"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Monday, September 21, 2015

The government should define what exactly it regulates before regulating it

The concept in the headline is pretty simple - before the government starts regulating certain conduct, it first needs to define what is it that the government is regulating.

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.

No comments:

Post a Comment