Petition for Writ of Certiorari — Johnson v. Board of Bar Overseers

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character, that there be an impartial interpretation of the

laws, and administration of justice. It is the right of every

citizen to be tried by judges as free, impartial and independ-

ent as the lot of humanity will admit. It is, therefore, not only

the best policy, but for the security of the rights of the peo-

ple, and of every citizen, that the judges of the supreme judi-

cial court should hold their offices as long as they behave

themselves well; ...” Jd. [emphasis supplied].

Mass, Const., Part the Second, article XCVIIL amer Jing and

_— ~ meses lentes

Article XCVIII reads in pertinent part, “. . . All judicial

officers, duly appointed, commissioned and sworn, shall] hold

their offices during good behavior,...” Id. [emphasis

supplied).

STATUTES

18 U.S.C. § 1341. Scheme or artifice to defraud

28 U.S.C. §1291. Final decisi f distri

28 U.S.C. $1294. Circuits in which decisi —_

28 U.S.C. $1295

28 U.S.C. $1331, Federal question

The district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or treaties

of the United States.

28 U.S.C. §1337. Amount in controversy

28 U.S.C. § 1343, Civil righ s stestiun Genach

(a) The district courts shall have original jurisdiction of

any civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act done

in furtherance of any conspiracy mentioned in section

1985 of Title 42;

(2) To recover damages from any person who fails to

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were

about to occur and pow. . to prevent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Consti-

tution of the United States or by any Act of Congress

providing for equal rights of citizens or of all persons

within the jurisdiction of the United States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for the

protection of civil rights, including the right to vote.

(a) Except as provided in subsections (b) and (c) or as

expressly provided otherwise by Federal statute, in any civil

action of which the district courts have original jurisdiction,

the district courts shall have supplemental jurisdiction over

all other claims that are so related to claims in the action

within such original jurisdiction that they form part of the

same case or controversy . . .

tal jurisdiction over a claim under subsection (a) if — (1) the

claim raises a novel or complex issue of State law, (2) the

claim substantially predominates over the claim or claims

over which the district court has original jurisdict'>n, (3) the

district court has dismissed all claims over which it has origi-

nal jurisdiction, or (4) in exceptional circumstances, there are

other compelling reasons for declining jurisdiction.

28 U.S.C. §2201(a). Creation of remedy

In a case of actual controversy within its jurisdiction, ... ,

any court of the United States, upon the filing of an appropri-

ate pleading, may declare the rights and other legal relations

of any interested party seeking such declaration, whether or

not further relief is or could be sought. Any such declaration

shall have the force and effect of a final judgment or decree

and shall be reviewable as such.

2 U.S.C. §1983. Civil action for deprivation of rist

“Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . , subjects, or

causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding for

redress, except that in any action brought against a judicial

officer for an act or omission taken in such officer's judicial

capacity....”

42 U.S.C. $1985. Conspiracy to interfere with civil rights

(1) Preventing officer from performing duties

If two or more persons in any State . . . conspire to

prevent, by force, intimidation, or threat, any person from

accepting or holding any office, trust, or place of confi-

dence under the United States, or from discharging any

duties thereof; or to induce by like means any officer of

the United States to leave any State, district, or place,

where his duties as an officer are required to be per-

formed, or to injure him in his person or property on ac-

count of his lawful discharge of the duties of his office, or

while engaged in the lawful discharge thereof, or to injure

his property so\as to molest, interrupt, hinder, or impede

him in the discharge of his official duties;

(2) Obstructing justice; intimidating party, witness, or juror

If two or more persons in any State . . . conspire to

deter, by force, intimidation, or threat, any party or wit-

“ness in any court of the United States from attending such

court, or from testifying to any matter pending therein,

freely, fully, and truthfully, or to injure such party or wit-

ness in his person or property on account of his having so

attended or testified, . . . ; or if two or more persons con-

spire for the purpose of impeding, hindering, obstructing,

or defeating, in any manner, the due course of justice in

any State ... , with intent to deny to any citizen the equal

protection of the laws, or to injure him or his property for

lawfully enforcing, or attempting to enforce, the right of

any person, or class of persons, to the equal protection of

the laws; ...

19 = vi

(a) Applicability of statutory and common law

The jurisdiction in civil and criminal matters con-

ferred on the district courts by the provisions of titles 13,

24, and 70 of the Revised Statutes for the protection of all

persons in the United States in their civil rights, and for

their vindication, shall be exercised and enforced in con-

formity with the laws of the United States, so far as such

laws are suitable to carry the same into effect; but in all

cases where they are not adapted to the object, or are de-

ficient in the provisions necessary to furnish suitable

remedies and punish offenses against law, the common

law, as modified and changed by the constitution and

statutes of the State wherein the court having jurisdiction

of such civil or criminal cause is held, so far as the same

is not inconsistent with the Constitution and laws of the

United States, shall be extended to and govern the said

courts in the trial and disposition of the cause, and, if it is

of a criminal nature, in the infliction of punishment on the

party found guilty.

M.G.L. c. 30A. State Administrative Procedure. [See BBO

Rules 3.2 and 3.39].

Section §11A. Definitions The following terms as used

in section eleven A1/2 shall! have the following meanings:

. “‘Governmental body’, a state board, committee,

special committee, subcommittee or commission, however

created or constituted within the executive or legislative

branch of the commonwealth or the governing board or body

of any authority established by the general court to serve a

public purpose in the commonwealth or any part thereof, but

shall not include the general court or the committees or

recess commissions thereof, or bodies of the judicial

branch, or any meeting of a quasi-judicial board or com-

mission held for the sole purpose of making a decision re-

quired in an adjudicatory proceeding brought before it.

[emphasis supplied].

M.G.L. c. 30A, §11A%. Open meetings of governmental

bodies

All meetings of a governmental body shall be open to the

public and any person shall be permitted to attend any meet-

ing except as otherwise provided by this section.

No quorum of a governmental body shall meet in private

for the purpose of deciding on or deliberating toward a deci-

sion On any matter except as provided by this section. . . .

Mass. SJC Rule 4:01, §5(3)(i)

(3) The Board of Bar Overseers (i) with the approval of

this court, may adopt and publish rules of procedure and

other regulations not inconsistent with this rule; . . .

Mass. SJC Rule 4:01, §9(3). Immunity.

(3) The Board, members of the Board and its staff, mem-

bers of hearing committees, special hearing officers, and the

bar counsel and members of his or her staff shall be immune

from liability for any conduct in the course of their official

duties.

Mass. SJC Rule 4:01, $10

BBO Rule §1.15. Procedure to Apply

BBO Rule 8.3(b). Requiring lawyers to report serious viola-

tions of ethical duty by lawyers and judges.

STATEMENT OF THE CASE

Attorne

This case involves a litigator, Barbara C. Johnson, Esq.

[“Johnson”}, against whom the Massachusetts Office of Bar

Counsel [“OBC”] brought disciplinary charges before the

Massachusetts Board of Bar Overseers [“BBO”’] two months

after the November 2002 election, in which she ran for gov-

ernor on a platform of court reform, the need for judicial ac-

countability, particularly in the family-law court, and the

abolishment of judicial and quasi-judicial immunity.

Johnson also maintains a website, talseallegations.com,

which has drawn the attention of millions across our nation.

For her audience, she publishes fundamental legal “how-to”

and “what-is” information, some of her state and federal

pleadings, and opinions . . . hers and occasionally some of

diverse courts.

The charges brought against her by the OBC primarily

concern her website because cenSURing is easier than

cenSORing.

Specifically, the OBC brought three charges. In Count I,

Johnson was charged with publishing allegedly confidential

material on her website and thereby harming people, but the

OBC never identified with any particularity the confidential

material, the offending language, or the specific people alleg-

edly harmed. Due process required identification of the of-

fending language in the petition.

Bar Counsel also alleged that the unidentified information

“was derived from confidential reports and records on file in

the juvenile . . . or probate courts, and thus impounded or

shielded from public view by rule or by statute.” No evi-

dence whatsoever was produced evidencing the OBC’s

claim. The assistant bar counsel [“ABC’”] assigned to the

case produced only speculative “evidence.” Later the ABC

(1) stated that she did not mean to infer that Johnson pub-

lished impounded documents from the Juvenile Court, (2)

admitted that Johnson did not file such documents, but (3)

complained that those documents were the source of John-

son’s information. Of course, the ABC had no proof of that.

Johnson never made an appearance in the subject case, which

was brought in 1988, and had never been to the subject court.

In Count II, the OBC accused Johnson of commingling

funds, but the OBC never identified the amount of the funds

allegedly commingled. Respondent always contended that

she did not commingle funds, for she had already earned the

money before she cashed the check. Believing the couple

were facing steep attorney’s fees to defend against four

charges of rape and assault, she thought she was being con-

siderate of them when she deeply discounted her fees and re-

bated to the couple $3174.50.

The deep discounting made it appear that Johnson had

deposited the money into her account before earning it. At

least, that was the spin Bar Counsel put on it. But the spin

was untrue. Johnson had earned the money, properly put in

into her personal account, extended to the couple sympathy

and assistance for which they and their adult, married daugh-

ters and sons-in-law appeared (o greatly appreciate, returned

a few thousand dollars to them so as to ease their upcoming

financial burden.

As in Count I, an allegation of publishing “personal and

confidential” information was charged in Count II. Petitioner

contended that she was given written permission to publish

the Complainant's family story and produced the document

in which the permission was written. In any case, the com-

plainant had previously published their story to others who

had no need to know, and Johnson produced those writings.

Lastly, Count LI was a charge that arose from a “whis-

tleblower” case brought by Petitioner on behalf of a female

geologist over a decade ago. In that case, Johnson was gath-

ering evidence of fraud by the defendant company of the

state and federal governments. Petitioner's opponent during

“the time of trouble” — between 1995 and 1998 -- was Tyco,

a company headed by Dennis Kozlowski.\'/ Johnson was

found in contempt of a non-existent order. Lronically, a ma-

terially altered document was discovered during the Bar pro-

ceedings. She had never seen that document. Frankly, nei-

ther had the court . . . at least in 1995, when it allegedly was

created, and Johnson had considerable documentary evidence

to prove her contention. Petitioner scanned in the fabricated

document ané uploaded it, with full explanation, to her web-

site where it remains today, as well as included ix in her legal

briefs filed at the BBO.

The OBC alleged that Respondent was jailed in 1998 to

force payment of funds allegedly ordered to be paid in 1995

by that non-existent order. Johnson was precluded from the

* Within a week of this writing, former CEO Kozlowski was found

guilty of 30 charges, and will be sentenced in early August.

outset to use that document or any other at trial of that count.

The ABC stated during her opening statement that she would

establish Count III “largely but not totally . . . by the Chair's

ruling on issue preclusion, and by certain admissions by the

respondent in her answer.”

Il. Proceec

After Johnson learned that the OBC and BBO do not sub-

scribe to fundamental fairness, the cornerstone of due proc-

ess, and equal protection of the laws, she brought her federal

constitutional challenges to the Massachusetts Supreme Judi-

cial Court [“SJC”], where her action was summarily dis-

missed within 15 minutes of the single justice reading it.\?/

’ ’

iil. gat.4Ssc' ip I i isi i. u 5 I uf aE

She then filed the “federal version” of that suit in the U.S.

District Court in Boston within 35 minutes of the clerk’s call

telling her of the disposition. The respondents here were the

defendants in both the state and federal suits: the BBO, the

OBC,\*/ the Commonwealth of Massachusetts and various

individuals. In both suits, Johnson sought declaratory and in-

junctive relief as well as money damag. for various alleged

violations of her civil rights under 42 U.S.C. §§ 1983 and

1985, and for defamation under state law. [Add: 4-5.]

? Norwood v. Dickey, et al, No. 04-3120, slip op. at 4 (8" Cir. 6/1/05)

(finding that Norwood had not presented his constitutional claims before

either the Arkansas Commission or the Arkansas Supreme Court).

> The BBO is the adjudicatory and the OBC, the prosecuting entity. The

BBO Rules, promulgated pursuant to SJC Rule 4:01, §5(3)(i), by a Rules

Committee, “[mJade up of three SJC Justices (excluding the Chief Jus-

tice),” apply also to the OBC. The salaries of BBO and OBC quasi-

governmental persons are paid by private monies collected from attorneys

for annual licensing fees.

On February 24", the District Court dismissed Counts |

through 6, in which Johnson sought declaratory judgments on

Younger grounds. \*/

The six counts sought:

(1) a declaratory judgment that a bar disciplinary pro-

ceeding is a quasicriminal proceeding and that whether or not

the proceeding is quasicriminal, respondents are entitled to a

jury trial,

(2) a declaratory judgment that ©»: Rules of the Board of

Bar Overseers are unconstitutional both facially and as ap-

plied for civil or quasicriminal proceedings,

(3) a declaratory judgment that lawyers are entitled to the

full sweep of due process and equal protection of all the laws,

(4) a declaratory judgment that §§ 9(1), 9(2), and 9(3) of

Supreme Judicial Court Rule 4:01 are unconstitutional both

facially and as applied (there is no scenario in which either

the Board Rules or SJC Rule 4:01 §§9(1), 9(2), and 9(3) can

be applied constitutionally),

(5) a declaratory judgment that §10 of SJC Rule 4:0) is

* Caselaw speaks to whether a declaratory judgment could affect or in-

terfere with the result of the disciplinary proceeding. But the conclusions

drawn by the courts can be, although logical, only speculative. For in-

stance, in Johnson's disciplinary proceeding, which is still pending, there

is no fact that leads one to believe that the decision makers would veer

from the predetermined recommendation, namely, of disbarment

What the Court opinions have consistently assumed is that entities like

the BBO will relinquish their untamed and untamable power. Untamable,

because the OBC and BBO attorneys are private-sector employees. They

are paid with the money collected as annual license fees from their broth-

ers and sisters at law. The OBC and BBO are not agencies and not de-

partments of any government. They are independent “affiliated entities.”

See <http://www.state.ma.us/courts/courtsandjudges/courts/supremejudi-

cialcourVabout. himl#affiliated>. They are not obliged by oath or duty to

listen to the United States Supreme Court.

unconstitutional both facially and as applied, and

(6) a declaratory judgment that Rule 1.5 of the Mass.

Rules of Professional Conduct is unconstitutional on th-

grounds that it is too vague and too broad.

Of the six counts, only Count 4, concerning immunity,

and Count 6, concerning a rule that applies to fees,\°/ have no

relevance to the disciplinary proceeding in that they cannot

have the practical effect of interfering with that related, but

not parallel, litigation pending at the BBO quasi-court. The

BBO action may proceed or, at the very least, the declaratory

judgment claims may be stayed until the disciplinary action is

resolved.

In response to Respondents’ motion to dismiss the com-

plaint, Petitioner argued seven issues in writing and/or orally

at the hearing on the motion in the district court and in her

appellate brief:

1. Johnson challenged each of the three prongs of the

Younger test, upon which the district court relied to dismiss

six counts requesting declaratory judgments and three counts

* The Special Hearing Officer, Respondent Phillips, wrote in his Hearing

Report of 23 May 2005:

After reviewing the bill and the other evidence presented, | find that

Bar Counsel has failed to prove these charges by a preponderance of

the evidence. I am not persuaded that the fee charged for the services

rendered was clearly excessive, \FN26/ nor am | persuaded that the

Respondent made intentional misrepresentations to the Parkers about

her fees, time and services. In so finding, I note that no testimony

was presented in this hearing and thus, | had no opportunity to evalu-

ate the credibility of the Parkers or the Respondent with respect to

these issues. (See n.9, supra)

FN26 In my view, the fact that | might question an hour or two

here and there is not sufficient to meet the requirement that a fee

be “clearly” excessive.

Hearing Report. except from 953.

against the natural defendants in their official capacities, and

concluded that the Younger abstention doctrine did not apply.

2. She argued that abstention under Younger v. Harris,

401 U.S. 37 (1971), was not appropriate because (1) the party

seeking relief in the state case differs from the party seeking

the relief in the federal case, (2} the issues in the pending lo-

cal administrative action differ from the issues in the federal

case, (3) the relief sought in the federal case differs from the

relief sought in the state case,\°/ Rio Grande Community

Health Center, Inc. v. Rullan, 397 F.3d 56, 2005.C01.00000-

52 at 440 <http://www.versuslaw.com> (1st Cir. 2/14/2005)

(“Younger applies only when the relief asked of the federal

court ‘interfere[s}’ with the state proceedings”), citing

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996).

Younger also does not apply (4) when there are exceptional

circumstances,\’/ or (5) there is bias. See Brooks v. New

Hampshire Supreme Court, 80 F.3d 633, 640 (ist Cir. 1996).

Because the district court had concluded that she had not

satisfied the “bias” exception to the Younger abstention doc-

trine, Johnson, in Issue 2, ran the gauntlet between the two

common-law elements of that exception: (1) “general institu-

tional bias” and (2) “the defendants’ pecuniary stake in the

outcome of the litigation.” To demonstrate that she had

shown bias, Johnson argued matters that would ordinarily be

deemed “taboo” and not in the best taste for an appellate

brief.

3. Johnson challenged the validity — i.e., the constitu-

* “{A]bstention under Younger v. Harris, 401 U.S. 37 (1971), and Colo-

rado River Water Conservation Dist. v. United States, 424 U.S. 800

(1976), was not appropriate because the relief sought in the state case dif-

fered from the relief sought in the federal case, inasmuch as retroactive

monetary relief was only sought inthe state case.” Rio Grande Commu-

nity 2005.C01.0000052 at 940 <http://www versuslaw.com.

” Middlesex at 22, citing Dombrowski v. Pfister, 380 U.S. 479 (1965).

16 ;

tionality -- of the BBO Rules and proved that her reliance on

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462 (1983), was not misplaced, contrary to the lower court’s

assertion. To do so required discussion of (a) the inconsis-

tency of the motion judge’s conclusions as to the nature of a

bar-disciplinary hearing in the Cammonwealth, (b) the relief

sought by Johnson, and (c) the lower court’s misinterpreta-

tion of Maymé-Meléndez_v. Alvarez-Ramirez, 364 F.3d 27

(1st Cir. (P.R.) 2004), and Van Arken v. City of Chicago, 103

F.3d 1346 (7th Cir. 1997), as to when Rooker-Feldman is ap-

plicable and when it is not.

4. To prove that the Younger doctrine does not require

abstention on Johnson's claims for declaratory and equitable

relief, Johnson (a) discussed the principles of comity, analo-

gizing to cases in the domestic-relations arena, (b) asserted

that her money-damage claims for civil rights violations fall

within the exception and are thus cognizable in federal court,

court to make a determination of whether an attorney should

be disciplined, (d) asserted that the exhaustion of state judi-

cial remedies is not required of her (although she had filed

the case in the SJC prior to filing in federal district court),

(e) distinguished the instant case from Middlesex by showing

that the attorney disciplinary proceedings in Middlesex were

judicial in nature and those in the instant case were adminis-

trative in nature. Thus Younger is not implicated in the con-

text of this case.

She wrestled with the opposing assistant attorney-

general's assertion — with which the District Court and the

First Circuit panel concurred -- that Middlesex County Ethics

Committee v. Garden State Bar Association, 457 U.S. 423

(1982), to be relevant to this case. He and the courts con-

cluded that Middlesex expanded the reach of the Younger

doctrine to attorney disciplinary hearings. To reach that

conclusion, all three entities insisted that such hearings were

judicial in the Massachusetts. But as recently as this year,

2005, the First Circuit wrote in Rio Grande at 164, “It is un-

clear exactly how far this second rationale extends.”

Petitioner concedes that recent cases rely on Middlesex to

expand the reach of the Younger doctrine, but in this action,

the rationale of Middlesex is but a smokescreen. It is well-

settled that Massachusetts attorney discipline proceedings are

administrative in nature, not judicial. And all the Massachu-

setts cases unequivocally state that they are administrative in

the Commonwealth.

The reason is starkly clear. If attorney discipline pro-

ceedings were judicial in nature, the OBC and the BBO

would have to acknowledge that we have well-settled rules of

evidence, rules that they now blithely ignore.

It is those rules which are the safeguards of which the

Court in Butz v. Economou, 438 U.S. 478, 512-513 (1978),

spoke when deciding to extend judicial immunity to hearing

officers performing adjudicatory functions in federal adminis-

trative agencies: “[FJederal administrative law requires that

agency adjudication contain many of the same safeguards as

are available in the judicial process." Id, Not one of those

safeguards exists in the Massachusetts OBC/BBO discipli-

nary proceedings.

5 and 6. Issues 5 and 6 presented the issue of competing

constitutions. Johnson showed that article V of the Massa-

chusetts Declaration of Rights is alive and well and that

where no United States Congress took part in the birth and

development of either the judicially-created second prong of

the Eleventh Amendment (from the ribs of Hans v. Louisi-

ana, 134 U.S. 1 (1890)) [Issue 5] or the judicially-created

doctrine of judicial immunity (from the womb of the Star

Chamber) [Issue 6], the federal Supremacy Clause cannot

trump art. V’s guarantee of accountability since 1780 by all

magistrates and officers of all three branches of government

to all the people all the time.

7. Johnson relied on Roche v. John Hancock Mut. Life

Ins. Co., 81 F.3d 249 (1st Cir. 1996). It held that the court has

discretion to retain supplemental jurisdiction over the pen-

dent State claim -- even if the federal claims suffer an early

demise -- when the discretion is gauged on concern for com-

ity, judicial economy, convenience, fairness, and the like, and

that the preferred approach is pragmatic and case-specific.

In sum, the district court made no distinction between ju-

dicial and non-judicial acts. It made no distinction between

general and limited jurisdiction. It made no distinction be-

tween the nature, function, and acts of the diverse respon-

dents. It simply used the words “Younger,” “judicial immu-

nity” and “quasi-judicial immunity” as magic wands.

On February 25th, the District Court motion judge heid

that Johnson’s suit for money damages against the individual

defendants in their personal capacities stated a cause of ac-

tion, and invited the parties to submit further briefing on the

issues of quasi-judicial and quasi-prosecutorial immunity.

Add. 3-4, 2/25/04 Order. Those issues were raised by the

judge sua sponte in an order after the hearing on the defen-

dants’ first motion to dismiss.

In response to the order of the 25th, Johnson filed a brief

on the issues of quasi-judicial and quasi-prosecutorial immu-

nity.

Because of the judge’s February 2Sth order, opposing

counsel, an assistant attorney-general, then wrote a second

motion to dismiss to give the judge something on which the

judge could hang his hat. Next, Johnson filed both her op-

position to that motion, asserting that neither quasi-judicial

nor quasi-prosecutorial immunity was available to the natural

defendants, and a motion for reconsideration of the District

Court’s February 25th order dismissing her claims for de-

claratory relief. Reconsideration was denied.

IV. in the Fi i A

Petitioner appealed to the First Circuit from the dismissal

of (1) the declaratory-judgment claims “on the basis of the

Younger abstention doctrine,” (2) the three money-damage

claims against the BBO, the OBC, and the named individuals

acting in their professional capacities for violations of her

civil rights under §§ 1983 and 1985 during the disciplinary

process (a) pursuant to their “Eleventh Amendment immu-

nity from suit” and (b) “on the basis of the absolute immunity

arising from the defendants’ quasi-judicial and quasi-prose-

cutorial roles in the Board of Bar Overseers and the Office of

Bar Counse!” and (3) her common-law defamation claim

against Defendant Bar Counsel Daniel Crane [“Crane’”’] on

the grounds that the district court had the discretion to de-

cline to exercise supplemental jurisdiction.

In her appellate brief, Johnson contends that she demon-

strated that the district court judge’s memorandum contained

several critical inconsistencies, resulting in conclusions based

on specious facts and making reversal mandatory.

Amongst her many arguments, Johnson argued that a

“District Court [is required] to stay rather than dismiss claims

that are not cognizable in the parallel state proceeding.” De-

akins v. Monaghan, 484 U.S. 193, 202 (1988) (internal cites

omitted). “The Third Circuit rule is sound. It allows a paral-

lel state proceeding to go forward without interference from

its federal sibling, while enforcing the duty of federal courts

to assume jurisdiction where jurisdiction properly exists.”

Id, at 202-203.

Opposing the judge’s conclusion that Respondents M.

Ellen Carpenter (“Carpenter”} and Herbert P. Phillips [“Phil-

lips” ] were “performing a traditional adjudicatory function,”

Petitioner argued (1) that Carpenter and Phillips were not of-

ficials of an agency but officials of Affiliated Entities, (2)

that they did not “perform functions essentially similar to

those of judges or prosecutors, in a setting similar to that of a

court, (3) that even were we to assume arguendo that judicial

immunity is constitutional, the factual dispute as to whether

Carpenter and Phillips were performing judicial functions

was within the purview of a jury to resolve, not within that of

the bench when considering a motion to dismiss, and (4) that

Carpenter and Phillips did not consider facts or apply law

when ruling on motions. Thus, they did not perform tradi-

tional adjudicatory functions, making the award of quasijudi-

cial immunity reversible error.

Where Bar Counsel Crane’s function was ministerial and

where he conspired to and did deprive Johnson of her consti-

tutional rights -- he? clearly established First Amendments

rights to political expression and free speech, the right to de-

fend herself, as well as her rights to due process and equal

protection -- Crane was not entitled to immunity derived

from any source or of any kind. In fact, his only function

was to play the nonprosecutorial role of the titular plaintiff of

the petition for discipline. The titular function of plaintiff is

not defined in any statute, rule, or regulation. But for §9(3)

of SJC Rule 4:01, Crane would not have been immunized for

“any conduct” of his.

The First Circuit brevis disposition sloughed off, without

mention, Johnson’s arguments [Add:1-2], and gave no hint

that the panel considered any of Johnson’s arguments.

REASONS FOR GRANTING THE WRIT

I. Review Is Warranted Because Judge-Made Doctrines

Have rived Petitioner of Her Secured Constitu-

tional Rights

A primary question in this case is whether judicially-

created doctrines — the Younger doctrine, the doctrine of the

“second prong of the Eleventh Amendment,” the doctrines of

quasi-judicial and quasi-prosecutorial immunity, §9(3) of

SJC Rule 4:01 -- can be used to strip Petitioner of her First

Amendment rights to petition and to seek redress for her

grievances.

These doctrines nullify the plans of the Framers of both

the Massachusetts and United States constitutions to assure

that these constitutions protect the people from the govern-

ment, that the public may petition and seek redress, that the

laws will not be suspended except as provided in the consti-

tutions, that al] magistrates and officers of all three branches

of government shall be accountable to the people at all times.

U.S. Const. First, Fifth, and Fourteenth Amendments. Mass.

Const., Decl. of Rts., arts. V, VIII, XI, XX, XXIX, XCVII.

By applying these doctrines across the nation in a hu-

mungous majority of the cases the public brings against its

government or the officers thereof, the courts have rendered

meaningless the Framers’ plain and express intent to restrict

bad behavior.\*/

Even assuming arguendo that the doctrine of judicial

immunity may legitimately protect judges, “absolute judicial

immunity does not apply to non-judicial acts, i.e., the admin-

istrative, legislative, and executive functions that judges may

* The notion that a violation of the plain language of the Constitution

can gain legal stature by long-continued practice is not one I can sub-

scribe to. A majority group, as de Tocqueville observed, too often

"claims the right not only of making the laws, but of breaking the laws

it has made.” De Tocqueville, Democracy in America, Vol. |, at 261.

Cohen v. Hurley, 366 U.S. 117, 142 0.23 (1961) (Mr. Justice Black, with

whom Chief Justice Warren and Justice Douglas concurred, dissenting), a

5-to-4 decision overruled in Spevack v. Klein, 385 U.S. 511, 514 (1967).

“(L]awyers also enjoy first-class citizenship.” Id at 516.

on occasion be assigned to perform.” Duvall v. County of

Kitsap, 260 F.3d 1124, 2001.C09.0000732 at 429 <http://-

www.versuslaw.com> (9th Cir. 2001), citing Forrester v.

White, 484 U.S. 219, 227 (1988). See also Mireles v. Waco,

502 U.S. 9, 11-12 (1991) (per curiam) (“a judge is not im-

mune from liability for non-judicial acts, i.e., actions not

taken in the judge's judicial capacity. Second, a judge is not

immune for actions, though judicial in nature, taken in the

complete absence of all jurisdiction") (citations omitted).

Petitioner contends, however, that absolute judicial im-

munity may not properly be extended to functionaries em-

ployed or appointed to “affiliated entities” — not an agency,

department, or division of government, but “affiliated enti-

ties” — to oversee administratively those who practice law.

At the Massachusetts BBO and OBC, there are no disclosed

definitions of duties and no duly enacted rules of evidence

apply. Adherence to the procedural rules of the BBO is an

act routinely ignored.

In Petitioner’s case, the absence of due process was ad-

mitted and blatant (one of many examples: no witnesses were

to be called in the OBC’s case-in-chief, so there would be no

opportunity for cross-examination), statutes and common law

had no stature, and defenses were improperly precluded.\’/

* While this case was pending in the First Circuit Court of Appeals, the

Massachusetts Bar Association formed a BBO Task force to put the BBO

and the OBC under scrutiny and have issued a report calling for reform.

See Figures 1(a) and (b), infra.

~ .

—" n m <

Figure I(a). Excerpt from Mass. Lawyers Weekly, 10/1/2004

Where the Respondent “affiliated entities” — the BBO and

the OBC — and their staff attorneys failed to follow the rules

promulgated by committee without statutory authority and

deprived Petitioner of her constitutional rights, Respondents

were not entitled to the quasi-judicial or quasi-prosecutorial

immunity granted them not by a constitution, not by a statute,

not by a court order, but by a rule written by an anonymous

committee and not duly enacted according to law.

To persons whose acts were administrative in nature and

altered Johnson’s rights and potential liabilities, judicial im-

munity was inapplicable. Johnson v. Turner, 1997.C06.281

at 955, No. 94-5919 <http://www.versuslaw.com> (6th Cir.

1997) (“a judge may be liable for action that is administrative

in nature and that does not alter the rights and liabilities of '

the parties”), citing Morrison v. Lipscomb, 877 F.2d 463,

464-466 (6th Cir. 1989). See also Figueroa v. Blackburn,

208 F.3d 435, 2000.C03.0042063 at 939, <http://www.ver-

suslaw.com> (3d Cir. 2000), citing Turner v. Raynes, 611

F.2d 92, 94 (5th Cir.) (opining that the Supreme Court's pro-

nouncements on immunity for judges of courts of inferior or

limited jurisdiction have been "circumspect"), cert. denied,

Figure 1(b). Excerpt from Mass. Lawyers Weekly, 10/1/2004

449 U.S. 900 (1980).

In Butz v. Economou, 438 U.S. 478, 513 (1978) , the

Court accorded judicial immunity to hearing officers per-

forming adjudicatory functions within a federal administra-

tive agency; but that conclusion was based on the finding that

“adjudication within a federal administrative agency shares

enough of the characteristics of the judicial process that those

who participate in such adjudication should also be immune

from suits for damages.” 438 U.S. at 512-13.

In contrast, in the state disciplinary action against John-

son, there was absolutely nothing that was remotely function-

ally comparabie to that of a judge.” Id. at 513. ,

If any court — or in this case, a quasi-court -- knowingly

and intentionally acts in such a way that deprives parties of

their rights and liabilities without due process, there must be

accountability and liability. The keywords are, of course,

knowingly and intentionally. Otherwise it would be as held

by the court in Figueroa:\""/ “preposterous.” Petitioner is not

implying that the actors should be liable for mistakes. A mis-

take is one thing, an intentional act that the actor knows de-

prives a party of constitutional rights is another. It is that dis-

tinction that appears to be an issue of first impression.

Some noteworthiness of Figueroa is found in the irra-

tional typicality of that court’s conclusion that a judge does

not need to determine whether he or she has jurisdiction prior

to exercising jurisdiction. Figueroa, at 455. “To find other-

wise would require a judge to refrain from exercising juris-

diction prior to determining whether jurisdiction, in fact, ex-

ists.” Id. That lack of logic — analogous to concluding that a

breach of contract occurred before proving that there was a

contract, or concluding that negligence occurred before prov-

ing that the alleged tortfeasor had a duty to the complainant —

19 2000.C03.0042063 at 156, <http://www.versuslaw.-com>.

infects the judicial immunity cases. Any excuse in a storm, (to

avoid having to define and distinguish between “good behav-

ior” and “bad behavior.”

Other examples of OBC’s bad behavior in the discipli-

nary action is (1) that the charges were never clear, (2) that

Johnson was never “given an opportunity . . . to dispel any

possible misunderstanding” [Figueroa, at {69 n. 9 (internal

cite omitted)}, (3) that Johnson was told she would be pre-

cluded from presenting any exculpatory facts to the court,

and (4) that at a pretrial hearing, Respondent Special Hearing

Officer Phillips repeatedly ordered the transcriptionist not to

record when Johnson spoke.\""/

Of course, it is well-settled that where the Respondent

quasi-judges and quasi-prosecutor were acting in a non-

judicial capacity or in excess or outside their jurisdiction;

they are not immune from suit seeking monetary damages.

" On 3 December 2003, approximately a month after this action was

served and during Johnson's Opening Statement at the public trial sched-

uled for that day, Phillips quashed all! of Johnson's witness subpoenas and

ordered the public out of the hearing room.

If Phillips were to play games again with the reporter, he and the

other OBC and BBO staff could fabricate at will. Because Johnson had

discovered two fabricated documents during the course of the disciplinary

proceedings, and had been precluded from using them as evidence at trial,

Phillips’ expulsion of the public from the hearing room created, in the

vernacular, a remarkable, unanticipated, and memorable spooky situation.

There was no legitimate factual or legal reason for the expulsion of

the public. Phillips stated that the real names of certain folks were sub-

ject to a protective order. The ABC told him there was not, but he ig-

nored her, too. The desired result had been predetermined and Phillips

wanted to be sure that he could reach it without interference and, obvi-

ously, embarassment.

Johnson left with the public, and upon learning that the “trial” con-

tinued after she left with her contingent and other members of the public,

she immediately filed a motion for a new trial, which was denied.

Mireles, 502 U.S. at 11-12. Notwithstanding that well-settled

law, the district court wrongly dismissed the claims against

the Respondents who acted non-judicially (Respondents Car-

penter, Phillips, Crane) and that decision was affirmed by the

First Circuit Court of Appeals.

Il. Review Is Wa A Li-

The BBO proceedings (a) were administrative, not judi-

cial in nature; (b) did not implicate important state interests;

claims, and (d) grew out of exceptional circumstances and

ire, if not bias, against Johnson fulfilling her duty to report

professional misconduct\'7/ and publishing her work on her

Internet website.

The American Colonists were not willing, nor should we

be, to take the risk that ‘(m)en who injure and oppress the

people under their administration (and) provoke them to

cry out and complain’ will also be empowered to ‘make

that very complaint the foundation for new oppressions

and prosecutions.” The Trial of John Peter Zenger, 17

Howell's St. Tr. 675, 721-722 (1735) (argument of counsel

to the jury). To impose liability for critical, albeit errone-

ous or even malicious, comments on official conduct

would effectively resurrect ‘the obsolete doctrine that the

governed must not criticize their governors.’

New York Times Co. v. Sullivan, 376 U.S. 254, 300 (1964)

"? BBO Rule 8.3(b), “requir{ing] lawyers to report serious violations of

ethical duty by lawyers and judges.” Id. at Comment.

(citations Omitted).

B. By Applying the Eleventh Amendment, a Two-

Headed Hydra, to Otherwise Meritorious Claims

Another untenable excuse used by the federal courts to al-

low the judicial or quasi-judicial respondents to escape liabil-

ity and accountability is the Eleventh Amendment. Like the

doctrine of judicial immunity, the nascence of the second

prong of the Eleventh Amendment was without the potency

of any Congress. It was birthed almost 100 years after the

duly-ratified first prong of the Eleventh Amendment, which

has no application here whatsoever, by a court acting outside

the scope of its authority. Hans v. Louisiana, 134 US. 1

(1890) (enhanced the Eleventh Amendment by judicial fiat

holding that a citizen cannot sue his/her own State in federal

court). It was a court that when circumventing the legislature

by usurping its law-making power, transformed our govern-

ment into one that oppressed the governed.

This was contrary to what our Framers intended.\""/ To

prevent such oppression, the Framers gave the public the

right to return those oppressing the governed to private life.

U.S. Const., Art. 3, §1. Mass. Declaration of Rights, art. VIL.

It is reasonable to conclude that the Framers considered that

the public would choose from the full spectrum of sanctions:

from the giving of relief for one identifiable wrongdoing to

the harsh sanction of impeachment. Thus when the district

'% Not having been duly ratified, the second prong of the Eleventh

Amendment may not be invoked against Petitioner. Nor may it override

or preempt art. V of the Mass. Declaration of Rights, which has since

1780 constitutionally guaranteed accountability at all times by all three

branches of government to the people, of which she is one. Nor may it

supercede the Fourteenth Amendment, duly ratified 22 years prior to the

grenade thrown at the civil rights of individuals in Hans. Nor may it over-

ride the plain language of §1983, enacted to enforce the provisions of the

Fourteenth Amendment. Nor may it overrule the intent of Congress not to

afford immunity to those judges who deprive citizens of their civil rights.

court held and the First Circuit affirmed agreed that Eleventh

Amendment immunity barred Johnson's §1983 claims

against the natural defendants in their official capacities in

Counts 7, 8, and 9, they used power that was not theirs to use.

Moreover, where Article V of the Massachusetts Declara-

tion of Rights explicitly guarantees accountability by all

magistrates and officers of each branch of government to all

the people at all times, and where it does not distinguish be-

tween the Commonwealth of Massachusetts or the individu-

als in their individual or official capacities, article V consti-

tutes the state’s express and unequivocal consent to suit by

the people. See The Federalist, Paper No. 81.

Thus the Eleventh Amendment may neither override the

Commonwealth's constitutional guarantee of accountability

nor bestow sovereign immunity on the Commonwealth where

there was no immunity ab initio. Id, Certainly the Eleventh

Amendment cannot preempt article V of the Declaration.

Notwithstanding the obvious issue of competing constitu-

tions, Article VI of the federal constitution would have to be

invoked, and that is impossible. To invoke Article VI, the in-

tent of the United States Congress to preempt the Massachu-

setts Declaration of Rights would have to be shown, and

where no United States Congress took part in the birth or the

development of the Eleventh Amendment, no such intent can

be shown and thus the Supremacy Clause may not be in-

voked. “Whether a Federal law preempts a State law is a

question of congressional intent.” Com. v. Burgess, 426

Mass. 206, 221-222, 688 N.E.2d 439, 450 (1997), citing Eng-

lish v. General Elec. Co., 496 U.S. 72, 78-79 (1990).

Under the supremacy clause in art. 6 of the Constitu-

tion of the United States, we are obligated to declare

invalid any State statute or regulation that purports to

regulate a field that Congress has reserved exclusively to

itself. Com. v. Federico, 383 Mass. 485, 488-489, 419

N.E.2d 1374 (1981). The touchstone of preemption is

congressional intent. Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 208 (1985). See Malone v. White Motor Corp.,

435 U.S. 497, 504 (1978). “To discern Congress’ intent

we examine the explicit statutory language and the struc-

ture and purpose of the statute.” /ngersoll-Rand Co. v.

McClendon, 498 U.S. 133, 138 (1990). :

Com. v. College Pro Painters (U.S.) Lid., 418 Mass. 726, 728,

640 N.E.2d 777, 779 (1994). Certainly if congressional intent

is required to preempt a state statute, in the absence of congres-

sional intent, a judge-made “amendment” cannot preempt a

constitutional article of the Massachusetts Declaration of

Rights.

First Amendment and other constitutional interests must

trump the respondents’ interests in immunity.

By not having an existing statute or a constitutional pro-

vision upon which judicial immunity or the second prong of

the Eleventh Amendment are based, and no ordinary consti-

tutional analysis -- using strict or intermediate scrutiny or a

rational basis test -- of the facts of the case or of Petitioner’s

legal arguments, the decisions below leave unsettled the

critical conflict between the judicially-created law and the

exquisite United States and Massachusetts constitutions. This

Court, therefore, must grant review in this case and resolve

this conflict.

If this Court re-cements the rule that quasi-judges and

quasi-prosecutors are absolutely immune from challenges

except when there are criminal circumstances and a total ab-

sence of jurisdiction, the decision would not only short-

circuit this and any other petitioner’s First Amendment

rights, even in the face of “judicial bad behavior,” it would

also short-circuit the “good behavior” clauses in both the

state and federal constitutions. Art, 3, §1, U.S.Const. Art.

XXIX, Decl. of Rights, Mass. Const. Part the First.

Where quasi-judicial and quasi-prosecutorial immunity

and the second prong of the Eleventh Amendment have never

been scrutinized and cannot be attributed to the Framers or to

any Congress, the application of the judicially-created doc-

trines of quasi-judicial and quasi-prosecutorial immunity and

the unratified second prong of the Eleventh Amendment,

must not be continued as de facto constitutionalized policies

Or practices.

Lastly, the second prong of the Eleventh Amendment also

unconstitutionally interferes with Petitioner’s rights to the

full sweep of due process and equal protection of the laws, -

and her enforceable right to sue the respondents for the dep-

rivation of her constitutional nghts. “{L]awyers also enjoy

first-class citizenship.” Spevack , at 516.

CONCLUSION

For the foregoing reasons, petitioner prays that this Court

grant certiorai to review so that Petitioner may seek the re-

versal of the application of the Younger doctrine, the doctrine

of quasi-judicial and quasi-prosecutorial immunity from any

source, and the doctrine of the Eleventh Amendment, and the

remand of this case to District Court in Boston for trial.

Andover, MA 01810-4102

978-474-0833

Mass. B.B.O. No. 549972

23 June 2005 First Circuit Bar No. 36719

Addendum |

United States Court Appeals

For the First Circuit

No. 04-1713

04-1833

BARBARA C. JOHNSON,

Plaintiff, Appellant,

Vv.

BOARD OF BAR OVERSEERS OF THE

COMMONWEALTH OF MASSACHUSETTS, ET AL.,

Defendants, Appellees.

Before

Torruella, Lipez and Howard,

Circuit Judges.

JUDGMENT

Entered: March 31, 2005

The judgment of the district court is affirmed essen-

tially for the reasons stated in Johnson v. Board of Bar

Overseers, 324 F.Supp.2d 276 (D. Mass. 2004). See lst

Cir. R. 27(c). We add only these comments.

Addendum 2

1. The Younger doctrine bars plaintiff's request for

declaratory relief. See Samuels v. Mackell, 401 U.S. 66, 72

(1971). “[I)}nterference [with pending state proceedings]

. Clearly exists where,” as here, “the plaintiff is seeking a

declaratory judgment that a prosecution, of the statute serv-

ing _as its basis, is illegal or unconstitutional.” Rio Grande

Community Health Ctr. v. Rullan, 397 F.3d 56, 70 (Ist Cir.

2005) (emphasis added).

2. Plaintiff fails to distinguish Middlesex County

Ethics Committce v. Garden State Bar Association, 457

U.S. 423 (1982). From the arguments made here, we see

no functional difference for Younger purposes between the

Massachusetts and New Jersey bar -disciplinary proceed-

ings.

3. For immunity purposes, plaintiff fails to distin-

guish Bettencourt v. Board of Registration in Medicine, 904

F.2d 772 (ist Cir. 1990). See id, at 782-83 & n.13 (whether

functioning as adjudicators or as “public’ prosecutors,”

members of state medical board have quasi-judicial abso-

lute immunity).

By the Court:

Richard Cushing Donovan, Clerk.

Certified and issued as Mandate

under Fed. Rh. App. P. 41

Richard Cushing Donovan, Cierk

Deputy Clerk

Dated 4/24/05 By: MARGARET CARTER

Chief Deputy Clerk

Committee v. G

Addendum 3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS

RARBARA C. JOHNSON

Plainuff

BOARD OF BAR OVERSEERS OF

MASSACHUSETTS,

M. ELLEN CARPENTER, in her ) CIVIL ACTION

individual and professional capacities, ) NO. 03-CV-12314-WGY

HERBERT P. PHILLIPS, in his

individual and professional

Capacities,

OFFICE OF & «8 COUNSEL,

DANIEL CR “* <, in his individual

and professional capacities,

COMMONWEALTH OF MASSACHUSETTS

Defendants,

i i

we ee Oe ee ee

JUDGMENT

YOUNG, C, J. May 27, 2004

Pursuant to the Memorandum and Order dated May 26,

2004, judgment shall, and hereby does, enter for the Defendants.

By the Court,

Elizabeth Smith, Deputy Clerk

Approved as to form:

Addendum 4 —

Addendum 5

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MASSACHUSETTS

BARBARA C. JOHNSON

Plaintiff

Vv.

BOARD OF BAR OVERSEERS OF

MASSACHUSETTS,

M. ELLEN CARPENTER, in her ) CIVIL ACTION

individual and professional capacities. ) NO. 03-CV-12314-WGY

HERBERT P. PHILLIPS, in his )

individual and professional )

capacities, - )

OFFICE OF BAR COUNSEL, )

lie a i i il

DANIEL CRANE, in his individual )

and professional capacities, )

COMMONWEALTH OF MASSACHUSETTS)

Defendants, )

)

MEMORANDUM AND ORDER

YOUNG, C.J. May 26, 2004

I. INTRODUCTION

This case involves a Massachusetts attorney, Bar-

bara C. Johnson, Esq. (“Johnson”), against whom the Mas-

sachusetts Office of Bar Counsel has brought disciplinary

charges before the Massachusetts Board of Bar Overseers.

Johnson filed suit in this Court against the Board of Bar

Overseers, the Office of Bar Counsel, the Commonwealth

of Massachusetts and various

Addendum 6

individuals, alleging that these administrative proceedings

have been conducted unfairly and unlawfully. Am. Verified

Compl. (“Am. Compl.”) [Doc. No. 5]. In her suit, Johnson

alleges various violations of her civil rights under 42

U.S.C. §§ 1983 and 1985, and she also alleges defamation

under state law. Am. Compl. at 56. She seeks declaratory

and injunctive relief as well as money damages. Id. On

January 9, 2004, all of the defendants filed a motion to

dismiss the Complaint [Doc. No. 6], which this Court

granted in part and denied in part in an order from the

bench at oral argument on February 24th. On February

25th, the Court clarified its order of the previous day, hold-

ing that Johnson's suit for money damages against the indi-

vidual defendants in their personal capacities stated a cause

of action, and inviting the parties to submit further briefing

on the issues of quasi-judicial and quasi-prosecutorial im-

munity. 02/25/04 Order [Doc. No. 14]. In response, the de-

fendants filed a “further motion to dismiss and supporting |

memorandum” [Doc. No. 15], claiming “absolute immu-

nity,” and Johnson filed her opposition to that motion [Doc.

No. 18], asserting that neither quasi-judicial nor quasi-

prosecutorial immunity is applicable [Doc. No. 17], and a

motion for reconsideration of this Court’s February 25th

order dismissing her claims for declaratory relief (“Pl.’s

Mot. for Reconsideration”) [Doc. No. 20]. The Court has

carefully considered the parties’ arguments. This memo-

randum and

Addendum 7

order addresses the remaining claims in this action and sets

forth the reasoning underlying the Court's previous orders.

Il. BACKGROUND

On January 24, 2003, Massachusetts Bar Counsel

Daniel Crane (“Bar Counsel”) filed a Petition for Disci-

pline, Ex. to Mot. to Impound [Doc. No. 10] (“Pet.”) (copy

of the Petition), before the Board of Bar Overseers of the

Commonwealth of Massachusetts against Johnson. The Pe-

tition contains three counts detailing Johnson’s alleged

misconduct.

Count I of the Petition alleges that Johnson posted

impounded “privileged, confidential and highly personal in-

formation” to her website in violation of Mass. Gen. Laws

ch. 209C, § 13. Pet. ¥ 23-24. Bar Counsel alleges, inter

alia, that “by disseminating impounded material . . ., failing

to return to the juvenile court impounded reports belonging

to the court, and failing to remove impounded material

from her web site, [Johnson] volated Mass. R. Prof. [C.}

8.4(d) and (h) . . . .” Pet. | 42.

Count Il alleges that Johnson charged two clients an

excessive fee in violation of Mass. R. Prof. C. 1.5(a), made

false, deceptive or misleading representations to them about

her fees, time, and charges, in violation of Mass. R. Prof. C.

8.4(c) and (h), commingled her own funds with theirs, and

failed to account adequately for her application and disposi-

tion of their

Addendum 8

retainer in violation of Mass. R. Prof. C. 1.15(a)-(c),

1.16(d), and 8.4(c) and (h). Pet. 44 95-99.

Count If alleges that Johnson knowingly disobeyed

Massachusetts district court orders after those orders were

affirmed on appeal, engaged in contempt of court, and re-

fused to pay a judgment of contempt until she had been in-

carcerated, in violation of Mass. R. Prof. C. 3.4(c) and

8.4(d) and (h). Pet. ¢ 126. Count III further alleges that

Johnson filed motions in another action without any legal

or factual basis and in bad faith, exposing her client to dis-

missal of her claims and personal liability for sanctions and

damages through Johnson's own misconduct, failed to ap-

peal from the contempt judgment against her client, and

pursued a frivolous appeal from an order of the Massachu-

setts Superior Court, in violation of 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). Pet. {9 126-27.

Johnson denied all these charges and vigorously de-

fended herself in the proceeding convened by the Board of

Bar Overseers. A hearing was scheduled for December 2, 3,

4,9, 10 and 11, 2003. Am. Compl. { 176. On December 2,

during Johnson’s opening statement, Assistant Bar Counsel

objected to Johnson’s mentioning the names of the com-

plainants and various witnesses. Id. J 181. Johnson then at-

tempted to avoid using real names, but when “[a] few

times, she slipped,” the defendant Phillips, the Special

Addendum 9

Hearing Officer presiding over the case, ordered the

public out of the hearing room. Id, { 183-86. To protest this

decision, Johnson walked out of the hearing room with the

last of the public to leave. Id. J 187. Johnson subsequently

filed various unsuccessful motions with the Board of Bar

Overseers, including motions to dismiss the complaint, for

rehearing, for conference with the twelve members of the

Board of Bar Overseers, and for reconsideration of the or-

ders denying her prior motions. Id, J 189-95. The matter

remains pending before the Board of Bar Overseers.

Johnson next brought suit in this Court, seeking de-

claratory and injunctive relief as well as money damages.

Alleging a total of ten causes of action, Johnson brought six

Counts seeking declaratory judgments that various rules

and procedures of the Board of Bar Overseers are unconsti-

tutional, Id. at 35-49 (Counts 1-6), two Counts for violation

of her civil rights under 42 U.S.C. § 1983, Id, at 49-52

(Count 7) and Id. at 53-55 (Count 9), one Count for con-

spiracy to violate her civil rights under 42 U.S.C. 1985(3),

Id. at 52 (Count 8), and one count of defamation under state

law, Id. at 55 (Count 10).

Johnson asked this Court to declare (1) that a bar

disciplinary proceeding is a quasi-criminal proceeding and

that whether or not the proceeding is quasi-criminal, re-

spondents are entitled to a jury trial, (2) that the Rules of

the Board of Bar

Addendum 10

Overseers are unconstitutional both facially and as applied

to civil or quasi-criminal proceedings, (3) that lawyers are

entitled to the full sweep of due process and equal protec-

tion of all the laws, (4) that Sections 9(1), 9(2), and 9(3) of

Supreme Judicial Court Rule 4:01 are unconstitutional both

facially and as applied, (5) that Section 10 of Supreme Ju-

dicial Court Rule 4:01 is unconstitutional both facially and

as applied, and (6) that Rule 1.5 of the Massachusetts Rules

of Professional Conduct is unconstitutional on vagueness

and overbreadth grounds. Am. Compl. at 1-2; Id, ¥# 196-

272. Additionally, Johnson seeks money damages from Bar

Counsel for making allegedly defamatory statements about

her to a reporter that were subsequently published in a local

newspaper, as well as money damages from the Board of

Bar Overseers for posting on its website that discipiinary

proceedings are pending against her. Jd, #] 292-98.

Finally, Johnson alleges violation of her civil rights

and conspiracy by the defendants in the prosecution of the

disciplinary action against her and seeks fifteen million dol-

lars in compensatory damages plus punitive damages. Id. #1]

273-91.

Ill. DISCUSSION

Doctrines of abstention, Eleventh Amendment im-

munity, and judicial and prosecutorial immunity all play a

role in the resolution of this case.

Addendum 11

A. Younger Abstention Doctrine

The defendants initially moved to dismiss the enti-

recomplaint on the basis of the Younger abstention doc-

trine. Younger v. Harris, 401 U.S. 37 (1971). Younger re-

quires that federal courts not intervene in ongoing state

criminal proceedings. Bettencourt v, Bd. of Registration in

Med., 904 F.2d 772, 777 (ist Cir. 1990). Deference is also

required to “ongoing, originally state-initiated civil or even

administrative proceedings that satisfy three conditions: (1)

the proceedings are judicial (as opposed to legislative) in

nature; (2) they implicate important state interests; and (3)

they provide an adequate opportunity to raise federal con-

stitutional challenges.” Id, (footnote omitted).

In Middlesex County Ethics Committee v. Garden

State Bar Ass'n, 457 U.S. 423 (1982), the plaintiff sought

to have a federal court declare that certain of the Discipli-

nary Rules of the Code of Professional Responsibility of

New Jersey were vague and overbroad and violated his

First Amendment rights. Id, at 429. The Supreme Court

granted certiorari to determine whether a federal court

should abstain from considering this challenge in light of

the fact that state proceedings involving these rules and this

party were ongoing. Id. at 425. In ruling that the federal

court ought abstain, the Supreme Court noted that “[t}he

policies underlying Younger are fully applicable to non-

criminal

Addendum 12

judicial proceedings when important state interests are

involved.” Middlesex, 457 U.S. at 432 (citing Moore v.

Sims, 442 U.S. 415, 423 (1979), and Huffman vy. Pursue,

Lid., 420 U.S. 592, 604-05 (1975)).

To determine whether abstention would apply, the

Supreme Court applied the three-part Younger test to New

Jersey's disciplinary proceedings, asking: “first, do state

bar disciplinary hearings within the . . . jurisdiction of the

State Supreme Court constitute an ongoing state judicial

proceeding[?}; second, do the proceedings implicate impor-

tant state interests{?];, and third, is there an adequate oppor-

tunity in the state proceedings to raise constitutional chal-

lenges[?]" Middlesex, 457 U.S. at 432.

The Supreme Court held that the first part of the test

was met in that it was clear that the New Jersey Supreme

Court considered its bar disciplinary proceedings to be “ju-

dicial” in nature. Id, at 433-34. The second part of the test

was also met in that the state has an “extremely important

interest in maintaining and assuring the professional con-

duct of the attorneys it licenses.” Id. at 434. Finally, the

third part of the test was met in that the plaintiff had the

Opportunity to raise his constitutional claims in the Su-

preme Court of New Jersey. Id. at 435-36.

Addendum 13

Bar disciplinary proceedings in Massachusetts are

similar to those in New Jersey. The Supreme Judicial Court

created the Board of Bar Overseers and Office of the Bar

Counsel in 1974 as independent administrative bodies to

investigate and evaluate complaints against lawyers. Mass.

S.J.C. Rule 4:01 (effective September |, 1974). The Su-

preme Judicial Court established these entities, “acting in

accordance with its power to supervise the conduct of at-

torneys, and the board exists as the disciplinary arm of [the

Supreme Judicial Court}.” Binns v. Bd. of Bar Overseers,

369 Mass. 975, 976 (1976). Among its many powers and

duties, the Board of Bar Overseers may consider and inves-

tigate the conduct of any lawyer within its jurisdiction, ap-

points a chief bar counse! and one or more hearing commit-

tees, and may also appoint a special hearing officer to hear

charges of misconduct where the Board determines that a

speedy and just disposition would better be accomplished

by such appointment.

Mass. S.J.C. Rule 4:01 § 5(3). Bar Counsel “prose-

cute[s} all disciplinary proceedings before hearing commit-

tees, special hearing officer{s), the Board [of Bar Overse-

ers}, and (the Supreme Judicial Court].” Mass. S.J.C. Rule

4:01 § 7(3). The hearing committees and special hearing of-

ficers “conduct hearings on formal charges of misconduct .

.. and may recommend that the matter be concluded by

dismissal, admonition, public reprimand, suspension, or

disbarment.” Mass. S.J.C. Rule 4:01 § 6(3).

Addendum 14

The attorney disciplinary procedure in Massachu-

setts thus meets the first test that the proceedings be “judi-

cial in nature.” Middlesex, 457 U.S. at 433.

The second part of the test is also met in that Mas-

sachusetts, like New Jersey, has an “extremely important

interest in maintaining and assuring the professional con-

duct of the attorneys it licenses.” Id. at 434.

The third requirement for abstention principles to

apply is that the state disciplinary proceeding must afford

plaintiffs an adequate opportunity to raise constitutional

challenges. Id. at 432. The review of a hearing committee's

(or special hearing officer’s) report is first to the Board,

next to a single justice of the Supreme Judicial Court, and

the decision of the single justice may be appealed to the full

bench of the Supreme Judicial Court. Mass. S.J.C. Rule

4:01 § 8(4). The rules direct that the “Board shall review,

and may revise, the findings of fact, conclusions of law and

recommendation of the hearing committee, special hearing

officer, or hearing panel” in a disciplinary action. Id. (em-

phasis added).

The Supreme Judicial Court recently summarized its

standard of review as follows:

Our general standard of review when a disciplinary

sanction imposed by a single justice is challenged is

whether the sanction “is markedly disparate from judg-

ments in comparable cases.” But where the case is

unique or involves a matter

Addendum 15

of first impression and is therefore not comparable to-

previous cases, we “review the decision of the single

justice to determine whether it is supported by sufficient

evidence, constitutes an abuse of discretion, and is free

from any error of law.” In either instance, our review of

the single justice’s decision is de novo, but tempered

with substantial deference to the board’s recommenda-

tion.

Matter of Foley, 439 Mass. 324, 333 (2003) (citations omit-

ted).

The Massachusetts Supreme Judicial Court ac-

knowledges that an attorney, such as Johnson, has a “con-

stitutionally protected interest in [her] license to practice

law and that [she] must be afforded due process of law be-

fore [she] can be deprived of that interest.” Matter of Ken-

ney, 399 Mass. 431, 435 (1987). In Kenney, the respondent

attorney raised Fifth and Fourteenth Amendment claims

that were given full consideration by the Supreme Judicial

Court. Indeed, “it cannot be doubted that the courts of the

Commonwealth . . . will give federal constitutional issues . .

. the closest scrutiny.” ” Bd. of Locomotive Eng’rs v. Massa-

chusetts Comm'n Against Discrimination, 695 F. Supp.

1321, 1323 (D. Mass. 1988). Massachusetts law expressly

guarantees to any aggrieved party the right of judicial re-

view of administrative decisions, with the reviewing court

having the power, inter alia, to modify them or to set them

aside if they are issued:

(a) In violation of constitutional provisions; or

(b) In excess of the statutory authority or jurisdiction

ofthe agency; or

Addendum 16

(d) Made upon unlawful procedure; or

(ec) Unsupported by substantial evidence; or

(f) | Unwarranted by facts found by the court on the

record as submitted . . .; or

(g) Arbitrary or capricious, an abuse of discretion, or

otherwise not in accordance with law.

Mass. Gen. Laws ch. 30A, § 14(7). Since Johnson will have

an opportunity to raise her constitutional claims in the

courts of the Commonwealth, the third and final require-

ment of Younger is met.

Nonetheless, even where, as here, all three require-

ments of Younger are satisfied, “a federal court may none-

theless intervene to halt a an ongoing state judicial proceed-

ing if the plaintiff demonstrates ‘bad faith, harassment, or

any other unusual circumstance.’” Brooks v. New Hamp-

shire Supreme Court, 80 F.3d 633, 639 (Ist Cir. 1996)

(quoting Younger, 401 U.S. at 54). To invoke the “bias”

exception to the Younger abstention doctrine, Brooks first

requires a plaintiff to seek to recuse allegedly biased judges

in the state proceeding. Id. at 640; see also Middlesex, 457

U.S. at 435; Bettencourt, 904 F.2d at 780; Standard Alaska

Prod. Co. v. Schaible, 874 F.2d 624, 629 (9th Cir. 1989).

Unlike Brooks, who did not seek the recusal of any alleg-

_ edly biased judge, Johnson has sought recusal of the Spe-

cial Hearing Officer, the Board Chair, and Bar Counsel.

Pi.’s Mem. Opp’n [Doc. No. 9] at 13. Thus, she meets this

first requirement.

Addendum 17

Second, Johnson must offer “some evidence ihat ab-

stention will jeopardize [her] due process right to an impar-

tial adjudication.” Brooks, 80 F.3d at 640. “To implicate

due process, claims of general institutional bias must be

harnessed to a further showing, such as a potential conflict

of interest, or a pecuniary stake in the outcome of the litiga-

tron.” Id. (internal citations omitted). In her attempt to meet

this burden, Johnson offers a “further showing” of “her cru-

sade for court reform and the abolition of judicial and

quasi-judicial immunity.” P|.’s Mem. Opp’n at 14. She

claims that her “views on the need for judicial accountabil-

ity and the need for court reform are well-known to the

courts,” that the Board of Bar Overseers and Office of Bar

Counsel are “offspring of the SJC,” that Board of Bar

Overseers Chair Carpenter’s “colleague and former partner

is sitting on the SJC bench that appointed her to the Board,”

and that appeal would be “futile” based on her past experi-

ence bringing “a few cases to the SJC,” where the Supreme

Judicial Court made “what Johnson perceived to be uncon-

scionable decisions in those few cases.” Am. Compl. { 111.

She also alleges that the ulterior motive of Bar Counsel is

to censor her website, and thereby to interfere with her ex-

ercise of her “First Amendment right to political speech and

free expression, as well as her right and obligation to see

that justice is done.” Am. Compl. 4 46. Despite these nu-

merous conclusory allegations,

Addendum 18

Johnson offers no concrete evidence that the Office of Bar

Counsel, the Board of Bar Overseers, the Supreme Judicial

Court, or any of the individual defendants stand to gain or

lose anything or have any particularized interest that might

tend to undermine their impartiality. See Brooks, 80 F.3d at

640. Therefore, the bias exception to Younger does not ap-

ply.

Since “Younger contemplates the outright dismissal

of the federal suit, and the presentation of all claims, both

state and federal, to the state courts,” Gibson v. Berryhill,

411 U.S. 564, 577 (1973), this Court dismissed Johnson’s

claims for declaratory relief. Having done so, Johnson’s

sole appeal from an unfavorable state court decision will be

to the United States Supreme Court, since “[i]t is well-

established that lower federal courts have no jurisdiction to

hear appeals from state court decisions, even if the state

judgment is challenged as unconstitutional.” Schneider v.

Colegio de Abogados de Puerto Rico, 917 F.2d 620, 628

(Ist Cir. 1990). See District of Columbia Court of Appeals

y. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidetity

Trust Co., 263 U.S. 413, 416 (1923). See also 28 U.S.C. §

1257.

Johanson, however, argues that District of Columbia

Court of Appeals v. Feldman should permit her to attack

the validity of the Board of Bar Overseers rules in this

Court. PI.’s Mot. for Reconsideration. Her reliance on

Feldman is misplaced, however.

Addendum 19

The Supreme Court in Feldman addressed the so-

called Rooker doctrine in a challenge to rules and regula-

tions governing bar admission policies. Feldman, 460 U.S.

at 468. “The Court carefully distinguished between ‘general

challenges to state bar rules, promulgated by state courts in

nonjudicial proceedings’ — for which there is jurisdiction

in the lower federal courts — and ‘challenges to state-court

decisions in particular cases arising out of judicial proceed-

ings,’ — for which there is not.” Schneider, 917 F.2d at 628

(quoting Feldman, 460 U.S. at 486).

Were Johnson not engaged in state administrative

proceedings involving the same rules as those cited in her

complaint, Feldman might well permit her to challenge the

constitutionality of those rules in federal court. See

Maym6-Meléndez y, Alvarez-Ramirez, 364 F.3d 27, 34

(ist Cir. 2004) (“Rooker-Feldman does not insulate from

federal challenge administrative rulings standing alone.”

(citing Van Harken v. City of Chicago, 103 F.3d 1346,

1349 (7th Cir. 1997)) (emphasis in original). Since John-

son’s challenge emanates from the proceeding currently

underway in the Massachusetts Board of Bar Overseers,

however, Younger requires abstention on her claims for de-

claratory and equitable relief.

Moreover, “once a state judicial proceeding [has]

begun,” Younger requires the “exhaustion of state judicial

remedies” even though a final state court judgment would

likely preclude any new

Addendum 20

federal lawsuit. Maym6-Meléndez, 364 F.3d at 34-35 (cit-

ing Huffman, 420 U.S. at 607-11).

The Younger abstention doctrine does not apply,

however, to Johnson's claims for money damages pursuant

to Section 1983 or Section 1985, or to her defamation

claim, since she will not have the opportunity to make these

claims in the state proceeding. See Deakins v. Monaghan,

484 U.S. 193, 202 (1988) (stating that even if the Younger

abstention applies, the district court has no discretion to

dismiss rather than to stay claims for monetary relief that

cannot be redressed in the state proceeding). Thus, while

declaratory judgment Counts | through 6 were dismissed in

toto in reliance on Younger, the civil nghts Counts 7

through 9 were dismissed under Younger only to the extent

that Johnson sought equitable relief.

B. Eleventh Amendment Immunity

it is settled law “that neither a state agency nor a

state official acting in his official capacity may be sued for

damages in a section 1983 action.” Wang v. New Hamp-

shire Bd. of Reg. in Med., 55 F.3d 698, 700 (1st Cir. 1995)

(quoting Johnson vy. Rodriguez, 943 F.2d 104, 108 (1st Cir.

1991)) (internal quotations omitted). Eleventh Amendment

immunity applies to all claims for money damages against

the state entities here, as well as to their employees to the

extent that the employees were sued

Addendum 21

in their official capacities. Kentucky v. Graham, 473 U.S.

159, 169 (1985). The Board of Bar Overseers and the Of-

fice of Bar Counsel are both entities created by court rule to

support the operation of the Courts of Massachusetts

through regulation of the Bar. As such, they are arms of the

state, subject to the Eleventh Amendment bar against suits

for money damages in federal court. Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The indi-

viduals named are also immune from suit based on their ac-

tions taken in their official capacities. Bettencourt, 904 F.2d

at 781.

“A State may waive its sovereign immunity by con-

senting to be sued in federal court.” Maysonet-Robles v.

ae. 323 F.3d 43, 49 (ist Cir. 2003) (citing College

enene ieee, 527 US. 666, 670 (1999). Such waivers,

however, must be unequivocal. College Savings Bank, 527

U.S. at 675. There being no such waiver here, the Court

dismissed Counts 7 through 9 to the extent that they sought

money damages against the Commonwealth of Massachu-

setts, the Board of Bar Overseers, the Office of Bar Coun-

sel, and the individual defendants sued for actions taken in

their official capacities.

C. Quasi-Judicial and Quasi-Prosecutorial Immunity

Addendum 22

At this point, the only defendants remaining are

Board Chair Carpenter, Special Hearing Officer Phillips,

and Bar Counsel Crane in their individual capacities. The

only federal claims remaining are Counts 7 through 9, and ,

only to the extent that Johnson seeks money damages

against these persons in their individual capacities. These

defendants are, however, entitled to absolute immunity for

acts committed within the scope of their responsibilities.

In Bettencourt v. Board of Registration in Medicine,

904 F.2d 772 (1st Cir. 1990), the court explained that “there

are some officials whose special functions require a full ex-

emption from liability.” Id, at 782 (quoting Butz v. Econo-

mou, 438 U.S. 478, 508 (1977)) (internal quotation marks

omitted). “Such officials include, among others, judges per-

forming judicial acts within their jurisdiction, prosecutors

performing acts intimately associated with the judicial

phase of the criminal process, and certain ‘quasi-judicial’

agency officials who, irrespective of their title, perform

functions essentially similar to those of judges or prosecu-

tors, in a setting similar to that of a court.” Bettencourt, 904

F.2d at 782 (emphasis in original) (internal citations and

quotation marks omitted). Bettencourt involved a civil

rights action brought by a physician whose medical license

had been revoked by the Board of Registration in Medicine.

After dismissing the non-monetary claims on

Younger grounds, the Court

Addendum 23

determined whether the Board members were entitled to

absolute judicial immunity by applying a three-part test:

First, does a Board member, like a judge, perform a tra-

ditional “adjudicatory” function, in that he decides

facts, applies law, and otherwise resolves disputes on

the merits (free from direct political influence)? Second,

does a Board member, like a judge, decide cases suffi-

ciently controversial that, in the absence of absolute

immunity, he would be subject to numerous damages

actions? Third, does a Board member, like a judge, ad-

judicate disputes against a backdrop of multiple safe-

guards designed to protect a physician's constitutional

rights?

Bettencourt, 904 F.2d at 783. The Court held that the Board

members, in deciding to revoke Bettencourt’s license, were

acting in their adjudicative rather than legislative capacities

and, having met the other requirements, were entitled to ab-

solute quasi-judicial immunity for these actions. Id, at 784.

The situation of Board Chair Carpenter and Special

Hearing Officer Phillips is analogous to that of the Board

members in Bettencourt. First, these defendants are per-

forming a traditional adjudicatory function by determining

whether to recommend Johnson for disciplinary sanctions

after making factual and legal determinations, thereby

meeting the first requirement.

Second, the act of recommending that an attorney

be disciplined is “likely to stimulate a litigious reaction

from the disappointed [attorney], making the need for abso-

lute immunity apparent.” Id. at 783. Third, as described ear-

lier, multiple levels of review exist, up to and including re-

view by the full

Addendum 24

Supreme Judicial Court. Moreover, Johnson makes no

allegations of conduct of these defendants outside their

mijexiasators of her case. Therefore, as did the First Circuit

in Bettencourt, this Court “hold{s]} that absolute immunity

bars [Johnson’s] claims for damages against the Board

members acting in their ‘quasi-judicial’ capacities.” Id. at

784.

Defendant Crane, however, is not acting in an adju-

dicative role; his role is prosecutorial in nature. As Bar

Counsel, he “prosecute{s] all disciplinary proceedings be-

fore hearing committees, special hearing officer{s}, the

Board [of Bar Overseers], and [the Supreme Judicial

Court].” Rule 4:01 § 7(3).

Like adjudicators, prosecutors enjoy absolute im-

munity against damages actions under Section 1983 for ac-

tivities in their quasijudicial capacity, Imbler v. Pachtman,

424 U.S. 409, 430-31 (1976), and “[s]}tate officials perform-

ing prosecutorial functions -- including their decisions to

initiate administrative proceedings aimed at legal sanctions

-- are entitled to absolute immunity as well,” Wang, 55

F.3d at 761. Crane is, therefore, entitled to absolute immu-

nity based on his role as prosecutor in the Board of Bar

Overseers action against Johnson, and the Court dismisses

Counts 7 through 9.

With all federal claims dismissed, the Court exer-

cises its discretion to refrain from exercising supplemental

jurisdiction over Johnson’s remaining claim for defamation.

Addendum 25

IV. CONCLUSIONS

For the reasons stated above, Counts | through 6,

for declaratory and injunctive relief, and Counts 7 through

9, insofar as they sought injunctive or declaratory relief,

were dismissed on the basis of the Younger abstention doc-

trine.

Counts 7 through 9, insofar as they sought money

damages, were dismissed as to the defendants Board of Bar

Overseers, Commonwealth of Massachusetts, Office of Bar

Counsel, and named individuals acting in their professional

Capacities pursuant to their Eleventh Amendment immunity

from suit. Counts 7 through 9, seeking money damages

based on the actions of Defendants M. Ellen Carpenter,

Herbert P. Phillips, and Daniel Crane in their individuai ca-

pacities are hereby dismissed on the basis of those

defendants’ absolute immunity arising from their quasi-

judicial and quasi-prosecutorial roles in the Board of Bar

Overseers and the Office of Bar Counsel. Thus, Counts |!

through 9 have been dismissed with prejudice.

As to Count 10, the state law claim for defamation

against the Board of Bar Overseers and Bar Counsel Crane,

the Court declines to exercise supplemental jurisdiction and

dismisses this Count without prejudice. As a result, the Mo-

tions to Dismiss [Doc. Nos. 6, 15] have been ALLOWED

in full.

Addendum 26

Finally, the Court DENTES Johnson's Motion for

Reconsideration of the January 25, 2004 Order [Doc. No.

20).

As there are no remaining claims or defendants, this

action is hereby DISMISSED.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

CHIEF JUDGE

The date January 25, 2004, shown on line 2 above, is a clerical error in

the court order of May 26, 2004 (Paper 21]. The May 26” order (above)

references Paper 20. Paper 20 is Petitioner's Motion for Reconsideration

of Paper 14, which is the court order of February 25, 2004.

02/24/2004 ELECTRONIC Clerk's Notes for proceedings held before Judge

William G. Young at Boston University Law School: Motion

Hearing held on 2/24/2004 re 6 MOTION to Dismiss filed by M.

Ellen Carpenter, Herbert Phillips, Commonwealth of

Massachusetts, Board of Bar Overseers of Massachusetts, Office

of Bar Counsel, Daniel Crane. After hearing the Court Allows the

motion to Dismiss in part and Takes Under Advisement the

motion to dismiss in part. (Court Reporter WOMACK.) (Smith,

Bonnie) (Entered: 02/25/2004)

Judge William G. Young : ORDER entered. The Court accords

ty days to brief the issue. Briefs shall be submitted

| other respects, the Court's February

t #14. cc/cl. (Bell,

on or before

24, 2004 ruling is undi

Maric) (Entered: 02/26/2004)

03/18/2004 e MOTION for Reconsideration re Motion Hearing,, || 4 Order, re

dismissal of Counts |-6, which seck declaratory judgments by

v4 Barbara C. Johnson.(Johnson, Barbara) (Entered: 03/18/2004)

(05/26/2004 Judge William G. Young : MEMORANDUM AND ORDER

entered. cc/cl.(Bell, Marie) (Entered: 05/26/2004)

Addendum 27

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

BARBARA C. JOHNSON,

Plaintiff,

NO. 03-12314-WGY

BOARD OF BAR OVERSEERS OF

MASSACHUSETTS,

M. ELLEN CARPENTER, in her

individual and professional

capecities,

HERBERT P. PHILLIPS, in his

;

’

)

}

)

v. } CIVIL ACTION

}

individual and profesional }

capecities, }

OFFICE OF BAR COUNSEL, }

DANIEL CRANE, in his individual )}

and professional capacities, }

COMMONWEALTH OF MASSACHUSETTS, )

’

;

Defendants.

YOUNG, C.J. February 25, 2004

Upon further reflection, the Court notes that its February

24, 2004 order from the bench failed to dispose of certain

of the Plaintiff's claims. In particular, Claims 7 through 9,

insofar as they seek money damages against Defendants

Carpenter, Phillips, and Crane in their individual capacities,

are not barred by Eleventh Amendment immunity. These

are federal civil rights claims that fall squarely within this

Court's subject matter jurisdiction.

While it would appear that these defendants may be ab-

solutely immune from liability under the respective doc-

trines of quasi-judicial and quasi-prosecutorial immunity,

neither party has bricfed nor raised these defenses.

Addendum 28

The Court, therefore, accords all parties twenty days to

brief the issue, shouold they choose to do so. Briefs shall

be submitted on or before March 17, 2004. In all other re-

spects, the court’s February 24, 2004 ruling is undisturbed.

SO ORDERED.

WILLIAM G. ¥

CHIZF JUDGE

Addendum 29

Subject: Activity in Case 1:03-cv-12314-WGY Johnson

v. Board of Bar Overseers of Massachusetts et al '"Mo-

tion Hearing"

Date: Wed, 25 Feb 2004 14:48:01 -0500 (EST)

From: ECFnotice @ mad.uscourts.gov

To: CourtCopy @mad.uscourts.gov -

***NOTE TO PUBLIC ACCESS USERS*** You may

view the filed documents once without charge. To avoid

later charges, download a copy of each document during

this first viewing.

United States District Court

District of Massachusetts

Notice of Electronic Filing

The following transaction was received from Smith, Bonnie

entered on 2/25/2004 at 2:48 PM EST and filed on

2/24/2004

Case Name: Johnson v. Board of Bar Overseers of Massa-

chusetts et al

Case Number: 1:03-cv-12314

https://ecf.mad.uscourts.gov/cgi-bin/DktRpt.p1?89274

Document Number:

Copy the URL address on the line below into the location

bar of your Web browser to view the document:

Docket Text:

ELECTRONIC Clerk's Notes for proceedings held before

Judge William G. Young at Boston University Law School:

Motion Hearing held on 2/24/2004 re [6] MOTION to

Dismiss filed by M. Ellen Carpenter, Herbert Phillips,

Addendum 30

Commonwealth of Massachusetts, Board of Bar Overseers

of Massachusetts, Office of Bar Counsel, Daniel Crane. Af-

ter hearing the Court Allows the motion to Dismiss in part

and Takes Under Advisement the motion to dismiss in part.

(Court Reporter WOMACK.) (Smith, Bonnic)

The following document(s) are associated with this transac-

tion:

1:03-cv-12314 Notice will be electronically mailed to:

John R. Hitt

john_hitt @ago. state.ma.us

Barbara C. Johnson

barbaracjohnson @ att_net

1:03-cv-12314 Notice will not be clectronically mailed to:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.