’ annual dues and——contrary to the assertion of the appellate panel [FAR-ADD-2-3]——that “no public funds are spent to support them” [FAR-APP-137].  Thus the only evidence in the record is that the BBO and OBC are financially independent, private entities.  By dismissal precluding discovery, evidence to the contrary remains secret.   The appellate panel’s bald assertion is insufficient to support a finding that the BBO and OBC are public employers.

Further appellate review of this issue, Issue 5, is, therefore, appropriate.

RELIEF SOUGHT

WHEREFORE, the appellate decision must be reversed, and the case, remanded and restored to the list.  Cf. Sahin v. Sahin, 435 Mass. 396, 407 (2001).

                 Respectfully submitted,

                 _______________________

Dec. 18, 2007    Barbara C. Johnson, Pro Se
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833

 

CERTIFICATE OF SERVICE

     I, Barbara C. Johnson, hereby certify that on 19 December 2007, I served a true and accurate copy of the above pleading by first-class mail on opposing counsel of record, A.A.G. Ronald F. Kehoe, One Ashburton Place, Boston, MA

I further certify that I delivered by first-class mail one copy of the within application to the Appeals Court, John Adams Courthouse, 1st floor, One Pemberton Square, Boston, MA 02108.

                    _______________________________

December 18, 2007   Barbara C. Johnson


[1]   McKenna v. Comm’r of Mental Health, 347 Mass. 674, 199 N.E.2d 686 (1964) (employee of state hospital was not a holder of public office).  Apsey v. Chattel Loan Co., 216 Mass. 364, 103 N.E. 899 (1914) (one appointed by the Governor as a director of a chattel loan company is not a public officer, even though the corporation could not control his selection).  Sims v. O'Meara, 193 Mass. 547, 79 N.E. 824 (1907) (a janitor of a police station is not a public officer).

[2]   With passage of M.G.L. c. 258, relating to claims against Commonwealth, the Commonwealth has waived its sovereign immunity to lawsuits and has consented to having claims against it determined by the same tests to which it forces its citizens to submit in determination of their claims against each other. Alpert v. Com., 357 Mass. 306, 258 N.E.2d 755 (1970).

[3]    ART. V. 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.

Constitution of the Commonwealth of Massachusetts, Part the First.

[4]   ART. XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases

    only as the legislature shall expressly provide for. 

M.G.L. Const. Pt. 1.

[5]     ART. VI. All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practised on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.

[6]    Supreme Judicial Court is not precluded from abolishing doctrine of sovereign immunity under Pt. 2, C. 6, Art. 6, providing that all laws which were adopted, used and approved prior to 1780 in Massachusetts, shall remain and be in full force unless altered or repealed by legislature, in view of failure to demonstrate that doctrine of sovereign immunity was used or adopted in Massachusetts prior to 1780 or was usually practiced in courts of law in Massachusetts prior to 1780 and in view of Declaration of Rights' provisions (this article) guaranteeing traditional role of Massachusetts courts in operation of common law without regard to origin of law before or after 1780. Hannigan v. New Gamma-Delta Chapter of Kappa Sigma Fraternity, Inc., 367 Mass. 658, 327 N.E.2d 882 (1975).

[7]   Since governmental immunity is a judicially created concept, it can be discarded by the courts and we do so now to the limited extent of holding that the Commonwealth is not immune from liability if it creates or maintains a private nuisance which causes injury to the real property of another.’ Morash, 363 Mass. at 619, 296 N.E.2d at 465.

 

[8]  Each of the statements in 29(a) through (g) is described in ¶¶26-32.

[9]  The panel failed to identify which law was violated.

[10]  Neither the OBC nor the BBO nor any court can produce such an order.

[11]  Neither the OBC nor the BBO nor any court can produce such an order.

[12]  There is no case on point, but “aim and effect of [such an ‘advertisement’ by the BBO] may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking.”  Matter of Amendment to S.J.C. Rule 3:07, 398 Mass. 73, 79, 495 N.E.2d 282, 286 (1986).

[13]  Miller v. Pruneda, No. CIVA 3:02-CV-42, 2004 WL 3951292 *6-7 (U.S.Dist.Ct. N.D.W.Va.) (2004)(legal fees and services bill does not qualify under the attorney-client privilege as the information is not advice sought by the client from his attorney in his capacity as a legal adviser.  The purpose of this document is to collect a fee ).

Brennan v. Western Nat. Mut. Ins. Co., 99 F.R.D. 660, 49 Fed.R.Serv.3d 604, 662 (D.S.D., March 09, 2001) (NO. CIV 99-4092)(Legislature has provided that public information includes “information that is in a bill for attorney's fees and that is not privileged under the attorney-client privilege”)(internal cite omitted).  “Insurer's bill for legal fees was not protected by attorney-client privilege in insured's bad faith action against workers' compensation insurer; information in bill did little more than show client identity, fee amounts, an account number, and the general purpose of the work performed.  Id. 

[14]  Perhaps Crane’s use of the word “fate” was a slip of the tongue.  The decision expected was not a final decision on the Petition but a recommendation to the Board by the Special Hearing Office. Were it not a slip of the tongue, then it was an admission by Crane that the disciplinary process is political and that the decisions of the hearing officer or a panel or the Board are not based upon the merits.

[15]   Neither the OBC nor the BBO nor any court can produce a webpage with such information.

[16]   Johnson returned approximately $3200 with the bill to her Web client because she felt badly the client and her husband were facing sizeable legal fees defending him against two charges of rape and sexual assault.

[17]   At <http://www.state.ma.us/courts/courtsand-
judges/courts/supremejudicialcourt/about.html
#affilia-ted>, the SJC lists the BBO and the OBC as “Affiliated

Entities” that were established by rule in 1974.

[18]   The only definition of “entity” is found infra in the "Massachusetts Business Corporation Act":

    "Entity", a corporation and a foreign corporation; a nonprofit corporation; a profit and a nonprofit unincorporated association; a limited liability company; a business trust; an estate; a partnership; a registered limited liability partnership; a trust, and two or more persons having a joint or common economic interest; and a state, the United States, and a foreign government.

M.G.L. 156D § 1.40, Act definitions, Effective: July 01, 2004.  There is no statutory definition of “arms.”

[19]   Article XI. Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. He ought to obtain right and justice freely, and without being obliged to purchase it; completely, and without any denial; promptly, and without delay; conformably to the laws.

The Eleventh Amendment was adopted by the General Court during 1832 and 1833, and was approved and ratified by the people on November 11th, 1833.

           Article XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practiced, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it. [See Amendments, Art. XLVIII, The Initiative, II, sec. 2].

[20]          “Public employer”, the commonwealth and any county, city, town, educational collaborative, or district,

including any public health district or joint district or regional health district or regional health board established pursuant to the provisions of section twenty-seven A or twenty-seven B of chapter one hundred and eleven, and any department, office, commission, committee, council, board, division, bureau, institution, agency or authority thereof . . . ,

department, board and commission, which exercises direction and control over the public employee, but not a private contractor with any such public employer, employer,..., or any other independent body politic and corporate....

[21]  See note 3, supra.

[22]  Discussion of the second prong of the Eleventh Amendment is irrelevant here at this juncture.

[23]   John Adams 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).

[24]  The Mass. Tort Claims Act ]MTCA], G.L. c. 258, enacted in 1978, implies that sovereign immunity exists in Massachusetts with certain exceptions set out in that statute–—meaning that the Commonwealth has agreed to waive its sovereign immunity and consent to be sued for certain causes of action. That the MTCA violates article V——and has yet to be deemed unconstitutional——appears to have escaped challenge. For the MTCA to be "constitutional," article V would have had to be repealed or amended before the MTCA was passed.

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

[26]   See note 19, supra.  

[27]     Since governmental immunity is a judicially created concept, it can be discarded by the courts and we do so now to the limited extent of holding that the Commonwealth is not immune from liability if it creates or maintains a private nuisance which causes injury to the real property of another.’ Morash, 363 Mass. at 619.

[28]    See note 22. 

[29]   Both the trial and appellate courts erred by making the determination that the BBO and OBC were public employers prior to allowing discovery regarding their financial and political independence.

AND THE ADDENDUM, WHERE YOU MUST PUT THE DECISION FROM WHICH YOU ARE APPEALING
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Johnson v. Board of Bar Overseers of Massachusetts

Mass.App.Ct.,2007.

NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.


Appeals Court of Massachusetts.

Barbara C. JOHNSON,

v.

BOARD OF BAR OVERSEERS OF MASSACHUSETTS & others.FN1

 

 

FN1. Office of Bar Counsel, Daniel Crane, Susan Strauss Weisberg, and the Commonwealth of Massachusetts.

No. 06-P-1809.

 

Dec. 3, 2007.

 

 

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

 

*1 In this appeal, the plaintiff challenges the dismissal of her complaint for defamation and interference with contractual relations against various defendants and entities involved in bar disciplinary proceedings against her.FN2 The plaintiff contends that the dismissal of her claims against bar counsel, Daniel Crane, and assistant bar counsel, Susan Strauss Weisberg, on grounds of immunity, was improper because their alleged tortious acts were not within the scope of their official duties. She maintains that dismissal of her claims against the Board of Bar Overseers (BBO), the Office of Bar Counsel (OBC), and the Commonwealth on grounds of sovereign immunity was error because those entities are not public employers under the Massachusetts Tort Claims Act. The plaintiff also alleges error in the dismissal of her motion to strike the appearance by the Attorney General. We affirm.

 

 

FN2. See In re Barbara C. Johnson, Supreme Judicial Court, No. BD-2006-039 (Aug. 9, 2006), S.C., 22 Mass. Atty. Disc. R. 403 (2006).

 

1. Judicial immunity.FN3The Supreme Judicial Court has inherent authority and control over bar admission, bar membership, and bar discipline. See Matter of DeSaulnier (No. 1), 360 Mass. 757, 758-759 (1971) (administering bar's membership is an inherently judicial function integral to our system of justice). The Supreme Judicial Court has delegated to the BBO and the OBC the initial tasks of screening complaints, investigating and finding facts, and making recommendations regarding bar discipline. As arms of the Supreme Judicial Court, the BBO, the OBC, and bar counsel are clothed with the immunity of the court for their official actions and public statements in pursuit of their official acts.

 

 

FN3. In concluding that immunity shields the defendants, we also reject plaintiff's unsupported argument that sovereign immunity violates art. V of the Massachusetts Constitution.

 

The Supreme Judicial Court has given expression to the immunity attendant to this inherent judicial function by a rule that protects the BBO, bar counsel, and their members and staff from suit for “any conduct in the course of their official duties.”S.J.C. Rule 4:01, §  9(3), as appearing in 425 Mass. 1312 (1997). This immunity is akin to the immunity extended to magistrates, clerks, arbiters, and prosecutors “to insure zealous and fearless administration of the law.”Chicopee Lions Club v. District Attorney for the Hampden Dist., 396 Mass. 244, 251 (1985), quoting from Anderson v. Bishop, 304 Mass. 396, 400 (1939) (granting immunity to district attorneys). See, e.g., Temple v. Marlborough Div. of the Dist. Ct. Dept., 395 Mass. 117, 132-133 (1985) (judges and court clerks); Dinsdale v. Commonwealth, 424 Mass. 176, 181-183 (1997) (assistant attorneys general); Sarkisian v. Benjamin, 62 Mass.App.Ct. 741, 745-746 (2005) (guardian ad litem).

 

Here, the plaintiff complains that the tortious acts were not within the course of defendants' official duties because no rule commands the BBO, OBC, bar counsel, or assistant bar counsel to publish notice of pending actions on the BBO website, to speak to the press, or to include file numbers on a clearance letter. We do not view the “course of duties” as narrowly as plaintiff would have it, but rather as encompassing any action “reasonably regarded as incidental to the work specifically directed.”Howard v. Burlington, 399 Mass. 585, 590-591 (1987), quoting from Restatement (Second) of Agency §  229 comment a (1958).

 

*2 The BBO is broadly authorized to perform other acts “necessary or proper in the performance of [their] duties.”S.J.C. Rule 4:01, §  5(3)(m), as amended, 430 Mass. 1314 (1999). These duties include explicit authorization to provide public notice regarding disciplinary actions, id. at §  5(3)(g), and, once formal complaint has issued, to make public the complaint and further proceedings “in order to protect the public, the administration of justice, or the legal profession,”id. at §  20(2), as amended, 438 Mass. 1301 (2002). Indeed, upon commencement of formal disciplinary action, the proceedings (including the disciplinary petition) become public. Id. at §  20(3).FN4

 

 

FN4. We need not address whether, prior to any comments by Crane or Strauss Weisberg, the plaintiff herself may have made the allegedly defamatory matters public knowledge by posting her response on her website following notification by bar counsel that an investigation was being commenced. See Petition for Discipline at pars. 85-89, of which we take judicial notice.

 

In light of these authorizations, publishing the status of actions on the BBO website, speaking to the press regarding pending actions, and incorporating file numbers in a clearance letter are “reasonably regarded as incidental” to the specified tasks of the BBO, bar counsel, and staff. As such, defendants Crane, Strauss Weisberg, the BBO, and OBC enjoy absolute immunity from suit as to all the allegations against them.FN5

 

 

FN5. We note that all of the alleged defamatory statements of Strauss Weisberg and three of those attributed to Crane either parrot or paraphrase the allegations of the Petition for Discipline that led to the plaintiff's disbarment. See Petition for Discipline at pars. 3, 12, 20, 21, 25, 28, 30, 31 and 71. The remaining statements attributed to Crane merely recount the events that transpired at the public disciplinary hearing and offer an expected date for a decision.

 

2. Immunity of public employers.We also conclude that, as public employers, the BBO, the OBC, and the Commonwealth itself enjoy common law sovereign immunity from suit. The statutory waiver of sovereign immunity embodied in the Massachusetts Tort Claims Act does not extend to intentional torts. See G.L. c. 258, §  10(c), inserted by St.1978, c. 512, §  15 (waiving sovereign immunity for certain claims against public employers but not for “any claim arising out of an intentional tort, including ... libel, slander, ... or interference with contractual relations”).

 

The Act defines “public employer” broadly as “the commonwealth ... and any department, office, commission, committee, council, board, division, bureau, institution, agency or authority” of the Commonwealth.” G.L. c. 258, §  1, as amended by St.1981, c. 179. That the Commonwealth itself is a public employer within the meaning of the Act and continues to enjoy immunity from suit for the intentional torts alleged here is beyond contravention. As public employers, the BBO and the OBC continue to enjoy similar protection.

 

Contrary to the plaintiff's contention, the BBO and OBC are not excluded from the statutory framework as “independent bodies politic and corporate.” See G.L. c. 258, §  1, inserted by St.1978, c. 512, §  15. Neither entity has the financial and political independence characteristic of such independent entities. See id.(identifying the Massachusetts Bay Transportation Authority, Massachusetts Port Authority, and Massachusetts Turnpike Authority); Kargman v. Boston Water & Sewer Commn., 18 Mass.App.Ct. 51, 56 (1984). Compare Lafayette Place Assocs. v. Boston Redev. Authy., 427 Mass. 509, 534-535 (1998). As noted previously, the BBO and OBC are arms of the Supreme Judicial Court created to ensure adherence to the rules of ethical conduct. Neither creates the rules of conduct that they are charged to enforce. They exercise, at most, the level of independence typical of a government agency. Their membership and size are determined by the court. S.J.C. Rule 4:01, §  5(1) & (3)(b). Their budget is financed by attorneys' dues determined by, and additional funds granted by, the court. S.J.C. Rules 4:03(1), as amended, 416 Mass. 1319 (1993), 4:01, §  19, as appearing in 425 Mass. 1327 (1997). They operate under the supervision of the court and report annually on all decisions to reprimand. S.J.C. Rule 4:01, §  5(3)(h). Any rules of procedure promulgated by the BBO must be approved by the court. Id. at §  5(3)(i). Accordingly, both the BBO and OBC are “public employers” within the ambit of the exception to the waiver of sovereign immunity for intentional torts contained in G.L. c. 258, §  10(c). See Lafayette Place Assocs. v. Boston Redev. Authy.,supra (public employer not liable under separate common law theories or preexisting statutory provisions).

 

*3 3. Representation by the Attorney General.Passing over whether the plaintiff has standing to challenge the Attorney General's appearance on behalf of the defendants or whether dismissal renders that challenge moot, we conclude that such appearance was unquestionably proper. We agree with the motion judge that “[t]he Attorney General ‘also has a common law duty to represent the public interest and enforce public rights,’ and ... this duty, and the concomitant power to carry it out, are ‘broad.’ Commonwealth v. CRINC, 392 Mass. 79, 88 (1984).” Just as the Attorney General may represent members of the judiciary, so also may she represent the arms of the judiciary. See, e.g., Brach v. Chief Justice of the Dist. Ct. Dept., 386 Mass. 528 (1982); Temple v. Marlborough Div. of the Dist. Ct. Dept.,supra;Brossard v. West Roxbury Div. of the Dist. Ct. Dept., 417 Mass. 183 (1994).

Judgment affirmed.

Order denying motion to strike appearance of Attorney General affirmed.

 

 

Mass.App.Ct.,2007.

Johnson v. Board of Bar Overseers of Massachusetts

Slip Copy, 70 Mass.App.Ct. 1113, 2007 WL 4234100 (Mass.App.Ct.)

 

END OF DOCUMENT

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
FOR THE COMMONWEALTH  
______________________________________________

ESSEX, SS.
CASE NO.  FAR-________

__________________________________________

 

BARBARA C. JOHNSON
Plaintiff/Appellant

  v.
BOARD OF BAR OVERSEERS OF MASSACHUSETTS,
OFFICE OF BAR COUNSEL,
DANIEL CRANE, ESQ.,
SUSAN STRAUSS-WEISBERG, AND
COMMONWEALTH OF MASSACHUSETTS
Defendant/Appellees

__________________________________________________

 
Application for Further Appellate Review

of Appeals Court Case No. 2006-P-1809

__________________________________________________

 
BRIEF OF
BARBARA C. JOHNSON
PLAINTIFF/APPELLANT

_________________________________________________