Drano #188. Barb's Opposition to Bar Counsel’s Motion to Impound and Strike or Disregard Respondent’s Filings (accompanied by supporting affidavit

#188, Drano Series

A Little Background:

      1.   On May 19th, 2008, Judge Joseph Tauro of U.S. District Court in Boston ordered Barb

to file by June 4th, 2008, a Status Report and

to file by June 20th, 2008, Objections to why the federal court should not apply the "discipline identical to that imposed by Massachusetts," to wit, disbarment. [See Drano #187.]

      2.    On May 19th, Judge Tauro did NOT order the Office of Bar Counsel to file an opposition, but the OBC could have, Instead the OBC (through an assistant bar counsel, Susan Strauss-Weisberg) filed a Motion to Impound and Strike or Disregard Respondent's Filings on 1 November 2006 and 9 June 2008. The Board of Bar Overseers and the OBC want SECRECY. They do NOT want anyone to know the egregius violations of due process and other laws that they committed in order to disbar Barb.

        3. This week, Judge Tauro allowed OBC Weisberg's Motion to Impound on a temporary basis, until Barb filed this opposition, which you can now read below this short history.

         4.    Because Barb had uploaded her pleadings BEFORE the OBC's Motion to Impound was temporarily allowed, it cannot -- so Barb believes -- to the documents already uploaded to this website.

         5.    Neither the OBC's motion nor the Judge's order mentions this opposition, so it is being uploaded a little after midnight on Sunday.

         6.     On May 19th, Judge Tauro had also set a hearing date for 21 July 2008 on the "identical discipline" issue.

         7.      BUT . . . on Friday, June 27th, Judge Tauro issued another order, this one ordering the BBO/OBC Weisberg to file a response to Barb's Objections by August 15th and moved the July 21st hearing date to September 22d.

           8.     So the question has become, Is Judge Tauro looking for a handle on which he can hang his hat against Barb OR OR OR does Judge Tauro smell a RAT in the process of disbarment and want to see what the BBO and OBC say on their own behalf? In other words, Will Judge Tauro travel the politically correct route and disbar Barb from the federal court OR OR OR will he travel the route of JUSTICE??????????? That is the question!



Barb's Opposition to
Bar Counsel’s
Motion to Impound and Strike or Disregard Respondent’s Filings (accompanied by a supporting affidavit)

On Sunday, 29 June 2008, Barb electronically filed this pleading
in the United States District Court in Boston.
By the way, the affidavit is important, too!!!!

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS



   MISC. BUSINESS DOCKET

       NO.: 06-MC-10385

IN RE: BARBARA C. JOHNSON

_____________________________________________

JOHNSON'S OPPOSITION TO BAR COUNSEL’S
MOTION TO IMPOUND AND STRIKE OR DISREGARD RESPONDENT’S FILINGS
(accompanied by supporting affidavit by Johnson)
         Now comes Barbara C. Johnson ["Johnson"] and opposes Bar Counsel’s Motion to Impound and Strike or Disregard Respondent’s Filings.

        As grounds, Johnson states
1.     that the facts upon which Bar Counsel relies for her motion are false. They truth of those facts are detailed in Johnson’s affidavit filed herewith in support of this opposition and incorporated herein by reference;

2.     that no list of impounded documents was ever supplied to Johnson;

3.     that no list of impounded documents appears to have existed or ever to have been filed at the Board of Bar Overseers or in any court;

4.     that if there exists a list prepared by Weisberg for her own or the OBC’s use, or to be shared internally with the BBO, it has not heretofore been filed openly in either a State or a federal court and certainly has not been provided to Johnson;

5.     that the “ ‘general principle of publicity’, . . . governs judicial proceedings in this Commonwealth” [H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987)];

6.     that “[t]he freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment” [Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940)];

7.     that there is no lawful basis to prohibit Johnson from putting public records on her website or to prohibit her from exercising her First Amendment rights’;

8.     that “any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available” [George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998); see also Care and Protection of Edith, 421 Mass. 703, 705 (1996)].

ARGUMENTS

"Publicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987).

We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing.

Id., at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280. Moreover, "[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998), quoting Care and Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174, 1176 (1996) (enjoining father of children subject to care and protection petition from discussing proceedings with media or criticizing government's handling of matter was unconstitutional prior restraint of father's freedom of expression; general desire to protect names of children was not a compelling state interest).

It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." See also Oklahoma Publ. Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder).
Prescott, 428 Mass. at 311, cites omitted.  Care and Protection of Edith, 421 Mass. at 705, 659 N.E.2d at 1177 (same).

[The] order was and is an unlawful prior restraint on the right of the children's father to comment on the judicial proceedings and on the conduct of the department. The department *706 has not identified a compelling State interest that needs protection. A general rule that bars any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding will not do. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 611 n. 27, 102 S.Ct. 2613, 2622 n. 27, 73 L.Ed.2d 248 (1982). There must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them. See id. at 608, 102 S.Ct. at 2621; Commonwealth v. Martin, 417 Mass. 187, 193-194, 629 N.E.2d 297 (1994). In fact, in the course of the care and protection proceeding but before any order restricting disclosure had been entered, the department published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children. Publication of the children's names was not required to give the notice that is required by law. See G.L. c. 210, § 3 (1994 ed.); Uniform Probate Court Practice Xa (3) (1995). There is no finding that the names of the children had to be published in order to give effective notice of the department's decision to have the children adopted. Nor is there any explanation why the department's publication of the children's names did not violate the same “compelling” State interest in confidentiality that the department now asserts against the father.

In short, there are no findings of fact and rulings that demonstrate a compelling State interest that could only be met by the order entered in this case. . . .

Care and Protection of Edith, 421 Mass. at 705-706, 659 N.E.2d at 1177 (emphasis supplied).

"It is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication." Near v. Minnesota ex rel Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As the Supreme Judicial Court has stated, "Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm ." Care and Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174 (1996). "A general rule" barring publication of information is not sufficient to meet that requirement; rather, "[t]here must be evidence and findings as to what effect the disclosure" will have. id. at 706, 659 N.E.2d 1174. Further, "[a]ny prior restraint on expression comes to [the court] with a heavy presumption against its constitutional validity." Organization For Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (internal quotations omitted). In this case, the plaintiff has not overcome that heavy presumption.

Boston Firefighters Union, IAFF, Local 718 v. WHDH TV, Channel 7, 2007 WL 4259762 * 2 (Mass.App.Ct.), 33 Media L. Rep. 2441(2007) (union's desireto prevent emotional distress was not a compelling interest) (emphasis supplied).

Thus, on the facts here, there is no lawful basis to prohibit Johnson from putting public records on her website or to prohibit her from exercising her First Amendment rights.

First Amendment, Secrecy, Star Chamber, Amercement

The BBO proceedings grew out of exceptional circumstances and ire, if not bias, against Johnson fulfilling her duty to report professional misconduct. Mass.R.Prof.C. 8.3(b) “requires lawyers to report serious violations of ethical duty by lawyers and judges.” Id. at Comment.    Johnson was fulfilling that duty by exercising her right to free speech during her gubernatorial campaign and by publishing her work on her Internet website. “There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (involving “classic political speech”). “‘[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.’ ” Burson v. Freeman, 504 U.S. 191, 196 (1992), quoting Mills v. Alabama, 384 U.S. 214, 218(1966).

            “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957). Meyer v. Grant, 486 U.S. 414, 421 (1988).

As to the matter of impoundment, “[t]he commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Com. of Mass., 291 U.S. 97, 105 (1934) (internal cites omitted).  Due process is one of those principles of justice, but here it was sacrificed by the OBC, BBO, and SJC’s indulgence in falsely alleging the existence of non-existent impoundment orders of unidentified documents in order to keep the egregious violation of due process hidden from public scrutiny. The motive was, of course, to ruin Johnson’s reputation and credibility by disbarment. Justice was the price the Massachusetts High Court was willing to pay. A practice akin to that of the Star Chamber.   See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, 492 U.S. 257, 267, 109 S.Ct. 2909, 2916 (1989) (“During the reigns of the Stuarts the King's judges had imposed heavy fines on the King's enemies, much as the Star Chamber had done before its abolition in 1641”).

Having sued four judges in the Fall of 2001 (in U.S. District Court in Boston) for conduct in excess of their authority and having, but a few months later in 2002, begun to run for governor on a platform of court reform and the abolishment of judicial immunity, Johnson was one of those enemies. Within weeks of the November election, she was informed by Weisberg that a Petition for Discipline would issue against her. It did, right after the Holidays, in or around the first week of January 2003.

In 13th-century England, “[a]mercements were an ‘all-purpose’ royal penalty.” Browning, 492 U.S. at 269, 109 S.Ct. at 2917.

Whatever uncertainties surround the use of amercements prior to Magna Carta, the compact signed at Runnymede was aimed at putting limits on the *272 power of the King, on the “tyrannical extortions, under the name of amercements, with which John had oppressed his people,” T. Taswell- Langmead, English Constitutional History 83 (T. Plucknett 10th ed. 1946), whether that power be exercised for purposes of oppressing political opponents, for raising revenue in unfair ways, or for any other improper use. See 2 W. Holdsworth, A History of English Law 214 (4th ed. 1936).

Browning, 492 U.S. at 271-272, 109 S.Ct. at 2918 (emphasis supplied).

“Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions.” Weems v. United States, 217 U.S., at 373, 30 S.Ct., at 551.

Browning, 492 U.S. at 273, 109 S.Ct. at 2919.

Today, in 21st-century Massachusetts, disbarment is the equivalent of the 13th century “amercements,” albeit imposed by the High Court. Cf. Browning, 492 U.S. at 269, 109 S.Ct. at 2917.

To conform to modern conditions, [states] may substitute a new form of procedure for one long practiced and recognized. But, whatever the form or method of procedure adopted, they remain always subject to the prohibition against that which is commonly thought essentially unfair to him who is to be afforded a hearing. Tested by this principle, . . . the deprivation of the right to present evidence bearing on the issue [has] been adjudged to deny due process.

Snyder, 291 U.S. at 128, citing Saunders v. Shaw, 244 U.S. (La.) 317 (1917) (judgment reversed).

            That new form of procedure here has been procedures of deception and trickery! Here, for instance, the OBC asserted, the BBO found, and Judge Spina and the full SJC panel held that Johnson had

disseminated material impounded by Juvenile Court, but there is no evidence demonstrating that the OBC’s assertion is true;

deliberately disobeyed a Juvenile Court order, but given that Johnson had never been in or obtained any documents from Juvenile Court, so there was nothing to return, and that the Juvenile Court never had jurisdiction over her, the so-called order was transparently invalid and could be ignored;

disseminated embarrassing or burdensome information about three individuals on her website,\_[1]/ but these people never appeared as witnesses to say they were embarrassed or burdened.\_[2]/ They were Robyn, the complainant of Count I against Johnson; her husband,\[3]/ who she was divorcing for 7 years; and their son, who eventually went to live with his dad in Rhode Island. Robyn’s husband and their son never made either a written or oral peep to or at the BBO or the OBC, nor to or at Johnson. Only Robyn complained, when she lost her first election.\[4]/ After the second election in which she repeated her bid for office, she moved out of town.

For the so-called “embarrassment issue by publication,” the deception and trickery rose to a new height in Judge Spina’s decision of disbarment. Where the OBC called no witnesses to the so-called trial of the case against Johnson at the BBO, there was neither testimonial nor documentary evidence that Robyn or anyone else was embarrassed or burdened. So . . . to justify the BBO’s finding, Judge Spina wrote that “live testimony” was not needed to prove embarrassment [Attachment #66, Exh. HH-2, at 10-11]:

The respondent, citing the absence of any testimony, argues the absence of any evidence to support the findings that the information posted on her website had no <>substantial purpose other than to embarrass Jane, William and David Brown. No live testimony was required to draw this inference from the highly personal nature of the information (one reason why care and protection records are impounded and the public is excluded from such proceedings), and from the fact that the respondent had filed an action seeking modification of the judgment in the paternity action.

Attachment #66, Exh. HH-2, at 10-11 (emphasis supplied).   Embarrassment could be found, the judge had concluded, from the hearsay argument of counsel. A conclusion that will, if and when litigators become aware of Judge Spina’s holding, not only shock every competent litigator but also change tort and civil rights and criminal litigation remarkably!

            Johnson has, of course, repeatedly argued that Weisberg’s arguments are not evidence.

. . . the arguments of counsel were not evidence and could not be considered by them as evidence, while separately cautioning them multiple times that the only evidence they could consider consisted of the testimony of the witnesses at trial and the admitted exhibits; that they were to decide the case solely on that evidence; that anything counsel or the judge himself may have said that was contrary to the jury's recollection of the evidence was to be ignored; and that they could not let their consideration of the evidence be swayed by any sympathy, prejudice, or personal feelings. Further, he repeatedly instructed them concerning the presumption of the defendant's innocence, the Commonwealth's unremitting burden of proof, the requirement that such proof be beyond a reasonable doubt, and that the burden never shifts to the defendant.
Com. v. Correia, 65 Mass.App.Ct. 27, 36 (2005) (emphasis supplied). 
 “[N]either the arguments of counsel nor questions put to a witness are 
evidence.”  Com. v. Anzalone, 61 Mass.App.Ct. 1104 (2004) 
(unpublished).
           Because Weisberg’s arguments have been substituted for lawful evidence and remarkably approved not only by Judge Spina in the single-justice session but also by the full panel of the SJC, the SJC cannot or could not risk public scrutiny. For this reason, Weisberg has been instructed to move for impoundment of all pleadings and other documents in all both SJC courts, metamorphosizing further the new form of procedure from mere deception and trickery into secrecy, the trademark of Kangaroo Courts.

                                          Respectfully submitted,

                                                      Barbara C. Johnson, pro se

29 June 2008          /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net

                                                       Barbara C. Johnson, Esq., Pro se

                                                       6 Appletree Lane

                                                       Andover, MA 01810-4102

                                                       978-474-0833

                                                       Formerly BBO #549972

                                                                    First Circuit Bar No. 36719
CERTIFICATE OF SERVICE

I hereby certify that on this date I served a true copy of the foregoing
affidavit on Susan Strauss Weisberg, Assistant Bar Counsel, 99
High Street, Boston, MA 02110, via email to s.weisberg@massbbo.org.

29 June 2008          /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net

                                                       Barbara C. Johnson, Esq., Pro se
FOOTNOTES

[1]     On her website, Johnson published pleadings she had filed in U.S. District Court in Boston and in Bristol County Probate & Family Court, as well as copies of portions of pleadings and affidavits filed by Robyn in her divorce action,

[2]     Where Robyn is a public person, the OBC had to prove that there was malice, of which there was no evidence.

[3]    After her relationship ended with Johnson’s client, with whom she had a child, Robyn wed another man, a widower, from whom she rather quickly sought a divorce.

[4]    Robyn had brought sexual abuse charges against her husband as well as against Johnson’s client. It was Robyn’s modus operandi to control and get money from these men. Robyn also brought false charges against two city officials, one the Fairhaven school committee chairwoman, which after considerable investigation were dropped by Special Assistant District Attorney Brian Sullivan [Impounded Vol. VIII, OBC Trial Exh. 38 (Drano #81)]. (Drano #81 was published long before Weisberg put it into a volume entitled “Impounded Vol. VIII.”)
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS

MISC. BUSINESS DOCKET

       NO.: 06-MC-10385

IN RE: BARBARA C. JOHNSON

_____________________________________________

JOHNSON'S AFFIDAVIT IN SUPPORT OF HER
OPPOSITION TO BAR COUNSEL’S
MOTION TO IMPOUND AND STRIKE OR DISREGARD
RESPONDENT’S FILINGS

        I, Barbara C. Johnson, hereby depose and say that:

1.         I am the respondent in the above-captioned action

2.         Daniel P. Crane [“Crane”] was Bar Counsel and titular plaintiff in the disciplinary action until he resigned in or around June 2006, at which time Constance Vecchione [“Vecchione”] was named Acting Bar Counsel.

3.         Susan Strauss Weisberg [“Weisberg”] has been the prosecuting assistant bar counsel at all times in the underlying State action.

4.         For convenience sake, I shall refer to Weisberg as the author of all the pleadings and documents that emanated from both the Office of Bar Counsel [“OBC”] and the Board of Bar Overseers [“BBO”].

5.         Weisberg wrote in ¶1 on page 1 of her Memorandum in
Support of Bar Counsel’s Motion to Impound and Strike or Disregard Respondent’s Filings [“M-to-ISDRF”]”: “the respondent wrongfully disseminated on her Web site impounded, confidential, and highly personal information about clients and third parties, including a minor child and a mentally disabled adult alleged to be victims of sexual abuse by their fathers; that she did so with no substantial purpose other than to embarrass the affected persons and their families; and that she flouted court orders for the impoundment of the records and for removal of the information from her Web site. Matter of Johnson, supra at 166-167.

6.         I deny all that which was written by Weisberg and which appears in ¶5, supra.

a.        There was absolutely no proof proffered re the
   allegations.

b.         Attachment #29—Exhibit G-1, Asst. Bar Counsel Weisberg’s Motion for Protective Order, dated 29 May 2003—clearly supports my position that the documents sought to be impounded were not identified on 29 May 2003. They were, in fact, never —to this day—identified by Weisberg or anyone else in her posse wearing a black hat or riding a black horse:

            c.         None of the documents to be impounded which Weisberg wrote that Bar Counsel would have to offer as proof was ever either identified or shown to me.

i.          Copies of the 12 volumes of the so-called Record Appendix submitted with the Board’s Information to the single-justice session of the Massachusetts Supreme Judicial Court—namely, the Supreme Judicial Court for Suffolk County—were not provided to me. See Attachment #82 [my Exh. KK]\[1]/ and Paper #12 on page 2 of Weisberg’s Exh. 2.

ii,.        Nor was a Table of Contents to that 12-volume set provided to me.

iii.       In footnote 2 on p. 3 of her M-to-ISDRF, Weisberg refers to Exhibit N [Attachment #40] and not only denies that it is Bar Counsel’s list—sent to me by Weisberg—but also admits that Bar Counsel’s list is impounded. I, Johnson, have nevcr seen that allegedly impounded list!   Clearly Weisberg and I inhabit parallel worlds.

iv.        Weisberg’s Exhibit 4 is comprised of an affidavit by BBO General Counsel Michael Fredrickson\[2]/ and two motions to impound, one\[3]/ dated 16 May 2006 and filed in the single-justice session with the Board Information, and the other\[4]/ dated 16 December 2003. two weeks after the sham trial had ended, and allowed 29 December 2003 by then-BBO Chair M. Ellen Carpenter. Neither of those motions identified any of the documents for which impoundment was sought.\[5]/

            d.         Not intending to be like a precocious child, or like one acting out, I cannot restrain herself from saying that I have never had a crystal ball to determine which documents were allegedly impounded.

            e.         In Attachments ##30 and 31—my Exhs. G-2, Johnson’s Opposition to Bar Counsel’s Motion for Protective Order, dated 26 August 2003, and G-3, Johnson’s Motion to Strike Protective Order, dated 26 August 2003, all the facts and legal issues regarding Weisberg’s motion for protection and impoundment are fully detailed and argued.

7.         Weisberg wrote in ¶2 on page 1 and continung on page 2 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: The disbarment judgment followed upon an information and 12-volume record of disciplinary proceedings filed by the Board of Bar Overseers (board) in the Supreme Judicial Court for Suffolk County in May 2006. (Exhibit 3). Substantial portions of the record are under impoundment by orders of the board and the Supreme Judicial Court, and pseudonyms were used throughout the proceedings to protect the privacy of the affected third parties. (Exhibits 2-4) The impounded material includes, among other things, sealed juvenile court records from a care and protection proceeding that disclose the full names of the minor child and his family and identify the child as having been allegedly sexually abused by his father; attorney-client communications relating to the respondent's representation of the father accused of sexually abusing his mentally disabled daughter and disclosing their identities and the particulars of the charges; and pleadings, papers and exhibits identifying the third-party subjects. (Id.) The requirements for impoundment and for the use of pseudonyms were adopted and upheld by the state court. Matter of Johnson at 169.

8.         As noted in ¶6 and its subparts, supra, the so-called impounded documents are unknown to me.

9.         As noted in Figure 4 on page 7 of my Objections to the Imposition of Discipline Identical to that Imposed by Massachusetts and on pages 56-57 of the BBO “Trial” Transcript, dated 12/2/03, Weisberg admitted that there was no list of protected names.

10.       Weisberg is unable to produce any list from any source—including the OBC, the BBO, any juvenile court, any probate and family court, or any other court—of documents (a) that were impounded and (b) that were provided to me.

11.       The issues concerning confidentiality and the children’s names have been set out in detail in my Objections at ages 14-21, as well in many of my exhibits.

12.       Weisberg wrote in ¶¶ 2 and 3 on page 2 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: …On November 1, 2006, the respondent filed a response to the show cause order with over 780 pages of attachments (docket entry #3). . . . [and] on June 9, 2008 with nearly 1500 pages of attachments (docket entry #12).

13.       I did not count the total number of pages attached to my pleadings filed on 1 November 2006 and 9 June 2008. Weisberg did not make clear her motive for stating the numbers of pages; it can only be assumed there is some negative innuendo to be assumed by this court and by me. Given that Weisberg filed 12 volumes (assuming 350 pages per volume), the OBC/BBO Record Appendix was likely 4200 pages. Therefore it is reasonable to conclude (a) that on 1 November 2006, I filed in this court only one-sixth of what the OBC/BBO did at the SJC and (b) that on 9 June 2008, I filed in this court only one-third of what the OBC/BBO did at the SJC. Certainly the number of pages filed in support of one’s position is not determinative of whether the identical discipline should be imposed.

14.       Being a reasonable person, I conclude that Weisberg’s failure to state that anything I filed was incorrect, had no basis, or was false is far more significant than the number of pages.

15.       Being a reasonable person, I conclude that Weisberg’s failure to state that anything I filed was incorrect, had no basis, or was false is tantamount to an admission that my position is correct and identical discipline should not be imposed.

16.       Similarly, I, as a reasonable person, can reasonably conclude that Weisberg’s motion to impound and strike or disregard my filings is tantamount to an admission that the OBC, the BBO, and the SJC want their respective wrongdoings to be kept secret and hidden from public scrutiny.

17.       Weisberg fails to identify the so-called “affected third parties” either by their true names or their alleged pseudonyms. She also failed to call any of the so-called “affected third parties” as witnesses at trial.   And the BBO quashed all of my witnesses, some of which might have been these so-called “affected third parties” but we shall never know whether that is true or not.

18.       Weisberg wrote in ¶¶ 2 and 3 on page 2 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: Among the attachments to the "Objections" are copies of impounded documents, including the attachments labeled by the respondent as K(1)-(3), O, Q, S, T(1), W, Y, Z, and various subparts of JJ-6ff^1.. . .\[6]/

19.      These exhibits identified in ¶18, supra, and complained-of by Weinberg cannot be more specifically described than they are. Weisberg’s complaint is unfounded, as demonstrated by Weisberg’s failure to produce any motion or order in which the identified exhibits were deemed to be impounded. It is only now, in Bar Counsel’s M-to-ISDRF, that these documents are for the first time being identified as being impounded.



20.       Weisberg wrote in footnote 1 on page 2 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: ₁. . . To the extent that the attachments include materials from the record below, those materials are neither identified nor numbered in the record. Rather, the respondent has given the materials her own titles and listed them as exhibits bearing the letters A-SS with sub-parts in many instances.   Given the sheer volume of the materials, the respondent's failure to identify them as they appear in the record. . . .

21.       Given that the entities below—to wit, the OBC and BBO—failed to identify the documents allegedly in the so-called record, and given that these Siamese twins have not provided me a copy or table of contents to the record, if I made any error, it is not my fault but that of the OBC and BBO. In actual fact, however, the titles of each of my exhibits are the exact titles used on the actual documents.   Again see my note 1, supra, and Paper #12 of Weisberg’s Exhibit 2. My motion for a correct BBO docket sheet was “Referred to the Justices” and never acted upon.

22.       Weisberg wrote in ¶1 on page 3 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF:   The attachments to the respondent's November 1, 2006 filing also include unredacted briefs and other pleadings with real names rather than pseudonyms (labeled by the respondent as 3, 5, 7, 8, 9, 10, 18, 29) and additional impounded material (includ-ing the material labeled 13 and 17).\[7]/ The respondent failed to seek impoundment of the material in this Court, as provided by Local Rule 7.2, or to bring the impounded status of the documents to the Court's attention.

23.       POINT 1: Given (a) that no document that had allegedly been impounded was either identified singly, in a group, or in a list and (b) that I had no knowledge whatsoever which documents were allegedly impounded or not, I simply used the title that was on each pleading. The secrecy was uncalled for.   See Paper #12 filed in this court, to which is attached a list of the exhibits referred to by Weisberg. POINT 2: Given that Weisberg admitted on the first day of the sham trial that there is no list of names that are “protected,” my use of true names in pleadings and /or in captions of pleadings was and remains legitimate and/or legal.

24.       Weisberg wrote in ¶2 on page 3 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF:   Furthermore, in both filings the respondent attached pleadings from unrelated litigation and other extraneous documents that are not part of the record below. See the documents in the November 2006 filing labeled 16,21-23,25,26,28,\[8]/ and the documents in the June 2008 filing labeled P-1, P-2, R-1, R-2, PP, QQ and RR\[9]/. These extraneous materials should be stricken or disregarded under the Court's order of May 19, 2008.

25.       First, how is Weisberg defining “below”? Given that a copy or a list of the titles of the documents in the alleged record were never provided me, my use of actual titles of the documents was eminently reasonable and shows eminent common sense. With the exception of my appellate briefs, filed at the SJC (both single-justice and full panel sessions) and the United States Supreme Court, all the documents listed in footnotes 8 and 9, supra, would have been evidence at the sham hearing begun on 3 December 2003 had it not been partially aborted by the unlawful command evicting the public from the hearing.

            With the exception of my Petition for Writ of Certiorari filed in the United States Supreme Court, my appellate briefs filed in the SJC for Suffolk County and the SJC for the Commonwealth are, in my opinion, part of the record “below,” for they are part of what was before those tribunals when they made their decisions.   Given, however, that this court wanted to know the disposition of my Petition, I have assumed that that Petition was as much of part of the “record below” as the other parts were.

26.       Further, for example, Weisberg states that Attachment #16 to my November 2006 filing is not in the record below.   (Attachment #16 is the same as Attachment #79 of my 9 June 2008 filing.) In my opinion, Judge Lawton’s order may be deemed part of the record. In ¶¶35, 36, and 37. Weisberg referred to Judge Lawton’s Order of 1 May 2001.

If Judge Lawton’s Order is not in her 12-volume Appendix filed in Judge Spina’s court with the Board Information, then Weisberg left naked her false allegations in ¶¶35, 36, and 37. I, of course, do not know whether it is in the 12 volumes, for I was not given, as I have repeatedly stated, either a copy of the 12-volume set or copies of the 22 allegedly impounded documents Weisberg received from the Juvenile Court [Weisberg’s Exhibits 45 A through V, captured in my Exh. N, Attachment #40]. My reasonable conclusion was that Weisberg had included Judge Lawton’s order and that it was therefore part of the record below.

            Attachments ##21 and 21 to my November 2006 filing were not part of the record below. They were filed for the purpose stated in my show cause statement.

            Attachments ##25 and 26 to my November 2006 filing were to show that I did attempt to capture the attention of the SJC re the issue involving the amendment of §13 of c. 209C, which was provoked by Weisberg’s motion in Attachment #26. Judge Spina had said I had not appealed the issue. He had ignored the fact that I was not a party to the case in which the Weisberg sought documents and had no standing in that proceeding. M.G.L. c. 211, §3, was the only avenue on which I could seek relief. The circumstances of that scenario were unique.

27.       Weisberg wrote in ¶3 on page 3 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF:   As she has unsuccessfully argued in the past, the respondent may assert in this proceeding that she is not bound by the impoundment orders or that the documents   are not really under impoundment.

28.       Weisberg’s statement as quoted in ¶27 is misleading and false. I have never said that an impoundment order did not apply to me. Because Weisberg failed to write where I allegedly said this, both this court and I have to indulge inappropriately in guessing as to in which document or documents I said this.

Notwithstanding my objection to Weisberg’s statement, there was only one so-called impoundment order. That arose out of the allowance of Weisberg’s motion [my Attachment #29, Exh. G-1], filed in May 2003. My two pleadings—one an opposition and the other a motion to strike—are memorialized in Exhs. G-2 and G-3, filed in this court as Attachments ##30 and 31. Those three documents make it ultra-clear that there no, no, no documents were identified as those to be impounded. Weisberg had merely said in her motion that she wanted to impound “certain documents.”   And essentially, I argued in my responses, Which documents??? My question was never answered, ever, by the OBC or by the BBO or by the SJC

29.       Prior to the Petition for Discipline being brought, Juvenile Court Judge Mark Lawton issued on 1 May 2001 in the 1988 Care and Protection action—in which I had absolutely no involvement in any way—an Order to Impound and Recall Juvenile Court Records [Attachment #79, my Exh. JJ-11].   The order began, “After a hearing held in the above-captioned matter,…”   Exhibit JJ-11 speaks for itself, of course, but I was not at any hearing in that case.    My name does, though, appear in the order and at some point, I did receive a copy of it.\[10]/ (Seven years later, I forget now how, when, and from whom I did receive a copy of that order.)

I did know, however, I had never been in that court, had never laid eyes on Judge Lawton, had never gotten any records from his court, and had no records to return to that court.   In fact, no report that I had seen or had in my possession had ever been, to my knowledge, with the exception of Christopher Salt’s report, filed in Juvenile Court. And no report that I had or ever had in my possession from any case whatsoever had ever been uploaded to my website.

On 29 May 2001, shortly after I received a document purporting to be a Complaint by Attorney Deborah Wolf, I wrote to Judge Lawton. See Attachment #80, my Exh. JJ-12.   In that lette, I asked the judge to visit my website and let me know which documents he believed he had the authority to order impounded or removed from my website. I never received any further communication from him. I could only assume that he visited my website, as I had suggested, and saw nothing to order “impounded” or to be removed.

       16.   Courts may impound documents under certain circumstances, but that an order has issued which commands me to do something without either a proper complaint being filed and a hearing with all the indicia of due process is of some consternation. Such a hearing would, of course, only be possible in a court with both subject-matter jurisdiction and personal jurisdiction over me.

       17.   I understand from Ottoway that I can bring suit to vacate the impound-ment order, but then that buys a suit for the Juvenile Court. I would suggest, with all due respect for the court, that the court go to my site and see if there is anything there which the court believes it has a right to order removed, or references to documents which it believes it has the authority to impound.

Excerpt from Attachment #80, Exh. JJ-12, Appellate Exh. M

30.       Neither a Complaint for Contempt nor a finding of contempt ever issued from Judge Lawton’s court. Consequently I was surprised to see that Order of May 2001 in Weisberg’s Petition for Discipline against me [see ¶¶35, 36, and 37 of the petition.]

31.       I had put Judge Lawton on my witness list, for I had intended to have him testify to (a) that he found no impounded documents from his court on my website, (b) that there was, therefore, no document that he had to order returned to his court, and (c) that there was, consequently, no reason to find me in contempt of his May 1st Order, which he evidently issued after an ex parte hearing with Attorney Deborah Wolf. All my trial subpoenas were, again as I have repeatedly written, quashed.

32.       Weisberg wrote in footnote 2 on page 3 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF:   ² The respondent's attachment N is misrepresented by the respondent to be bar counsel's final exhibit list from the disciplinary proceedings at the board and a public document. In fact, that document not bar counsel's list, and bar counsel's list is impounded.

33.       Exhibit N is Attachment #40. Although denying that Exhibit N is Bar Counsel’s list—sent to me by Weisberg—Weisberg does admit that Bar Counsel’s list is impounded. I, Johnson, have nevcr seen that allegedly impounded list!   Clearly Weisberg’s complaint is baseless.

34.       Weisberg wrote in ¶2 on page 4 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . . Any claims by the respondent that her inclusion of impounded or extraneous materials should be excused because she is unaware of what is in the record should be rejected out of hand.

35.       Given that I have to this day not been told which documents have been allegedly impounded, I cannot possibly be responsive to an order regarding those unidentified documents. My lack of knowledge of which documents have allegedly been impounded is not an excuse, it is an actual fact.

36.       Weisberg wrote in ¶2 on page 4 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . . As the respondent well knows, she offered no evidence in the disciplinary proceedings and instead walked out of the hearings during opening statements.

37.       Given that the special hearing officer, Herbert Phillips, had told the stenographer to go off the record when I spoke and back on when he spoke, I did not dare stay at the so-called trial after Phillips ordered the public out of the hearing room. My fear was clearly that he could fabricate all manners of statements and aver that I had said them. Had I stayed, I would have had no proof whatsoever that I had not said what he might claim I said. So, Weisberg, in writing that I offered no evidence at the proceeding and walked out of the hearing, wrote that statement with malicious intent and inescapable bad faith.

Fig. 1. Excerpt from Transcript of pretrial conference, 11/17/03, p. 40, lines 9-12\[11]/

38.       Weisberg wrote in ¶2 on page 4 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . . After the hearings, the respondent received copies of bar counsel's exhibits and the hearing transcripts and used those materials to prepare her appeal to the board. Id..

39.       After the so-called hearing—singular—I received copies of some documents. The exhibit numbers did not match those in the transcripts . . . apparently because of the changes made by Weisberg and the special hearing officer during the month following the alleged hearing. There was, of course, no list of the documents in the package. In fact, Weisberg never, never, never provided a list of any documents she produced at any time.

40.       Weisberg wrote in ¶2 on page 4 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . . It is equally false that bar counsel has denied the respondent access to the record filed by the board in the Supreme Judicial Court, which the respondent persists in mischaracterizing as an "appendix" filed by bar counsel. That record has always been and still is available to the respondent in the Supreme Judicial Court and at the board. In short, the respondent has no legitimate excuse for failing to provide the Court with identified parts of the record below—and only from the record — or for her persistence in identifying the affected third parties and publishing impounded material.

41.       Weisberg’s statement quoted in ¶40, supra, depends on how Weisberg is defining the word “access.”   I was provided no copy of the 12-volume appendix, which I assume is allegedly the “record appendix,” and no copy of a table of contents to the 12-volume set. When I repeatedly contacted the SJC about the issue, I was told by diverse clerks that I could look at the set at the counter of the SJC, a counter which is not wide enough to set my handbag on.   Because of the continuing problem of “access,” I filed my motion for a copy of the 12 volumes or at the very least a copy of a table of contents.   See Attachment #82 [my Exh. KK]\[12]/ and Paper #12 on page 2 of Weisberg’s Exh. 2. That motion was never acted upon. In my address to the SJC panel, which was memorialized in a webcast,\[13]/ I asked again for action on that motion. No action was taken. I was never told that the 12 volumes were available at the BBO. That statement of Weisberg’s is false.

42.       In my opinion, it is significant that Weisberg did not deny that I was never given a copy of the 12 volumes of a copy of a table of contents of the 12-volume set.

43.       In my opinion, it is also significant that Weisberg not only did not provide any list of so-called impounded documents to me, she also did not provide any list of so-called impounded documents to this court.

44.       Weisberg wrote in ¶2 on page 5 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . .    The respondent has disregarded such redaction orders in the past h any event.

45.       Weisberg’s statement as quote in ¶44, supra, is false. Which orders of so-called redaction did I allegedly disregard? Where are they? When were they issued? Which judge(s) issued the orders?

46.       Weisberg wrote in ¶3 on page 5 of her Memorandum in Support of Bar Counsel’s M-to-ISDRF: . . .    For the foregoing reasons, bar counsel respectfully urges the Court to impound all the attachments to the respondent's November 1, 2006 filing; to impound the respondent's “Objections" and all attachments to her filing of June 9,2008; and to strike or disregard all attachments not part of the record below.

47.       The pleading containing my “Claims Predicated upon the Grounds Set Forth in Subsection (2)(D) of Local Rule 83.6” [Paper #3, 1 November 2006] and the pleading containing my objections [Paper #12, 9 June 2008] are public records.   Knowing that they were public records and that there was no potential jury to be contaminated, I (a) on 3 November 2006, uploaded Paper #3 to my website as Drano Series #166 and (b) on 10 June 2008, the day after I filed it electronically in this court, uploaded Paper #12 to my website as Drano Series #187.   Because of the traffic to my website, tens of thousands of people have already had access to and likely have copies of Paper #12. Over 400 megabytes of information is downloaded daily from my website by visitors.

48.       All but approximately seven of the attachments numbered #1 through 92 have been on my website for diverse periods of time, some since the year 2001. Generally they were uploaded either shortly after they were written or shortly after the motion or action to which they were related was resolved by a court disposition.

49.       I shall address Weisberg’s legal arguments on pages 3-5 in my oppositional memorandum to Bar Counsel’s M-to-ISDRF.

Signed this 29th day of June 2008 under the pains and penalties of perjury.

                                          Respectfully submitted,

                                                      Barbara C. Johnson, pro se

29 June 2008          /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net

                                                       Barbara C. Johnson, Esq., Pro se

                                                       6 Appletree Lane

                                                       Andover, MA 01810-4102

                                                       978-474-0833

                                                       Formerly BBO #549972

                                                                    First Circuit Bar No. 36719
CERTIFICATE OF SERVICE

I hereby certify that on this date I served a true copy of the foregoing
affidavit on Susan Strauss Weisberg, Assistant Bar Counsel, 99
High Street, Boston, MA 02110, via email to s.weisberg@massbbo.org.

29 June 2008          /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net

                                                       Barbara C. Johnson, Esq., Pro se

A Little Background: 1. On May 19th, 2008, Judge Joseph Tauro of U.S. District Court in Boston ordered Barb to file by June 4th, 2008, a Status Report and to file by June 20th, 2008, Objections to why the federal court should not apply the "discipline identical to that imposed by Massachusetts," to wit, disbarment. [See Drano #187.] 2. On May 19th, Judge Tauro did NOT order the Office of Bar Counsel to file an opposition, but the OBC could have, Instead the OBC (through an assistant bar counsel, Susan Strauss-Weisberg) filed a Motion to Impound and Strike or Disregard Respondent's Filings on 1 November 2006 and 9 June 2008. The Board of Bar Overseers and the OBC want SECRECY. They do NOT want anyone to know the egregius violations of due process and other laws that they committed in order to disbar Barb. 3. This week, Judge Tauro allowed OBC Weisberg's Motion to Impound on a temporary basis, until Barb filed this opposition, which you can now read below this short history. 4. Because Barb had uploaded her pleadings BEFORE the OBC's Motion to Impound was temporarily allowed, it cannot -- so Barb believes -- to the documents already uploaded to this website. 5. Neither the OBC's motion nor the Judge's order mentions this opposition, so it is being uploaded a little after midnight on Sunday. 6. On May 19th, Judge Tauro had also set a hearing date for 21 July 2008 on the "identical discipline" issue. 7. BUT . . . on Friday, June 27th, Judge Tauro issued another order, this one ordering the BBO/OBC Weisberg to file a response to Barb's Objections by August 15th and moved the July 21st hearing date to September 22d. 8. So the question has become, Is Judge Tauro looking for a handle on which he can hang his hat against Barb OR OR OR does Judge Tauro smell a RAT in the process of disbarment and want to see what the BBO and OBC say on their own behalf? In other words, Will Judge Tauro travel the politically correct route and disbar Barb from the federal court OR OR OR will he travel the route of JUSTICE??????????? That is the question! Barb's Opposition to Bar Counsel’s Motion to Impound and Strike or Disregard Respondent’s Filings (accompanied by a supporting affidavit) On Sunday, 29 June 2008, Barb electronically filed this pleading in the United States District Court in Boston. By the way, the affidavit is important, too!!!!

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS MISC. BUSINESS DOCKET NO.: 06-MC-10385 IN RE: BARBARA C. JOHNSON _____________________________________________ JOHNSON'S OPPOSITION TO BAR COUNSEL’S MOTION TO IMPOUND AND STRIKE OR DISREGARD RESPONDENT’S FILINGS (accompanied by supporting affidavit by Johnson)

Now comes Barbara C. Johnson ["Johnson"] and opposes Bar Counsel’s Motion to Impound and Strike or Disregard Respondent’s Filings. As grounds, Johnson states 1. that the facts upon which Bar Counsel relies for her motion are false. They truth of those facts are detailed in Johnson’s affidavit filed herewith in support of this opposition and incorporated herein by reference; 2. that no list of impounded documents was ever supplied to Johnson; 3. that no list of impounded documents appears to have existed or ever to have been filed at the Board of Bar Overseers or in any court; 4. that if there exists a list prepared by Weisberg for her own or the OBC’s use, or to be shared internally with the BBO, it has not heretofore been filed openly in either a State or a federal court and certainly has not been provided to Johnson; 5. that the “ ‘general principle of publicity’, . . . governs judicial proceedings in this Commonwealth” [H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987)]; 6. that “[t]he freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment” [Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940)]; 7. that there is no lawful basis to prohibit Johnson from putting public records on her website or to prohibit her from exercising her First Amendment rights’; 8. that “any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available” [George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998); see also Care and Protection of Edith, 421 Mass. 703, 705 (1996)]. ARGUMENTS "Publicity prevents abuses of a single judge's power." Globe Newspaper Co. v. Superior Court, 379 Mass. 846, 855 (1980), citing In re Oliver, 333 U.S. 257, 268-270. This "`general principle of publicity', . . . [which] governs judicial proceedings in this Commonwealth," was affirmed again in H.S. Gere & Sons, Inc. v. Frey, 400 Mass. 326, 329 (1987). We adopted this requirement of a showing of overriding necessity, in part, because of the great public interest in disclosure of all information relevant to misuse of authority and official wrongdoing. Id., at 332, citing George W. Prescott Publishing Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 279-280. Moreover, "[a]ny limitation on protected expression must be no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." George W. Prescott Pub. Co. v. Stoughton Div. of Dist.Court Dept. of Trial Court, 428 Mass. 309, 311 (1998), quoting Care and Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174, 1176 (1996) (enjoining father of children subject to care and protection petition from discussing proceedings with media or criticizing government's handling of matter was unconstitutional prior restraint of father's freedom of expression; general desire to protect names of children was not a compelling state interest). It is apparent that any order seeking to enjoin speech must be based on detailed findings of fact that (a) identify a compelling interest that the restraint will serve and (b) demonstrate that no reasonable, less restrictive alternative to the order is available." See also Oklahoma Publ. Co. v. District Court, 430 U.S. 308, 97 S.Ct. 1045, 51 L.Ed.2d 355 (1977) (reversing court order enjoining media from publishing name or photograph of eleven year old boy accused of delinquency by reason of murder). Prescott, 428 Mass. at 311, cites omitted. Care and Protection of Edith, 421 Mass. at 705, 659 N.E.2d at 1177 (same). [The] order was and is an unlawful prior restraint on the right of the children's father to comment on the judicial proceedings and on the conduct of the department. The department 706 has not identified a compelling State interest that needs protection. A general rule that bars any parent from directly or indirectly revealing the names of children subject to a care and protection proceeding will not do. See Globe Newspaper Co. v. Superior Court,* 457 U.S. 596, 611 n. 27, 102 S.Ct. 2613, 2622 n. 27, 73 L.Ed.2d 248 (1982). There must be evidence and findings as to what effect the disclosure of the names of the particular children will or might have on them. See id. at 608, 102 S.Ct. at 2621; Commonwealth v. Martin, 417 Mass. 187, 193-194, 629 N.E.2d 297 (1994). In fact, in the course of the care and protection proceeding but before any order restricting disclosure had been entered, the department published the children's names in the newspaper, as a form of notice, in connection with its decision to seek a waiver of the need for the parents' consent to the adoption of the children. Publication of the children's names was not required to give the notice that is required by law. See G.L. c. 210, § 3 (1994 ed.); Uniform Probate Court Practice Xa (3) (1995). There is no finding that the names of the children had to be published in order to give effective notice of the department's decision to have the children adopted. Nor is there any explanation why the department's publication of the children's names did not violate the same “compelling” State interest in confidentiality that the department now asserts against the father. In short, there are no findings of fact and rulings that demonstrate a compelling State interest that could only be met by the order entered in this case. . . . Care and Protection of Edith, 421 Mass. at 705-706, 659 N.E.2d at 1177 (emphasis supplied). "It is the chief purpose of the [First Amendment's] guaranty to prevent previous restraints upon publication." Near v. Minnesota ex rel Olson, 283 U.S. 697, 713, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). As the Supreme Judicial Court has stated, "Any attempt to restrain speech must be justified by a compelling State interest to protect against a serious threat of harm ." Care and Protection of Edith, 421 Mass. 703, 705, 659 N.E.2d 1174 (1996). "A general rule" barring publication of information is not sufficient to meet that requirement; rather, "[t]here must be evidence and findings as to what effect the disclosure" will have. id. at 706, 659 N.E.2d 1174. Further, "[a]ny prior restraint on expression comes to [the court] with a heavy presumption against its constitutional validity." Organization For Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971) (internal quotations omitted). In this case, the plaintiff has not overcome that heavy presumption. Boston Firefighters Union, IAFF, Local 718 v. WHDH TV, Channel 7, 2007 WL 4259762 * 2 (Mass.App.Ct.), 33 Media L. Rep. 2441(2007) (union's desireto prevent emotional distress was not a compelling interest) (emphasis supplied). Thus, on the facts here, there is no lawful basis to prohibit Johnson from putting public records on her website or to prohibit her from exercising her First Amendment rights. First Amendment, Secrecy, Star Chamber, Amercement The BBO proceedings grew out of exceptional circumstances and ire, if not bias, against Johnson fulfilling her duty to report professional misconduct. Mass.R.Prof.C. 8.3(b) “requires lawyers to report serious violations of ethical duty by lawyers and judges.” Id. at Comment. Johnson was fulfilling that duty by exercising her right to free speech during her gubernatorial campaign and by publishing her work on her Internet website. “There is no question that speech critical of the exercise of the State's power lies at the very center of the First Amendment.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (involving “classic political speech”). “‘[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.’ ” Burson v. Freeman, 504 U.S. 191, 196 (1992), quoting Mills v. Alabama, 384 U.S. 214, 218(1966). “The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent punishment.” Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940). The First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth v. United States, 354 U.S. 476, 484 (1957). Meyer v. Grant, 486 U.S. 414, 421 (1988). As to the matter of impoundment, “[t]he commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Com. of Mass., 291 U.S. 97, 105 (1934) (internal cites omitted). Due process is one of those principles of justice, but here it was sacrificed by the OBC, BBO, and SJC’s indulgence in falsely alleging the existence of non-existent impoundment orders of unidentified documents in order to keep the egregious violation of due process hidden from public scrutiny. The motive was, of course, to ruin Johnson’s reputation and credibility by disbarment. Justice was the price the Massachusetts High Court was willing to pay. A practice akin to that of the Star Chamber. See Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, 492 U.S. 257, 267, 109 S.Ct. 2909, 2916 (1989) (“During the reigns of the Stuarts the King's judges had imposed heavy fines on the King's enemies, much as the Star Chamber had done before its abolition in 1641”). Having sued four judges in the Fall of 2001 (in U.S. District Court in Boston) for conduct in excess of their authority and having, but a few months later in 2002, begun to run for governor on a platform of court reform and the abolishment of judicial immunity, Johnson was one of those enemies. Within weeks of the November election, she was informed by Weisberg that a Petition for Discipline would issue against her. It did, right after the Holidays, in or around the first week of January 2003. In 13th-century England, “[a]mercements were an ‘all-purpose’ royal penalty.” Browning, 492 U.S. at 269, 109 S.Ct. at 2917. Whatever uncertainties surround the use of amercements prior to Magna Carta, the compact signed at Runnymede was aimed at putting limits on the 272 power of the King, on the “tyrannical extortions, under the name of amercements, with which John had oppressed his people,” T. Taswell- Langmead, English Constitutional History 83 (T. Plucknett 10th ed. 1946), whether that power be exercised for purposes of oppressing political opponents, for raising revenue in unfair ways, or for any other improper use. See 2 W. Holdsworth, A History of English Law 214 (4th ed. 1936). Browning, 492 U.S. at 271-272, 109 S.Ct. at 2918 (emphasis supplied). “Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is particularly true of constitutions.” Weems v. United States,* 217 U.S., at 373, 30 S.Ct., at 551. Browning, 492 U.S. at 273, 109 S.Ct. at 2919. Today, in 21st-century Massachusetts, disbarment is the equivalent of the 13th century “amercements,” albeit imposed by the High Court. Cf. Browning, 492 U.S. at 269, 109 S.Ct. at 2917. To conform to modern conditions, [states] may substitute a new form of procedure for one long practiced and recognized. But, whatever the form or method of procedure adopted, they remain always subject to the prohibition against that which is commonly thought essentially unfair to him who is to be afforded a hearing. Tested by this principle, . . . the deprivation of the right to present evidence bearing on the issue [has] been adjudged to deny due process. Snyder, 291 U.S. at 128, citing Saunders v. Shaw, 244 U.S. (La.) 317 (1917) (judgment reversed). That new form of procedure here has been procedures of deception and trickery! Here, for instance, the OBC asserted, the BBO found, and Judge Spina and the full SJC panel held that Johnson had disseminated material impounded by Juvenile Court, but there is no evidence demonstrating that the OBC’s assertion is true; deliberately disobeyed a Juvenile Court order, but given that Johnson had never been in or obtained any documents from Juvenile Court, so there was nothing to return, and that the Juvenile Court never had jurisdiction over her, the so-called order was transparently invalid and could be ignored; disseminated embarrassing or burdensome information about three individuals on her website,\_[1]/ but these people never appeared as witnesses to say they were embarrassed or burdened.\_[2]/ They were Robyn, the complainant of Count I against Johnson; her husband,\[3]/ who she was divorcing for 7 years; and their son, who eventually went to live with his dad in Rhode Island. Robyn’s husband and their son never made either a written or oral peep to or at the BBO or the OBC, nor to or at Johnson. Only Robyn complained, when she lost her first election.\[4]/ After the second election in which she repeated her bid for office, she moved out of town. For the so-called “embarrassment issue by publication,” the deception and trickery rose to a new height in Judge Spina’s decision of disbarment. Where the OBC called no witnesses to the so-called trial of the case against Johnson at the BBO, there was neither testimonial nor documentary evidence that Robyn or anyone else was embarrassed or burdened. So . . . to justify the BBO’s finding, Judge Spina wrote that “live testimony” was *not* needed to prove embarrassment [Attachment #66, Exh. HH-2, at 10-11]: The respondent, citing the absence of any testimony, argues the absence of any evidence to support the findings that the information posted on her website had no <>substantial purpose other than to embarrass Jane, William and David Brown. No live testimony was required to draw this inference from the highly personal nature of the information (one reason why care and protection records are impounded and the public is excluded from such proceedings), and from the fact that the respondent had filed an action seeking modification of the judgment in the paternity action. Attachment #66, Exh. HH-2, at 10-11 (emphasis supplied). Embarrassment could be found, the judge had concluded, from the hearsay argument of counsel. A conclusion that will, if and when litigators become aware of Judge Spina’s holding, not only shock every competent litigator but also change tort and civil rights and criminal litigation remarkably! Johnson has, of course, repeatedly argued that Weisberg’s arguments are not evidence. . . . the arguments of counsel were not evidence and could not be considered by them as evidence, while separately cautioning them multiple times that the only evidence they could consider consisted of the testimony of the witnesses at trial and the admitted exhibits; that they were to decide the case solely on that evidence; that anything counsel or the judge himself may have said that was contrary to the jury's recollection of the evidence was to be ignored; and that they could not let their consideration of the evidence be swayed by any sympathy, prejudice, or personal feelings. Further, he repeatedly instructed them concerning the presumption of the defendant's innocence, the Commonwealth's unremitting burden of proof, the requirement that such proof be beyond a reasonable doubt, and that the burden never shifts to the defendant. Com. v. Correia, 65 Mass.App.Ct. 27, 36 (2005) (emphasis supplied). “[N]either the arguments of counsel nor questions put to a witness are evidence.” Com. v. Anzalone, 61 Mass.App.Ct. 1104 (2004) (unpublished). Because Weisberg’s arguments have been substituted for lawful evidence and remarkably approved not only by Judge Spina in the single-justice session but also by the full panel of the SJC, the SJC cannot or could not risk public scrutiny. For this reason, Weisberg has been instructed to move for impoundment of all pleadings and other documents in all both SJC courts, metamorphosizing further the new form of procedure from mere deception and trickery into secrecy, the trademark of Kangaroo Courts. Respectfully submitted, Barbara C. Johnson, pro se 29 June 2008 /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net Barbara C. Johnson, Esq., Pro se 6 Appletree Lane Andover, MA 01810-4102 978-474-0833 Formerly BBO #549972 First Circuit Bar No. 36719 CERTIFICATE OF SERVICE I hereby certify that on this date I served a true copy of the foregoing affidavit on Susan Strauss Weisberg, Assistant Bar Counsel, 99 High Street, Boston, MA 02110, via email to s.weisberg@massbbo.org. 29 June 2008 /s/ Barbara C. Johnson barbaracjohnson@worldnet.att.net Barbara C. Johnson, Esq., Pro se
FOOTNOTES [1] On her website, Johnson published pleadings she had filed in U.S. District Court in Boston and in Bristol County Probate & Family Court, as well as copies of portions of pleadings and affidavits filed by Robyn in her divorce action, [2] Where Robyn is a public person, the OBC had to prove that there was malice, of which there was no evidence. [3] After her relationship ended with Johnson’s client, with whom she had a child, Robyn wed another man, a widower, from whom she rather quickly sought a divorce. [4] Robyn had brought sexual abuse charges against her husband as well as against Johnson’s client. It was Robyn’s modus operandi to control and get money from these men. Robyn also brought false charges against two city officials, one the Fairhaven school committee chairwoman, which after considerable investigation were dropped by Special Assistant District Attorney Brian Sullivan [Impounded Vol. VIII, OBC Trial Exh. 38 (Drano #81)]. (Drano #81 was published long before Weisberg put it into a volume entitled “Impounded Vol. VIII.”)