New York prosecutors' lawsuit challenging the new Commission for Prosecutorial Conduct, Part II. The dance on landmines by people in blindfolds

I have started to publish on this blog my analysis of the recent lawsuit that the New York State District Attorneys Association (prosecutors) filed in the State Supreme Court challenging state and federal constitutionality of the law that created a Commission for Prosecutorial Conduct, following a public outcry about the second highest number of wrongful convictions in the state.

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.

In other words, the judge in the case is not a neutral judge, but an insider who acts not to neutrally judge, but to present his own "perspective" of the matter - from the point of view of the government branches the judge previously served.

It is proper for a judge to preside over settlement negotiations of parties, but not proper to URGE them.  Urging settlements makes a judge into an advocate of a certain issue and of a certain party or cause.

In this case, that the judge urges/encourages parties to enter into a stipulation/settlement, is openly, and without any criticism of the judge, admitted by the leading New York legal "scholarly" journal, the New York Law Journal:

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.

Admittedly, it is difficult - while at all possible - to find specialists who would have working expertise in all 3 areas of the law.  Why?  Because mastering these three areas in relation to regulation of the legal profession or such powerful members of that profession as prosecutors and judges, and especially, mastering all three of these areas together, it an unadmitted taboo in the American academia.

Let's consider how these three areas of law are taught in American law schools.

CONSTITUTIONAL LAW

Constitutional law is a mandatory subject in all law schools and on the bar exam, yet, taught in such an exotic way that it produces, by design, lawyers with a mentality that considers certain unconstitutional status quo of things, long "established" by special interest groups, as a constitutional status quo of things.

The way Constitutional Law is taught in law schools is not to teach the TEXT of the Constitution and to discuss what STUDENTS think about the meaning of that text.

That would be reasonable - since the law, in order to be a proper law, should be clear on its face and not requiring additional interpretations for any reasonable person of average intelligence and education, and law students are at least supposed to be on the level above that.

No, the way constitutional "law" is taught in law schools - is through having law students discuss PREFERENCES of the U.S. Supreme Court "justices" (judges), their whims, the "tests" imposed by those judges upon the rest of the country's judiciary as to HOW to analyze the country's Constitution and what to see in it.

The U.S. Supreme Court precedents, which are NOT included into the Supremacy Clause of the U.S. Constitution, and are NOT part of the Supreme Law of the Land, are considered as such, and no questions are asked whether the de facto changing of the U.S. Constitution through interpretation, by the U.S. Supreme Court is a constitutional state of events.

So, when an American law student and, in the future, an American lawyer, is talking about the U.S. Constitution, what he means is not he text of that Constitution and not what it plainly means to an average person - because the law must be clear in order to be law - but a set of precedents of the U.S. Supreme Court, which, to an American lawyer, IS the Supreme Law of the Land, no matter what the U.S. Constitution says.

A judge, even a Chief judge of the State (of Alabama) Roy Moore, who recently questioned this status quo and pointed out that precedents of the U.S. Supreme Court should not be obeyed as the Supreme Law of the Land, because they are very simply not the Supreme Law of the Land - not being in the text of the Supremacy Clause of the U.S. Constitution - suffered removal from office, to the applause of the entire country, as the supposed prevailing of the "rule of law", while what prevailed was exactly the opposite.

Let's remember that lawyers - all lawyers - are dependent for their livelihood upon the WHIMS of the judiciary, those same people who replaced the rule of law, the law described in the Supremacy Clause of the U.S. Constitution, with the rule of their own "precedent", created at their own "discretion" (whim).

And, that, according to the current chief ethicist of the American Bar Association, professor Margaret Tarkington, who published a new book several months ago, presumptuously naming lawyers "The Voice of Justice" while they are anything but, under the circumstances, the judiciary considers lawyers criticizing the judiciary (the lawyers self-imposed regulators) as blasphemy and practically always punishes that criticism, the 1st Amendment notwithstanding, most severely, usually casting the "offenders" from the profession, and stripping lawyers of their lifelong investment into the education and training. 

As a result, consider talking to an American lawyer or a law professor about criticizing a judge - that's an issue protected by the 1st Amendment and often necessary to secure for a client the client's fundamental constitutional right to impartial judicial review.

Constitution (that all American lawyers are sworn to protect and uphold) takes the back seat, and the front seat is taken by FEAR.

The fear that you will see in their eyes when you ask a question.

That fear is the true essence of "constitutional law" in the U.S., and in the American legal profession.

That fear is why you will not get truly independent and honest constitutional scholars from amongst attorneys practicing in the U.S., or amongst professors employed by the American (ABA-regulated) law schools.

So much for the "rule of law", honesty, honor and integrity of the profession, and the Supreme Law of the Land.

REGULATION OF PROFESSIONS

The next subject that is necessary to know for people dealing with Commission on Prosecutorial Conduct is - occupational/professional regulation/licensing.

Because, such a Commission, willingly or not, has become part of such a regulation of the profession of prosecutors.

But, in this country, occupational regulation is NOT taught - at all, neither in law schools, nor in any other colleges or universities.

You will search in vain for such a course taught anywhere in the United States.

While, at the same time, by "conservative" estimates made in 2015 by the Obama administration, at least 30% of the U.S. workforce is regulated - to the point that it is now stifling the economy and created a thick "glass ceiling" for Americans to advance in life and pursue the so-called "American dream".

What the Obama report did not say though is what vacancy postings state very well - that, in order to engage in ANY more or less well-paid trade, business or job in the United States, one needs to have a certain type of approval from the government:

• a permit;
• a certificate;
• a license -

and for that, one needs to get certain hours of "required" education and/or training, whether needed to engage in the trade or not, and to pay the government a certain amount of money.

Occupational licensing in the U.S. reaches out to over 800 professions, including fortune tellers (imagine the quality standard and the ethical standard of work for a fortune teller), braid-weavers and coffin-makers.

Occupational licensing DOES touch upon many constitutional issues.

• 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.

So, there is a whole HOST of constitutional issues in occupational licensing, and it is pervasive in the United States - and yet, it is not taught anywhere in American universities how professional regulation should be done in order to not violate people's constitutional rights and federal antitrust laws.

Instead, professional monopolies control how it is done - in a universal fashion - the monopoly fashion that pretend to help consumers while helping themselves and hurting consumers and blocking them from challenging monopolies.

ATTORNEY REGULATION

And, finally, attorney regulation, a subspecies of occupational regulation.

Attorney regulation - as such - is also not taught in American schools, because, see above, it is an explosive, "sensitive" and thoroughly tabooed issue in the American academia.

What IS taught is "attorney ethics" and "professional conduct of attorneys".

So, American law students, the "future lawyers of America", as one of my law professors, the legendary professor Peter Priser, sarcastically called us, 

are NOT taught:

• 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.

Those are just SOME constitutional questions that the "future lawyers of America", law students, are never taught.

And, as a law professor, Professor James Milles, frankly told in 2015 the New York Statewide Commission on Attorney Discipline, 

• 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.

That's why the bigger issues - constitutional issues listed above regarding attorney regulation are not even touched upon in "attorney ethics" classes.

So, as you understand, when somebody like the DA's Association of the State of New York, tries to - supposedly - address issues of constitutionality of a Commission for Prosecutorial Conduct, in raising those issues, all those above areas of law could be touched and highlighted, so it requires an expert in all those three areas to navigate these "controversy-fraught waters".

But, true experts, for obvious reasons stated above, are not available on these three subjects.

What is available are people like the two attorneys hired by the DA's Association, who, in challenging constitutionality of the Commission on one ground, CONDEMN the existing system of attorney regulation for unconstitutionality on many, many issues that they blundered in unawares.

The text of the lawsuit for me as an expert in all three above areas (in fact, I am writing a book on these three areas, combined) looks like a dance on landmines by people in blindfolds, surely hitting on every landmine in the attorney regulation landscape there is.

With this in mind, I will start my analysis of the issues in the lawsuit.

Stay tuned.