#90C, Part III -- Drano Series
Count 3 of Bar Counsel's Petition for Discipline of Barb
and
Her Side of the Story Interwoven
in Blue
A Battle in the War between Barb
and
the Office of Bar Counsel and the Board of Bar Overseers
The Board of Bar Overseers is the adjudicatorial arm.
General Counsel of the BBO reports to the Board.
The Office of Bar Counsel is the prosecutorial arm.
Bar Counsel of the BBO reports to the SJC.
However, before a Petition for Discipline is sent out,
the OBC needs the approval of the BBO.
Barb's Official Answer to the Bar may be found at
drano90-barbs-answer-to-obc-petition-for-discipline.htm
COMMONWEALTH OF MASSACHUSETTS
BOARD OF BAR OVERSEERS______________________
BAR COUNSEL B.B.O. File No. C2-01-0091
Petitioner C2-01-0090
C2-00-0078
v. C2-98-0580BARBARA C. JOHNSON
Respondent
______________________PETITION FOR DISCIPLINE
AND
DRAFT ANSWER TO PETITION INTERWOVEN IN BLUE
WITH JURY DEMAND100. Between about 1992 and 1998, the respondent represented Rose Coughlin in a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees (Coughlin action)Count III 100. Respondent admits that she brought suit on behalf of Lily in 1992 "in a wrongful termination action against HMM Associates, Inc., its parent company, and two of its employees (Coughlin action)." At an undisclosed date, HMM and its parent company, Summit Environmental Group, Inc. ["Summit"], were acquired and/or merged with Earth Technologies Corp (USA) ["ETCUSA"]. On 11 December 1995, Tyco International, acquired HMM, Summit, and ETCUSA. ETCUSA and Tyco were, respectively, the first and second successor corporations. In 2003, the U.S. Attorney's office caused the 38 or 39 indictments against Dennis Kozlowski, CEO of Tyco, for "taking" $600 million dollars from Tyco. Kozlowski is out on $100 million bail. At the time of Respondent's wrongful incarceration on 17 December 1998 by Concord District Court Judge Paul McGill, the opposing counsel, Mark C. O'Connor, a partner of Rich, May, Bilodeau, and Flaherty, was in the pay of the alleged felon Kozlowski. Respondent suggests the possibility that Judge McGill was also.101. The respondent commenced the Coughlin action in the Middlesex Superior Court (superior court) in December 1992. The action was transferred by the superior court to the Concord District Court (district court) in August 1994.101. Respondent admits.102. On or about January 4, 1995, the district court entered a discovery compliance order for the respondent to inspect documents and pay for supervision of the inspection at $55 per hour. The defendants incurred costs in setting up the document inspection. Without justification or adequate prior notice to counsel for the defendants, the respondent failed to appear for the scheduled inspection.
TABLE C. MONEY ALLEGED TO BE OWED 1995 Orders (in dollars) 1996 Orders in dollars
3/3 3/22 4/5 4/19 10/4 or 10/5 12/13 1/6 1/17 2/8
fees 0 $261.25 (to be paid that same day). $558 (to be paid that same day)
written in endorse- ment but not on Paper #165$720 J&S
Judge wrote he erred in assessing $720 J&S.
It should not have been jointly
costs 0 No amount stated No amount stated No amount stated No amount stated No amount stated No amount stated No
amount statedNo amount stated fines 0 $50 day J&S for
3/10-3/22
(retroac-
tively
applied).
No date by which to pay$650 J&S
(50 per day for 13 days)
No amount stated.
Pay by 12/20
Final Judgment on the Merits
$3809.25 in Final Judgment
on the Merits
-- Paper #179.None of the known monetary assess-
ments
add to $3809.25
$3809.25
On 2/8 , Amended final judgment reduces payment from $3809.25 to $261.25 error
Contempt of orders on Papers #157 and #162 Johnson did NOT as Judge wrote admit to contempt
error
$558 on Paper #165, but not in #165
noteworthy
On 3/3
Judge McGill allowed O'Connor's
opposi-
tions (served that day on Johnson in court at the posium)
to Johnson's Motions
#151 and #152, but never wrote the reasons in any order.The $261.25 was in O'Connor's Motion #157..
Complaint subject to dismissal. Judge did not mention or write about
Motions
#151 and #152 on 3./22.He wrote about O'Connor's
Motions #157 and #165,.Judge did also NOT write about OConnor's oppositions #159 and #162 to Johnson's Motions .#151 and #152.
Complaint subject to dismissal
unless and until the penalty, costs,
and fees are paid
in full.Entry of Final Judgment on the Merits. Retrans-
ferred to Superior CourtJudge Neel sent back to CDC for Further
Civil Contempt Proceed-
ingsBack in District Court. O'Connor moves to amend final judgment into a judgment of contempt.
No further accruals except as to atty's fees.
Complaint remains dismissed unless and until $3809.25
is paid.Case may be reopened
on merits upon motion and after further hearing.Contempt hearing stayed until 12/13
No contempt hearing. Contempt hearing stayed until
12/22.No eviden-
tiary
hearing held on 12/.22.Once the contempt is purged, Lily's case may be reopened on
motion.Unspeci-
fied motions of Johnson's were deemed "meritless and frivolous" and found her in contempt.Johnson guesses
he meant Papers
#151 and #152, but they had been filed on 2/24/95,
11 months prior to this date.
Johnson
contempt
severed from
Coughlin
case on 2/8.Assigned new docket number
on 2/13.This was civil contempt
as per 9/4/96 memo.Paid $261.25
but Coughlin
case not restored.O'Connor's
affidavit$504 and $216, totaling $720, for writing two opposi-
tions #159 and #162.
The amounts do not appear in the oppositions, but in O'Connor's affidavit
3/03/95 Order: Non-existent.
No cross-examination allowed.
Motion taken under advisement.
_______________________________________________________________________________________
3/22/95 Order: $1208 in sanctions and threatened dismissal of the case should they not pay. [A216 (handwritten endorsement) and A300 (typed on docket sheet for 3/22/95)]. The monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. Id. March 10 appears to have been an arbitrarily chosen date.An additional $558 on Paper 165, but Paper 165 contains no such amount in it.
Johnson had been ordered to pay some sum of money, found in contempt, and fined $2178.00, all in one fell swoop, even though she had already said she couldn't afford to pay even the $261.25 [A197, A200]. Then it was her saying that she was unable to pay that provoked Judge McGill into ordering that either Johnson or Lily were to pay the $261.25 [A199]. Johnson objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
_______________________________________________________________________________________
4/05/95 Order: A penalty of $650 was assessed, but it was unclear to whom and by when it was to be paid. According to an appellate panel at [4-5], the $650 was imposed for two reasons: (a) for an admission and (b) a civil penalty of $50 for the 13 days since the March 22d hearing.
_______________________________________________________________________________________
4/19/95 Order: Final Judgment on the Merits with alleged damages of $3809.25 (#176, #179) [A1149-51, 65]. None of the known monetary assessments add to $3809.25, the amount in the Final Judgment. The amount appears only in O'Connor's Motion #176.
_______________________________________________________________________________________
10/04/95 Order: "No further accrual." The order does not say accrual of what. Orders that complaint is to remain dismissed "unless and until $3809.25 is paid," but does not say by whom or to whom, or by when.
_______________________________________________________________________________________
12/13/95 Order: On 13 December 1995, O'Connor sought not only payment of fines which he computed amounted to $12,000 as of 4 October 1995, he sought the court to increase the daily fines to $100 per day. [A98]. If Johnson failed to pay, she should "be ordered to bring her toothbrush with her" to the next court hearing. [A98].
_______________________________________________________________________________________
1/17/96 Order: In Johnson's case.
_______________________________________________________________________________________
2/08/96 Order: In Johnson's case.
TABLE 2. ABBREVIATIONS FOR APPENDICES OPINION refers to Addendum pages 1-9 on which the Appeals Court panel's Memorandum and Order appears. ADD refers to those documents from the Record-Appendix which were cited by the Appeals Court in the panel's opinion and included in the Addendum to this application.
ADD-S.A. refers to the Defendants' Supplemental Appendix, also cited and included in the Addendum.
JRA refers to Johnson's Record-Appendix (prepared by Elaine Whitfield-Sharp, appellate counsel, who also authored Defendant/Appellant Johnson's appellate brief).
CRA refers to documents in Lily's Record-Appendix (prepared by Johnson) which are relevant to this application but overlooked by the Appeals Court.
The symbol "@" stands for "at paragraph(s)" or "at the docket entry for the paper number indicated."
ADD/CRA refers to those documents which were in Lily's Record-Appendix, not in Johnson's Record-Appendix, and are the subject of Johnson's motion for leave to include them in her Addendum to this application.
LILY is the pseudonym for Rose Coughlin. Her name is use in the Petition for Discipline. For public purposes, I began calling her "Lily" since Asst. Bar Counsel Weisberg gave pseudonyms to people who were the subject of Counts 1 and 2 of the petition.
TABLE 3. REMAND: AUGUST 1994 Remand: August 1994. After the decision on Defendants' first summary judgment in Superior Court, (1) the action was reduced to retaliation by constructive discharge against public policy (Count III) [A47], and (2) while Plaintiff's motions were pending, Defendants were granted remand to Concord, where Defendants moved for but were denied further summary judgment [A20 @ 11/23/94].\FN10/ 10 O'Connor in bad faith attached to Defendants' second summary-judgment motion excerpts from Lily's deposition transcript: Lily had been sent only volume 1, and 30 days for reading had not passed. She had not yet received the remaining two volumes [A845-46].In Concord, the court allowed in part Lily's motion to compel production of documents [A813-835, 884-931]. When Defendants failed to comply with the order, Plaintiff moved to show cause why they should not be held in contempt for noncompliance [A1025]. The court took no action.
TABLE 4. SMOKESCREEN BEGINS: 1995 Smokescreen Begins: 1995.O'Connor continued his abandonment of compliance with the rules of court throughout 1995: O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c): on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156-159, 161-162, 170-172, 192-193, 198, 215 [A21-22, 1102, 1105, 1108-09, 1111, 1113, 1127, 1139]. He handed each of those motions and oppositions to Johnson as the case was called for hearing. Each and every one of Defendants' oppositions included affirmative requests for money sanctions. (A year later, the court called these pleadings "combination oppositions" [A1364]. At NONE of the hearings was Johnson allowed to examine O'Connor on the alleged costs and fees sought in the motions and combination oppositions signed by him. At no time was Lily allowed to compose or present a meaningful opposition.
102. Respondent incorporates herein Tables A-C and 1-4 above and Table 5 below by reference as if set forth in this response to ¶102. Respondent admits that "[o]n or about January 4, 1995, the district court entered a discovery compliance order for the respondent to inspect documents and pay for supervision of the inspection at $55 per hour." The order, however, violated fundamental fairness. The defendants had not complied with one discovery request and had been allowed EIGHT protective orders. The plaintiff was thereby denied any and all discovery for no lawful reason.103. On or about February 24, 1995, the respondent filed emergency motions in the district court to reconsider the court's January 4, 1995 order and to depose nonparty witnesses outside the presence of the defendants' counsel. The respondent brought those motions without legal or factual basis and in bad faith. The defendants incurred costs in opposing those motions.Respondent has sufficient information to form a belief that the following statement by the Petition is false: "The defendants incurred costs in setting up the document inspection." First, no costs had been occurred on January 4th, 1995. Second, the notion of inspection was suggested by Johnson on that day. Third, the date of inspection had not yet been determined. Fourth, there were no costs to incur. The HMM Associates, Inc., documents, according to O'Connor, had been stored in 26 boxes stored on site. (The company had been bought out and had undergone, amongst other things, a name change.) Fifth, the person for whose services they charged was the secretary of the defense counsel, Mark O'Connor; she worked on salary and not on an hourly or per diem basis. Sixth, O'Connor had advanced notice that Respondent would not be at the Concord facility that day, for fear of being set up. Seventh, in his itemization, O'Connor alleged that a "supervisor" went to the facility on Baker Avenue in Concord, Mass., but never was made to prove it. Eighth, Johnson subpoenaed his secretary but the subpoena was quashed and no hearing was allowed.
TABLE 5. HEARING ON JANUARY 4TH Hearing on January 4th. By the time three years had passed since Lily's case was filed, Johnson had single-mindedly sought discovery, but to no avail: Defendants had not complied with any discovery requests and their eight boilerplate motions for orders protecting them from complying with discovery were allowed. Of the eight protective orders, the seven brought in Superior Court were allowed in entirety and the one brought in District Court was allowed in part--but when ordered to comply with part of Lily's request for documents, the Defendants failed to do so and the court failed to enforce its own order.
On January 4th, O'Connor misrepresented to the Court that it would be burdensome to produce the documents requested. The court then relying upon that misrepresentation, failed to act on Plaintiff's Motion to Show Cause, and instead chipped away at its own order [A1025-31]. Then disparately and prejudicially treating Lily, the court allowed Defendants' Motion for Leave to Take a Deposition (of personnel at Lily's current employer) [A1021].
In an effort to break the impasse, Johnson suggested that she be allowed to inspect the documents at Defendants' facility and requested that someone be allowed to accompany her. The Court unreasonably limited the "someone" to Lily, who was residing and working in California, and imposed a $55 hourly fee for a "paralegal" to "supervise" Johnson during the inspection [A1100, ADD-279].
Johnson objected to the imposed cost. Her objection was noted and ignored.
Respondent absolutely denies the statement that "[w]ithout justification or adequate prior notice to counsel for the defendants, the respondent failed to appear for the scheduled inspection." Respondent incorporates herein Table 7 below by reference as if set forth in this response to ¶102.
TABLE 6. DISCOVERY MOTIONS FILED: 15 FEBRUARY 1995
This table is significant because of Judge McGill's memorandum of 13 December 1995.On 15 February 1995, Johnson filed three documents: (1) a supplemental memo [ADD/CRA-1057-1061], which included one- or two-line summaries of the areas to which each proposed witness would testify; these summaries had been requested by the lower-court judge. The list was long, Johnson contended, because given that she had not been allowed to discover documents, she would have to call, for instance, those who authored or had seen the documents. Ordinarily, authentication is stipulated to when a party produces the document, relieving the parties from producing a parade of witnesses at time of trial. This was not going to be the case were the Lily action reach trial;(2) an opposition to Defendants' proposed pretrial order [ADD/CRA-1062-1063]; and
(3) a proposed pretrial order [ADD/CRA-1064-1067].
TABLE 7. INTENDED VISIT TO CONCORD FACILITY ON 22 FEBRUARY 1995
The Intended Visit to the Concord Facility on February 22, 1995: During the two days prior to the agreed-upon inspection at the facility, O'Connor sent Johnson letters which she perceived as being intimidating, provocative, and foretelling that she was about to be "set up" [A1087-89, 1093-95; ADD-284-288]. To avoid potential problems, Johnson attempted to hire a private detail from the Concord Police both to protect her at that visit and to be a percipient court witness [A1085-86, 1357-58, ADD-282-283, JRA-235-236]. When the Department refused the service, Johnson contracted with a private security guard company. Id. [A1092, ADD-287-288, JRA-236, 289]. O'Connor's knowledge of this led to the aborted visit to the facility [A1093, JRA-290].O'Connor's statements on March 3d that Johnson did not give him notice until 8 o'clock on the evening prior to the scheduled visit and that Johnson would not be at the facility and that he did not receive it until 9:30 on the morning of the scheduled inspection were untrue [OPINION at 3; ADD-253-255].
In actual fact, Johnson had given O'Connor notice at exactly 3:32 in the afternoon as shown by the ACTIVITY REPORT from her fax machine [ADD-289]. In that letter, she told him she had to know before 4:45 whether he agreed [ADD-287-288]. But O'Connor did not respond within that hour. Id.
The ACTIVITY REPORT, or log -- along with all of Johnson's financial records -- was presented by Attorney Sharp (whose handwriting is on the log) to Judge McGill for an in camera inspection. Because the log was not that part of the record which was put on the docket sheet below, Attorney Sharp did not include it in the Record-Appendix. In hindsight, it can be seen that a motion should perhaps have been brought for permission to include it in the Record-Appendix.
TABLE 8. THE TWO ALLEGEDLY FRIVOLOUS MOTIONS After O'Connor beset the intended visit with traps and Johnson's efforts to effect a constructive visit failed, Johnson, on or around 22-24 February 1995, Johnson filed Lily's Emergency Motion to Reconsider the Order of 1/4/95 regarding the inspection of documents [Paper 151, ADD-282-283;A1085-99]. (This was one of the motions considered by Judge McGill to be "meritless and frivolous"-- so Johnson learned eleven months later.) On 22-24 February 1995, Johnson also filed Lily's Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel [Paper 152, ADD-269-272]. (This was the other motion considered by Judge McGill to be "meritless and frivolous" -- so Johnson learned eleven months later.)
Johnson marked the latter two motions for hearing immediately, but O'Connor pushed forward the hearing date to March 1st. See Table 9 below.
NOTE
Attorney Elaine Whitfield-Sharp, who became Johnson's appellate counsel at the end of 1995, did not include this significant and subject motion -- Paper 152 -- in the Record-Appendix she filed with the 1996 appeal. Johnson does not know the cause of Whitfield-Sharp's serious failure to include it, but Whitfield-Sharp DID include O'Connor's opposition [A273-274] to the motion, and the appellate panel did cite to the opposition in its opinion at 3.Therefore, when Johnson brought, pro se, her petition for Further Appellate Review (FAR) she requested that the Court take judicial notice of Motion #152. Johnson has no knowledge of whether the SJC did take judicial notice of it. If it did, it certainly never referred to it.
Respondent admits that between 22 February and "February 24, 1995, the respondent filed emergency motions in the district court to reconsider the court's January 4, 1995 order and to depose nonparty witnesses outside the presence of the defendants' counsel. Respondent incorporates herein by reference Table 8 above.104. On or about March 3, 1995, the district court denied the respondent's emergency motions. That same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions.Respondent absolutely denies the statement that "[t]he respondent brought those motions without legal or factual basis and in bad faith. The defendants incurred costs in opposing those motions," and calls upon Petitioner to prove the same. The motions were brought as a result of the circumstances accounted in Tables 4 through 11.
The motion "to depose nonparty witnesses outside the presence of the defendants' counsel" was modeled after two motions which Magistrate-Judge Robert Collings had allowed. Plaintiff's motion had SOLID legal or factual basis and was brought in the best of good faith. The motions appear in the boxes below:
TABLE 9. EMERGENCY MOTION TO RECONSIDER TO ORDER OF
JANUARY 4, 1995 REGARDING INSPECTION OF DOCUMENTS
Now comes Plaintiff and moves this Court to reconsider its Order of 4 January 1995 on the grounds that events have recently occurred that make it impossible to implement that Order.In support of this motion. Plaintiff relies on the three letters and one authorization attached hereto this motion: one dated 20 February 1995 from Mark O'Connor ("O'Connor") to me, one dated 21 February 1995 from Plaintiff's counsel to O'Connor, authorization by Barbara C. Johnson for services to Burns International Security Services, and another dated 21 February 1995 from O'Connor to Plaintiff's counsel.
As the correspondence suggests, O'Connor was attempting to usurp the power of this Court, and was purposely offensively dictatorial in a manner quite menacing to Plaintiff's counsel. Although this is the modus operandi of O'Connor, and Plaintiff's counsel has grown accustomed to it, she has nevertheless remained unaccepting of it, finding such incivility intolerable in a profession that is supposed to be an honorable one.
It is demeaning for Plaintiff's counsel -- and Plaintiff, if she were here to be present at such an inspection — to inspect documents as if she were a prisoner of a Fascist Bund under threat of doom . . . which in this case, under the threat of being accused of some wrongdoing by a person who would, without hesitation, do what he had to, to make his warning become a self-fulfilling prophecy.
In a nutshell. Plaintiff's counsel refuses to be so demeaned and diminished. It is the ultimate in gender bias against Plaintiff's counsel and the ultimate denial of due process for the Plaintiff Lily, who is entitled to the production of, documents in not only a reasonable but also a respectful manner. Mr. O'Connor's incivility is intolerable and must not be tolerated by this Court.
WHEREFORE this Court must simply order the Defendants to produce the requested documents.
A hearing is requested.
2l February 1995
TABLE 10. EMERGENCY MOTION & MEMORANDUM TO DEPOSE NONPARTY WITNESSES AND FORMER EMPLOYEES OF DEFENDANT CORPORATIONS
OUTSIDE THE PRESENCE OF DEFENSE COUNSEL
Now comes Plaintiff and moves this Court to allow Plaintiff to depose nonparty Witnesses and former employees of the Defendant corporations outside the presence of defense counsel. Morrison v. Brandeis University, 125 F.R.D. 14 (D.Mass. 1989) (permitting ex parte interviews of defendant's tenure-committee employee-members whose conduct was central to plaintiff's case against the organizational defendant). Mompoint v. Lotus Development Corp., 110 F.R.D. 414, 418-419 (D.Mass. 1986), citing to International Business Machines v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (there was no "good cause" shown to prohibit plaintiff's counsel from attempting to interview female employees of corporate defendant without presence of opposing counsel where presence of opposing counsel would only tend to inhibit the free and open discussion which the plaintiff's counsel sought to achieve through such an interview. Fed. Rules Civ.Proc. Rule 26(c), 28 U.S.C.A.; Fed.Rules Evid.Rule 801(d)(2)(D), 28 U.S.C.A. \1/ There is a "tendency which the presence of opposing counsel has to inhibit the free and open discussion which an attorney seeks to achieve at such interviews." Morrison, at 19, citing to IBM v. Edelstein, at 41. Employees of corporate defendant could consent or refuse to be interviewed by plaintiff's counsel about matters which are the subject of the suit, or could consent to interview with plaintiff's counsel only if their own attorney was present and/or only if corporate defendant's attorney was present. Mompoint, at 419-420.FN1. In both Morrison and Mompoint, the court faced a situation [where] the parties requested leave of court to interview the employees.As grounds for this motion, Plaintiff states that defense counsel has exhibited offensive behavior at time of deposition — for instance, at the deposition of Lily, during the "rehabilitation" examination of Plaintiff by her own counsel.\2/ [Lily
Aff. I:164; III:63, Mark O'Connor admitting he intended te be "snide."]\3/ Such egregious incivility by defense counsel continues — as evidenced by O'Connor's recent letters to Plaintiff's counsel (as well as by many of his earlier letters to both Plaintiff's counsel and Clerks as well as by his pleadings filed on behalf of his clients).FN2. At that time, Mr. O'Connor’s egregious incivility was a means to gain advantage in this lawsuit, to wit, to "finesse" Lily on the second summary-judgment motion.Such unseemly behavior has been but a part of the continuing tactics of O’Connor — examples of them were memorialized in March 1993 in Plaintiff's Motion for Sanctions against O' Connor. Sacrificed by Judge Bohn's Solomonic decision, that motion came to Naught for Plaintiff but came up Roses for O'Connor, who learned only that he could blithely ignore not only the rules of civil procedure but also the rules of civility — that they evidently were not made for him.FN3. There are actually too many other pages to attach to illustrate defense counsel's offensive behavior; it may be "observed" simply as one reads the text attached to Plaintiff's Opposition to Defendants' Second Motion for Summary Judgment.
Plaintiff would catalogue defense counsel's behavior since March of 1993, but the effort not only would be burdensome -- for the occasions have been so frequent — but, so Plaintiff's counsel has learned, might also again be futile.\4/
FN4. For example, when the circumstances surroundinq the taking of Dr. Gross’s deposition by defense counsel were revealed to the Court, Judge Lenk graciously acknowledged Plaintiff’s plaint and the Judge’s own displeasure "with the use of Dr. Gross’s deposition testimony in light of the manner by which and the circumstances in which it was obtained" [footnote 2 of page 7 of the June-17th Decision and Order], but then proceeded and refused to strike the doctor’s deposition and considered it in her decision. See footnote 3 on page 3 of Plaintiff’s Reply to Defendants' Opposition to Plaintiff’s Motion for Order Compelling Production of Documents; the footnote describes in detail the status and circumstances surrounding Dr. Gross’s deposition. Plaintiff incorporates herein by reference the recitation of facts contained in Lily's Memorandum in Opposition to [the first) Motion for Summary Judgment.Because Mr. O' Connor has continued to use egregious incivility as a means of gaining advantage in this lawsuit, his presence at any deposition is likely to jeopardize the productiveness of said depositions, in particular, by intimidating the deponents who would be unfamiliar with Mr. O’Connor's unorthodox manners and would likely be intimidated thereby those manners.Lastly, allowing Plaintiff's request would likely shorten the amount of time needed for trial.
WHEREFORE, this motion must be allowed.
A hearing is requested.
21 February 1995
TABLE 11. HEARING OF 1 MARCH 1995 Counsel were in court on March 1st for a hearing sought by Johnson regarding O'Connor's conduct. On that day, although O'Connor had advanced motions to that date [A21 @ 156], he announced he could not wait, and the court, without considering Johnson, who was also waiting in court, moved the hearing to March 3d [A21 @ 3/1]. O'Connor later sought attorney's fees from Lily and/or Johnson for his reluctant appearance. Johnson believes that fees for that appearance may have been part of the $558 award to the defendants or to O'Connor, but the court orders were so unclear and equivocal and so often amended that certainty cannot be claimed, but Johnson contends the lower-court judge backed off of that award -- given that his memoranda of 8 February 1996 and 15 July 1996 are silent about the $558.
104. Respondent admits that "[o]n or about March 3, 1995, the district court denied the respondent's emergency motions."105. Neither the respondent nor Lily made the payments required by the district court's orders of March 3, 1995.Respondent absolutely denies the statement that "[t]hat same day, the court entered orders requiring the respondent or Lily to pay the defendants $261.25, for paralegal fees incurred in setting up the document inspection, and $720 for legal fees incurred in opposing the motions." That is untrue: No order was entered on March 3d, 1995. Johnson disputed that either Johnson or Lily owed $261.25. [A3-6,132]. The judge had erred because of O'Connor's material misrepresentation to him that an order issued. The amount $261.25 was not written into an order until almost a year later, in an order dated February 1996. [CHECK: it might also have been in 13 December 1995 memorandum and order]
An order did not issue until a hearing on March 22d, 1995. At that same March 22d hearing, Lily and Respondent were found in contempt in the same breath as the order issued. Respondent further incorporates herein by reference Table C .
It was and shall continue to be absolutely possible for a legitimate, i.e., unfabricated, March 3d order to surface. The only way such an order surfaced at Lily's deposition was because Judge McGill and O'Connor created and backdated it for this case. Oce. See Figures 1-8 below, which are incorporated herein by reference.
FIGURE 1. MOTION #157 AND COMMENTS Note the words "filed open court 3-03-95" at the top of the paper. Note the two date-stamps, particularly the topmost one. Are the numerals 22 or 03???
Then in Figure 2 look at the notice dated March 7th, 1995, and sent to both counsel. Note that no order on Motion 157 is cited in the notice.
Look also at Figures 3-1 and Figure 3-2 for the events of March
3d and March 22d. The alleged topmost endorsement does NOT appear in the list of events for EITHER date on the excrutiatingly detailed docket sheet, where each handwritten endorsement was painstakingly typed onto the docket sheets. Respondent believes that at some later date -- AFTER she argued on March 22d that no such order issued on March 3d and AFTER a diligent clerk had typed the March 22 endorsement into the docket sheet, McGill changed the little rubber wheel on his date-stamper and added the top endorsement.
If the lower endorsement had not already been on the page, he would not have had to squinch up his signature to avoid overwriting the words "After further."
If the upper endorsement had been on the page on March 3d, it would have appeared in the March 7th Disposition Notice. It was not included in that notice.
If the upper endorsement had been on the page on March 3d, it would have appeared in the docket sheet entries for March 3d. It is NOT in the docket sheet entries for March 3d.
If the upper endorsement had been on the page on March 22d, it would have appeared in the docket sheet entries for March 22d. It is NOT in the docket sheet entries for March 22d. In fact, it appears nowhere in the docket sheets.
Bar Counsel should report McGill to the Commission on Judicial Conduct. He should be impeached.
Next look at another version of the endorsement on Motion 157 in Figure 4. It was altered by opposing counsel, Mark O'Connor. Proof exists in Figures 5, 6, 7, and 8. Compare the scanned in images of the fabricated document with the original endorsed page. Criminal charges should be brought against O'Connor.
FIGURE 2. NOTICE OF DISPOSITION MADE ON MARCH 3D, 1995 Note that Motion #157, O'Connor's Motion for Payment of Paralegal Fees is not referred to on the notice. Note also its absence from the entries for March 3d in the docket sheets.
FIGURE 3-1. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-2. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-3. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-4. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-5. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-6. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 3-7. DOCKET SHEET FOR CONCORD DISTRICT COURT ACTION
FIGURE 4. O'CONNOR'S FABRICATION OF NEW FIRST PAGE OF MOTION #157 Note the new elements:
- the Paper number: 62.6, which does not appear on the CDC docket sheet, was assigned to the motion upon retrans- fer to Superior Court several months later in the Spring of 1995;
- the Superior Court docket number: 92-7907;
- the words "First 157," believed to be O'Connor's handwrit- ing on a Post-It;
- the missing half of the top border of the caption (probably caused by the Post-It being on top of it);
- a missing second endorsement, imply- ing that this is what the first page of the motion looked like on March 3d, 1995;
- the sticker identify- ing it as O'Connor's exhibit in Lily's deposition.
Is this a fabricated page? Yes, indeed. See Figures 5 and 6.
O'Connor had to fabricate it because Motion #157 never had only one endorsement on it.
FIGURE 5. ENLARGED ENDORSEMENT SECTION FROM O'CONNOR'S FABRICATED FIRST PAGE OF MOTION #157 Note the new elements mentioned above.
AND notice« the missing
bottom loop in the "g" in the word "hearing"« the missing
bottom of the judge's signa- ture,« dots, spots,
and smudges at the top and bottom of the missing and whited out bottom endorsement of March 22d,
AND see how he forgot to white out the tail of the M in McGill ... See the tail between the words "counsel" and "or." To be sure, COMPARE it with Figure 1 above.
FIGURE 6. LARGER ENLARGEMENT FROM FAKED FIRST PAGE OF MOTION #157
FIGURE 7. ZOOMED IN PICTURE OF DATE
ON TOPMOST ENDORSEMENT OF FAKED VERSION OF MOTION #157Here the R in MAR has a loop in the top half, the 03 seems clear, and the tails of the two 9s are not broken.
FIGURE 8. ZOOMED IN PICTURE OF DATE
ON TOPMOST ENDORSEMENT OF ORIGINAL MOTION #157Here the R in MAR has NO loop in the top half, might be 22 rather than 03, and the tails of the two 9s ARE broken. Why the difference? Was the date-stamp altered after it was added? The location of the paper on the surface where it was stamped slightly different? Paper not sitting on exactly the same bumps in the surface?
TABLE 12. HEARING OF 3 MARCH 1995 Hearing on March 3d. Johnson had brought a motion for the court to enforce its order compelling defendants in the underlying case to produce documents. [A233-234, 236-241, 247, 252, hearing of 3/3/95]. During argument, Johnson suggested: "[Just say,] Mr. O'Connor produce the documents the woman has requested. The court says she is entitled to them. Just give them to her." [A1358]. The court harkened not and denied Plaintiff's motions to reconsider the January 4th order and to depose nonparty witnesses outside the presence of opposing counsel [A1085-1099, 1115].
In contrast, the court allowed Defendants' combination oppositions which contained affirmative requests for attorneys fees [A1106, 1109]. That pleading and its supporting affidavit, prepared for service on March 1st, were served only on March 3d as the parties walked to the podium to address the court [A1102, 1105, 1108, 1111, 1113]. Plaintiff was denied the opportunity to meaningfully respond or examine O'Connor either on his allegations or on the alleged expenses set out in these pleadings.
When the court failed to enforce its order, Johnson notified the court of her intent to appeal. [A233-234]. She brought a petition in the nature of a writ of mandamus to a single justice at the SJC.
Also heard on March 3d was Motion #157,\FN/ O'Connor's Motion for Paralegal Fees, which was also on that day improperly served on Johnson in court, and in which Defendants sought Plaintiff or her counsel to pay $261.25 for a paralegal purported to have been at the Concord facility on February 22d [A1100].
FN Throughout these hearings the District Court judge most often referred to the motions by their docket number. So for the convenience of the readers, those numbers shall be used interchangeably where it seems appropriate.On 3 March 1995, opposing counsel, O'Connor, simultaneously served on Johnson and filed in open court his clients' oppositions [Paper 162 at ADD-267-268 and Paper 159 at ADD-273-274] to Lily's two motions, Papers 151 and 152, respectively.In the transcripts, Johnson is "heard" to say that she did not know which motions he was talking about because she did not know the Paper numbers assigned to them. Logically, Johnson must be believed, inasmuch as O'Connor did not file his motions until the parties were actually at their podiums. That fact is noted ON the motions by the clerk.
Neither Opposition Paper 162 nor Opposition Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.
Without giving Johnson an opportunity even to read the two oppositions, the judge "allowed" them, leaving Johnson with no idea why her motions were denied. [Sharp's brief at 8.]
NOTE referring) frivolous.
Ten months later, in a memorandum issued on 13 December 1995,
the lower-court judge said for the first time that he found Paper 152
(at least it appears that might have been the motion to which he wasO'Connor never argued orally against them substantively before they were denied. And Johnson was given no opportunity to cross-examine O'Connor [Sharp's brief at 8].\FN/
FN Johnson's claim that she had no notice was deemed by the lower court and by the appellate panel as having no merit [A216 (March 22, 1995) and OPINION at 4 and OPINION at 4 n.6]. It is well-settled that notice is central to due process.Neither Paper 162 nor Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.Eventually, when O'Connor's affidavit surfaced, it became clear that the affidavit, which appears at A276-277, was the source of the sums $504 and $216, which O'Connor sought for the two oppositions, respectively, and which totaled $720 [OPINION at 4].
But affidavits of counsel are NOT orders of a court!
At the very end of the hearing, the judge said that he was taking a "motion under advisement" [JRA-259, lines 18 and 19]. Johnson believes that was Paper 157 (the paralegal-fees motion).
Thus, on March 3d, there was no Order commanding Lily to pay any money to anyone by any date [JRA-226 (Clerk's Notice dated 3/7/95); ADD-300 (docket sheet, entries for 3/3/95 and 3/22/95].
The court failed also to act on Johnson's concerns about O'Connor's conduct.
What Johnson did on 3 March 1995 [A299 at entry 160; Cou-R/A A1114, A1148] was to file a request for re-transfer to the Middlesex Superior Court.
TABLE 13. END OF HEARING OF 3 MARCH 1995 At the very end of the March 3d session, O'Connor sought costs for appearing in court on March 1 (the day he left and aborted the hearing) and that day, March 3. [A258-259]. It could not have been clearer to the court that Johnson had received no notice to oppose O'Connor's requests for costs. (O'Connor's oppositions and affidavits were given to Johnson as she approached the podium for the hearing. [A269, 272, 275, 278, 281].) The court misspoke -- called O'Connor's oppositions "motions" [id.] and said it was taking those "motions" under advisement.
105. Respondent denies that payments were required by orders of 3 March 1995, for the Petitioner's statement assumes that a non-existent order existed. On 3 March 1995, there issued absolutely no order requiring compliance by Respondent or her client. Note also that at no time throughout the March 3d hearing did the judge state that he was imposing fines. Respondent incorporates herein by reference Tables 12 and 13.106. On or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders. The court ordered the respondent or Lily to discharge the contempt by paying, that same day, the previously-ordered costs plus $558 for additional legal fees incuired by the defendants. The court further ordered, in the event of nonpayment, that a civil penalty would accrue at $50 per day and that Lily's complaint would be subject to dismissal.
TABLE 14. BETWEEN MARCH 3d AND MARCH 22d, 1995 Between March 3 and March 22, the next session in court, no order issued compelling Johnson to pay any monies to anyone. The only paper from the court which Johnson received appears on A226 and in this Answer as Figure 2. See also docket entry on A300 at #164 and Figures 3-1 and 3-2 in this Answer. 106. Respondent denies the first sentence of ¶106, that "[o]n or about March 22, 1995, the district court held the respondent and Lily in contempt for nonpayment under the March 3, 1995 orders," for the Petitioner's statement assumes that an order dated 3 March 1995 and requiring compliance by Respondent or her client existed. Notwithstanding Respondent's denial of the first sentence of ¶106, Respondent states that on March 22, 1995, District Court Judge Paul McGill issued an order and found Plaintiff and Respondent in contempt in the same hearing immediately after issuing the order.Respondent further states
- that she informed the court on March 22 that she had received no notice,
- that the court wrote that Johnson's complaint about the lack of notice was "without merit,"
- that the court order Johnson or Lily to pay the $261.25 mentioned in the first paragraph of the Motion for Paralegal Fees (this was amended by the court in December 1995 and January 1996),
- that the court ordered Johnson or Lily to pay the "$558 on paper #165," but $558 is NOT in Paper #165 (this was amended by the court in December 1995 and January 1996), and
See Table 17 and Figure 3-2 [A216 (handwritten endorsement) and A300 (typed on docket sheet for 3/22/95), respectively]. The monetary sanctions were comprised of attorney's fees and a $50 daily fine imposed RETROACTIVELY from March 10 to March 22. Id. March 10 appears to have been an arbitrarily chosen date, for nothing known to Respondent occurred or was to occur on that date.
- that the court threatened dismissal of the case should they not pay.
Note also that the endorsement in which it was written that Lily and Johnson were jointly and severally liable was "clarifie[d]" and/or amended by the court on several occasions over the next year.
Respondent incorporates herein by reference Tables 15, 16, 17, and 18 .
TABLE 15. HEARING OF 22 MARCH 1995 Hearing on March 22d. O'Connor opened the session by addressing Defendants' Motion for Paralegal Fees (#157): First, O'Connor said, "From the bench, the Court ordered plaintiff's counsel to pay the sum of $261.25" [A1359]. This was untrue. O'Connor cannot point to one page in the transcript of the hearing where the judge ordered Johnson to pay $261.25.
O'Connor's next sentence was, "Subsequently, the clerk's office did notice that the motion for payment of legal fees was allowed." Id. Another lie. The written records points to the absence of any mention of Defendants' motion #157 either on the clerk's notice [A63] or on the docket [A22 @ #164].
O'Connor's double volley was memorialized in Motion #165, which he handed to Johnson in court without notice: Motion to Show Cause Why Plaintiff and Her Counsel Should Not Be Held in Civil Contempt, for Sanctions, and for Costs (#165) [A1116]. Thus, O'Connor's planted the seeds for the findings of contempt against Johnson and/or Lily.
The dispute became joined both with O'Connor, when Johnson argued that the court had never issued an order on that date, and with the court, when Johnson called the court's attention to the lack of proper notice of Motion #165.
Relying on O'Connor's misrepresentations, the court allowed #165, stating both orally and in writing: "By way of mitigation, justification, or excuse, Plaintiff's counsel states that she did not have proper notice[;] that I find is without merit" [A1116, ADD-216].
The court then supposedly "clarified" its alleged order arising out of #157, and within minutes of "clarifying" the alleged order, found Johnson in contempt and commanded Lily or Johnson to pay the amount "indicated in the first paragraph" of Motion 157. The amount indicated was $261.25.
In the same proceeding of March 22d, the court also commanded either Lily or Johnson to pay an unstated amount of money for attorney's fees and apparently a fine accruing for some UNknown reason from March 10th at $50 per day, and "threatened" dismissal of the case should Lily not pay [A1116, ADD-216]. (No hearing had been held on March 10th and nothing had happened in the case on that day.)
Johnson told the court quite promptly what the state of her finances were and invited O'Connor to put her on the stand [A197 and Sharp's Brief at 13]. Common sense should make it apparent that, of course, Johnson would not have been able to present anything more than verbal substantiation that day. What lawyer carries around with them substantiation of their personal finances in their briefcases?!
Johnson also asked the court whether it was allowing Paper 157 retroactively that day to March 3d [A208, lines 16, 19-20].
Johnson further objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
No Order specified a date by which the fines were to be paid nor to whom payment was to be made.
After this day, the merits of Lily's case were derailed and were never again considered before a Final Judgment on the Merits issued twice, after an involuntary dismissal.
TABLE 16. LATER REFLECTIONS ON THE HEARING OF 22 MARCH 1995 First, I certainly did not expect, on March 22d, both to be ordered to pay an amount allegedly stated in an order that hadn't existed and to be found in contempt within minutes of that order issuing. It was nothing less than a bizarre happenstance that day.
NOTE
There is no page in the record to substantiate that Johnson admitted to contempt. Johnson said that did not have the ability to pay [Sharp's brief at 13-14, A195 and A197]. In the Opinion at 4 n. 6, the panel claimed that Johnson offered nothing by way of substantiation. That is not accurate. See JRA-182 (bottom half) and 183, lines 19-20.Nevertheless, Johnson told the court quite promptly what the state of her finances were and invited O'Connor to put her on the stand [A197 and Sharp's Brief at 13]. The panel overlooked that fact -- at least it did not cite to the page on which Johnson made that invitation.It was not until sometime in January 1996, after Lily's case returned to Concord from Middlesex Superior Court, that Johnson produced materials a foot high for the judge's inspection in camera [ADD-303 (see entry @ 221)]. Although the court never memorialized in writing of its inspection of those documents nor made any written finding after his inspection of Johnson's documents. it is reasonable to conclude, given that Johnson's motion to stay the production of the documents was denied on 24 January 1996, that O'Connor would have moved to show cause why there was no production had there been none. In fact, Johnson DID provide O'Connor with some documents.
In sum, as Attorney Sharp pointed out in her brief at 15-16, by the time March 22d hearing ended, Johnson had been ordered to pay some sum of money, found in contempt, and fined $2178.00, all in one fell swoop, even though she had already said she couldn't afford to pay even the $261.25 [A197, A200]. Then it was her saying that she was unable to pay that provoked Judge McGill into ordering that either Johnson or Lily were to pay the $261.25 [A199]. Johnson objected and argued that punishing her client for something which the court believed Johnson did was improper [A200-201, A204-205].
Where Johnson did not have the ability to pay the contempt fines, regardless of whether the fines were properly or improperly imposed, the imposition of $580 in terrorem or daily fines plus an additional $650 in civil penalty on Johnson for allegedly admitting to contempt or for not complying with an order that lacked a critical term such as time by which payment had to be made, was reversible error . . . as was the retaliatory imposition of dismissal of Lily's case.
TABLE 17. THE ORDER OF 22 MARCH 1995 ABSENT DUE PROCESS On March 22d, an order issued but it did not state a time by which payment had to be made or to whom the money was to be paid. Given that no order specified a time by which payment had to be made, contempt could not be found. "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977). [Sharp's Brief at 19-23]. Johnson did not even receive notice of the several motions to show cause why she should not be found in contempt, for O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c) on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156, 157 [ADD-281], 158 [ADD-278], 159 [ADD-275], 161 [ADD-266], 162 [ADD-269], 170-171, 172 [ADD-189].
O'Connor improperly handed each of those motions and oppositions to Johnson as the case was called for hearing. the Appeals Court panel appears to have overlooked these facts for it chose only to include ADD 299-303 in its opinion, and did not refer to the Certificates of Service on A188-189, A264, A266, A269, A272, A275, A278, A281 of the Record-Appendix in the severed case, O'Connor v. Johnson.
Thus Johnson was robbed of an opportunity to meaningfully oppose each of those motions. The Concord District Court in that session was clearly trampling on due process: Lily was not getting the discovery to which she had long since been entitled and Johnson was being punished for zealously advocating on her behalf. And Johnson told the court so [A205].
It was wrong for the court to punish Lily for its anger at Johnson. And it was wrong for the court to be angry with Johnson because she was seeking justice for Lily. And Johnson's frustration throughout those hearings was evident because Johnson knew that the judge knew it -- and what distressed and disturbed Johnson most was, he didn't seem to care.
Johnson -- and her client, for that matter -- was also at no time granted an evidentiary hearing with or without any indices of due process on the issue of contempt. Due process with an evidentiary trial is required for contempt to attach. Milano v. Hingham Sportswear Co., Inc., 366 Mass. 376, 378-79 (1974).
So, without a clear and unequivocal command, there can be no "clear and undoubted disobedience." Cf.Judge Rotenberg Educ. Center, Inc. v. Comm'r of Department. of Mental Retardation (No.1), 424 Mass. 430, 448 (1997), the case which the panel cited.
Neither can caprice be substituted for law. Clabburn v. Phillips, 245 Mass. 47, 52 (1923). Here caprice invited danger, and that danger came to fruition. For instance, didn't the panel find it curious that Judge McGill promised a hearing [OPINION at 3-5], but then did not allow one to take place? And then didn't allow Johnson to defend herself or her client against O'Connor's serious accusations?
TABLE 18. PAPER 157 -- MOTION AND ORDER OF 22 MARCH 1995
ABSENT DUE PROCESS
Where, on March 22d, the court's order on Paper 157
failed to state a time within which payment had to be made,
a finding of civil contempt at the same hearing the order issued was inappropriate.The endorsement on Paper 157 [ADD-261] fails to state an amount to be paid, fails to state the time within which the money had to be paid, fails to state the entity to whom money had to be paid, and fails to state who was to pay (Johnson or Lily) [Sharp's brief at 5-7]. The only amount of money stated in that endorsement is the per diem rate for the in terrorem fine [ADD-300]. Paper 157 itself, however, states that $261.25 was sought from Johnson, but the lower court wrote in its memorandum of 13 December 1995 [ADD-S.A. 6] and stated on 17 January 1996 [JRA-76] that only Lily was in contempt of that alleged order to pay for Paper 157.
Clearly it was because the endorsement on 157 lacked all the critical terms necessary for a clear and unequivocal order that the year-long confusion arose. [OPINION at 1 n. 1].
Johnson, therefore, could not have been found in contempt of not complying with the endorsement on Paper 157 on that day.
TABLE 19. PAPER 165 -- MOTION AND ORDER OF 22 MARCH 1995
ABSENT DUE PROCESS
Where the order to pay an unspecified sum and the finding of contempt
appear in the same endorsement (on Paper 165),
the order is not only improper,
it is definitive proof of the denial of constitutional due processThe endorsement on Paper 165 [ADD-216] failed to state a total amount to be paid and failed to state the entity to whom money had to be paid [Sharp's brief at 5-7]. According to the endorsement on Paper 165, Johnson and/or Lily were to pay: (a) an amount stated on Paper 157 (but that so-called order written on the motion kept on changing),The appellate panel declared the $558 to be attorney's fees for O'Connor's motion to show cause, but failed to cite to a page in the record for that declaration [OPINION at 6]. It appears only in O'Connor's affidavit, but an affidavit is not a court order!(b) an amount stated on or in Paper 162 (but there is no dollar amount on or in Paper 162) [ADD-267-268],
(c) an additional $558 on Paper 165 (but Paper 165 contains no such amount in it), \FN/
FN The $558 may have been for O'Connor's attendance at two hearings: for the March 1st hearing, which he caused to be aborted by his leaving because he allegedly could not wait, and then for the March 3d hearing, the hearing at which Johnson was giving the court notice of her fear that O'Connor was setting her up.(d) the amount was to be paid not only that day but during the hearing itself,(e) because neither Johnson nor Lily (who was in California) paid an unspecified sum within a minute or the order issuing, they were found in contempt immediately: i.e., the order to pay and the finding of contempt occurred simultaneously and were memorialized in the same endorsement, and
(f) a civil penalty of $50 per day until an unspecified sum was paid [ADD-216].
Nevertheless, in that affidavit, O'Connor declares that he sought $558 fees for (1) his reluctant appearance at the March 1st hearing, which he caused to be aborted and which he left, and (2) his appearance at the rescheduled hearing on March 3d, which would have not been necessary if he hadn't left the hearing on March 1st.
This may be the reason, the sum $558 does not appear in the lower court's memoranda of 8 February 1996 and 15 July 1996. Therefore, Johnson contends that it was improper to impose on Johnson liability for the payment of $558.
107. Neither the respondent nor Lily made any payments in compliance with the district court's orders of March 22, 1995.
107. Respondent admits that neither Lily nor Respondent made a payment based on the March 22d order. The March 22d order was based on the non-existent order of March 3d and was, therefore, unlawful.108. On or about April 5, 1995, the district court ordered that additional attorneys' fees of $720 be assessed against the respondent and Lily, jointly and severally, that a civil penalty of $650 be imposed on the respondent and Lily, jointly and severally, and that Lily's claims in the underlying action be dismissed unless and until the penalty and fees were paid in full.
TABLE 20. THE NATURE OF CRIMINAL AND CIVIL CONTEMPT In sum, even after the hearing on March 22, there existed no order which specified (1) a date by which fines were to be paid, (2) by whom the fines were to be paid, or (3) to whom payment was to be made. [The court endorsements appear conveniently typed on the docket sheet at A298ff]. Where the judge failed to say to whom any of fines were payable -- O'Connor, the defendants in the underlying case, or the Commonwealth -- is an indicator that the alleged contempt was criminal in nature. Labor Relations Commission v. Fall River Educators' Ass'n, 382 Mass. 465, 477 (1981) (a fine payable to the government is one indicator that contempt was criminal in nature), citing Nye v. United States, 313 U.S. 33, 43, 61 S.Ct. 810, 813 (1941).
`If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court....'Mahoney v. Com., 415 Mass. 278, 284 (1993), several cites to the United States Supreme Court omitted.Unlike a civil contempt order, which is intended to be remedial and for the benefit of an aggrieved party, a criminal contempt vindicates the authority of the court by punishment. See Labor, 382 Mass. at 475, 476, citing Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441 (1911). Given the heated exchange between Johnson and the court on March 3 [A230-259], it is quite evident that the judge was irritated with Johnson and that the retroactive daily fines -- from the day they were imposed -- were punitive to vindicate the authority of the court.
There was no way for Johnson to avoid the retroactive fines: it was punitive because there was no way Johnson could avoid the fine through compliance. Cf. Labor, 382 Mass. at 476 (an order imposing a prospective daily fine has a punitive quality when viewed after the fact of its violation because at that point the sanction can no longer be avoided through compliance).
Another indication that the contempt was criminal in nature is that it could have been payable to the Commonwealth -- since there never was an order saying to whom the fines were to be paid.
Further, in civil contempt proceedings, "the amount of the award should reflect fair compensation to the injured party." Labor, 382 Mass. at 475. Given that the daily fines imposed were cumulatively far in excess of reasonable compensation to which O'Connor and/or his clients were allegedly entitled, O'Connor and/or his clients would have upon payment received an undeserved windfall, which is frowned upon. See Labor, 382 Mass. at 477.
From the above-captioned facts and law, the contempt brought against Johnson was criminal in nature. That O'Connor intended it be criminal in nature is indicated by O'Connor repeatedly requesting that Johnson be incarcerated (by motion for a capias and by oral request) for not paying the excessive fines. By seeking payment of monies far in excess of any alleged damage suffered by O'Connor and/or his clients, they were seeking a remedy in keeping with a contempt best characterized as criminal in nature. [A301 at entry 191 for 9/26/95 and A98, line 12, hearing on 12/13/95].
For instance, on 13 December 1995, O'Connor sought not only payment of fines which he computed amounted to $12,000 as of 4 October 1995, he sought the court to increase the daily fines to $100 per day. [A98]. If Johnson failed to pay, she should "be ordered to bring her toothbrush with her" to the next court hearing. [A98].
O'Connor and his clients should have been estopped therefore from arguing that the alleged contempt was not criminal contempt.
TABLE 21. ON 25 MARCH 1995 THE FILING OF A PETITION On 25 March 1995, Johnson filed a petition pursuant to G.L. c. 211, §3, seeking vacation of the finding(s) of contempt. After the hearing on 5 April 1995, she amended it to seek also the reversal of the conditional dismissal of Lily's case. Justice Neil Lynch, sitting in the single-justice session on 12 April 1995, dismissed the Petition because there was no Final Judgment of Contempt and only a conditional dismissal of the case [CRA-63a]. Following Justice Lynch's pronouncement, O'Connor moved to convert the conditional dismissal of Lily's case on the grounds of contempt into a Final Judgment on the Merits with $3809.25 in damages [ADD-301 (Paper 176), CRA-1149-51].
None of the monetary assessments known to Johnson when added together equaled $3809.25, the amount in the Final Judgment issued on 19 April 1995.
TABLE 22. ON 3 APRIL 1995, COMMUNICATION FROM O'CONNOR At 6:55 P.M. on April 3d, Johnson received a FAX from O'Connor [ADD-290]. It informed Johnson that he was bringing a motion to show cause which he would serve in hand on April 5th at court. NOTE: Johnson does not know whether inclusion of this FAX into the her addendum was ever permitted.Having learned that the court discounted her complaints about notice -- finding them "without merit" -- Johnson did not dare not show at the impromptu hearing on April 5th for fear that Lily would be defaulted.108. Respondent denies the statement in ¶108 as written. See Figures 3-2 and 3-3 (entries for Papers 172-175). An award of attorney's fees was made but no amount was stated or written. Respondent does admit that a penalty of $650 was assessed, but it was unclear to whom and by when it was to be paid. Respondent admits that Judge McGill ordered "Lily's claims in the underlying action be dismissed unless and until the penalty and fees were paid in full." The court again, however, gave no date by which payment was to be made or to whom.109. Neither the respondent nor Lily made any payments in compliance with the district court's orders of April 5, 1995.Respondent further states (1) that O'Connor had brought another motion to show cause without notice (filed in open court) [A188-189], (2) that O'Connor misrepresented to the court that the so-called orders totaled $2439.25 after the March 22d hearing [JRA-187], and (3) that he and the court continued to ignore the fact that there was no order which gave a date by which payment had to be made.
The court once again treated Lily disparately. Specifically, the court allowed, over objection, Defendants' fourth motion to show cause why the Complaint should not be dismissed (#172) [A1136]. Johnson had had no notice of that motion. Later Johnson disputed the court's finding endorsed on Motion #172, and it was the subject of the appeal numbered A.C. 96-P-1277, authored by Elaine Whitfield Sharp.
The court also again refused to act on Lily's motion to show cause why defendants should not be sanctioned for violating a Superior Court order not to contact Texaco, Lily's then-employer, about her action [A23 @ #174, A1142-47].
Further, the Respondent states that although the court awarded more attorney's fees, assessed more fines (the civil penalty of $650 referred to in Petitioner's ¶108), again held Lily and Johnson jointly and severally liable for some but not all orders, and dismissed Lily's Complaint unless and until the penalty, costs, and attorney's fees were paid [A1136, ADD-300 at entry for Paper 172], the court again gave no date by which payment was to be made or to whom.
And even more significant is that, ultimately, Judge McGill, on the grounds that the order was in error, amended this order in December 1995 (12/13/95), January 1996, and February 1996 (2/8/96). See details of the hearings in those months below.
Moreover, on 5 April 1995, the District Court also (a) refused to act on Lily's motion to stay the proceedings until SJC acted on the 211:3 Petition, (b) refused to act on Lily's motion to show cause why the defendants in the underlying case should not be sanctioned for violating Superior Court Judge Roseman's order not to contact Lily's present employer about the instant action, and (c) allowed Defendants' motion to show cause why the Complaint should not be dismissed. [A , Papers 168, 172, 174.]
The court's finding on Paper 172 that Johnson had admitted to Contempt was not true, for there is a difference between admitting to not having paid the monies and to admitting being in contempt: while Johnson had admitted she had not paid, she also stated that she did not have the ability to pay.
Further, the order to pay was not absolute or unequivocal: it stated that payment was to be made or the case would be dismissed. Therefore, Lily and/or her counsel, Johnson, was not obligated to pay.
TABLE 23. COMMENT ON APPEALS COURT OPINION RE 4/5/95 HEARING The Appeals Court appeared to believe mistakenly that the $650 civil penalty was imposed because Johnson admitted to contempt [OPINION at 4, bottom of page]. Johnson never admitted to contempt and there is no page in the record to substantiate that she admitted to contempt. (See appeal A.C. 96-P-1277, in which Johnson disputed the court's finding endorsed on Motion #172.) Because the issue of Lily's and Johnson's alleged contempts became entangled -- who was in contempt for what -- the issue of Johnson's alleged contempt was severed in February 1996 into 9647-CV-0063, Mark O'Connor v. Barbara Johnson [A1274]. The appeal of that case became Appeals Court No. 96-P-1277.On 5 April 1995, the court also declared that Johnson admitted to contempt. Not only does Johnson deny that she ever made such an admission, there is also no evidence in the record or transcripts of the hearings of said admission. And any civil penalty was unlawful where the finding of contempt was improper. Thus, the imposition of a civil penalty of $650 on April 5th was another reversible error.There is some confusion as to for what the $650 was: the appellate panel at 4-5 wrote that it was imposed for two reasons: (a) for an admission and (b) a civil penalty of $50 for the 13 days since the March 22d hearing.
109. Respondent denies this. It was not clear until April 5 that fines were imposed and that they were retroactive. Note also that each of the endorsements in which it was written that Lily and Johnson were jointly and severally liable were "clarified" and/or amended by the court on several occasions over the next year.110. On or about April 19, 1995, the district court entered a judgment dismissing Lily's underlying claims.Even though the order was unlawful, Respondent made payment on behalf of Lily, because the court had promised to reinstate the case on the list, but the court's word was without honor. Lily appealed.
April 5th order not clear and unequivocal.
State deficiencies.
TABLE 24. APPEAL #1 TO SJC ON OR AROUND APRIL 5th, 1995 After the April 5th hearing, Johnson filed in the SJC a petition pursuant to c. 211, §3, for there had been no final judgment from which to appeal. In the petition, Lily and Johnson sought to vacate the conditional dismissal and the contempt findings. After the petition was filed but before the hearing was held on 12 April 1995, the district court conditionally dismissed the case. A conditional dismissal was still not a final judgment. That petition was dismissed (Lynch, Neil J.) because there was no final judgment of any sort.
Supreme Judicial Court Justice Neil Lynch, recognizing that the action was remanded, told the parties to file a motion for final judgment to enter so that the case could be retransferred under c. 231, §102C, to the Superior Court, which could correct any perceived wrongs committed by the District Court.
Justice Lynch then dismissed the Petition [A300, entries 168 and 169, Motion for Stay until the 211:3 Petition was decided and the Petition itself. O'Connor's Brief, p. 21, acknowledging O'Connor's awareness of a petition being filed pursuant to G.L. c. 211, §3. And A151 (court putting appellate procedure into the record at hearing on 4 October 1995). Also Lily's Record-Appendix at A63a], but [Cou-R/A at A63a].
Mr. O'Connor acted on Justice Lynch's suggestion faster than Plaintiff's counsel did, and marked his Motion for Entry of Final Judgment on the Merits for hearing on 19 April 1995 [AEWS , Paper 176].
110. Respondent denies the statement in ¶110 as written.111. On or about December 13, 1995, the district court modified its prior contempt rulings by holding Lily only in contempt for nonpayment of the paralegal costs of $261.25, as ordered on March 3, 1995, and by holding the respondent only in contempt for violating the orders of March 3, March 22, and April 5, 1999 for payment of legal fees and the civil penalty. The court then ruled that the respondent owed payment of $1,278 for legal fees and $650 for the civil penalty pursuant to those orders. The court entered an order allowing the respondent to purge her contempt and have the civil penalty forgiven by paying $1,278 to the defendants no later than December 20, 1995. A true copy of the court's memorandum of December 13, 1995, setting forth its findings and rulings on contempt to that date, is attached to this petition as Exhibit A.Respondent further states that on 19 April 1995,
(a) O'Connor moved to convert the nonfinal judgment of contempt into a Final Judgment on the Merits. [A301 at entry 176; Cou-R/A at A1149-51].Respondent further states that none of the known monetary assessments add to $3809.25, the amount in the Final Judgment. The amount appears only in O'Connor's Motion #176. Johnson was unaware of the amount requested until counsel were in court, for this motion, like the other of Defendants' motions, was not served according to Dist./Mun.Cts.R.Civ.P. Rule 6(c), but handed to Johnson in court. And once again, Plaintiff was not given an opportunity at the hearing to examine O'Connor on the facts alleged in his motion.(b) the District Court allowed, over Plaintiff's objection [A1152], Defendants' motion to convert the previously-ordered conditional dismissal into a Final Judgment on the Merits with alleged damages of $3809.25 (#176) [A1149-51; AEWS, Paper 176; AEWS, Paper 181; Opinion at 5],
(c) Final Judgment on the Merits entered into the District Court docket (#179) [A65] at the Defendants' request, and
(d) the case was retransferred pursuant to G.L. c. 231 §102C, to Superior Court for a trial "de novo" at the Plaintiff's request [A23 @ 4/20/95].
Two separate judgments, however, one on the merits and one on the contempt, did not enter. That is, there was no written separate piece of paper denoted as a Final Judgment of Contempt against either Plaintiff or her counsel.
On April 19th, O'Connor had one more frolic: in another attempt to intervene with retransfer of the case to Superior Court, O'Connor wrote still another ex parte letter to the court (#182); he was not successful: a diligent clerk had put the letter into the record by docketing it [A23 @ #182, A1157].
TABLE 25: APPEAL #2 -- RETRANSFER TO SUPERIOR COURT -- 20 April 1995 When the first Final Judgment on the Merits issued on 19 April 1995 [A185], appeal was timely sought via a Request for Retransfer to Superior Court. [A301 at entries 175 and 180; Cou-R/A at A1154]. The entire case was retransferred to Superior Court for review of the District Court action on 20 April 1995. [A301 at entries 175, 180-185].
TABLE 26: O'CONNOR"S TWO MOTIONS FOR A CAPIAS TO ARREST JOHNSON Between April and October 1995, O'Connor wrote two motions (one under a Superior Court caption and a second under the District Court caption) for the issuance of a capias to arrest Johnson [ADD-302 and JRA-155]. A hearing never took place place on that motion; it just hung over her head until mid-winter 1996-1997.
TABLE 27: THIRD TRIP TO SUPERIOR COURT, 20 APRIL 1995 Once back in Superior Court, Lily filed her jury demand and assorted other motions [A23 @ #184ff], as well as an Opposition to Defendants' Motion for Issuance of a Capias to Arrest Barbara C. Johnson [A1264-67].\FN/ FN While Lily/Johnson's opposition to it appears on the Superior Court docket, Defendants' Motion for a Capias does not; Defendants filed it later in Concord, requiring Johnson to oppose it there too.After the transfer to Superior Court for review of the District Court action on 20 April 1995, the case just sat. No review of the law was afforded.When it was finally heard, Plaintiff's motions were not acted upon because Superior Court Judge Neel (1) disregarded Defendants' motion in Concord for the entry of final judgment on the merits, (2) relied on O'Connor's misrepresent- ation that the judgment was one of contempt, (3) deemed the "Final Judgment on the Merits" a Judgment of Contempt, (4) allowed Defendants' motions to strike the retransfer (#188) and transmit the case to Concord for further contempt proceedings (#190), and (5) re-remanded the case to Concord for further contempt proceedings [A23 @ #190].
The second remand to Concord District Court came about because O'Connor had changed his position: he misrepresented to the court that the Final Judgment on the Merits was not a Final Judgment on the Merits but a Final Judgment of Contempt. Johnson argued estoppel in vain.
Johnson also filed a Notice of Appeal to the Appeals Court but a clerk, instead of assembling the record for the Appeals Court, shipped the case back to Concord. See Table 28 below.
TABLE 28 : APPEAL #3 -- NOTICE OF APPEAL TO APPEALS COURT, SEPT. 1995 In September 1995, Johnson filed, on Lily's behalf, in Middlesex County Superior Court, a Notice of Appeal to the Appeals Court and a Motion to Stay Proceedings While Appeal is Pending [A24 @ #195ff]. But a clerk in the Superior Court Clerk's Office ignored or overlooked the notice and on 26 September 1995, sent the case back to Concord rather than to the appeal clerk for assembly of the record [A12 @ #77]. and the entire case was re-remanded to Concord District Court despite a Notice of Appeal to the Appeals Court having been filed. [A301 at entry 190ff.].
TABLE 29: SECOND TRIP TO CONCORD ON 26 SEPTEMBER 1995 AND
HEARING ON 4 OCTOBER 1995Onceback at Concord, Judge McGill continually "clarified" his earlier "orders" as to who was in contempt for what, but still refused (1) to restore Lily's's case to the active list and (2) to issue a Final Judgment of Contempt, from which Johnson could appeal on behalf of herself as well as her client. Specifically, District Court Judge Paul McGill amended his findings of contempt in several ways: [[[[check]]]]
- Lily and Johnson were no longer jointly and severally liable for paying the contempt fines,
- the contempts against Johnson were severed from the one remaining against Lily,
To record Lily's contention that District Court did not have jurisdiction over the re-remanded case, Johnson filed a Notice of Special Appearance in order to respond to Defendants' motions [A1263].
- the one against Lily was reduced from $3809.25 to $261.25 (which Lily paid), but Lily's case was, nevertheless, not restored to the active list.
Respondent's records show that she traveled to/fro Concord District Court for Defendants' two motions -- Motion to Amend Judgment and Motion to Issue Capias -- and Plaintiff's Motion to Stay Proceedings.
Once there, on October 4th, the Concord court promised a hearing upon motion on the merits of Lily's case [A1268] but stayed further hearing on Defendants' Motion for Issuance of Capias (to arrest Johnson) and to Show Cause Why Additional Sanctions Should Not Be Imposed [A23 @ #191], until December 13th [A24 @ 10/4/95].\FN/
FN Given that no time was specified within which Johnson had to bring a Motion to Vacate the Final Judgment, Johnson waited to file the motion: for Johnson fully expected to be arrested that day [A1360] -- something which had been hanging over her head since the case had been remanded to Concord.
TABLE 30: APPEAL #4 -- SIDETRIP TO APPEALS COURT IN DECEMBER 1995 Johnson therefore sought expedited relief from the single justice session at Appeals Court in December 1995. The appeal was assigned docket number A.C. 95-J-965. [A303 at entries 201-203 (Notice of Appeal and motions to stay), 206 (docket entry noting Judge Kass's decision filed in Concord); Cou-R/A at A75]. Before that appeal was decided, Judge McGill, on 13 December 1995, further clarified his "contempt" orders by reducing the amount of the monies allegedly owed by Johnson to roughly two thousand dollars. [A299a, at entry 199 for 12/13/95, Paper #198 and Cou-R/A at A70-74].
Justice Kass, sitting as a Single Justice, agreed with the Assistant Attorney General assigned to the case that the record was bare, and held that because there was both no final judgment of contempt had issued and no sentencing had occurred, the case was prematurely in front of him. [Cou-R/A AA75, actual decision of Judge Kass dismissing the appeal]. The judge also noted that an appeal from a final judgment of contempt would go to a panel and not a single justice.
TABLE D: THE METAMORPHOSIS OF HMM ASSOCIATES, INC. AND ITS PARENT COMPANIES TO EARTH TECHNOLOGIES CORPORATION (USA) AND TO TYCO INTERNATIONAL Petitioner is overlooking or evading the significant fact that Tyco International, Ltd., on 11 December 1995, two days prior to the subject of Petitioner's ¶111 announced its definitive merger with and/or acquisition of Defendant Earth Technologies Corporation (USA) ["ETCUSA"], including HMM Associates, Inc., which had been acquired ETCUSA earlier and began doing business as "Earth Tech.". Tyco assumed the liabilities of HMM, Summit Environmental Group, Inc. (HMM's predecessor parent company), and ETCUSA. Tyco CEO Dennis Kozlowski was in 2002 indicted for removing $600 million from Tyco. (He is free on $100 million bail.) And during the first week of March 2003, other Tyco executives were also implicated and removed from office. The events that took place from here on in were affected by the influence of an alleged felon and his cohort alleged felons. Coughlin and Respondent were also victims.
It is believed that benefits passed from Tyco to Judge McGill in Concord District Court. It is also believed that Judge McGill had earlier succumbed to the influence of HMM and Earth Tech, for there is no other or differential explanation of why McGill precluded all discovery of HMM/Summit/Earth-Tech.
Opposing counsel never informed the court or Respondent at any time that HMM had been acquired or merger by ETCUSA or by Tyco. Respondent learned these facts from sources outside the court.
In a related case, one by a toxicologist against the same defendant corporation, the conduct of the trial judge was questionable and, in fact, so highly questionable that the conduct can be characterized as "suspect." The judge was Judith Fabricant. The court was Middlesex Superior. One cannot wonder whether Kozlowski's felonious hand was played.
111. Respondent denies the truth of the statement that "[o]n or about December 13, 1995, the district court modified its prior contempt rulings by holding Lily only in contempt for nonpayment of the paralegal costs of $261.25, as ordered on March 3, 1995, and by holding the respondent only in contempt for violating the orders of March 3, March 22, and April 5, 1999 for payment of legal fees and the civil penalty. In support of her statement, Respondent avers (1) that on 3 March 1995, no order issued commanding Lily or Respondent to pay any monies to anyone for anything and (2) that because December 1995 predated 1999, it is impossible for Respondent on 13 December 1995 to have violated the orders alleged to have issued on the three dates written in the paragraph -- "March 3, March 22, and April 5, 1999" -- or all three dates in 1995.112. The respondent did not make any payments in compliance with the district court's orders of December 13, 1995.Respondent further states that the endorsements of 22 March 1995 and 5 April 1995 were amended by Judge McGill several times, including in his order dated 13 December 1995 as well as in January and February 1996.
Respondent denies the truth of the statement, "The court then ruled that the respondent owed payment of $1,278 for legal fees and $650 for the civil penalty pursuant to those orders," and calls upon Petitioner to prove that the order of 13 December 1995 was as stated in ¶111. On page 3 of a letter dated 14 November 1998, Respondent alerted Bar Counsel Vecchione that there was no order with the figure $1,278 on it. The letter is included here below in Table 31.
Respondent further states that on 13 December 1995, Judge McGill made no order while the parties were in court. He did write an order and it was FAXed to and received by Johnson on the 14th of December 1995. In that order, McGill further clarified his "contempt" orders by reducing the amount of the monies allegedly owed by Johnson to roughly two thousand dollars. [A299a, at entry 199 for 12/13/95, Paper #198 and Cou-R/A at A70-74].
On the very next day, 14 December 1995, Judge McGill changed his mind and caused a subpoena to be served by the Andover Police Department on Johnson for an evidentiary hearing on 22 December 1995 on the contempt issue. Payment prior to the evidentiary hearing would have, in a nutshell, been simply crazy, if not sophisticatedly and/or legally bizarre. The inclusion of this statement in the petition by Assistant Bar Counsel Weisberg was an act of bad faith and done with malice.
(More below Table 31.)
Respondent denies (1) that she was in contempt of a clear and unequivocal order and (2) even were she to assume that she was, she had pled that she did not have the ability to pay. She was also never given a hearing on the alleged contempt charges. Respondent calls upon Petitioner to prove that each and every order of which Petitioner claims Respondent was in contempt was in fact an existing and clear and enquivocal order. Notwithstanding Respondent's denials and objections, Respondent admits not paying any money to some unnamed person or entity by 20 December 1995.
TABLE 31: LETTER BY RESPONDENT TO BBO 11/14/98: BBO NO. C2-98-580 Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 FAX 978-xxx-yyyy14 November 1998
Constance V. Vecchione, Esq. CERTIFIED MAIL
Office of Bar Counsel
75 Federal Street
Boston, MA 02110Re: BBO File No(s). C2-98-580 (Bar Counsel)
Dear Attorney Vecchione:
Enclosed with this letter are pleadings which I filed in the Appeals Court and the Supreme Judicial Court on behalf of both myself and Rose Coughlin. Also enclosed are pleadings I filed in Concord District Court on behalf of myself when the case against me was returned from the higher courts to that lower court.
Please accept the pleadings as part of my written response [see below] since they are exactly on point, i.e., they address the underlying issues in Judge McGill's letter to you.\1/
1 Please note also that I incorporate herein by reference the nine pleadings I sent you on May 16th, 1998, when I sought -- albeit unsuccessfully -- an amicus curiae brief on Coughlin's behalf.
Rose Coughlin v. HMM Associates, Inc. et al1. Affidavit of Barbara C. Johnson in Support of Plaintiff/Appellant Rose Coughlin's Response to Materials Submitted by Defendant/Appellee to Substantiate Fees and Costs (16 May 1998), Appeals Court No. A.C. 97-P-53Mark C. O'Connor v. Barbara C. Johnson2. Motion for Leave to File the Second Affidavit of Barbara C. Johnson as a Surreply to Mark C. O'Connor's Response to Johnson's First Affidavit re O'Connor's Affidavit re Fees/Costs (22/23 May 1998), Appeals Court No. A.C. 97-P-53
3. Second Affidavit of Barbara C. Johnson as a Surreply to Mark C. O'Connor's Response to Johnson's First Affidavit re O'Connor's Affidavit re Fees/Costs (22/23 May 1998), Appeals Court No. A.C. 97-P-53
4. Motion to Reconsider in the Interest of Justice the Denial of Coughlin's Rule 27 Petition for Rehearing (23 May 1998), Appeals Court A.C. 97-P-53
5. Plaintiff/Appellant Rose Coughlin's Rule 27.1 Application for Further Appellate Review Award of Fees and Costs of Appeal (22 June 1998), Supreme Judicial Court FAR 9862
6. Motion to Amend Pending FAR-9862 to Include Plaintiff's Request for Review of Appeals Court Ruling on Appellate Attorneys Fees and Costs (22 June 1998), Supreme Judicial Court FAR 9862
7. Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27 Mark O'Connor\2/ v. Barbara C. Johnson (25 May 1998), Appeals Court No. 96-P-1277, Panel: Kass, Smith, and Jacobs, JJ.2 The Plaintiff was changed from Mark C. O'Connor to HMM Associates, Inc. notwithstanding that (1) the docket sheet shows him as "Petitioner" [Record-Appendix A131] and (2) the actual summons shows him as the Plaintiff-in-Contempt [Coughlin's Record-Appendix 1273]. See also A303, the docket sheet. See Note 4 below for the full impact of this happening.8. Motion for Leave to Include in Addendum: (1) Emergency Motion to Depose Nonparty Witnesses [Paper #152, from Coughlin's Record-Appendix], (2) Activity Log from Johnson's FAX Machine, (3) Pretrial conference pleadings from Coughlin's Record-Appendix, and (4) Letter Dated 4/3/95 FAXed from O'Connor to Johnson\3/ (3 June 1998), Supreme Judicial Court FAR-98993These documents are crucial:9. Application for Further Appellate Review with Addendum (3 June 1998), Supreme Judicial Court FAR-9899The first document, the one Judge McGill said was frivolous, was based on two absolutely magnificent First Circuit cases. The Appeals Court noted the absence of that motion from the Record-Appendix: my appellate attorney had inadvertently failed to include it. Therefore I moved to include the shamefully maligned motion in the addendum so that the Appeals Court could see it and determine whether it was frivolous. Ultimately, the panel remained silent re both the appellate motion and the motion below; i.e., it never commented on McGill's finding of frivolity.
The second and fourth document conclusively prove that O'Connor lied.
The third document conclusively proves that Judge McGill arbitrarily and capriciously and injudiciously remarked that I had in bad faith not complied with his pretrial conference order.
10. Barbara C. Johnson's Emergency Motion in Reply to Court's Letter to Her Counsel (27 July 1998), Concord District Court No. 9647 CV 0063 [Judge Paul McGill]
RE JUDGE McGILL'S LETTER OF 27 OCTOBER 1998 Non-existence of Orders
As to his July 16th "attached" letter: There has never been an order from any court stating how much money was to be paid by me, to whom, or by when. All the courts have disagreed on all critical terms of any alleged order . . . because no court has had such an order to read. They've read only incomplete endorsements which were amended by Judge McGill on several occasions over a period of a year. They've also read two memoranda (December 1995 and February 1996) and misinterpreted them. See documents numbered 7, 8, and 9 in list above for exact and complete details.
Even Judge McGill's letter dated 27 October 1998 is equivocal. He wrote that HMM was to receive from me a sum plus interest. HMM is, however, a non-existent corporation according to O'Connor's own declarations to Superior Court Judges van Gestel and Bohn and in a response to an interrogatory propounded by me on Cappello's behalf.\4/
4 As an excuse for not complying with discovery requests, O'Connor represented that HMM no longer existed as of August 1995. Therefore, when the contempt action arose against me some time between December 1995 and February 1996, HMM did not -- if O'Connor is to be believed -- even exist! -- making its becoming a Respondent or a Plaintiff-in-Contempt void ab initio.There is also no previous order with that figure -- $1278.00 -- on it! Payable to Casper the Ghost? How much interest? From what date?There also has never been an order from any court stating that I should pay a sum to the Commonwealth of Massachusetts.
There has never been any writing from a court informing me that interest had ever been computed on any amount of money which I allegedly was to pay to anybody by any particular date.
It is because no clear and unequivocal order ever issued against me that I have maintained, since March 1995, that I could not lawfully be held in contempt of any court order. I still maintain that position.
Inability to pay
Even were we to assume arguendo that the so-called order(s) was/were proper, I have stated or written on repeated occasions that I did not have the ability to pay. My counsel produced proof in Judge McGill's chambers, although the judge did not reduce that showing to writing.\5/
5 Other than the few cases that have dribbled on, like the cases mentioned herein this letter, I have not maintained a law office for years, have not sought cases for years, and cannot wait for the day when my few remaining cases are resolved. I am actively searching for replacement competent counsel who has fire in the belly to deal with unbridled opposing counsel and a legal system in disrepute.O'Connor's patienceJudge McGill's concern that O'Connor's "patience" is waning is quite remarkable. O'Connor himself would not benefit even if I were able to pay some fine to the Commonwealth. Neither would he benefit even if I were able to make out a check to HMM, the non-existent corporation.
O'Connor would only benefit if he committed the crime of fraudulently cashing a check that wasn't made out to him. I suggest that the Office of Bar Counsel ask Judge McGill to explain his "patient" statement further.
Incarceration
Que sera, sera.
As to "lawful orders"
Therein lies the key: there have been nolawful orders of the Commonwealth in this case!
And the unlawful orders have resulted not only in the wrongful dismissal of Coughlin's case and all manners of emotional distress, with physical symptomatologies, to me and the wrongful interference with my contingency contracts and reputation, but also, most tragically, the death of Cappello's husband and the father of their elementary-school-age children.
* * *
In ending, I must say that I am disconcerted that you sent O'Connor a copy of what you sent me, but did not send me what you sent him. I can only conclude therefrom that not only did you not require him to respond to the complaint I filed against him, you likely never even informed him that a complaint had indeed been lodged!
Further, those in positions of some sort of legal authority should pause to consider, had the Office of Bar Counsel or any one of those several courts not ignored my repeated cries for sanctions against O'Connor because of his malicious disregard of court rules and professional ethics, he might have been discouraged from purposely continuing his egregious and outrageous malevolent conduct which targeted Stephen Cappello and caused him to suffer a fatal heart attack.
Whether civil liability or criminal responsibility can attach now is irrelevant. Maybe an envelope or two can be stretched in the near future. I shall in the meantime be actively searching for the right someone to test the issues.
Sincerely,
Barbara C. Johnson
Barbara C. JohnsonEnclosures
cc: Elaine Whitfield Sharp, Esq. (letter only)
Rose Coughlin (letter only)
Paula Cappello (letter only)Respondent calls upon Petitioner to prove that Exhibit A is a "true copy of the court's memorandum of December 13, 1995."
TABLE 32: THE MEMORANDUM & ORDER OF 12/13/95 RE CONTEMPT & DISMISSAL On December 13th, there still being no clear and unequivocal command out of which contempt could arise, Judge McGill issued a memorandum [A70] (sent by FAX on the 14th), stating that the Final Judgment was on the case-in-chief (Lily's case), reiterating the sanctions imposed on Lily and Johnson, identifying where he was wrong, and reducing the so-called money damages for which Lily was liable from $3809.25 [A65, ADD-S.A. 1] to $261.25 [A73, see also A78, ADD-S.A. 2, 6]. The court also reduced the amount allegedly owed by Johnson, which was the subject of the severed case. The December 13th order also announced that a summons for contempt would issue against Johnson [A74].
Although Whitfield Sharp argued that the finding of contempt was a finding of criminal contempt, Judge McGill found it a civil contempt. Where there was no March 3d order, the first finding of contempt cannot stand.
It has been held that a civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor, 382 Mass. at 469 n. 5 (assuming a valid order was an indispensible underpinning of the order), and cases cited. "[A] coercive civil contempt order does not survive if the underlying injunction is invalid." Id., citing LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976).
In the December memorandum, McGill stated for the first time both that two of Johnson's motions (UNspecified) were without legal or factual basis and in bad faith, and that she did not comply with a discovery order ten months earlier. [O'Connor's App. Brief, p. 29]. This statement was clearly made by Judge McGill to cover up the wrongful finding of contempt of a non-existent order and wrongful imposition of fines and the wrongful award of fees.
The memorandum also contained several other inaccurate statements of fact. The most egregious one regarded Plaintiff's compliance with discovery.
Two other hotly contested issues were raised in the December 13th memorandum, but they were subjects of A.C. 96-P-1277, for they concerned Johnson, not Lily: (1) whether Johnson stated that she did or would refuse to pay [A71], and (2) whether Johnson admitted to being in contempt [A72].
Regarding discovery compliance: On 13 December 1995, Judge McGill, in his Memorandum and Order, wrote that Johnson "ignored its discovery order." That statement is so manifestly and so viciously false that the statement is almost more insulting to the judiciary than to Johnson! [See A212-214].
Plaintiff did not "ignore" any discovery order. Before any order issued on February 17th, 1995 [A1070], Johnson filed
Johnson had already complied with it as much as any counsel could have complied with it, given that her client had been given no discovery. Judge McGill's finding that Johnson failed to show subjective good faith was nothing less than unequivocally capricious and an abuse of judicial discretion in extremis.
- a pretrial-conference memorandum [Cou.Rec.App. A1044-1056] -- almost two months earlier, on December 28th, 1994,
- then, two days before the subject order, a supplemental memo [Cou.Rec.App. A1057-1061],
- an opposition to Defendants' proposed pretrial order [Cou.Rec.App. A1062-1063],
- a proposed pretrial order [Cou.Rec.App. A1064-1067], and
- next, in response to the February 17th pretrial order, objections to the court's pretrial order on the grounds that it was prejudicial to Plaintiff [Cou.Rec.App. A1073-1076].
In contrast to Plaintiff's fastidious compliance with any and all pretrial-conference orders, Defendants wrote NOT a memorandum but two pretrial-conference Orders [A20 @ ##138, 141] and one witness list [A21 @ #150].
Yet the court then, with great bias for the Defendants and overwhelming prejudice against Lily and Johnson, adopted almost in entirety Defendants' Proposed Pretrial Order, requiring that all documents for use at trial be identified within twenty days of the order [A21 @ #145].
This was problematic for Lily: because no documents had been produced to her--other than part of Lily's personnel file--and all efforts to conduct discovery had been precluded for years, Johnson could not identify all the documents she wanted to use at trial.
The December 13th memorandum also stated that Johnson failed to give notice that she would not appear at the facility in February. That, too, was untrue [A1085-95; p. 9 supra].
TABLE 33. COMMENTS ON THE ORDER OF 13 DECEMBER 1995 Given that no order specified a time by which payment had to be made, contempt could not be found. "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977). [Sharp's Brief at 19-23]. Where (1) the Motion to Depose Nonparty Witnesses Outside the Presence of Defense Counsel and (2) the Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents were not frivolous, the granting of $720 in attorney's fees for opposing the motion was reversible error.
Where Johnson did not have the ability to pay the contempt fines, regardless of whether the fines were properly or improperly imposed, the imposition of $580 in terrorem or daily fines plus an additional $650 in civil penalty on Johnson for allegedly admitting to contempt or for not complying with an order that lacked a critical term such as time by which payment had to be made, was reversible error . . . as was the retaliatory imposition of dismissal of her client's case.
Where the orders contained no date by which payment was to be made, the granting of attorney's fees for bringing show cause motions was improper.
Lastly, Johnson still does not know whether she was found responsible ultimately for paying $558 for O'Connor attendance at two hearings: one of which he caused to be aborted by his leaving (March 1st) and then for the March 3d hearing.
112. Respondent denies the statement as written in ¶112, in that the statement assumes that the December 13th order remained in effect until December 20th, 1995. It did not.113. On or about February 8, 1996, the district court granted a request by the respondent for reconsideration of her contempt adjudication.For instance, Bar Counsel wrongly assumes that his/her statement in ¶111 -- "The court entered an order allowing the respondent to purge her contempt and have the civil penalty forgiven by paying $1,278 to the defendants no later than December 20, 1995" -- is true. It is not, and is therefore a wrong basis for the statement in ¶112.
The proper assumption is that because no hearing had been allowed Johnson, Judge McGill changed his mind once again and on December 14th, caused an Andover police officer, arriving in a squad car with blue lights lit, to serve on Johnson both a contempt complaint and a summons to appear on December 22d, 1995, and be heard on additional contempt sanctions. [A1273 or CRA-1273]. In that complaint, O'Connor was identified as Plaintiff-in-Contempt-Charges and Johnson as Defendant-in-Contempt-Charges.
Judge McGill's orders were like a collection of flawed postal stamps. None was perfect, some were duplicates with different amounts on them, all lacked essential elements to make them clear and unequivocal orders.
Respondent further objects that Bar Counsel has omitted (1) the hearing of 22 December 1995, at which Johnson was represented by counsel, Elaine Whitfield-Sharp, (2) the in camera session on 17 January 1996 with Johnson's counsel, (3) the hearing of 17 January 1996 with Johnson's counsel, and (4) the hearing of 7 February 1996 with Johnson's counsel, . Respondent avers that Bar Counsel is trying to mask Johnson's objections to the absence of due process and equal protection.
TABLE 34. HEARING ON 17 JANUARY 1996 OMITTED FROM BAR COUNSEL'S PETITION FOR DISCIPLINE On 17 January 1996, the court announced that it erred in finding Lily in contempt of anything over the original $261.25: I [wrote] fees of $720 [were] against the Plaintiff and her counsel jointly. And that was wrong. It should not have been jointly.... I said the accrued civil penalty is to be paid jointly. That is incorrect. It should not have been jointly.A1363 or JRA-76, and again promised that when Lily purged her contempt--just then reduced to $261.25-- the court would consider a motion to reopen [JRA-67]:. . . Once the contempt is purged, the underlying case may be reopened on the merits, upon motion and after a further hearing. A1268. See also A1362, repeating on January 17th what the court said and wrote on October 4th [A1361] . . . except that "purging" would have cost several thousands of dollars more in October.On 17 January 1996, the court further stated that it found unspecified motions "meritless and frivolous" and therefore found Johnson in contempt. [A19, lines 21-23]. Johnson could only assume that Judge McGill was referring to the same unspecified motions to which he referred in December.
At some point, Johnson could only guess that the two motions referred to were Papers 151 and 152. Paper 151: Emergency Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents. Paper 152: Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel.
Significantly these motions had been filed 11 months earlier. Finding them frivolous a year after they had been filed was merely a cover up for having found Johnson in contempt of a non-existent order and having sanctioned her for not paying diverse sums arbitrarily reached throughout the year.
In the motion to depose nonparty witnesses, Johnson cited two First Circuit cases in which the exact motion was made and allowed: Morrison v. Brandeis University, 125 F.R.D. 14 (D.Mass. 1989) and Mompoint v. Lotus Development Corp., 110 F.R.D. 414, 418-19 (D.Mass. 1986). A quantum leap would have to be taken to find either of those motions without legal or factual basis or frivolous. Absent frivolity or bad faith by Lily or Johnson, the imposition of costs was improper. The underlying defendants would be responsible for thair own fees and costs to oppose their opponent's meritorious motions. Waldman v. American Honda Motor Co., Inc., 413 Mass. 320, 321 (1992) (in Massachusetts, litigant must bear his own expenses).
And of further significance is that the basis of "THE contempt"and the imposition of fines and awards of fees changed for the THIRD time:
the first, declared 3/22/95: the non-existent March 3d order;the second, declared 12/13/95: the non-existent noncompliance of the discovery order(s);
the third, declared 1/17/96: the alleged frivolousness and meritlessness of the two motions filed in February 1995, eleven months prior to the bogus finding.
113. Respondent admits that on "February 8, 1996, the district court granted a request by the respondent for reconsideration of her contempt adjudication," however, there was no proceeding in either Lily's or Johnson's case on 8 February 1996. Respondent had been with her counsel in court for O'Connor's case against her on 7 February 1996. Judge McGill issued a memorandum the next day, 8 February 1996. Respondent incorporates herein by reference Table 35.114. On or about February 9, 1996, the district court entered an amended final Judgment for dismissal of Lily''s claims and for Lily's payment of $261.25 to the defendants, plus interest. The respondent did not take an appeal to the Appeals Court from that judgment on Lily's behalf. The respondent filed a request for retransfer of the Lily action to the superior court, pursuant to G.L. c. 231, § 102C, on or about February 20, 1996. The superior court was not the proper forum to handle the case.Respondent further states that no evidentiary hearing was allowed.
TABLE 35. HEARING ON 7 FEBRUARY 1996 In order to eliminate the confusion that had developed, the District Court: (1) severed O'Connor's action against Johnson from Lily's case against O'Connor's clients [A26 @ 2/13/96];Obviously no clear and unequivocal order ever issued before all the sanctions were dispensed against Lily and Johnson.(2) gave the case, retitled O'Connor v. Johnson, a new docket number, 9647-CV-0063 [ADD-131]. [See inference of O'Connor's motives at A1363];
(3) repeated that he had amended the 10-month old Final Judgment on the Merits by significantly reducing the amount Lily allegedly owed from $3,809.25 to $261.25. [A132].
Lily's case. The court amended the April 19th, 1995, final judgment on the merits by reducing the costs imposed on Lily from $3809.25 to $261.25. The order was still unclear, however, (a) as to whom the $261.25 should be paid, (b) by when payment was to be made, and (c) as to whether the court would still entertain a motion to restore the case to the active list [A77].
So Johnson, on Lily's behalf, paid to the court $261.25 (held for a while by the court in escrow) in order to restore Lily's case to Concord's active list [A26 @ #231, A1276], and filed a motion for clarification.
But the court neither gave Lily a hearing nor restored her case to the active list. The court did, however, upon Johnson's request, re-retransfer the case to Middlesex Superior Court in Cambridge [A26 @ #232, CRA-26 @ #231-232, CRA-1276].
Case against Johnson. Judge McGill had "agreed" also to give a hearing on the contempt as to Johnson, but then reneged, broke his word. In the meantime, the District Court memorandum dated 8 February 1996 [ADD-3-6] did not purport to be a final decision on the Johnson matter. It merely noted (1) that the court was "loathe to find that an Officer of the Court is in contempt of court" and (2) that the Johnson matter was being severed from the Lily matter.
The judge also confirmed that Johnson was to pay $720 for the defense having to oppose two motions which Judge McGill found to be frivolous. No other sum of money was memorialized in the memorandum, although the memorandum does refer to the "in terrorem" fines previously imposed, which was likely the $650. The sum of $558 or any implicit reference to it does not appear in that February 8th memorandum.
NOTE: Johnson unsuccessfully appealed. The Appeals Court found that Johnson was in contempt and had been ordered to pay $720 for attorney's fees (allegedly for defendants having to oppose two motions), $558 for additional attorney's fees (for attorney's fees for O'Connor for March 1, the day on which he himself aborted the hearing because he didn't want to wait, and March 3d, the day the hearing actually took place), and $650 for a civil penalty [OPINION at 1-8].114. Respondent states on 8 February 1996, "the district court entered an amended final Judgment for dismissal of Lily's claims and for Lily's payment of $261.25 to the defendants." Respondent denies that the court ordered Lily to pay interest on the $261.25.115. On or about July 15, 1996, after reconsideration, the district court ruled that its prior adjudication of the respondent's contempt would remain in effect and entered a final judgment of contempt against the respondent The respondent made no payments pursuant to that judgment. The respondent took and pursued an appeal from that judgment (contempt appeal).Respondent admits that she "did not take an appeal to the Appeals Court from that judgment on Lily's behalf," but that she "filed a request for retransfer of the Lily action to the superior court, pursuant to G.L. c. 231, § 102C, on or about February 20, 1996."
No answer is required for the the final statement of ¶114, for it is a conclusion of law. Notwithstanding the Petitioner's statement, "The superior court was not the proper forum to handle the case,".Respondent contends that superior court was, indeed, the proper forum. As stated in Table 36, which Respondent incorporates herein by reference, there are three avenues of review of a case remanded to a district court from a superior court:
(1) If there is a question of fact, review would be to the Appellate Division of the District Court Department.In the instant case, only the retransfer to superior court from district court was appropriate. There was no record to review. Superior court had authority to review the district court actions.(2) If there is no record and only questions of law to review, the superior court may consider those questions without a sidetrip to the Appellate Division. Tax Collector of Braintree v. J.G. Grant & Sons, 26 Mass.App.Ct. 731, 733 (1989).
(3) If there is a final judgment of contempt, an appeal from that judgment is to the Appeals Court. Jones v. Manns, 33 Mass.App.Ct. 485, 489 (1992).
Respondent further calls upon Bar Counsel to support its conclusion of law by citations to authorities for the proposition it asserts.
TABLE 36. AVENUE OF APPEAL FOR A REMANDED CASE Until 13 February 1996, the contempt action shared a docket number with a remanded case. Therefore any avenue of appeal available to a remand case was available for the issue of the contempt. In other words, the issue of contempt was not merely a collateral issue. Dismissal of the case-in-chief was one of the many court-ordered sanctions.
As noted above, in the response to ¶114, there are three avenues of review of a case remanded to a district court from a superior court.
At each time, the appropriate avenue was taken. The primary problem was the District Court's failure to make up its mind as to
which kind of final judgment it was issuing:Yet, before the contempt action against Johnson was severed from Lily's case-in-chief, five attempts at appeal were taken and all were unsuccessful: sidetrips to the Supreme Judicial and the Appeals courts; an attempted third trip to an appellate court; and two sidetrips to Middlesex Superior Court.one on the merits or one for contempt,what the alleged contempt was for:for not complying with a non-existent March 3d order???what type of contempt was found:for the false allegation of noncompliance of the discovery order(s)???
for the alleged frivolousness and meritlessness of the two motions filed in February 1995, eleven months prior to the bogus finding???
civil or criminal,who was found in contempt for what, andwhich person or entity was to receive the alleged fines and fees.
TABLE 37: JUDGMENT OF 13 FEBRUARY 1996 On 13 February 1996, the Amended Final Judgment on the Merits issued. [A132; District Court Paper #228 at Cou-R/A at A-78]. Note that both the original Final Judgment of April 1995 and the Amended Final Judgment of February 1996 ran to Lily. Johnson's name DOES NOT appear on either judgment.
TABLE 38: APPEAL #5 -- FOURTH TRIP OF LILY'S CASE TO SUPERIOR COURT On or around 15 February 1996, after the Amended Final Judgment on the Merits of Lily's case issued, Johnson filed another Request for Retransfer to Superior Court [O'Connor's First Supp.App. p. 1]. The retransfer and transmittal of the casefile to Middlesex Superior Court was not allowed and completed until 5 September 1996. Id. In Superior Court, on Lily's behalf, Johnson filed one more jury demand [A13 @ #92], a request for a special judicial assignment, which was denied [A67], and motions both to disqualify O'Connor as defense counsel [A1168] and to compel document production [A1288-1313]. Lily's motions were either denied or not acted upon.
Lily's motion for appointment of a discovery master [A1340], her opposition to Defendants' last so-called "emergency" motion for a protective order [A1351], and her Superior Court Rule 9A(b)(2) [A1356] were returned to Johnson because of the court action on 19 November 1996 [A1346-50], which allowed Defendants' Motion to Strike the Second Retransfer and Emergency Motion for Protective Order [A14, 79-80]. Lily appealed [A1, 14].
Respondent contends that Judge Neel committed reversible error. See ¶116 infra for legal argument.
TABLE 39: DOCKET SHEETS FOR O'CONNOR V. JOHNSON, 9647-CV-0063 On 7 February 1996, after the contempt action against Johnson was severed from Lily's underlying action and was kept in Concord District Court, (Lily's had been retransferred to Superior Court.) In Concord, Attorney Elaine Whitfield Sharp, who had argued on Johnson's behalf on both 22 December 1995 and 17 January 1996, filed a written appearance in February 1996 on behalf of Johnson in the contempt action. The docket sheets for Mark C. O'Connor, Esq. v. Barbara C. Johnson, Esq. are below.
TABLE 40: APPEAL NO. 97-P-53 No review of the law in the underlying case was afforded in Middlesex Superior Court. So Johnson filed on behalf of her client a Notice of Appeal to this court. That appeal was docketed as C.A. No. 97-P-53. [O'Connor's App. Brief, p. 4, note. 3]. 115. Respondent states that on 15 July 1996, the District Court (McGill, J.) issued a Memorandum and Order [ADD-2] which clearly stated that the "judgment on the civil contempt shall remain in effect," but it failed to state explicitly which sum of money was due from Johnson, and the reason for that failure was, according to the memorandum, "[t]he February 8, 1996 orders were clear." The words "final judgment" appear nowhere in the Memorandum and Orders dated 15 July 1996.116. On or about November 19, 1996, the superior court entered an order striking the respondent's request for retransfer of the Lily action. The respondent took and pursued an appeal on Lily's behalf from that order (Lily appeal). That appeal was frivolous.Respondent disagreed with Judge McGill. According to Respondent, the 8 February 1996 order was not clear. In fact, after Judge McGill severed the contempt from Lily's underlying action, he adamantly refused to issue a separate piece of paper entitled "Final Judgment of Contempt" against Johnson.
Respondent admits that she made no payments pursuant to the order of 8 February 1996 or to the order of 15 July 1996.
Respondent admits that she "took and pursued an appeal from that judgment (contempt appeal)." In fact, Whitfield-Sharp filed a Notice of Appeal on 24 July 1996. Without a Final Judgment of Contempt from which to appeal, however, Attorney Whitfield-Sharp treated the memorandum and order of 15 July 1996 as a final judgment of contempt in accordance with Jones v. Manns, 33 Mass.App.Ct. 485 (1992). [A1]. The appeal to the Appeals Court by Whitfield-Sharp was unsuccessful [App.Ct. Opinion at 1-8]. See Table 41 below.
TABLE 41: APPEAL #6 -- NOTICE OF APPEAL DATED 24 JULY 1996 After Judge McGill severed the contempt from Lily's underlying action, he adamantly refused to issue a separate piece of paper entitled Final Judgment of Contempt against Johnson. Without a Final Judgment of Contempt from which to appeal, Attorney Whitfield-Sharp treated the memorandum and order of 15 July 1996 as a Final Judgment of Contempt in accordance with Jones v. Manns, 33 Mass.App.Ct. 485 (1992). [A1]. On 24 July 1996, Whitfield-Sharp filed a Notice of Appeal. Given that O'Connor's misleading assertions that Johnson failed to appeal the District Court contempt action form the underbelly of the positions taken by O'Connor and/or his clients in Issues I and II of their appeal, his/their arguments in Issues numbered I and II should have failed. [O'Connor's App. Brief, pp. 2-17].
116. Respondent admits that "[o]n or about November 19, 1996, the superior court entered an order striking the respondent's request for retransfer of the Lily action."117. On or about April 27, 1998, the Appeals Court dismissed the Lily appeal and awarded appellate attorneys' fees to the defendants pursuant to Mass. R. A. P. 25. Lily v. HMM Associates, Inc., A.C. No. 97-P-53 (1998). A true copy of the Appeals Court's memorandum of decision in the Lily appeal is attached to this petition as Exhibit B. The respondent requested rehearing in the Lily appeal, which was denied by the Appeals Court on May 13, 1998, and further appellate review of that decision, which was denied by the Supreme Judicial Court on July 1, 1998.Respondent further states that once in Superior Court, on Lily's behalf, Johnson filed one more jury demand [A13 @ #92], a request for a special judicial assignment, which was denied [A67], and motions both to disqualify O'Connor as defense counsel [A1168] and to compel document production [A1288-1313]. Lily's motions were either denied or not acted upon.
Lily's motion for appointment of a discovery master [A1340], her opposition to Defendants' last so-called "emergency" motion for a protective order [A1351], and her Superior Court Rule 9A(b)(2) [A1356] were returned to Johnson because of the court action on November 19th, 1996 [A1346-50], which allowed Defendants' Motion to Strike the Second Retransfer and Emergency Motion for Protective Order [A14, 79-80].
The Superior Court's reliance on Sandberg & Son v. Clerk of Dist. Court of Northern Norfolk, 12 Mass.App.Ct. 686 (1981), for the proposition that because the case was dismissed as a sanction and not on the merits of the underlying case, retransfer under the remand statute was not available to Lily, was clear error. In Sandberg, plaintiff not only tried to "unilaterally delay" the presentation of evidence until trial in Superior Court by not appearing for trial in District Court, but also made no effort in District Court to vacate the dismissal. Id. at 687-88.
In contrast, Lily tried to get discovery and a trial, at no time sat on her rights, went to the SJC to have the then-conditional dismissal and the District Court orders vacated [A63a, 67, 75, 1124, 1320-31], and then to the Appeals Court [A75]. Further, where there was insufficient evidence of willfulness or bad faith or fault, dismissal of the suit was unconstitutional. Gos v. Brownstein, 403 Mass. 252, 255 (1988), citing Societe Internationale, 357 U.S. at 212. "[D]enial of a party's day in court [is] not justified 'except upon a serious showing of willful default.'" Parkman Equipment Corp. v. S.A.S. Equipment, 14 Mass.App.Ct. 938, 939 (1982). Plaintiff never defaulted here. Dismissal was unjustified.
Thus, Judge Neel committed reversible error when he re-remanded the case (by striking the retransfer) to District Court on the characterization of the final judgment as one of contempt, which, in turn, in error, deprived Lily of her right to a trial "de novo" pursuant to the remand statute [A68-69].
Factually, where there was no Order out of which a finding of contempt could arise, sanctions were inappropriate, dismissal was inappropriate, retransfer to Superior Court could not be precluded, and the repeated remands were reversible error.
Furthermore, according to stare decisis, dismissal as a sanction for contempt does not necessarily preclude retransfer to Superior Court. Dewing v. J.B. Driscoll Ins. Agency, 30 Mass.App.Ct. 467, 472 (1991). [Lily's Brief at 39-41.]
Thus, deeming the appeal of Lily's issues under these circumstances to be frivolous was nothing less than an abuse of discretion. And given that procedurally the facts in Lily's were egregious and legally there was absolutely no basis to deny Lily's appeal, Johnson believes the appellate panel court either did not read the appeal and supporting appendix or was covering the unlawfulness or incompetency of Judge McGill . . . or had another unvoiced ulterior motive, for there was neither a reasonable nor a rational basis for denying Lily relief..
Additionally, well-settled law required that Defendants be estopped from arguing one position in one court and then another position in a second court: i.e., from first arguing that the conditional dismissal because of contempt should be converted to a Final Judgment on the Merits and money damages should be awarded, and then arguing that the Final Judgment on the Merits was really a Final Judgment of Contempt. [SeeLily's brief at 41-43.] Changing the type of Final Judgment months after judgment issued changed the route of appeal and seriously prejudiced Lily. It was arbitrary and capricious of Superior Court to do it and then arbitrary and capricious of the appellate panel to have done it. It denied Lily equal protection of the laws.
In sum, where Superior Court refused to review how District Court applied the law of contempt and denied Lily a trial de novo, Superior Court committed clear error and denied her due process and equal protection of the laws: to wit, denied Lily her right to have a jury hear the facts considered and found in District Court (even if they had a prima facie effect), and then to determine whether a court order issued on March 3 or whether the order merely took shape in and came out of the recesses of O'Connor's mind on March 22 [A1359]. Superior Court's failure to allow Lily her trial de novo was clear error and was appealable, was properly appealed, and was not frivolous.
So Respondent, of course, admits that she pursued an appeal on Lily's behalf [A1, 14]. Respondent admits that the Appeals Court found that the appeal was frivolous but Respondent vigorously denies that the appeal either procedurally or substantively was frivolous. Notwithstanding the finding of the court, that an Appeals Court finds an appeal frivolous is insufficient to constitute any violation of the rules of professional conduct.
Respondent then filed, on Lily's behalf, in A.C. 97-P-53, a Petition for Further Hearing pursuant to Mass.R.A.P. 27. Respondent also filed a Petition for Further Appellate Review. FAR-09862 [see Table 42]. Lily's underlying case was 9447-RM-013.
TABLE 42: FURTHER APPELLATE REVIEW PURSUANT TO
MASS. R.A.P. 27.1In the Petition for Further Appellate Review pursuant to Mass.R.A.P. 27.1, Johnson wrote that because the Appeals Court overlooked or misapprehended facts and law including, but not limited to, the following, further appellate review was appropriate: (1) that there was no order of March 3d,(2) that an order issued on March 22d and Johnson was found in contempt of it within a minute of the order issuing,
(3) that the court gave Johnson no hearing on the contempt and then denied it was a summary contempt to justify not giving Johnson a hearing on the contempt,
(4) that Johnson had filed (and included in her Record-Appendix) multiple "pretrial-conference" pleadings, which Judge McGill essentially said she had not filed,
(5) that because Johnson filed objections to the pretrial order that entered subsequently did not mean that Johnson acted in bad faith,
(6) that even assuming arguendo that the judge was correct in concluding that the two motions were without legal or factual basis (which, of course, Johnson contends only the opposite can be true), such a finding does not justify the finding Johnson in contempt,
(7) that applying "in terrorem" fines to an order for money sanctions when there was no time specified by which payment had to be made is clear error,
(8) that Johnson, of course, could not substantiate her inability to pay on the very day fines were imposed, for she had had no reason to have documentary proof of her financials in her briefcase in court that day.
117. Given that all of this happened five years ago, Respondent has no independent memory of which appeals were taken nor of the dates of the appellate decisions issued and calls upon Petitioner to prove the same. Stating that appeals were taken and denied is unimpressive and irrelevant to this Petition. Losing an appeal or even a finding of frivolity is not an ethical breach. There is nothing in the statutes or rules which says that a finding under any of them is an ethical breach or should be deemed a breach of professional ethics. That which is unethical is the Bar Counsel even making that Appeals Court finding a part of this petition. In fact, the higher courts intentionally blinded themselves to the facts of the case both procedurally and substantively and allowed the inappropriate decisions of an unscrupulous court (McGill's court) and a negligent one (Neel's court) to stand.118. On or about May 14, 1998, the Appeals Court affirmed the district court's contempt judgment against the respondent in HMM Associates, Inc. v. Johnson, 44 Mass. App. Ct 1126 (1998). A true copy of the Appeals Court's memorandum of decision in the contempt appeal is attached to this petition as Exhibit C. The respondent requested rehearing of the contempt appeal, which was denied by the Appeals Court on June 26, 1998, and further appellate review of that decision, which was denied by the Supreme Judicial Court on the same date.118. Given that all of this happened five years ago, Respondent has no independent memory of the dates of the appellate decisions issued and calls upon Petitioner to prove the same. In any case, that appeals were taken and denied is unimpressive and irrelevant to this Petition. Significant is that the higher courts intentionally blinded themselves to the facts of the case both procedurally and substantively and allowed the inappropriate decisions of an unscrupulous court (McGill's court) and a negligent one (Neel's court) to stand. Respondent informed the appellate panel of the shortcomings of its decision [see Table 44].119. On or about June 9, 1998, the Appeals Court ordered Lily to pay the defendants $30,000 as appellate attorneys' fees, plus costs of appeal in the amount of $1,071.65. The respondent did not appeal that order. Lily subsequently satisfied the order.On 16 May 1998, Respondent filed with the Bar a complaint against opposing counsel, Mark O'Connor [see Table 43] and requested the Bar to file an amicus brief on Lily's behalf, to which request Johnson received no response.
I am hoping that the Office of Bar Counsel will write an amicus curiae brief for Rose Coughlin so that her FAR application is one of the one or two percent of the cases which are granted further appellate review. Her rights to constitutional due process and equal protection have been trampled, and O'Connor is still out there as a symbol of shame for both the Bar and the Bench.On 25 May 1998, Respondent filed with a petition pursuant to Mass.R.A.P. 27 for a rehearing of the appeal [see Table 44].
TABLE 43: LETTER BY RESPONDENT TO BBO 5/16//98 Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 FAX 978-xxx-yyyyConstance V. Vecchione, Esq. 16 May 1998
Office of Bar Counsel
75 Federal Street
Boston, MA 02110Re: Mark C. O'Connor, Esq.
S.J.C. Rule 3:07, DR 7-106(C)(6)
S.J.C. Rule 3:07, DR 7-106(C)(7)Dear Attorney Vecchione:
Enclosed with this letter are pleadings which I filed in the Appeals Court and the Supreme Judicial Court on behalf of two clients: Paula Cappello and Rose Coughlin. Please accept these pleadings, listed below, in lieu of a separately written complaint against the above-named attorney, Mark C. O'Connor. They explain in quite some detail his consistently unprofessional and unlawful behavior.
1. Plaintiff/Appellant Paula Cappello's Appellate Brief A.C. 96-P-2057.2. Plaintiff/Appellant Paula Cappello's Reply Brief A.C. 96-P-2057
Disposition: Summary judgment on Counts 1-5 REVERSED and case
remanded to the active list in Superior Court3. Plaintiff/Appellant Paula Cappello's Rule 27 Petition for Rehearing,
A.C. 96-P-2057
Purpose of Rule 27 Petition:To have panel deal with issues about which it was silent (i.e., overlooked) -- one of which was O'Connor's habitual unprofessional conduct. The panel did not grant a rehearing.4. Plaintiff/Appellant Paula Cappello's Rule 27.1 Application for FurtherPurpose of Rule 27.1 Application: Same as that of the Rule 27 Petition. I thought perhaps the Appeals Court did not have the jurisdiction to decide the conduct issues. Further Appellate Review was also not granted.
Appellate Review, FAR-095695. Plaintiff/Appellant Paula Cappello's Motion for Reconsideration of
Cappello's Rule 27.1 Application for Further Appellate Review,
FAR-09569Disposition: Further Appellate Review denied.I am hoping that the Office of Bar Counsel will write an amicus curiae brief for Rose Coughlin so that her FAR application is one of the one or two percent of the cases which are granted further appellate review. Her rights to constitutional due process and equal protection have been trampled, and O'Connor is still out there as a symbol of shame for both the Bar and the Bench.6. Plaintiff/Appellant Rose Coughlin's Appellate Brief A.C. 97-P-53
7. Plaintiff/Appellant Rose Coughlin's Reply Brief A.C. 97-P-53
Disposition: Appeal dismissed and appellate fees awarded.
8. Plaintiff/Appellant Rose Coughlin's Rule 27 Petition for Rehearing,
A.C. 97-P-53Disposition: Rehearing not granted.
9. Plaintiff/Appellant Rose Coughlin's Rule 27.1 Application for Further
Appellate Review, FAR-09862Disposition: Pending.
Sincerely,
Barbara C. Johnson
Barbara C. JohnsonP.S. You never answered that question I posed to you last October. The question was, Would my client Donald Messier have a right to ask for reimbursement from the lawyers' victim's fund because of Garabedian's actions? If so, he's asking now.
Also, since I was sending the package, I decided to enclose also two pleadings in that case in which Hoover Garabedian was involved and about which I had written you earlier this year. I managed to get Hoover's client to sign a release for my client, her former husband, . . . and after Hoover ruined two potential sales of the house with his unlawful advice, his client, the former wife, finally fired him . . . and without Hoover in the picture, it looks like the house will finally, much to everyone's delight, get sold in about two weeks' time. Obviously, there'll be no need to appeal the issue of emancipation.
P.P.S. I still can't wait until my cases are down to zero. I absolutely abhor the business. It's not a profession, despite the righteous rhetoric to the contrary and the good-faith efforts of a few to turn the downward trend around.
TABLE 44: MASS.R.A.P. 27 PETITION TO APPELLATE PANEL, 5/25/98 Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 FAX 978-474-183325 May 1998
The Honorable Justice Kass
Appeals Court
1500 New Court House
Pemberton Square
Boston, MA 02108
Re: Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27
Mark O'Connor\1/ v. Barbara C. Johnson
A.C. No. 96-P-1277
Panel: Kass, Smith, and Jacobs, JJ.\1/ The title of the case seems to have been changed by changing the Plaintiff from Mark C. O'Connor to HMM Associates, Inc. et al. I do not know why. See both Record-Appendix A131, where the docket sheet shows "Mark O'Connor, Esq." as "Petitioner" and Barbara C. Johnson as "Respondent," and Coughlin's Record-Appendix 1273, where the actual summons identifies Mark C. O'Connor as the Plaintiff-in-Contempt and Barbara C. Johnson, as Defendant-in-Contempt. See also A303, the docket sheet.
Dear Justice Kass:I, the Defendant/Appellant Barbara C. Johnson,\2/ contend that the panel overlooked or misapprehended several points of law and fact in reaching its decision of 14 May 1998.
\2/ Elaine Whitfield Sharp, Esq., was appellate counsel, i.e., she wrote the appellate brief. I understand there was no oral argument.First, the Contempt. To find civil contempt, there must be a clear and undoubted disobedience of an equally clear and unequivocal command. Warren Gardens Housing Co-op. v. Clark, 420 Mass. 699, 700 (1995). The obligation of the party must be set out in a sufficiently specific and unambiguous manner as to constitute a clear command regarding what is required to comply. Hobson v. Perry, 13 Mass. App.Ct. 944 (1982).Therefore, even assuming arguendo that the panel was correct that there were payment orders (clarified or not) and even assuming arguendo that it was clear who was to pay and to whom payment was to be made, there was absolutely no order stating the time by which payment was to be made, so that contempt certainly could not be found on the same day an alleged order issued -- as frequently occurred in this case.\3/
\3/ March 22d, for instance, and April 5th, for a second instance, and assorted other days for the other instances.I didn't even receive notice of the several motions to show cause why I should not be found in contempt:\4/ O'Connor improperly handed each of those motions and oppositions to me as the case was called for hearing. The panel appears to have overlooked these facts for it chose only to include ADD 299-303 in its opinion, and did not refer to the Certificates of Service on A188-189, A264, A266, A269, A272, A275, A278, A281 of the Record-Appendix in this severed case.\4/ O'Connor did not comply with Dist./Mun.Cts.R.Civ.P. Rule 6(c) on March 3 and 22, April 5, September 26, and December 13, when serving Papers 156-159, 161-162, 170-172, 192-193, 198, 215.Thus I was robbed of an opportunity to meaningfully oppose each of those motions. The Concord District Court in that session was clearly trampling on due process: my client was not getting the discovery to which she had long since been entitled and I was being punished for zealously advocating on her behalf. And I told the court so [A205].
All of these papers -- except #156, which I never received -- may be seen in [Coughlin's Rec.App. at A21-22, 1102, 1105, 1108-09, 1111, 1113, 1127, 1139].It was wrong for the court to punish her for its anger at me. And it was wrong for the court to be angry with me because I was seeking justice for her. And my frustration throughout those hearings was evident because I knew that the judge knew it -- and what distressed and disturbed me most was, he didn't seem to care.
I -- and my client, for that matter -- was also at no time granted an evidentiary hearing with or without any indices of due process on the issue of contempt. Due process with an evidentiary trial is required for contempt to attach. Milano v. Hingham Sportswear Co., Inc., 366 Mass. 376, 378-79 (1974).
So, without a clear and unequivocal command, there can be no "clear and undoubted disobedience." Cf. Judge Rotenberg Educ. Center, Inc. v. Comm'r of Department. of Mental Retardation (No.1), 424 Mass. 430, 448 (1997), the case which the panel cited. Neither can caprice be substituted for law. Clabburn v. Phillips, 245 Mass. 47, 52 (1923).\5/
\5/ Here caprice invited danger, and that danger came to fruition. For instance, didn't the panel find it curious that Judge McGill promised a hearing [Opinion at 3-5], but then did not allow one to take place? didn't allow me to defend myself or my client against O'Connor's serious accusations?Second, the Alleged Admission of Contempt. The imposition of a civil penalty of $650 on April 5th because I allegedly admitted to contempt was unlawful.I challenge the panel to find a page on which I admit to contempt. And if the panel does find it, I will, with all the requisite respect due, apologize profusely to this court for my outspokenness and any misrepresentations of any kind which I may have made.
I make the same challenge to the panel to find the order which gives a date by which payment is to be made. The same conditions prevail.
Without that admission, the $650 civil penalty imposed because of the alleged admission must be reversed.
Third: the Two Allegedly Frivolous Motions. There were no reasons for granting defense counsel fees for opposing two legitimate motions.
On 21 February 1995, I filed Coughlin's Emergency Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents [Paper 151, A282-283]. On 24 February 1995, I filed Coughlin's Emergency Motion & Memorandum to Depose Nonparty Witnesses and Former Employees of Defendant Corporations Outside the Presence of Defense Counsel [Paper 152, attached here].\6/
\6/ Attorney Sharp, my counsel, appears to have inadvertently not included it in her Record-Appendix. The conclusion that her failure was inadvertent is reasonable because she DID include the opposition A273-274] to the motion, and the panel did cite to the opposition in its opinion at 3. Therefore I have attached the motion to this Petition so that the panel can see it -- if it so desires -- and determine whether the motion is frivolous.On 3 March 1995, opposing counsel, O'Connor, simultaneously served on me and filed in open court his clients' oppositions [Paper 162 at A267-268 and Paper 159 at A273-274], to Coughlin's two motions, Papers 151 and 152, respectively.Without giving me an opportunity even to read the oppositions, the judge "allowed" O'Connor's oppositions, leaving me with no idea why my motions were denied.\7/ O'Connor never argued orally against them substantively before they were denied. And I was given no opportunity to cross-examine O'Connor [Sharp's brief at 8].\8/
\7/ Ten months later, in a memorandum issued on 13 December 1995, the lower court judge said for the first time that he found Paper 152 (at least it appears that might have been the motion to which he was referring) "frivolous."Neither Paper 162 nor Paper 159 stated the amount of money which opposing counsel was requesting for attorney's fees.\8/ My claim that I had no notice was deemed by the lower court and by the appellate panel as having no merit [A216 (March 22, 1995) and Opinion at 4 and Opinion at 4 n.6]. It is well-settled that notice is central to due process.
And on March 3d, no written order issued stating an amount, or stating the time within which the money had to be paid, or stating the entity to whom money had to be paid, or stating who was to pay (Johnson or Coughlin) [Sharp's brief at 5-7].
Eventually, when O'Connor's affidavit surfaced, it became clear that the affidavit, which appears at A276-277, was the source of the sums $504 and $216, which O'Connor sought for the two oppositions, respectively, and which totaled $720 [Opinion at 4].
But affidavits of counsel are NOT orders of a court!
On 22 March 1995, this appeal took root when O'Connor opened the session by addressing his Motion for Paralegal Fees (Paper #157):
From the bench, the Court ordered plaintiff's counsel to pay the sum of $261.25. Subsequently, the clerk's office did notice that the motion for payment of legal fees was allowed.[A193]. That, of course, was untrue: see A226, the clerk's notice of what court action was taken on March 3d. That notice was prejudicially overlooked and not cited by the appellate panel.The clerk also entered the notice in full as Paper 164 into the docket [A300]. The panel overlooked both the clerk's notice and the docket sheet as well as the fact that Paper 157 is not on the clerk's list because the judge had taken the "motion under advisement" [A259, lines 18 and 19]. Thus the panel overlooked that O'Connor's statement was but a fraud upon the court.\9/
\9/ That was not the only misrepresentation O'Connor made to the court.And on March 22d, I read that clerk's notice to the court [A201-203, A206].
For instance, O'Connor's statements on March 3d that I did not give him notice until 8 o'clock on the evening prior to the scheduled visit and that I would not be at the facility and that he did not receive it until 9:30 on the morning of the scheduled inspection were untrue. Unfortunately, the panel believed him. [Opinion 3; A253-255].
In actual fact, I had given O'Connor notice at exactly 3:32 in the afternoon as shown by the ACTIVITY REPORT from my fax machine. In that letter, I told him I had to know before 4:45 whether he agreed [A287-288]. He did not respond within that hour. See the ACTIVITY REPORT.
The log -- along with all of my financial records -- was presented by Attorney Sharp (whose handwriting is on the log) to Judge McGill for an in camera inspection. Because the log was not that part of the record which was put on the docket sheet below, Attorney Sharp did not include it in the Record-Appendix. In hindsight, it can be seen that a motion should have been brought for permission to include it in the Record-Appendix.
That the appellate panel did not have the ACTIVITY REPORT generated automatically by my FAX machine of course excuses a mistaken conclusion, but not having that Report does not excuse the appellate panel's failure to find clear error in (1) the lower court's deeming my claims of no notice of O'Connor's motions as being without merit [Opinion at 4] and (2) the lower court's not giving me a hearing on the contempt charges.I, too, am cognizant that A261 with an endorsement which reads "Allowed after a hearing" exists, but given that the motion was taken under advisement, it is reasonable to conclude that it was written after the hearing. Also, if the piece of paper was at the bench, counsel would not be aware that the judge had written on it -- if, indeed, he had written on it. NOTICE REQUIRES COMMUNICATION OF SOME KIND! And the judge was put on notice that there was a problem about NOTICE [A201-203, A206], which was why A279 came into existence!
The question then becomes, Why did the the judge find me (or Coughlin) in contempt if he was knew we were unaware of an Order having issued? Clearly, he was charged with knowing that an order must be clear and unequivocal. How could an unheard-of order be clear and unequivocal? It couldn't.
What was happening, in fact, was RETALIATION, retaliation against me for telling him I came to his court expecting justice and I wasn't getting it. And I told the court just that: ". . . my obligation to zealously represent my client, . . . And to punish my client because I had that obligation is stretching the envelope . . ." [A205].
Coupled with the Clerk's notice [A226], the statements by O'Connor on A193 are sufficient for this court to order disciplinary action against O'Connor for fraud and to bury its animosity for me and my client. Given O'Connor's malevolence, and the dire consequences flowing from them, only disbarment would be appropriate.
Misled by O'Connor about the Little Order That Never Was, the judge then found both Coughlin and me in contempt, but it was confusing as to contempt of what. In fact, even the appellate panel appears to have been still confused when it wrote its opinion [Opinion at 4]\10/ -- despite all the endorsements and so-called clarifications by the lower court judge.
\10/ See just below the exact middle of the page, where the panel wrote that attorney's fees for Paper 162 were $720. There is no dollar amount in Paper 162 at A267-268.The endorsement cited by the panel -- A216 -- claims another $558 in Paper 165, but that number, too, does not appear in Paper 165. The appellate panel declared it to be attorney's fees for O'Connor's motion to show cause, but failed to cite to a page in the record for that declaration. It appears only in O'Connor's affidavit, but an affidavit is not a court order!And as I said above, there is no page in the record to substantiate that I admitted to contempt. I said that I did not have the ability to pay [Sharp's brief at 13-14, A195 and A197]. In the Opinion at 4 n. 6, the panel claimed that I offered nothing by way of substantiation. That is not accurate.
First, I certainly did not expect, on March 22d, both to be ordered to pay an amount allegedly stated in an order that hadn't existed and to be found in contempt within minutes of that order issuing. In fact, I asked the court whether it was allowing Paper 157 retroactively that day to March 3d [A208, lines 16, 19-20].
It was nothing less than a bizarre happenstance that day. Common sense should make it apparent that, of course, I would not be able to present anything more than verbal substantiation that day. What lawyer carries around with them substantiation of their finances in their briefcases?!
Nevertheless, I told the court quite promptly what the state of my finances were and invited O'Connor to put me on the stand [A197 and Sharp's Brief at 13]. The panel overlooked that fact -- at least it did not cite to the page on which I made that invitation.
At a later date, I produced materials a foot high for the judge's inspection in camera [A303]. The court never memorialized in writing its inspection of those documents. And Judge McGill remained mute. Thus , it was manifestly untrue that I never substantiated my inability to comply with payment orders.
In sum, as Attorney Sharp pointed out in her brief at 15-16, by the time March 22d hearing ended, I had been ordered to pay some sum of money, found in contempt, and fined $2178.00, all in one fell swoop, even though I had already said I couldn't afford to pay even the $261.25 [A197, A200]. Then it was my saying that I was unable to pay that provoked Judge McGill into ordering that either I or my client were to pay the $261.25 [A199]. I objected and argued that punishing my client for something which the court believed I did was improper [A200-201, A204-205].
Next, on April 5th, again without notice [A188-189], history repeated itself. (A FAX from O'Connor notifying me he was going into court the next morning brought me to court.) He had brought another motion to show cause . . . and he and the court continued to ignore the fact that there was no order which gave a date by which payment had to be made.
The judge, however, took one more step on April 5th: he conditionally dismissed Coughlin's case.
After I brought the Coughlin's case to the SJC on 12 April 1995 for a hearing on a 211:3 Petition to vacate the conditional dismissal and the contempt findings, O'Connor moved in Concord for the conversion of the contempts to a FInal Judgment on the Merits against Coughlin only in the sum of $3809.25 [Opinion at 5]. No Final Judgment of contempt entered.
During the next six months the Coughlin case was retransferred to Superior Court and then remanded again to District Court. The remand came about because O'Connor had changed his position: he said the Final Judgment on the Merits was not a Final Judgment on the Merits but a Final Judgment of Contempt. I argued estoppel in vain. I also filed a Notice of Appeal to the Appeals Court but a clerk, instead of assembling the record for the Appeals Court, shipped the case back to Concord.
During the next six months, the District Court judge amended his findings of contempt in several ways: Coughlin and I were no longer jointly and severally liable for paying the contempt fines, the contempts against me were severed from the one remaining against Coughlin, the one against Coughlin was reduced from $3809.25 to $261.25 (which Coughlin paid),\11/ but Coughlin's case was, nevertheless, not restored to the active list.
\11/ I consistently argued that my client should never have been found in contempt and that to dismiss her case was nothing but too harsh.On 13 December 1995, the District Court issued a Memorandum and Order in which it wrote that I "ignored its discovery order." That statement is so manifestly and so viciously false that the statement is almost more insulting to the judiciary than to me! [See A212-214].Before any order issued on February 17th [A1070], I had filed a pretrial-conference memorandum [Cou.Rec.App. A1044-1056] -- almost two months earlier, on December 28th. Then, two days before the subject order, I had filed a supplemental memo [Cou.Rec.App. A1057-1061], an opposition to Defendants' proposed pretrial order [Cou.Rec.App. A1062-1063], and a proposed pretrial order [Cou.Rec.App. A1064-1067]. Next, in response to the February 17th pretrial order, I filed objections to the court's pretrial order on the grounds that it was prejudicial to Plaintiff [Cou.Rec.App. A1073-1076]. I had already complied with it as much as any counsel could have complied with it, given that my client had been given no discovery.
Therefore Judge McGill's finding that I failed to show subjective good faith is unequivocally capricious and an abuse of judicial discretion.
In contrast to Plaintiff's fastidious compliance with any pretrial-conference order, Defendants wrote NOT a memorandum but two pretrial-conference Orders [A20 @ ##138, 141] and one witness list [A21 @ #150].
With great bias for the Defendants and overwhelming prejudice against Coughlin, the court adopted almost in entirety Defendants' Proposed Pretrial Order, requiring that all documents for use at trial be identified within twenty days of the order [A21 @ #145].
This was problematic for me: I could not identify all the documents I wanted to use at trial because no documents had been produced to us -- other than part of Coughlin's personnel file -- and all efforts to conduct discovery had been precluded for years.
Conclusion. Given that no order specified a time by which payment had to be made, contempt could not be found. "Where a court's order lacks a critical term or contains an error, a finding of civil contempt is inappropriate." Demoulas v. Demoulas Super Mkts., 424 Mass. 501, 566 (1977). [Sharp's Brief at 19-23].
Where (1) the Motion to Depose Nonparty Witnesses Outside the Presence of Defense Counsel and (2) the Motion to Reconsider to Order of January 4, 1995 regarding Inspection of Documents were not frivolous, the granting of $720 in attorney's fees for opposing the motion was reversible error.
Where I did not have the ability to pay the contempt fines, regardless of whether the fines were properly or improperly imposed, the imposition of $580 in terrorem or daily fines plus an additional $650 in civil penalty on me for allegedly admitting to contempt or for not complying with an order that lacked a critical term \12/ such as time by which payment had to be made, was reversible error . . . as was the retaliatory imposition of dismissal of my client's case.
\12/ Frankly, I still do not understand out of what the $650 fine arose.Where the orders contained no date by which payment was to be made, the granting of attorney's fees for bringing show cause motions was improper.Lastly, I still do not know whether I was found responsible ultimately for paying $558 for O'Connor attendance at two hearings: one of which he caused to be aborted by his leaving (March 1st) and then for the March 3d hearing.
* * * * *
I want to digress to one issue before closing. That issue is subtle gender discrimination. It has been pervasive in this case . . . and certainly in Coughlin's case . . . and it is troublesome. I've come to call it a cloud of genderitis. Perhaps one example will illustrate what I mean.
In commenting on my request of O'Connor to provide me with evidence that the "supervisor" of the scheduled inspection had been certified as a paralegal, the panel stated that "the order did not require this, nor was it objectively necessary." But when I told O'Connor the exact same thing, to wit, that the judge did not order what O'Connor was proposing [A288]
The judge did not issue an order prohibiting photography or taping" [A288, paragraph 9]. . . . Neither did the judge order that any copying charge be charged. In fact, when I offered that as an alternative, he chose to ignore a cost per page for copying [A288, paragraph 10].the panel chose to find me unreasonable and O'Connor reasonable. That bespeaks of a double standard, a double standard which is subjectively offensive, objectively unacceptable, and legally arbitrary and capricious. I'd appreciate it if the panel would take the time for some introspection, so that this problem could be avoided in the future. We women are saying to each other, "We've come a long way, Baby," but I'm not sure the men have.WHEREFORE, I pray that this court reconsider and reverse its Order of 14 May 1998 and grant me the relief for which I prayed in my appellate brief, (1) to vacate any finding of contempt against me because the District Court orders were neither clear nor unequivocal and I did not clearly disobey any command of any court and (2) reverse each of the District Court orders imposing costs, fees, and sanctions.
Given that Justice Smith was on Coughlin's panel as well, I fan-tasize also that the court will sua sponte review the appellate opinion in Coughlin's case as well. Extraordinary? Of course. But the rules -- which were repeatedly shunted aside for O'Connor anyway -- don't preclude it. In the interest of justice . . . and fairness . . . I pray for judicial innovation here.
Respectfully submitted,
__________________________________
Barbara C. Johnson, Esq., Pro Se
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
B.B.O. #549972CERTIFICATE OF SERVICE
I, Barbara C. Johnson, hereby certify that on this day served two true and accurate copies of the above pleading by first-class mail on opposing counsel of record, Mark C. O'Connor, Rich, May, Bilodeau & Flaherty, 294 Washington St., Boston, MA 02108.
_______________________________
26 May 1998 Barbara C. Johnson
119. Respondent denies the first sentence of ¶119 because the date appears wrong, and calls upon Petitioner to prove the same. The reason: Lily had a friend who was also Respondent's client and was also suing HMM Associates, Inc. The 42-year-old husband of Lily's friend died from a sudden heart attack (DOA at Lahey Clinic) in the evening of Monday, 8 June 1998, a day earlier that Bar Counsel's date of 9 June 1998. In addition to the facts cited in Table 45, he had learned on Saturday, the 6th of June that Lily had been ordered to pay defendants' appellate attorneys' fees, and after worrying for two days that his wife would suffer the same fate and that they would be forced into bankruptcy, he suffered the heart attack and collapsed and was dead within the hour. For that reason, the statement as written in ¶119 appears to untrue.120. After the respondent's contempt judgment was affirmed, the respondent did not make any payments in compliance with the district court's order of December 13, 1995 and ensuing judgment. The respondent knowingly, willfully and intentionally violated that order.Given that all of this happened five years ago, Respondent has no independent memory of the amount of money Lily was ordered to pay. In any case, the amount is totally irrelevant to this Petition. Losing an appeal can be for many reasons, and certainly does not constitute sufficient basis for a Petition for Discipline.
Respondent further states that around this time, Lily retained an attorney in California, where she was residing and working, to represent her. Respondent has no personal knowledge as to what she did regarding payment after that. She has, however, sufficient information to believe that there was a settlement for a lesser amount of money.
TABLE 45: LETTER BY RESPONDENT TO BBO 6/14/98: BBO NO. B1-98-0256A Barbara C. Johnson
Attorney at Law
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833 FAX xxx-xxx-xxxx14 June 1998
Constance V. Vecchione, Esq. FAX: 6176-357-1866
Office of Bar Counsel
75 Federal Street
Boston, MA 02110Re: BBO File No.(s) B1-98-0268A
Your letter of 28 May 1998Dear Attorney Vecchione:
I did not appeal the matter to the Board because, in my opinion, the Brd [sic, read Board] is unlikely to act contrary to the desires of the Office of Bar Counsel. It had let Gordon off the hook!
Notwithstanding my view, I am compelled to address your letter to me. The Coughlin matter was not reviewed by Middlesex Superior Court, although I sought review. It was not reviewed because Mark O'Connor misled the judge about a material fact -- which in my opinion was a fraud upon the court -- and then the judge made an error of law. I filed a Notice of Appeal but a clerk sent the case back to District Court instead of assembling the record for the Appeals Court.
When I did manage to get the case to the Appeals Court, O'Connor lied again. In fact, he was awarded appellate fees. Oh, he's good, he's convincing, but he is ethically and morally destitute:he is a liar.
My own case met the same unfortunate lying opposition as Coughlin's. (I retained appellate counsel to handle mine.)
With even more documentary evidence of his lies, I have sought review in the Supreme Judicial Court, which I hope will review both cases, Coughlin's and mine.
As to the Cappello case: Cappello fortunately prevailed at the Appeals Court, but unfortunately that court did not address O'Connor's conduct. Below, I had sought sanctions against him, so the Appeals Court could have acted, but it didn't. It chose instead to make what appears to be a Solomonic decision: they restored Cappello's case to the active list and left O'Connor alone. And although it is true that I could not get cert on the issue of O'Connor's behavior, that does not mean that his conduct should be, if not condoned, ignored by the OBC!!
Finally, last week, a series of events caused a more startling event to occur shortly thereafter: (1) On Wednesday, May 27, Paula Cappello, having had an anxiety attack, was taken to the New England Medical Center by ambulance from O'Connor's law office after the second day of her deposition. On Friday, June 5, Cappello's husband learned several facts: (a) that O'Connor had lied again to the court (he wrote the court that the EMTs "derisively" told Cappello to walk to the hospital -- with the evil purpose of insinuating that she was faking her attack) and (b) that O'Connor was seeking an order of fees from Cappello for her leaving the deposition. (2) On Saturday, June 6, Coughlin phoned Cappello. (They had worked together and the corporate defendants are the same in each of their cases.) (3) During that phonecall, Steven Cappello, Paula's husband, learned that Coughlin had been ordered to pay O'Connor's appellate fees. (Paula Cappello knew this but had not told her husband for fear that he would become alarmed.) (4) He began to worry that his wife would suffer the same unfair treatment by the courts and that they would be forced into Bankruptcy. (5) On Monday night, June 8, Steven Cappello suffered a massive heart attack and died.
Lies do have consequences and the consequences or O'Connor's lies have been tragic. Mr. Cappello was 42 years old and had had three children -- 10-year-old twin sons and one younger son -- with his wife, Paula Cappello.
When I wrote you on May 16th, it was but five days after O'Connor, Paula Cappello, and I had been in Middlesex Superior Court, primarily for my motion seeking the appointment of a discovery master so that we could avoid the usual unpleasant machinations by O'Connor to evade compliance with discovery requests, and move the case along to trial. The judge said that it was for Bar to deal with O'Connor's conduct, not his court. Hence, my complaint to you at the OBC.
That's when I began to entertain the notion that perhaps, perhaps, the OBC would write an amicus curiae brief for Rose Coughlin to assist her in being granted further appellate review. Having heard of the enactment of the snitch rule, I had reason to believe that the OBC was serious about ridding the Bar of disreputable attorneys, and perhaps would take some affirmative action where some was needed.
What resulted instead has caused me disappointment and more cynicism. The OBC's decision to do nothing about O'Connor because Coughlin and I have been sanctioned is wrong. That Coughlin and I have been sanctioned is irrelevant. Coughlin and I have been sanctioned because O'Connor repeatedly lied . . . and because the courts have been, thus far, deaf and blind to O'Connor's egregious misconduct . . . and willing to be complacent about the trampling of Coughlin's rights -- and mine -- to constitutional due process and equal protection.
Of course, I have also learned from all of this is that lying to courts is countenanced. Lucky for society I am neither larcenous nor a liar! But society is not lucky that O'Connor is still out there. He is a symbol of shame for both the Bar and the Bench.
Still abhoring the business and the righteous rhetoric that lawyering is an honorable profession, I remain sincere, sincerely,
Barbara C. Johnson
Barbara C. Johnson
P.S. What about reimbursement to Donald Messier from the lawyers' victim's fund because of Garabedian's actions? Don't I even merit an answer to the question? This is the third time I've asked it. Further, when doing that stellar investigation of Steven Gordon, did Anne Kaufman ever write or speak to Jane Fairchild and Catherine Conte about him?
120. Respondent denies both sentences of ¶120 and calls upon Petitioner to prove the same. Notwithstanding her denial, Respondent states that the first sentence assumes that the December 13th order remained in effect until December 20th, 1995. It did not. Because no hearing had been allowed Johnson, Judge McGill changed his mind once again and on December 14th, caused an Andover police officer, arriving in a squad car with blue lights lit, to serve on Johnson both a contempt complaint and a summons to appear on December 22d, 1995, and be heard on additional contempt sanctions. [A1273 or CRA-1273]. Mark O'Connor was identified as Plaintiff-in- Contempt-Charges and Johnson as Defendant-in-Contempt- Charges.121. On or about July 16, 1998, the district court notified the respondent that additional civil remedies would be instituted against her unless she purged her contempt by paying the previously-ordered attorneys' fees of $1,278 and the civil penalty of $650, plus interest, no later than July 30, 1998. The respondent knowingly, willfully and intentionally violated that order.Whether "respondent knowingly, willfully and intentionally violated that order" is irrelevant, for a civil contempt adjudication based on a violation of an unlawful court order cannot stand. Labor, 382 Mass. at 469 n. 5 (assuming a valid order was an indispensible underpinning of the order), and cases cited. "[A] coercive civil contempt order does not survive if the underlying injunction is invalid."Id., citing LaTrobe Steel Co. v. United Steelworkers Local 1537, 545 F.2d 1336, 1345-1348 (3d Cir. 1976).
121. Respondent denies both sentences of ¶121 and calls upon Petitioner to prove the same.Notwithstanding her denial, Respondent states that she was never lawfully found in contempt, she never had the opportunity to cross-examine O'Connor or testify in her own defense, there was never an order with the sum of $1,278 in it, and the imposition of in terrorem fines for a period of time, 10-22 March 1995, when there was absolutely no order -- lawful or unlawful -- in place, the imposition of the in terrorem fines of $650 was both a violation of Respondent's civil rights and a criminal act by Judge McGill. See G.L. c. 12, §11i. There also was never a calculation or mention of interest on the daily in terrorem fines.
Judge McGill unlawfully and knowingly acted contrary to the due process and equal protection provisions of the State and Federal constitutions. His unlawful acts were forbidden by the Commonwealth and were thus expressly committed in the absence of jurisdiction. Where Judge McGill was "not doing the business which the sovereign has empowered him to do or he [was] doing it in a way which the sovereign has forbidden, his actions [were] ultra vires his authority and therefore may be made the object of specific relief. . . . and in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power." N.H. Ins. Guar. Association v. Markem Corp., 424 Mass. 344, 352 (1997), quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-690 (1949), discussed at length in Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 116 (1984).
Because Judge McGill was not authorized to violate the law, and his conduct was forbidden, his actions were ultra vires and he is liable for his own conduct. The two types of ultra vires conduct are clearly identified in Larson, supra. See Pennhurst at 153.\FN/ Mireles v. Waco, 502 U.S. 9, 12 (1991) ("judge is not immune for actions, though judicial in nature, taken in the absence of all jurisdiction").
FN That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949). The Larson opinion teaches that the actions of state officials are not attributable to the State -- are ultra vires -- in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that the sovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson.Pennhurst at 153 (Stevens, J., with whom Brennan, Marshall, Blackmun, JJ, join, Dissenting).
122. On or about December 3, 1998, the district court notified the respondent that a hearing on disposition of her contempt was scheduled for December 17, 1998. The court that day ordered defendants' attorney to serve the respondent with a subpoena daces tecum for her production of designated records at the hearing. The subpoena was served on the respondent in hand on or about December 5, 1998.122. Respondent has no independent memory of what happened over four years ago on December 3d and calls upon Petitioner to prove the same. Respondent's records -- such as the chronology in the numerous appeals, upon which Respondent has relied to answer this count in the petition -- do not support the Petitioner's averment that the court communicated anything to Respondent on that date.123. The respondent knowingly, willfully and intentionally failed to purge herself of her civil contempt prior to December 17, 1998. In addition, the respondent knowingly, willfully and intentionally disobeyed the subpoena duces tecum by failing to produce the records under subpoena on that date.Neither was there a proceeding or a hearing on December 3d, 1996. In fact, neither in Lily's case nor in Johnson's was there ever a "hearing" where Lily or Johnson was allowed to argue or present evidence. Umina v. Malbica, 27 Mass.App.Ct. 351, 361 (1989) ("a proceeding where no one is allowed to argue or present evidence cannot constitute a 'hearing'"), quoting Milton Commons Associates v. Board of Appeals of Milton, 14 Mass.App.Ct. 111, 114-115 (1982).
Notwithstanding the absence of independent memory of particular and unmemorable dates, Respondent does remember Thursday, 17 December 1998, primarily because of the uniqueness of events that took place that day in and outside of Concord District Court.
Respondent does admit that a hearing was scheduled to take place on December 17th, but denies that the hearing took place that day. There was only a proceeding. No evidence was taken. No opportunity to cross-examine the movant and accuser Mark O'Connor. No opportunity was granted Respondent to present a defense.
Respondent is quite grateful to the Assistant Bar Counsel Weisberg for disclosing that Judge Paul McGill had unlawful ex parte communication with Tyco's counsel, O'Connor, before or on or around 3 December 1998. Respondent has insufficient information to admit or deny the statement about the communication between Judge McGill and Tyco Attorney O'Connor, but the new information from ABC Weisberg helps explain perhaps the origin of certain earlier events, rulings, decisions, orders that did not pass any legal sniff test and seemed to arise from the netherworld rather than from a constitution, statute, or rule.
123. Respondent denies both statements as written in ¶123 and calls upon Petitioner to prove the same.124. On or about December 17, 1998, the district court held the respondent in continuing contempt of court. The court on that date ordered the respondent jailed until she purged her contempt and complied with the subpoena duces tecum. The respondent was taken into custody forthwith and incarcerated until December 18, 1998. True copies of the district court's findings and orders of December 17, 1998 are attached to this petition as Exhibits D and E.Notwithstanding the denial, Respondent states that even assuming arguendo that Bar Counsel Crane and/or ABC Weisberg refers to a particular adjudication of civil contempt, "a civil contempt adjudication based on a violation of an unlawful court order cannot stand" [Labor, 382 Mass. at 469 n. 5], thus relieving Johnson of any perceived -- rightly or wrongly perceived -- obligation to produce documents to purge herself of an alleged violation of an unlawful court order.
Respondent further states that defending against any and all orders -- regardless of whether they were clear and unequivocal or not, whether they were lawful or not -- she said she did not have the ability to pay and was willing to prove it to the court at all times. Other than that, her personal financials were not relevant to the issues before the court. Respondent further states that she had produced her financials almost three years earlier, on 17 January 1996, for an in camera inspection. McGill never memorialized his inspection in writing.
But Johnson also wanted to question or cross-examine O'Connor on his requests for fees. She was never allowed to do so, not once since March 1995, eight years ago, when McGill's first unlawful order issued.. The absence of due process and equal protection was caused by conduct egregious in extremis. It was intolerable. It was inexcusable.
It was also inexplicable.
For years, Johnson has cautioned herself not to think that McGill was on the take, but now with (1) the disclosure by Assistant Bar Counsel Weisberg of McGill and Tyco's Attorney O'Connor's ex parte communications and (2) the 39 recent indictments of Tyco's CEO, Dennis Kozlowski, for "stealing" $600 million from Tyco, Johnson feels confident in her original gut feeling that at least one judge was reached to prevent Johnson from conducting discovery of incriminating documents in the custody, control, and possession of the defendants and the successor corporations.
By December 1998, it was clear that justice was not to be had in Concord District Court, and it was not going to be recovered or restored by either of the higher courts, the Appeals Court or the Supreme Judicial Court. By December 1998, repeated fraud on the court had already been committed by
- defense counsel, Mark O'Connor, a partner of Rich May Bilodeau & Flaherty, and his defendant clients,
- the judiciary had already showed its lack of integrity and nettle,
- the Bar Counsel had breached in 1998 (prior to Johnson being jailed) its duty to protect the public from unscrupulous attorneys
- when it dismissed the complaint against O'Connor after Bar Counsel had been informed
- that O'Connor had so abused Carla with his threatening, intimidating, unconscionable conduct that Carla (a) collapsed in the ladies room of Rich May Bilodeau & Flaherty at the end of the second day of deposition, Wednesday, 27 May 1998) (b) was taken by ambulance to New England Medical Center, and (c) was diagnosed as having an anxiety attack (see Table 46, in which Johnson informed an Assistant Bar Counsel of the event),
- that on or around Saturday, 6 June 1998, Carla's husband learned about the order against Lily and began worrying that he and Carla, too, would suffer sanctions,
- that on Monday, 8 June 1998, troubled all weekend, dropped dead from a heart attack, and was pronounced DOA at Lahey Clinic,
Respondent incorporates herein by reference Table 45.- that Carla was left widowed with three young school-age children.
124. Respondent denies that the proceeding in Concord District Court went as written in ¶124, and calls upon Petitioner to prove the same.125. On December 18, 1998, the respondent effected the production of records under subpoena, the payment of $867.14 to the Commonwealth for the civil penalty with interest, and the farther payment of $1,712.28 to HMM for the attorneys' fees owed with interest. The respondent thereby purged her contempt and was released from custody that day.On 17 December 1998, Respondent was jailed PRIOR to being declared in continuing contempt of court, if, indeed, she was ever declared in continuing contempt. If the court declared it, it was AFTER Johnson had been put into the hold. Respondent has no memory of the court "on that date order[ing her] jailed until she purged her contempt and complied with the subpoena duces tecum." If the court ordered that, it was AFTER Johnson had been put into the hold. Respondent denies the third statement as written in ¶124 and calls upon Petitioner to prove the same.
Notwithstanding the denials, Respondent states that when she began a response to one of Judge McGill's questions with the word "No," Judge McGill ordered the court officer to "lock her up." Respondent never got to finish the sentence, which was explanatory and not a denial of any order. Respondent admits that she was " incarcerated until December 18, 1998."
By 17 December 1998, Johnson was jailed, not for not complying with one of McGill's orders, but for beginning with the word "No" an answer to a question posed by McGill on the 17th. Johnson was not jailed for any reason having to do (1) with a non-existent March 3d order, (2) with any discovery order, or (3) with some order arising out of two motions filed by Johnson in February 1995, eleven months prior to the bogus finding.
Respondent calls upon Petition to prove the authenticity of Exhibits D and E. Johnson never saw these before or after being jailed; at least, she has no memory of seeing them. If she did receive them, she has no memory of the receipt, and if she did, it is likely she did not read them, since very little of what McGill wrote was ever true. He had only earned the intense disrespect of Respondent.
125. Respondent denies the statements in both sentences of ¶125 and calls upon Petitioner to prove the same.126. By knowingly disobeying the district court's orders of December 13, 1995 after those orders were affirmed on appeal, engaging in contempt of court, and refusing to purge her contempt absent the compulsion of incarceration, the respondent violated Mass. R. Prof. C. 3.4(c) and 8.4(d) and (h), as set forth in paragraph 128 below.Notwithstanding the denial, Respondent states (1) that on 18 December 1998, she never produced any records under subpoena, (2) that on 18 December 1998, she never paid any monies to the Commonwealth or to HMM, which had gone out of existence many years prior to 18 December 1998, (3) that she calls upon Petitioner to prove (a) that on 18 December 1998, she owed the Commonwealth $867.14 for civil penalty with interest, (b) that on 18 December 1998, she owed $1,712.28 to the former-HMM or Earth Tech or Tyco's attorney, and (c) that on 18 December 1998, Respondent was in lawful contempt capable of being purged, and (d) that on 18 December 1998, she purged a lawful or unlawful contempt.
Respondent does admit that she was released from custody on 18 December 1998. A loyal son was forced to pay ransom for his mother on that date. Respondent has no personal knowledge (a) as to how much he paid or (b) as to whom he made the check(s) payable or (c) as to how the amount, whatever it was, was determined or calculated.
126. Respondent denies the statements as written in ¶126 and calls upon Petitioner to prove the same.127. By filing motions in the Lily action without any legal or factual basis and in bad faith, exposing Lily to dismissal of her claims and personal liability for sanctions and damages through her own misconduct, failing to appeal from the contempt judgment against Lily, and pursuing a frivolous appeal from the superior court order striking the retiansfer request, the respondent violated Canon One, DR 1-102(A)(5) and (6), Canon Six, DR 6-101(A)(1)-(3), and Canon Seven, DR 7-101(A)(3), as set forth in ¶129 below.Notwithstanding the denial, Respondent states (1)she never appealed any order of 13 December 1995, given that the order was amended within the period during which Respondent or Lily had to appeal, (2) that any contempt found was unlawful and could not stand, (3) that she never engaged in contempt of that court, (4) that she never disobeyed any clear and unequivocal order, (5) that she never believed she was in lawful contempt and therefore the elements"knowingly" and "refusing" cannot be proved, (6) that she never "knowingly disobeyed" a lawful order, (7) that an unlawful order cannot be purged, (8) that her incarceration had nothing to do with the amounts of money alleged to be owed or with the alleged contempts which are the subject of Count III of the Petition for Discipline, (9) that any payment made by her son was simply a sum he was told would be sufficient to get his mother out of MCI Framingham, and (10) that she did not violate the cited rules.
127. Respondent denies the statements in each and every sentence in ¶127. Respondent solemnly believes that she did absolutely everything possible on Lily's behalf. Given that the higher courts were disregarding Judge McGill's scurrilous decisions and violations of fundamental fairness, Respondent accomplished a miracle to get the judge to "clarify" and correct his errors of judgment and reduce the imposed assessments from $3809.25 to $261.25, which Respondent paid pursuant to several orders between 5 April 1995 and ______- 1996, and expecting that the judge would obey his own memorialized promise that he would restore Lily's complaint to the list when the assessment was paid in full. Once the amount had been reduced to $261.25, it was much more cost- and time-efficient to pay the $261.25 than to spend many hours and expend many dollars to effect an appeal which would likely be unsuccessful.As Weisberg and Crane themselves admit in their petition, an appeal from the superior court was deemed frivolous. How dare the Office of Bar Counsel presume that appealing, as opposed to paying the $261.25, would be in the best interests of the client. Respondent denies violating any canons of ethics.
Weisberg and Crane themselves are vulnerable to a charge of frivolity and malice and bad faith. Their position reveals that they do not know the difference between a Final Judgment on the Merits and a Final Judgment of Contempt. They could not have read the many appeals Johnson filed on behalf of Lily. They also had to negligently or purposely and maliciously ignore O'Connor's activities.
If any ethics were violated, they were broken by the diverse courts. Johnson had warned them all of the egregious conduct of O'Connor and they all ignored those warnings. Johnson even reported O'Connor to the OBC a week or so prior to his causing Carla to have an anxiety attack in his office and being removed by ambulance to the hospital, an event followed 10 days letter by the sudden heart attack and death of her 42-year-old husband, an event leaving her a widow with three elementary-school aged children.
In Respondent's opinion, all the courts -- and there were many -- aided and abetted what a jury might have concluded was a murder.
In both Lily's and Carla's and in Johnson's case, justice became a sham and the conduct of the courts a shame.
A jury trial is claimed and demanded. The denial of a jury by statute or rule is unconstitutional.
These are the rules the Bar Counsel said I violated. Canons and Rules
Rule 1.5 Fees129. Prior to January 1, 1998, the Canons of Ethics and Disciplinary Rules violated(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. The factors to be considered in determining whether a fee is clearly excessive include the following:Rule 1.6 Confidentiality of Information(1) the time and labor required, the novelty and difficulty of the questions involved, and lhe skill requisite to perform the legal service properly,(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer,
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent
(a) A lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to cany out the representation, and except as stated in paragraph (b).Rule 1.9 Conflict of Interest: Former Client(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation.Rule 1.15 Safekeeping Property(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formeriy was associated had previously represented a client
(1) whose interests are materially adverse to that person; and(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter, unless the former client consents after consultation.
(a) A lawyer shall hold property of clients or third persons that is in a lawyers possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the State where the lawyers office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of the receipt, maintenance, and disposition of such account funds and other property shall be kept by the lawyer from lhe time of receipt to the time of final distribution and shall be preserved for a period of six years after termination of the representation.Rule 1.16 Declining or Terminating Representation(b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any firnds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and severance of their interests. If a dispute arises concerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned.Rule 3,4 Fairness to Opposing Party and CounselA lawyer shall not
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;Rule 4.4 Respect for Rights of Third PersonsIn representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;(d) engage in conduct that is prejudicial to the administration of justice;
(h) engage in any other conduct that adversely reflects on his or her fitness to practice law.
by the respondent provided as follows:CANON ONE A LAWYER SHOULD ASSIST IN MAINTAINING THE INTEGRITY AND COMPETENCE OF THE LEGAL PROFESSION.
DR 1-102 Misconduct
(A) A lawyer shall not(5) Engage m conduct that is prejudicial to the administration of justice.(6) Engage in any other conduct that adversely reflects on his fitness to practice law.
130. At all times relevant to this petition, the provision of S.J.C. Rules 4:01 violated by the respondent provided as follows:CANON SIX A LAWYER SHOULD REPRESENT A CLIENT COMPETENTLY.
DR 6-101 Failing to Act Competently.
(A) A lawyer shall not:(I) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it(2) Handle a legal matter without preparation adequate in the circumstances.
(3) Neglect a legal matter entrusted to him.
CANON SEVEN A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDS OF THE LAW.
DR 7-101 Representing a Client Zealously.
(A) A lawyer shall not intentionally:(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).S.J.C. RULE 4:01
BAR DISCIPLINESection 10. Refusal of Complainant to Proceed; Compromise; or Restitution.
... A lawyer shall not, as a condition of settlement, compromise or restitution, require the complainant to refrain from filing a complaint, to withdraw the complaint, or to fail to cooperate with the bar counsel.
