Opposition to Motion to Dismiss by "StupidButFamous" Attorney, the Second of Five Attorneys Sued for Conspiracy (escrow case) A Little Background "StupidButFamous" was appointed by a Probate & Family Court judge to serve as Discovery Master, but I believe he became drunk with power of the pseudo Black Robe with which he was anointed.  He knew that the court almost always to a fault rubber-stamps what court-appointed individuals recommend to the court.  In fact, he was, in the not too distant past, quoted in the Lawyers Weekly as saying almost those same words. The language he used in his communications to counsel was the language of a judge not of a mediator. In his opposition, as anticipated, he argued that he was entitled to quasijudicial immunity. Points to Be Considered While Writing the Brief: The Facts and the Law The Facts.  If a defendant is a judge, judicial immunity entitles the judge to an automatic dismissal of a case against him or her. If a defendant is appointed by a judge to do something a judge would ordinarily do, quasijudicial immunity entitles the defendant to an automatic dismissal of a case against him or her. To overcome judicial or quasijudicial immunity in this case, John Smith must  aver sufficient facts to  persuade the motion judge that the defendant judge and the defendant discovery master acted outside the scope of their authority.  In this case, the discovery master (DM) had only a bit role: like a walk-on role rather than the star whose name would go up on the marquee. That meant that I had to compare what the DM was supposed to do with what he actually did, and then say how what he did was not what a judge would have done if the judge had played the bit role herself. If I simply threw a lot of mud against the wall and hoped it would stick, the federal judge would likely throw up his hands and summarily dismiss the case. So I had to select a sample of only those acts which the DM was not expected to do.   But because the hurdle over quasijudicial immunity is so high, I decided  I had better  present a lot of evidence to show the DM was out of line when he did what he did. NOTE: You must do the same thing in your case. The Law.  In Massachusetts, our Declaration of Rights makes every government official accountable to the people.  The last time I looked, a judge is a person and therefore should be accountable.  If someone must be accountable for their actions, then there can be no immunity. Therefore, after I set out all the facts -- I hope not ad nauseum -- I argued the law. If it works, it will be a little miracle. NOTE: You must check your State constitution and see whether it mentions the word "accountable" or "accountability."  If you are in a State in which judges are elected, you can, of course, vote him or her out of office.  We are not as lucky here in Massachusetts: judges are appointed until the age of 70 and are then recalled if there are not enough of them on the bench to meet the demand of people wanting justice. After you read the brief,  let me know whether I convinced you or not.  Thanks. Postscript The motion to dismiss by StupidBut Famous was allowed.  I have not appealed it, but shall, instead, re-file the case in State court.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MASSACHUSETTS CIVIL ACTION: John Smith, Jr.  Plaintiff  v.  The Honorable Lisa A. Roberts, in her judicial and individual capacities,  Probate & Family Court Dept of the Trial Court of the Com. of Mass.,  Commonwealth of Massachusetts.  Pocahontas Smith, a/k/a Pocahontas Maiden, in her professional and individual capacities,  E. Chouteau Merrill, in her professional and individual capacities,  Prestigious & Huge, Huger, and Hugest  Firm, LLP,  StupidButFamous, in his professional and individual capacities,   Defendants  _______________________________________________________ OPPOSITION TO STUPIDBUTFAMOUS'S MOTION TO DISMISS Now comes Plaintiff John Smith ["Smith"], and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by Defendant StupidButFamous. As grounds, Smith states that (1) by acting outside of his authority as Discovery Master, (2) by depriving him of equal protection of the laws, which would have allowed Smith discovery, and (3) by directly violating a court order,1 which deprived Smith of his constitutional equal protection, and depriving Smith of his property, StupidButFamous is not protected by quasijudicial immunity. See Issue 1 below.  1 StupidButFamous thereby also breached his fiduciary duty. As further grounds, Smith states that Article V of the Massachusetts Declaration of Rights precludes the application of the common-law doctrine of judicial immunity, and therefore quasijudicial immunity, upon which StupidButFamous relies, to cases brought by citizens from the Commonwealth of Massachusetts. See Issue 2 below. Smith further states that where judicial immunity arose from judicial fiat, Art. 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. V of the Declaration of Rights of the Massachusetts Constitution. The derivative quasijudicial immunity may also not reign supreme over the command of accountability in Art. V. See Issue 3 below. And pendent jurisdiction is a doctrine of discretion. See Issue 4 below SUPPLEMENTAL FACTS FOR CONTEXTUAL PURPOSES Since the Complaint was served on StupidButFamous, Smith has learned: (1) that on Wednesday, 19 June 2002, StupidButFamous sent Smith's counsel two bills for an additional $29,617.72 and $256.01, bringing the subtotal to $29,873.73, making a total of $35788.73, which StupidButFamous charged Smith and making the total charged the Smiths approximately $72,000,2,3   2 For some alleged tasks, StupidButFamous charged Smith 100 percent of the fee. 3The enormity of the amount of his fees evidences that StupidButFamous involved himself with issues far beyond the scope of the authority given him by the court-appointment as Discovery Master.  (2) in his bill on the divorce case, StupidButFamous has included time allegedly spent with Attorney George Berman on this and one other federal case in which StupidButFamous is named as a defendant. (3) Since the Complaint of this action was served, the divorce trial in State court has begun:  (a) on Wednesday, June 12th, testimony was suspended so that (i) Pocahontas's counsel could identify all the documents in four 4-inch 3-ring binders produced for the first time on Monday and (ii) Smith could compare them with the few documents he had received prior to StupidButFamous's appointment in March of 2001. The 11th-hour production of documents was a surprise. They were documents StupidButFamous did absolutely nothing all year -- literally -- to obtain for Smith even though Smith had repeatedly sought them throughout the year; (b) on Friday, June 14th, (i) considerable time was again unnecessarily wasted on the late production of documents -- documents which Smith had requested and which StupidButFamous refused to make the wife produce during the entire past year, (ii) Pocahontas took the stand again, and (iii) the trial was suspended; (c) the trial shall resume on August 14-16, August 26-28, September 3, and continue each day until the trial is finished.  On Pocahontas's witness list, there are 31 named witnesses, most of whom are citizens of Maine and whom Smith was precluded -- because of StupidButFamous's incompetence and bias -- from deposing.  In sum, five days were added to the already anticipated lengthy trial because of StupidButFamous's non-, mal-, and misfeasance. STANDARD OF REVIEW In deciding a motion to dismiss, this court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. See, e.g., Leatherman v. Tarrant County Narcotics, I & C Unit, 507 U.S. 163 (1993); Monahan v. Dorchester Counseling Ctr., 961 F.2d 987,988 (1st Cir. 1992); Roth v. United States, 952 F.2d 611,613 (1st Cir. 1991). Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets." Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations 12 omitted). At a minimum, plaintiffs are "obliged to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." Roth, 952 F.2d at 613. ARGUMENTS 1. Where StupidButFamous (a)acted outside of his authority as Discovery Master, (b)deprived Smith of equal protection of the laws, which would have allowed him discovery, and (c)violated a court order and thereby deprived Smith of his property, StupidButFamous may not be afforded the protection of immunity. As stated above, StupidButFamous's appointment as Discovery Master required him to act only as a Discovery Master, i.e., to monitor and schedule discovery. Such an appointment presumes that StupidButFamous would act within the law of the land and do only what was contemplated by a just court. StupidButFamous contends that his status as a Discovery Master appointed by the court affords him quasijudicial immunity. For this proposition, StupidButFamous relies upon Namey v. Reilly, 926 F.Supp. 5, 8 (D.Mass. 1996).  Smith contends that StupidButFamous’s status as Discovery Master is not determinative of whether he is cloaked with immunity . . . and Smith, too, can rely on Namey for that proposition, for "[i]n determining whether immunity reaches the actions of an official, courts examine the function performed by the official, not his rank or status." Id., at 8, citing Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993); Cleavinger v. Saxner, 474 U.S. 193, 200-201 (1985). And the courts must look at the nature of his act. Mireles v. Waco, 502 U.S. 9, 12 (1991) (judge is not immune for actions, though judicial in nature, taken in the complete absence of jurisdiction).  . . . whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity. Mireles, 502 U.S. at 12, quoting Stump v. Sparkman, 435 U.S. 349, 362 (1978).  But "[d]ifficulties have arisen . . . in attempting to draw the line between truly judicial acts, for which it is inappropriate, and acts that simply happen to have been done by judges." Forrester v. White, 484 U.S. 219, 227 (1988). For example, administrative decisions, even though they may be essential to the functioning of the courts, have not been regarded as judicial acts. Id. at 228.  "Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. . . . That the jurors are selected for a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?"  Forrester, at 228, quoting Ex parte Virginia, 100 U.S. (10 Otto) 339, 348 (1880), where the Court declined to extend immunity to a county judge who had been charged in a criminal indictment with discriminating on the basis of race in selecting trial jurors for the county's courts. . Clearly the character of the acts StupidButFamous was appointed to do was administrative, not judicial. That he tried to perform judicial acts or acts which a judge would perform is significant only in proving that he acted in the clear absence of authority. "Where there is clearly no jurisdiction over the subject-matter any authority exercised is a usurped authority, and for the exercise of such authority when the want of jurisdiction is known to the judge, no excuse is permissible." Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352 (1871). Here, StupidButFamous had to determine whether Smith was entitled to the discovery he requested. To do that, StupidButFamous had to ask and answer the question of whether the documents and depositions Smith requested would lead to admissible evidence. And to make that determination, StupidButFamous had to know that Smith would be required to put in some evidence of each of the factors in section 34 of M.G.L. chapter 208 (the divorce statute). And as past president of the Massachusetts chapter of the American Academy of Matrimonial Lawyers and member of the Board of Editors of the Massachusetts Lawyers Weekly, StupidButFamous certainly had to know what those factors were.4 4In June of 2001, Smith's counsel wrote StupidButFamous and Merrill a letter [attached] in which she identified those section 34 factors which were in dispute: e.g., contribution to marriage, which could have been shown by an assortment of documents including but not limited to bank statements and checks. Neither StupidButFamous nor Merrill acknowledged the letter and neither ever responded to it. But StupidButFamous never asked himself the admissibility question, and later, only his bias showed. For instance, on one hand, he recommended that Smith's subpoena of an appraisal be quashed on the grounds of too-short notice, while on the other, he refused to recommend that Pocahontas's keeper-of-the-record subpoenas, which were served without notices of deposition, be quashed.  Smith learned of one of the subpoenas from one of the entities subpoenaed. Pocahontas's counsel then claimed their subpoenas were trial subpoenas, which do not require notices. StupidButFamous echoed Pocahontas's counsel. All three misrepresented wrong. The date on the subpoenas was not the trial date. During that first week of trial, Attorney Mumbles revealed that the documents had, indeed, not been delivered to court but to Pocahontas's counsel. It was this revelation that caused four out of the first five days of the trial to be a complete waste of time. Smith incurred debt for legal services that he would, but for their lie, not have incurred. There is no valid reason StupidButFamous should or could not have learned this. StupidButFamous’s championing Pocahontas’s counsel’s misrepresentation either shows bias or unacceptable incompetence, and certainly would not be an act comparable to that which a judge would do. Wagshal v. Foster, 28 F.3d 1249, 1252 (D.C.Cir. 1994),5 another case relied upon by StupidButFamous. 5 Wagshal claimed that Case Mediator Foster's withdrawal forced him to settle against his will, resulting in a recovery lower than he would have received had he pursued his claim. a. When StupidButFamous gave his opinion and insinuated himself into the substantive issues of the case as if he were a factfinder, he acted outside of his authority as Discovery Master and forfeited any right he might otherwise have had to protection by quasi-judicial immunity -- assuming arguendo that quasijudicial immunity is lawful. While judicial independence is to be cherished, the high Court has been willing over the last 130 years, since Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872),6 to allow justice to be held hostage by individual officials who chose to be corrupt and malicious. As a result, judicial immunity and the progenital quasijudicial immunity have become unacceptable mainstays of the commonplace denial of justice to many deserving plaintiffs. 6  In Bradley v. Fisher, the high Court unsagaciously wrote that a judge would be immune from suit for the sake of preserving judicial independence even if a judge were corrupt or malicious.  The logic of that reasoning confounds: Can it be reasonable to assume that judicial independence must be maintained so that judges can be malicious and corrupt again. Such logic results in a violation of the Massachusetts Code Judicial Court Rule 3:09, Canons 2(A) (avoiding impropriety and the appearance of it) and 3(A)(1) (fidelity to the law and maintaining professional competence in it). Quasijudicial immunity is, of course, what StupidButFamous is relying upon for the dismissal of this against him. Under Wagshal, supra, a different result might be obtained. For example, Wagshal alleged that Defendant Case Mediator Foster's letter requesting permission to withdraw from the case "indicated that [Foster] had certain feelings about the case." Id. at 1251. If true, that would have been verboten, according to the lower-court judge, who stated that a "`mediator is not supposed to say, give his opinion as to where the merits are.’" Id.7 7 StupidButFamous also cited Atkinson-Baker & Associates, Inc. v. Kolts, 7 F.3d 1452 (9th Cir.1993), which is inapposite to the case at bar. The plaintiff was not a party to the case in which Kolts served as Special Master. Atkinson-Baker was a court-reporting firm that delayed preparing and sending a transcript to the defendant in the underlying case.  The parties in the case underlying Atkinson-Baker were two church groups. Special Master Kolts learned that Atkinson-Baker was a member of the plaintiff church and had made financial contributions to that church. The plaintiff church's counsel stated that the "affiliation created a conflict of interest." Atkinson-Baker, at 1453.  After discussing the matter with the judge in the underlying case, Special Master, Kolts stated that there was "`potential for someone to claim that there was something wrong with [the] transcript"[Atkinson-Baker at 1454], and then decided to replace the court reporter "in order to get past this childish bickering." Id. at 1454. It was because the court-reporting firm was to be replaced by another firm that Atkinson-Baker sued the Master. Atkinson-Baker, at 1454. The court deemed Kolts' decision "to choose the court reporter independent of the parties [ ] a judicial act for which he is absolutely immune from liability." Id. at 1455, citing Antoine v. Byes & Anderson, Inc., 508 U.S. 429, ---, 113 S.Ct. 2167, 2171 (1993).  In Atkinson-Baker, neither party can cry that it was prejudiced. In Smith's case, the opposite is true. (In Smith’s case, Smith's moved to remove StupidButFamous as Discovery Master. StupidButFamous opposed it.) In contrast to the Wagshal court, however, which found that the case mediator, Foster, did not act outside his authority, and was therefore cloaked with immunity, this court should be able to find sufficient evidence to conclude that StupidButFamous did, indeed, act outside his authority, which should preclude a grant of immunity to him. See Wagshal, at 1252 (immunity will not block the suit if the mediator's or evaluator's actions were taken outside the scope of his duties).8 8 "'All inferior tribunals and magistrates * * * if they act without jurisdiction over the subject-matter or * * * if they are guilty of excess of jurisdiction * * * are liable in damages to the party injured by such unauthorized acts.'" Stiles v. Morse, 233 Mass. 174, 182 (1919), quoting Piper v. Pierson, 68 Mass. (2 Gray) 120, 122, and cases gathered. "The term `magistrates' is [ ] used to refer to members of the judicial branch." McDuffy v. Sec'y of Exec. Office of Educ., 415 Mass. 545, 561 n. 16 (1993), citing Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803).  His opinion of the merits is, of course, what StupidButFamous gave repeatedly throughout his service as a Discovery Master, causing almost every decision he made to be outside his authority. Clearly he wrongly considered himself a factfinder rather than a mediator only of discovery disputes and scheduling. He also had absolutely no authority to supplant his judgment for that of counsel. Specifically, StupidButFamous's conduct of which Smith complains occurred when trying to act as the factfinder of the contempt action Smith brought against his estranged wife, Pocahontas, for removing money from the escrow account.  StupidButFamous wanted Smith to waive his attorney-client privilege with his prior counsel (YYYYYYY, of ZZZZZZZZZZ), so that he, StupidButFamous, could question YYYYYYY [emails: Thu, 17 Jan 2002 21:44:56, Sat, 19 Jan 2002 12:04:18, and 4/26/02 report by StupidButFamous, p. 12, sec. 2.8(f)]  StupidButFamous became angered when Smith's current counsel would not allow her client to waive his attorney-client privilege, and StupidButFamous has billed Smith for the time StupidButFamous  spent threatening Smith's current counsel that were Smith not to waive his attorney-client privilege, he, StupidButFamous, would not only find against Smith but also charge Smith for 100 percent of the time StupidButFamous spent on the contempt issue. See StupidButFamous's lengthy diatribes in his email of Mon, 14 Jun 2002 16:34:09 and other emails.9   9 The emails cited herein are attached in chronological order to this opposition. Factfinding of the contempt action was absolutely not within the scope of StupidButFamous's appointment. Smith's counsel voiced her objection to StupidButFamous's interference, but he persisted. She also told StupidButFamous that she and/or her client did not want to pay for his so-called services regarding the contempt since it was outside the scope of his authority. See [email: Sun, 19 Jan 2002 12:04:18].  StupidButFamous insisted that Attorneys YYYYYY and E. Chouteau Merrill ["Merrill"] must have had an agreement regarding the guardian ad litem fees [emails: Sun, 13 Jan 2002 15:32:09, Mon, 14 Jan 2002 16:34:09]. Smith's counsel disputed that because there was no such evidence -- either in writing or on the tape of the hearing at which the guardian ad litem was appointed -- in support of that conclusion.  Smith's counsel was proven correct when the invoices from Brown Rudnick Gesmer & Freed were produced. There was no item in those bills which showed that there was any communication between Merrill and YYYYYYY during the relevant time about the subject guardian ad litem fees.  By injecting his opinion and by using his very-limited appointment as a guillotine blade ready to fall, StupidButFamous was interfering with counsel's ability to perform effectively as Smith's counsel. Thus, StupidButFamous violated Smith's derivative rights by violating his counsel's Fourteenth Amendment rights. "[A] state government violates an attorney's Fourteenth Amendment rights when its officers unduly and unreasonably interfere with the attorney's right to practice his profession by preventing the attorney from offering legal assistance to the client in the very matter and at the very moment for which the lawyer was retained." Gabbert v. David Conn, 131 F.3d 793, 803 (9th Cir. 1997), cert. granted sub nom. Conn v. Gabbert, 526 U.S. 286 (1999). b. StupidButFamous conspired to deprive Smith of equal protection of the laws, which would have allowed him discovery. With no valid and/or reasonable reason, StupidButFamous also concluded that Smith was not entitled to the discovery he requested, and recommended to the State judge that all of Smith's discovery requests be either severely restricted or denied. Where there was no valid and/or reasonable reason buttressing StupidButFamous’s recommendation, Smith can conclude only that StupidButFamous acted with bias or collusively and/or incompetently. StupidButFamous failed to do any work on the primary issue for which he was appointed: the production of documents. For instance, Smith's counsel attempted to get StupidButFamous to act to compel Pocahontas's counsel to produce the documents requested (all related specifically to the section 34 factors to be considered in the divorce). [Smith's Motion to Compel Documents, dated 22 March 2001; letter 6 June 2001; and Motion to Compel Documents, dated 22 April 2002 (all attached hereto).] StupidButFamous did nothing to effect the production of the requested documents. He did not even answer the letter. In sum, he did nothing between the end of April and December 2001,10 and then wasted weeks of Smith's counsel's time on a Confidentiality Agreement which should have taken an afternoon.11,12 10 Another judge (Gould, J.) had stopped discovery as of 9 March 2001 and appointed StupidButFamous on that date. StupidButFamous filed two recommendations on 26 April 2001, the court did not act, so StupidButFamous went into hibernation. 11 StupidButFamous filled many, many hours with drafting a confidentiality agreement. Smith's counsel gave him a list, which contained the essence of what he wanted to accomplish, but he wasted scores of hours on his nonsense. After Smith's counsel patiently worked with him -- though it was painful and time-consuming to do so -- Pocahontas's counsel wrote StupidButFamous at the 59th minute of the 11th hour, and Nissen-baum went back to square 1. Clearly he had wasted hours upon hours of Smith's counsel's time for nothing and then had the audacity to charge for his foolish efforts, none of which could have been contemplated when he was appointed.  12 Smith's counsel has maintained a website for several years. StupidButFamous tried to interfere with her First Amendment rights by spurring on Pocahontas's counsel to seek expungement of the website (or parts of it: it was not clear). Smith's counsel informed StupidButFamous and the others that there was no pleading from the Probate & Family Court Smith case on the website, but neither StupidButFamous nor Pocahontas's two counsel acknowledged the truth of what Smith's counsel had said. In contrast, Smith's counsel complied within reason and for that, was beset with imagined complaints by Pocahontas's counsel. StupidButFamous then threatened to charge Smith and his counsel for 100 percent of his time.13 13 StupidButFamous then promised he would give Smith's counsel opportunity to review his charges [email: Sun, 19 Jan 2002 12:04:18]. But StupidButFamous did not do that. On 14 March 2002, with an ex parte motion, StupidButFamous sought and got an order of court for the payment of fees he knew Smith's counsel would dispute. His word was not his honor. Subject: see parag. 13 and 15 of March 15, 2002 order Date: Sun, 2 Jun 2002 23:18:44 -0400 From: "StupidButFamous" <StupidButFamous@attbi.com> To: <mumbles@sleezylaw.com>, <barbaracjohnson@worldnet.att.net>, <laidback@laidback.com> CC: "StupidButFamous" <StupidButFamous@StupidButFamouslaw.com> . . .  Parag. 15 "Each party ... shall pay DM's invoices promptly.."  pleas bing a check tomorrow or have it delievered on Tuesday. "DM" being the abbreviation for "Discovery Master." Trust was totally out of the window and could not be regained. StupidButFamous failed to set up a reasonable schedule for depositions, another primary issue for which he was appointed. Instead StupidButFamous conspired with Pocahontas (who wanted to prevent her family from being deposed) and Judge Roberts and the court (which wanted to get the Smith case over and done with and out of that court as quickly as possible) to deny Smith the discovery to which he was entitled.  For instance, StupidButFamous did not compel Pocahontas to reveal the name of the Maine lawyer who was going to be represent at the Maine depositions Smith was trying to schedule. Without StupidButFamous in the way, Smith would have simply served the deposition subpoenas in accordance with Maine requirements for foreign depositions and worked with the Maine counsel to find mutually convenient dates.  With StupidButFamous in the way, Smith had to wait to get approved dates and agreement with Pocahontas's local counsel for the deposition dates.14  Ultimately she never did get approved or workable dates from StupidButFamous or Pocahontas’s Massachusetts counsel. What finally happened is, Smith served one subpoena and a Maine lawyer responded. The failure of StupidButFamous to fulfill his commitment when he accepted appointment caused a delay in scheduling and his recommendation to the court for a short window of time to accomplish those depositions worked to completely deprive Smith of an opportunity to depose some potential witnesses.  14 After StupidButFamous was awakened from his chosen dormancy by Judge Roberts' appearance on the case, Smith's counsel informed StupidButFamous that the discovery schedule he was devising was impossible to meet: that nine months could not be caught up with in 45 days. StupidButFamous not only refused to take heed but also tried to deflect her attention from the discovery by requesting her attention for weeks (sometimes more than half-a-dozen emails a day). When Smith's counsel went silent -- in order to work on something else -- StupidButFamous wrote he would construe her silence as an admission of whichever cockamamie notion he was touting that day.  It was a constant struggle trying to deal within reason with StupidButFamous's mindless and sometimes irrational ideas and orders. Pocahontas's counsel did not need to comply. StupidButFamous's do-nothingness, if not extremism, was always in their interest. For instance, Pocahontas's counsel were months late even supplying the names of their appraisers. StupidButFamous did not care that they were late. While he kissed their boots, he threatened Smith's counsel. It was clearly discriminatory. StupidButFamous would never have dared to speak to male counsel in the manner in which he spoke to Smith's female counsel. It was intolerable [email: Wed, 16 Jan 2002 17:11:50].  Then the defendants steam-rolled Smith's equal protection rights: e.g., the court allowed Pocahontas's counsel not only to change the dates of their depositions at their whim but also to override the dates Smith's counsel had chosen for depositions. Ultimately, StupidButFamous screamed and recommended that Smith's counsel had delayed and had not noticed witnesses soon enough. Nothing could have been further from the truth. Only bias, conspiracy, and discrimination can account for the inability of Smith to depose the most important witnesses in the case. StupidButFamous further conspired with Pocahontas and the court (that is, the judge) not only to limit the witnesses Smith would be allowed to depose, but also to categorize them.15 Sniffin v. Prudential Ins. Co. of America, 395 Mass. 415, 421 (1985) ("Judges should not substitute their own judgment as to optimal settlement terms for the judgment of the litigants and their counsel"), quoting Armstrong v. Board of School Directors of Milwaukee, 616 F.2d 305, 315 (7th Cir. 1980).  15 StupidButFamous put the most important of Smith’s depositions at the bottom of his categorized list. He knew that Smith's counsel was not interested in deposing any of the church groups, for she said -- long before the recent priestly scandals -- that the churches would not admit anything about Pocahontas's father (who had been accused of sexual abuse) -- even if they knew of his alleged propensity -- because they would want to cover their own bottoms. Yet StupidButFamous put the church groups above (a) Pocahontas's biological mother, (b) Pocahontas's stepmother, with whom the children live, and (c) Pocahontas's brother-in-law, Woodrow, who was the first the reveal to Smith that Pocahontas's father sexually abused Woodrow's wife as a child. They were also important because the stepmother said -- according to another witness's deposition -- that Pocahontas's father did not abuse Pocahontas's sister, a priest did.  Who was the priest? Pocahontas's father deposed that the priest had been a boyfriend of Pocahontas's biological mother. Was the priest a fictional scapegoat for Pocahontas’s father? Judge Roberts went StupidButFamous one better: she denied Smith's request for commissions for their depositions. And it goes on: this is just a drop in the proverbial bucket. Given that one of the children had accused the maternal grandfather of sodomizing him, Smith was looking either for a pattern or a denial from the biological mother that her boyfriend the priest did not sexually abuse her daughter. Pocahontas's father testified that his second daughter had a "false memory." As Smith's counsel set out in an authority-filled motion, Smith should not have had to reveal his strategy in order to get the equal protection of the laws of the Commonwealth. He would not have had to reveal that strategy but for StupidButFamous's malicious and intentional interference with Smith's constitutional rights.  Neither can a discovery master who seeks the protection of quasijudicial immunity. Com. v. Stockhammer, 409 Mass. 867, 882 (1991), citing Dennis v. United States, 384 U.S. 855, 874-875 (1966). . . . the United States Supreme Court has said that "`it [is] extremely difficult for even the most able and experienced trial judge under the pressures of conducting a trial to pick out all of the [information] that would be useful in impeaching a witness.' ... Nor is it realistic to assume that the trial court's judgment as to the utility of material for impeachment ... would exhaust the possibilities. In our adversary system, it is enough for judges to judge. The determination of what may be useful to the defense can properly and effectively be made only by an advocate." (Citation omitted.) Dennis v. United States, 384 U.S. 855, 874-875 (1966). ... The judge is not necessarily in the best position to know what is necessary to the defense." Com. v. Clancy, 402 Mass. [664,] 670 [(1988)]. See Com. v. Liebman, 388 Mass. 483, 489 (1983) ("[W]hen a judge undertakes to decide if [evidence] benefits the defendant's case he is `assuming vicariously and uncomfortably the role of counsel'"). Stockhammer, 409 Mass. at 882. Given that Smith wanted the depositions not only because the witnesses as Maine citizens were not subject to Massachusetts subpoenas but also for the purpose of impeachment, StupidButFamous and the court wrongfully erred by denying Smith his constitutional right to determine which witnesses he could depose. "`The determination of what may be useful to the defense can properly and effectively be made only by an advocate."' Erckman v. United States, 416 U.S. 909, 913 (1974), quoting Dennis, 384 U.S. at 874-875. And significantly, the witnesses whom Smith wanted to depose were not individuals who had or could claim any privilege or confidentiality, so it was not a matter of a judge reviewing documents in camera to determine whether a privilege could be overcome. Thus, StupidButFamous again interfered with Smith's attorney's right to practice her profession by preventing her from providing Smith the legal services "in the very matter and at the very moment for which [she] was retained." Gabbert, 131 F.3d at 803.  StupidButFamous had an unlawful motive for his participation in the conspiracy. Smith contends that because StupidButFamous knew Pocahontas's counsel Merrill was about to become a judge, StupidButFamous did not lower the threshold on Pocahontas and Merrill; i.e., it was in StupidButFamous’s interest not to go against Merrill at that time. StupidButFamous's intention was to enhance both his present and future business: the scheme was to waste Smith's counsel's time and then charge Smith for any time StupidButFamous spent on matters both inconsequential and outside his authority. For instance, when StupidButFamous was trying to persuade Smith's counsel to advise Smith to waive his attorney-client privilege with his prior counsel, YYYYYYY, StupidButFamous resorted to an argument remarkably devoid of the intelligence one expects of a lawyer of StupidButFamous's alleged stature, to wit, that the representation of Attorney Merrill to the court was evidence [email: Sun, 13 Jun 2002 15:32:09].  Contending that it was well settled that an attorney's argument is absolutely not evidence, Smith's counsel offered StupidButFamous a brief on the issue. No, StupidButFamous did not want the law, and refused to change his position that Merrill's argument was evidence. Smith's counsel argued that even were he, StupidButFamous, correct that an attorney's argument was evidence -- in light of Merrill's admission to Judge James McHugh in the Massachusetts Appeals Court that she had misrepresented to Judge Nancy Gould regarding whether a written stipulation existed -- Merrill would not be the attorney to believe. StupidButFamous did not stop there: he then argued that in Probate & Family Court, it is customary for an attorney's argument to be considered evidence [email: Sun, 13 Jan 2002 15:32:09, p. 3, par. 3 and 4/26/02 report by StupidButFamous, p. 12, sec. 2.8(k)]. While Smith's counsel agreed, she did not approve of the practice that skirts the rules of evidence and civil procedure and denies due process and equal protection. Given that StupidButFamous, past _________ of the ____________   and on the Board of _____________, ordinarily charges $450 [email: Sat, 19 Jan 2002 12:04:18] for his so-called professional services, one can reasonably conclude that the signs of intelligence were intentionally missing, in order both to create a pretext and to cover up the conspiracy to commit fraud upon Smith.16 16 StupidButFamous expected, if not knew, that the lower court would rubber-stamp his recommendations and Smith would then be required to rely on and do that which StupidButFamous had recommended.  And outrageously, StupidButFamous then billed Smith to pay him for uttering such foolishness. c. StupidButFamous violated a court order (as well as breached his fiduciary duty), and by so doing deprived Smith of his constitutional equal protection and his property. Without having the requisite court order to do so, StupidButFamous disbursed money from the escrow account over which he had a fiduciary duty to the couple. The court order was clear: no money was to be removed from that account without further court order [Compl. par. 13 and A4].  In sum, StupidButFamous used his own feelings to make the decision, and ignored the facts. A judge would be expected to base his or her decision on the facts and the rules of civil procedure. If StupidButFamous seeks quasijudicial immunity, he should have acted as expected a judge would act. StupidButFamous did not do so. Discovery is required to learn of StupidButFamous's motives and encouragement to play his role as he did. He must be deposed. Thus, Smith’s allegation of a violation of clearly established law precludes dismissal before the commencement of discovery. Anderson v. Creighton, 483 U.S. 635, 640 (1986). Here, Smith had a right to possess and protect his property and not to be deprived of it by fraud. Art. I, Massachusetts Declaration of Rights. Fifth and Fourteenth Amendments, United States Constitution. 2. Article V of the Massachusetts Declaration of Rights precludes the application of the common-law doctrine of judicial immunity, and therefore quasijudicial immunity, upon which StupidButFamous relies, to cases by plaintiffs from the Commonwealth of Massachusetts. Article V of the Massachusetts Declaration of Rights was ratified on 14 October 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 U.S. (2 Dall.) 419 (1793). It dictates that all magistrates (judges) and officials from all three branches of government -- the legislative, executive, and judicial -- be at all times accountable to the people, of whom Plaintiff Smith is one.17,18See also Federalist Paper No. 80 (J. and A. McLean's ed., June 21, 1788, New York) (Hamilton). 17 Under common law, the Commonwealth, too, is subject to suit by its citizens. 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, -- U.S. --, 119 S.Ct. 2240, 2271 (1999).  . . . 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.'" 292 U.S., at 322-323, 54 S.Ct. 745 (quoting The Federalist No. 81) (footnote omitted). Alden, 119 S.Ct. at 2254 (emphasis supplied).  18 And that surrender and consent to suit by its citizens was the plan of the Massachusetts convention. John Adams, one of a committee of 30, 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).  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.19,20 Those procedures have never been invoked vis-à-vis Art. V, leaving in effect the unequivocal mandate memorialized by the forefathers of Massachusetts in Art. V of the Declaration of Rights: to wit, the mandate that all three branches of government at all times must be accountable to the people. Thus the State's waiver of the ancient common-law doctrine of sovereign immunity has long been effectuated.  19 Article LXXIV was ratified by the voters in 1944. 20 According to Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1 (1985), a waiver of a State's constitutional mandate may be effectuated by a state statute or constitutional provision. This, clearly, is not wholly true in Massachusetts. In sum, since its ratification almost 222 years ago, Art. V has never been repealed, altered, or amended by any Massachusetts legislature. With accountability mandated at the convention, it is impossible for agents of the sovereign Massachusetts or its branches of government to be afforded absolute judicial or quasijudicial immunity,21 for where the forefathers of Massachusetts memorialized in Art. V the belief unequivocally that "the several magistrates and officers" of all three branches of government at all times must be accountable to the people, the State's waiver has long been effectuated. 21 Waiver and/or consent as issues here are then inapplicable. Notwithstanding that conclusion, for waiver of a State's constitutional mandate may only be effectuated by a state statute or constitutional provision. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 3145 n. 1 (1985). Massachusetts needs not consent anew: its constitutional article has never been repealed, altered, or amended in the 221 years since its ratification on 14 October 1780.  Art. XI of the Massachusetts Declaration of Rights: Article XI (also ratified in 1780) states that every Massachusetts subject "ought to find a certain remedy, by having recourse to the laws." SeeAlden v. Maine, -- U.S. --, 119 S.Ct. 2240, 2293-2294, 2293 n. 42 (1999). "The generation of the Framers thought the principle so crucial that several States put it into their constitutions." Id. at 2293.  3. Where judicial immunity arose from judicial fiat, Art. 6 of the U.S. Constitution may not be invoked to make the doctrine of judicial immunity reign supreme over Art. V of the Declaration of Rights, Massachusetts Constitution. Likewise, the derivative quasijudicial and qualified immunities may also not reign supreme over the command of accountability in Art. V of the Declaration of Rights, Massachusetts Constitution. Confluence of judicial immunity and Art. 6 (U.S.): Judicial immunity is derived from judicial fiat. Judicially created law does not fall within the penumbra of Art. 6 of the U.S. Constitution. Therefore the judicially derived judicial immunity may not reign supreme over the command of accountability in Art. V of the Declaration of Rights and preclude a citizen either of Massachusetts or of a foreign State from suing Massachusetts in federal court.22 22 This proposition rests on a similar interpretation of the Eleventh Amendment. The "real" or first prong of the Amendment, the one not allowing a State to be sued by a citizen from a foreign State in federal court, was ratified by Congress. The second prong, the one not allowing a citizen to sue his or her own State in federal court, arose by judicial fiat. "[I]t is not the proper province of a federal court to rewrite a statute under the guise of interpretation." Aulson v. Blanchard, 83 F.3d 1, 4 (1996) (Selya, J.). Confluence of quasijudicial and qualified immunity and Art. V (Mass.): If immunity for the people populating all three branches of state government does not exist because Art. V of the Massachusetts Declaration of Rights is deemed to be operative, making waiver unnecessary and consent to suit in state and federal courts explicit, then judicial, quasijudicial, and qualified immunity also do not exist and thus do not preclude any of Smith's claims against StupidButFamous. Confluence of the Eleventh Amendment and Art. V (Mass.): Where the Eleventh Amendment is inapplicable by virtue of Art. V of the Declaration of Rights to the claims of Massachusetts citizens, and the Fourteenth Amendment, as written explicitly, is implicated, then judicial, quasijudicial, and qualified immunity may not preclude any of Smith's claims against StupidButFamous.23 23 According to Hafer v. Melo, 502 U.S. 21, 29 (1991), citing Burns v. Reed, 500 U.S. 478, 486-487 (1991), "officials seeking absolute immunity [other than legislators or judges] must show that such immunity is justified for the governmental function at issue.  4. Pendent jurisdiction is a doctrine of discretion. Contrary to StupidButFamous's assertion, should this court deny Smith’s federal claims, this court would still not be obligated to deny jurisdiction of Smith's State claims against StupidButFamous. Hayes v. Town of Orleans, 39 Mass.App.Ct. 682, 686 (1996). "It has consistently been recognized that pendent jurisdiction is a doctrine of discretion." Id., quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966).  [In fact,] [t]he policy in favor of hearing pendent State claims was expressed by the United States Supreme Court in Hagans v. Lavine, 415 U.S. 528 (1974): "[I]t is evident from Gibbs that pendent state law claims are not always, or even almost always, to be dismissed and not adjudicated. On the contrary, given advantages of economy and convenience and no unfairness to litigants, Gibbs contemplates adjudication of these claims." Id. at 545-546. Anderson v. Phoenix Inv. Counsel of Boston, Inc., 387 Mass. 444, 445 (1982).                                .  Respectfully submitted,                                 PLAINTIFF JOHN SMIITH,                                  By his attorney,   Barbara C. Johnson 5 July  2002              Barbara C. Johnson, Esq.                                  6 Appletree Lane                                  Andover, MA 01810-4102                                  978-474-0833