"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.

Saturday, June 11, 2016

Andrew Cuomo's suggestions to improve business climate in New York - do not touch corruption, expand occupational regulation instead of deregulation, distract and rule

On June 3, 2016, New York Governor Cuomo announced "recommendation to improve business climate" in New York.

That is the same business climate that is based on rampant corruption of the New York State government - including Cuomo himself.  I wrote about Cuomo's shenannigans about buying judges - he bought, only on my knowledge, three judges of the Court of Appeals so far (and that's only judging from records available to me, there may be more), Leslie Stein, Eugene Fahey and Chief Judge Janet DiFiore.

Naturally, the "recommendations" did not include the most sensible approach:

1) clean up the government by enhancing efforts to fight corruption;
2) enact new laws stripping corrupt officials of immunity and allowing private lawsuits against them - which will be an easy and financially efficient way to find corrupt public officials and then prosecute them criminally; the public will do the preliminary work through investigation and discovery through court at the litigants' own expense;
3) fight price monopolies for heating oil and gasoline - it makes no sense that in New York State where gas is needed in larger quantities, prices for it are higher than down South when gas is not needed in the same quantities for heating;
4) reduce property taxes and prohibit foreclosure on properties for inability to pay taxes.

Those measures were, of course, not recommended.

Instead, the recommendations to improve business climate in new York included:

  1. "Evaluating and repealing or modifying the weekly pay mandate in Labor Law as it relates to employers with less than 1,000 state employees.
  2. Encouraging localities to delay implementing or enforcing local laws on the use of Microbeads (any solid plastic particle that is less than 5 millimeters that is used for the purpose of exfoliating or cleansing; often found in cosmetic products) so as to comply with recently implemented Federal law.
  3. Achieving uniformity in regulations regarding the use of plastic bags at retail stores.
  4. Authorizing minority non-Certified Public Accountants to have ownership of Certified Public Accounting firms.
  5. Achieving uniformity in regulations regarding the use of chemicals in children’s toys.
  6. Modifying NYS Department of Labor regulations to update housing and other allowances for farm employees to be more reflective of current costs.
  7. Moving farm tax assessment functions from the NYS Department of Taxation and Finance to the NYS Department of Agriculture and Markets to acheve greater efficiencies.
  8. Speeding up phase-in time for exemption thresholds for the estate tax.
  9. Providing increased funding for the Farmworker Housing Program through the NYS Department of Housing and Community Renewal.
  10. Expediting the approval of wireless facility upgrades at existing locations throughout the state.
  11. Adopting a statewide standard for small scale, residential solar installations.
  12. Reforming the NYS “Excelsior” jobs program to help increase economic activity.
  13. Repealing NYS DMV rules relating to commercial truck inspections, enforcements, and penalty provisions in order to provide relief to employers for minor violations.
  14. 14.Clarifying NYS Industrial Development Agencies’ (“IDA’s”) authority to provide financial assistance in the form of loans and grants.
  15. Updating Business Corporation Law regulations with respect to items such as veilpiercing provisions, notice requirements for LLCs, age requirements for incorporators and rules for naming a corporation.
  16. Updating Abandoned Property Laws as they relate to Gift Cards and escheat laws."

Those were short-term recommendations - to improve New York business climate.

Long term recommendations are these:

  1. "Clarifying the standard for a sales tax nexus based on the presence of purchasing agents in New York State.
  2. Updating and streamlining New York’s State Environmental Quality Review Act (“SEQRA”) and other land use/project review processes. SEQR requires all state and local government agencies to consider environmental impacts together with social and economic factors during discretionary decision-making.
  3. Evaluating and adjusting the “Tax Base Growth Factor” under the real property tax cap to potentially include economic growth for various projects.
  4. Updating and modernizing “reportable quantities” as they relate to various hazardous substances.
  5. Instituting Court reforms to add additional commercial court judges.
  6. Allowing not-for-profits to issue student stipends in Career and Technical Education programs.
  7. Increasing and expanding use of Career and Technical Education (“CTE”) certifications.
  8. Investigating legislative solutions to address scheduling practices such as “on-call shifts” and “predictive scheduling.”
  9. Modifying regulations regarding the establishing Life Insurance Capital Reserves.
  10. Removing small business restrictions with respect to Minority and Woman owned business enterprises (“MWBE”)."

It is clear that, for Cuomo, the only court reform that New York state needs is to add some commercial judges - not to clean up the judiciary of the rampant corruption where practically every judge in New York state considers it not beyond him-/herself to engage in neglectful, abusive and/or unethical behavior (ex parte communications as just a relatively minor example) - knowing that no discipline will ever reach them.

Also, the long-term recommendations of Cuomo's commission as to CTE's  are contrary to economic trends.

While President Obama issued a report in July of 2015 indicating that over 30% of the country's labor force is subject to occupational licensing and occupational licensing may be stifling the economy of the entire country, New York, under Cuomo's "governance", plans to "increase and expand" occupational regulations through "career and technical education certifications" - instead of planning to deregulate and letting people work and earn a living without control of the government.

Here are "recommendations that require further discussion and review" (obviously which the hastily assembled special interests group could not fix in the 2 months of its work - why should a task group reviewing such an important issue as changing business climate to help the economy of a huge state had an extremely short 2-months' deadline, nobody knows):

  1. "Implementing additional Workers’ Compensation Reform, including, but not limited to, improving municipal employer and county plan member access to public selfinsured pools, and finalizing durational caps on Permanent Partial Disabilities (“PPD”).
  2. Implementing Insurance Reforms.
  3. Expanding access to natural gas for manufacturing facilities.
  4. Adopting measures to provide price protection to large energy consumers from Public Service Commissions (“PSCs”) imposed energy assessments and regulatory costs under Reforming the Energy Vision (“REV”) clean energy standards.
  5. Undertaking a review of environmental regulations which exceed or differ from underlying federal requirements to identify unnecessary, non-beneficial compliance requirements.
  6. Supporting legislation that would remove the Unemployment Insurance requirement for agricultural employees working under an H2A visa.
  7. Restoring five Unemployment Insurance tax table rungs applicable to low experience-rated employers.
  8. Reviewing and amending unnecessary restrictions on physical and operational improvements and capital investments that improve efficiency and competitiveness and/or reduce energy emissions and use.
  9. Discussing the creation of a State Insurance Advisory Board.
  10. Changing legislation to allow for the application of the False Claims Act to tax matters.
  11. Setting time-limits for the Department of Financial Services to conduct audits and examinations.

I do not believe, though, that bleeding of population into other states will stop unless New York would start to 

  1. clean up the act of its corrupt government, including and especially its corrupt judiciary, as well as 
  2. reduce taxes, 
  3. deregulate a large number of currently regulated professions where government regulation does not help the consumer, but instead hurts the consumer and the provider alike and
  4. fight price monopolies in the oil industry.

Since all of the above 4 necessary changes to the New York economy are not going to happen, Cuomo will not be able to stop the bleed of population from New York.

And without enough population, and population able to actually buy products and services, businesses will improve their "climate" right into extinction.

Of course, for each recommendation, with Cuomo's propensity for corruption, we will need to look for financial "sponsors" of any such recommendation and for tricks and "fine-print" benefits for such sponsors.

And I will be diligently researching the recommendations, its potential sponsors, and especially the highlighted recommendations, and will be reporting my findings on this blog.

Stay tuned.

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