Here is the 28-page lawsuit.
The prosecutors are currently, at the urge of the Acting Supreme Justice David A. Weinstein, assigned to the case (a New York Court of Claims judge)
- former attorney for Governor Spitzer;
- former Assistant Attorney General.
But, while Judge David Weinstein is doing his partisan work, as he was supposed to do when he was picked for this case, and before we delve into the actual issues in the lawsuit, which I will start doing shortly, in my next blog article, let's look at one more "housekeeping" issue.
While the DA's Association, the plaintiff in the lawsuit challenging state and federal constitutionality of the Commission for Prosecutorial Conduct, hired two attorneys - one former prosecutor and another, a former (or current) member of the New York Task Force to prevent wrongful conviction, figure - they both advertised expertise in the areas of law that have nothing to do with the necessary areas of law that lawyers in such a lawsuit would have expertise in.
Neither one of the DA Association's attorneys have declared expertise in:
- constitutional law;
- the law of occupational licensing, or
- attorney regulation law.
- a permit;
- a certificate;
- a license -
- First of all - it touches upon the right of competent adults to choose, for their own money and without any help from anybody else, including the government, as to who to choose to do a private job for them, for their own money; that is the fundamental right to personal autonomy that EVERY regulation that does not allow a consumer opt-out (and 100% of professional regulations in the U.S. are like that) violates;
- Second of all - it touches upon people's right to earn a living, another fundamental right, conditions imposed to start earning a living cannot be unreasonable, and they nearly always are in American professional regulation;
- Third - when such regulation regulates a government official, it
- subverts the government by having it influenced and manipulated by the secret "professional regulation" groups in a secret way, behind closed doors, and not allowing public participation in such influence and regulation (consider suspension of law license of PA Attorney General Kathleen Kane, elected in a landslide, and suspended by a judge who she investigated for misconduct), and
- disenfranchises the People who appointed or elected that government official, and that is where occupational regulation touches upon issues of prosecutorial misconduct or "unethical behavior" - or that of a judge, or another appointed or elected official who is also an attorney or belongs to any other regulated profession; and
- Fourth - it often, if not always, violates federal civil and criminal antitrust laws, because it is ALWAYS imposed under the pretense of helping consumers, but is imposed at the request and for the benefit of the regulated professions, to
- create professional monopolies,
- restrict competition,
- restrict entry into the profession,
- block consumers from having a say in regulation of the profession, and
- raise and keep raised, prices for those same consumers.
- Fifth - federal antitrust laws, civil and criminal, are violated when professions are regulated in the United States, because the regulators of professions are usually professions themselves, and that prevents any possibility of neutral regulation for the benefit of consumers - the initial declared goal of the regulation.
- why attorneys are regulated - civilly and criminally, through UPL (unauthorized practice of law) and contempt of court criminal laws - while the subject of regulation, what constitutes the "practice of law", an element of a crime that has to be proven beyond the reasonable doubt, not only is not clearly defined, but CANNOT be clearly defined, as many, many judicial decisions point out - and such unclear law, by all canons of "constitutional law", is unconstitutional; the entire regulation of what cannot be defined, the "practice of law", is unconstitutional;
- why all professions, but lawyers, are regulated by the executive branch, but lawyers are regulated by the judicial - why the difference, does it change the NATURE of such regulation from executive to judicial?
- why lawyers are not given ANY right of judicial review of revocation of their license as of right, since their licenses being revoked (an executive function for all other regulated profession, done by an executive branch) by a court - the right of judicial review being the right to SUE the government agency that revoked the license, as, again ALL OTHER regulated professions can do in the United States, but lawyers;
- why lawyers are prohibited to "falsely criticize" their regulator, judges, and even judicial candidates during election campaign - while the U.S. Supreme Court, in a 1st Amendment "precedent", allows false criticism - and
- why "false criticism" of elected or appointed public officials, despite being allowed and protected by the 1st Amendment, is not allowed for attorneys only as to ONE type of public officials or candidates for public office - attorneys own, supposedly neutral, regulators, judges, and
- why judges prefer to judge what constitutes "false criticism" of themselves not in open court defamation lawsuits against such supposedly defaming attorneys, in front of juries, as every other mere mortal is supposed to do in the United States if he feels defamed - but as regulators, behind closed doors, without giving attorneys any procedural rights of discovery, depositions, no jury trials and certainly no right for true judicial review, at trial or appellate level?
- why, as part of regulation, lawyers' licensing fees can be used for political lobbying meant to improve personal work conditions or financial well-being of attorneys' regulators - judges (approved at the SCOTUS level);
- and why attorneys, in exchange for their right to earn a living which was theirs, by the U.S. Constitution, in the first place, and could only be restricted by the government for the benefit of the people and in a reasonable manner - have to operate as free PR-agents (missionaries) for their own regulators, judges, see here, and here, and to PRAISE judges to the public, to proselytize for judges and to make the public (voters) TRUST judges - even if they are not worthy of public trust?
- Wouldn't a rule created by a supposedly neutral regulator, which creates:
- personal privileges for the regulator;
- punishments upon the regulated for criticism of the regulator; and
- a duty for the regulated to praise the regulator and to deceive the public/voters about the non-existent goodness of the regulator - DISQUALIFIES the regulator for:
- lack of neutrality;
- abuse of power; and
- use of its power for private gain of the regulator?
- why private members of a regulated profession are considered "officers" (neither elected nor appointed) of a branch of the government? "officers of the court"?
- why "officers of the court" are allowed to work in other branches of the government, executive and legislative - and, in fact, overwhelm both of those branches - and doesn't regulation of officers of the executive and legislative branches by members of the judicial branch and considering them members of two branches of the government at the same time a violation of the constitutional principles of separation of power?
- what is the legal basis to require access to court of all the American public to be regulated by those whose fitness may be challenged by those seeking access to court (judges)?
- what is the legal basis for judges to regulate their own licenses?
- what is the legal basis for the legal profession to restrict judges, prosecutors and defenders of the public in court only to those who the courts (and not the public directly) approve through "admission to the bar"? and
- what is the legal basis for judges to regulate their own law licenses - when nobody can be "a judge in his own case", right? and
- what is the legal basis for judges to INCORPORATE professional associations of folks they regulate INTO THEMSELVES, into their own branch of the government, making them part of the government - as judges have done in 30 states, concealing from the public the essence of illegal incorporation under the vague concept of "mandatory bars"? By the way, the history of incorporation of "bar association" into the judicial branch of the government is also not taught in American law schools - because it is not only illegal, but it is shameful.
- he is not comfortable to criticize how a court in his area regulates attorneys because "everybody knows each other and it is a very cozy system" - consider the honorable legal profession, the honorable judicial profession (regulator of attorneys) that puts "honor" in his job title and requires the regulated folk (attorneys) to presume it and jam it down the public's throat, at the time while the regulators actually give themselves an absolute immunity for malicious and corrupt conduct, and
- that inconsistencies in "standards of punishment" can lead law students to disrespect ethical rules on the whole.