What is involved here are constitutional rights of people to receive:
- clear and advance notice of prohibited conduct;
- not to be prosecuted on a case-by-case basis in an arbitrary manner, with the government determines in arrears, after certain conduct already occurred, whether that conduct was right or wrong
That concept seems pretty clear.
Yet, it is not at all clear when it comes to regulation of professions, while in the United States over 30% of all jobs are regulated by the government through permits, certificates or licenses.
When what is being regulated, is unclear and is decided on a post-hoc, "in arrears" basis, interesting things start to occur, such as
- the State of Louisiana government's attempt to prosecute monks for selling plain coffins, because they were not trained and licensed as mortuaries and funeral directors;
- the State of Utah government's attempt to prosecute people who braided the hair of African Americans because the braiders did not have a cosmetology license requiring hundreds of hours of training, which does not include braiding;
- the State of New York government's punishment of a suspended attorney Leon Koziol for his testimony about judicial corruption in front of the Moreland commission, and punishment of a disbarred attorney Joel Brandes for, allegedly unauthorized practice of law when he engaged in provision of paralegal and law expert services that anybody without a law license is allowed to provide.
I will concentrate briefly on unauthorized practice of law (UPL) adjudications.
Once again, what constitutes the practice of law is not defined by New York law (I doubt that it is strictly defined in state law of other states, I looked up some, it is the same as in New York, courts define it after the fact on a case by case basis) - which is, immediately, a fundamental constitutional problem.
The government may not regulate "they do not know what", when the government does not know and does not give clear notice to the public what it is the government is regulating, and especially where, as it is in New York state, consequences can be from a misdemeanor to a felony charge (up to 4 years in state prison).
In June of 2015, New York State Appellate Division 2nd Department denied reinstatement to a disbarred attorney Joel R. Brandes for providing paralegal and law expert services to attorneys, which any lay person never licensed to practice law can provide without fear of prosecution in New York.
Earlier, some time in the summer of 2014 (the decision is not even posted) New York State Appellate Division 3rd Department denied reinstatement to a suspended attorney (civil rights attorney, by the way) Leon Koziol based on a report that cited, as grounds making Mr. Koziol unfit to practice law, his testimony before the Moreland Commission on corruption in the court system, I am referring to Mr. Koziol's statement in his federal civil rights complaint (since dismissed on grounds of absolute judicial immunity for malicious and corrupt acts).
Mr. Koziol mentions denial of reinstatement based on his testimony to the Moreland Commission about corruption in courts in his Complaint, Docket 4, page 2, paragraphs (6) and (8), the full case name, in the U.S. District Court for the Northern District of New York, is Koziol v King, Case No. 6:14-cv-000946-GLS-TWD.
The abbreviation GLS in the name of the case means that the court's Chief Judge Gary L. Sharpe was presiding, while his son was employed by the New York State Attorney General's office and while the New York State Attorney General represented Mr. Koziol's opponents in litigation before Judge Sharpe. In my opinion, there is an appearance of impropriety and that justice is not done in civil rights cases where a judge whose son is employed by the New York State Attorney General, for years, presides, also for years over cases defended by NYS Attorney General in his court and persistently rules in favor of NYS Attorney General's clients.
Courts regularly toss civil rights lawsuits dealing with occupational regulations, and with near certainty toss those brought by suspended or disbarred attorneys, even though federal courts may not institute policies, that is not within their Article III power.
Yet, courts miss, I would say, quite deliberately, the ultimate elephant in the room - if the government failed to define
* what funeral directing and mortuary science is;
* what cosmetology is;
* what the practice of law is
the government has no right to even begin regulating that profession before the government actual figures out what the heck it is regulating.
Because otherwise, the government starts regulating not only monks selling coffins, but people's participation in democratic process of this country clearly protected by the 1st Amendment, such as punishing Mr. Koziol for his testimony about judicial corruption before the Moreland Commission.
And that is, ladies and gentlemen, regulation gone way, way too far.