Once again on what is exactly attorney regulation (and any other occupational regulation) - protection of the public or protection of attorneys from competition? And are courts regulating attorneys acting as administrative agencies, after all?

Often, truth about games government plays and lies it tells the public comes out when competing interests of various economic groups clash and when, in the zeal to promote one "cause", the government overlooks that it exposes its own lie regarding another important issue.

For example, the U.S. Congress has enacted a statute, 8 U.S. Code § 1621 called "Aliens who are not qualified aliens or nonimmigrants ineligible for State and local public benefits".

That statute includes into public benefits professional licenses:

"(c) “State or local public benefit” defined

(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term “State or local public benefit” means—

(A)

any grant, contract, loan, professional license, or commercial license provided by an agency of a State or local government or by appropriated funds of a State or local government".

Now, what would be wrong about that?

What is wrong is that regulations of professions is claimed to the public to be necessary for protection of the CONSUMERS, of the PUBLIC, not of the licensed professionals.

If that is true, a license is a restriction, not a "public benefit" for the licensed professionals.

What is also interesting, specifically in connection with regulation of attorneys is that 8 U.S. 1621(c)(1)(A) talks, as about public benefits, about professional licenses "provided by an agency of a State or local government".

Attorneys are regulated by the judiciary branch that, when I challenged it in federal court pointing out that attorney regulation is an administrative function and attorney disciplinary proceedings are administrative in nature, claimed to the federal court (and the federal court agreed) that such proceedings are judicial in nature.

Yet, the New York State Supreme Court, Appellate Division 2nd Department agreed, on June 3, 2015, with the New York State Attorney General asserting, on behalf of an illegal alien seeking to be admitted to the bar, that a law license is a "public benefit" within the meaning of 8 U.S.C. 1621(c)(1)(A).

New York State Attorney General is representing in New York everybody in town - all three branches of the government, including the prosecutorial, investigative and decision-making side in attorney disciplinary proceedings.

So, the New York State Attorney General was arguing to the 2nd Department reviewing a case of application for admission to the bar to the 2nd Department's attorney disciplinary committee while arguing to both that they are an "agency" within the meaning of a federal statute, and that what they give (law licenses) is a state agency giving out a public benefit to the holder of the law license.

The same New York State Attorney General is arguing to federal courts, repeatedly, that Appellate Divisions and attorney disciplinary committees are not administrative agencies, but are members of the judiciary branch.

Those two arguments are mutually exclusive, and, thus, frivolous and fraudulent.

But, who is going to discipline the New York State Attorney General when he represents all judges in the State of New York, and when he represents all attorney disciplinary investigators and prosecutors in New York who can easily yank law licenses from all judges in federal courts sitting in New York, thus subjecting them to impeachment - while judges are reviewing civil rights actions where New York State Attorney General is opposing such civil rights lawsuits, and is advancing these mutually exclusive, and thus, fraudulent arguments?

Once again, who is going to discipline the New York State Attorney General for making fraudulent arguments to the court while representing regulators of the judges' own law licenses?

Yet, while the New York State Attorney General can continue to lie all he (and his staff) wants to courts in view of their apparently impunity, it is quite apparent that, conceptually, the same law license cannot possibly serve BOTH as a measure of protection of the public, AND as a "public benefit" given by the state to lawyers, from whom the state government is protecting the public by means of that same law license.

Moreover, when the New York State Attorney General acknowledges that a law license is a "public benefit provided by a State agency" in one setting, it is then fraudulent to assert that courts and their attorney disciplinary boards do not operate in attorney regulation as agencies (executive branch), but operate as courts (judiciary branch), in order to obtain benefits for the government that is available to the judicial branch and is not available to the executive branch.  That's another "chameleon" argument by the New York State Attorney General that is inherently incompatible.

Had New York State Attorney General been consistent in its argument that attorney regulation is for protection of the public and that the regulating court is not acting as an agency, but as a court, it would have advanced two arguments in the Matter of Vargas that it did not advance:

1. 8 U.S.C. 1621 is not applicable to attorney regulation because a law license is not a public benefit to the attorney, but is a measure of protection of the public, not attorneys;
2. 8 U.S.C. 1621 is not applicable because the regulator in the proceedings is not a "State agency", but a court.

None of these arguments were advanced, instead, the N.Y.S. Attorney General wholly endorsed both points:

1. that a law license is a public benefit to the attorney and not a measure of protection for the public (because it cannot be both); and
2. that the regulating court that issues and revokes licenses it a "State agency".

I understand that, given the absolute impunity from any discipline or accountability, and the ability to have "independent" federal judges (licensed attorneys regulated by private attorney disciplinary boards sitting in secret) rule in their favor, no matter what the law says - one and the same thing, the law license and regulation, cannot be used to provide benefits to both sides - to protect the consumers from attorneys, and to provide a benefit to the attorney.

As I said, truth sometimes seeps out inadvertently.

The Pennsylvania saga on removing elected public officials through the backdoor dealings of attorney discipline continues

Now, I do not condone public corruption, especially by prosecutors.  At all.

But, what is happening in Pennsylvania is completely bizarre.

While Pennsylvania is suspending, disbarring and denying reinstatement of attorneys left and right for the biggest sin of all - criticizing the judiciary - it is really lenient (usually) on attorneys working for the state and committing misconduct.

For example, Pennsylvania, having no statute of limitations on attorney discipline, still did not disbar attorney Ronald Castille, former Philadelphia DA whose misconduct, and misconduct of his staff (of which he had to be aware) was described in detail in the 2016 U.S. Supreme Court case Williams v Pennsylvania:

• obtaining death penalty by fraud, withholding Brady material and suborning perjury from a prosecution witness;
• getting elected to the bench on the basis of that fraudulent death penalty sentence, and then
• blocking habeas corpus relief for the condemned prisoner as a judge in the same case where Ronald Castille was a prosecutor, and blasting the condemned prisoner's attorneys for trying to defend him.

And, Pennsylvania was not in any hurry to disbar Judge Marc Ciavarella for selling kids, for million-dollar bribes into kiddie prisons.

And, Pennsylvania was in no hurry to suspend the law license of Philadelphia DA Seth Williams, even after he admitted "not reporting" gifts given to him while he was already a public prosecutor.

It only suspended his law license "on agreement" when he was federally indicted for corruption - but remained in office, like Pennsylvania former AG Kathleen Kane did, making a second precedent of a lawyer with a suspended license running a law office.

A lawsuit has now been filed by people with no standing to do that (a defense attorney and Seth Williams' predecessor as a DA) to oust Seth Williams from office.

Yet, Seth Williams is a public official, and the only way he can be ousted is through impeachment.

So, the Pennsylvania saga of playing with law licenses of public officials continues.

Let's see what the court ruling will be on the lawsuit.

I will continue to monitor this bizarre case.

Stay tuned.

Judge's divorces and a brand new format of statutes of limitations on discipline against judges, but not attorneys. A Michigan story.

All states (as I have heard from readers of this blog and based on my own research) claim that there is no statute of limitations on attorney discipline.

The same, of course, should apply to the regulators of attorneys - judges - whose misconduct can and do result in much more dire injuries to the public and to individual parties.

Yet, in the blessed state of Michigan, proposals for new rules have been reportedly introduced imposing a short statute of limitations upon discipline of judges, prohibiting even INVESTIGATIONS of judges past the "statute of limitations".

And that is extraordinary.

Because in all states, statutes of limitations are also "affirmative defenses", to be raised after the investigations are completed and after the charges are already filed - and such a defense may be waived if not timely raised by the charged party.

For judges, the invented new format of statute of limitations is different, not only because it was introduced (while statute of limitations for attorney discipline, imposed by Michigan judges, does not exist), but because it will prohibit even to investigate them past the statute of limitations.

That said, the proposed rule might not (if applied honestly) help #MichiganJudgeTheresaBrennan

to escape investigation of misconduct - because it was not discoverable within the statute of limitations.

The only people privy to that misconduct was the judge, the prosecution witness who kept mum, and the judge's now-estranged husband who was under spousal privilege when he was married, but voluntarily disclosed that the judge (1) had an affair with a prosecution witness during a murder trial;  (2) talked to that prosecution witness during that murder trial.

So, it is important for judges not to divorce their spouses.

They know too much and, if pissed, can reveal it.

And, once again, the Michigan Supreme Court, the one that is regulating lawyers and appears to be regulating its own conduct, too, is considering whether to allow to even investigate complaints filed against judges 3 years after the alleged offense "unless upon a good cause shown".

More incentive for judges in Michigan to be even more secretive in their misconduct than they are now, so that they are protected from discipline completely.

By the way, federal judges invented an even better solution - .they lobbied the U.S. Congress for the Judicial Disability Act, which prohibits discipline of judges completely if misconduct occurred in relation to a court case.

Judge Brennan reportedly had an affair with a prosecution witness and had ex parte communications with her lover during a murder trial.

So, had Judge Brennan been a federal judge, a complaint against her would have been tossed, statute of limitations or no statute of limitations.

Michigan should learn from the best (subverters of law) - the federal judiciary.

U.S. District Court for the Southern District of New York is now making profit on sanctions imposed on lawyers?

On March 30, 2017, 76-year-old U.S. District Judge for the Southern District of New York Victor Marrero

sanctioned lawyers for the use of wrong spacing (24-point instead of double-spacing) to cram more words than was allowed by "court rules" (25 page per brief), and required them to pay a $1,048.09 fine.

Was it proper for lawyers to achieve by stealth what they could do by openly asking the court for permission to exceed the page limit?

No, it was not.

Was it warranting a monetary fine and sanction?

I don't know.

Yet, what I do know that it is wrong to set limits for arguments. 

Some lawsuits have more complex issues than others.

Lawsuits having just one claim require less pages for arguments than lawsuits having more than one claim, and the same court rules require grouping of claims together, for fear of forfeiting the claim on "claim preclusion" doctrine.

If you included all claims, you are at a disadvantage as compared to people who assert just one claim.

You are also at a disadvantage if you have more parties in your lawsuit (either plaintiffs or defendants), because that complicates the matter, and increases the number of claims.

Yet, the page limit for arguments remains the same.

I did not see analysis of those issues in 76-year-old Judge Victor Marrero's order of sanctions:

And, slapping lawyers with monetary sanctions without considering whether they were trying to obtain a fair review of all arguments for their clients, and whether the omission was inadvertent (after all, the pleading could have been done by an associate or a paralegal who did not know the spacing rules), was more characteristic of a cranky elderly and impatient judge who needs to retire and enjoy sunsets on the beach, than of a competent jurist.

Competent jurists do not mete out monetary sanctions that would require measuring the brief with a ruler.  They concentrate on issues of merit of the case in front of them.

It was silly.  And petty.

But it was not only silly, and petty - Judge Victor Marrero forgot himself to such a degree that he ordered the sanctioned lawyers to pay the fine to the clerk of his own court.

Which means - Judge Victor Marrero allowed his own court to profit from his own sanctioning decision, an unconstitutional conflict of interest recognized by the U.S. Supreme Court 90 years ago, before Judge Marrero was even born.

In recognition of this conflict, some New York courts (over the village court level) order sanctions to be paid not to the court clerk, but to a fund outside the court system, to avoid appearance of impropriety.

Apparently, appearance of impropriety was not much of a concern for Judge Victor Marrero.

So, by pointing out that lawyers for a party committed a faux pas by violating a non-sensical court rule about "one-size-fits-all" page limit for arguments on an important issue of a preliminary injunction, at the time when no discovery was made in the case and no issues aired out, the judge, in his persnickety and cranky zeal to have lawyers appearing in front of him observe formalities to the letter, chose to disregard the basic rule of due process - that judges presiding over cases must remain neutral and not create conflicts of interest.

Well, Judge Victor Marrero did, by having his court already, at the beginning of litigation, profit from the fine he imposed upon the lawyer for one of the parties - payable to the court itself.

Judge Victor Marrero should really retire.

And the case should really be transferred to another court - which, let me guess, will not happen.

A corporate executive fired for trying to buy a County into voting on a public-bidding contract in Texas? Delaware County, NY, has a better solution for this "problem" - no public contracts at all

In 2015, the New York State Comptroller published an audit of Delaware County, New York, indicating that for 30 years going back, public contracts were not submitted in that county to public bidding, as required by law.

As far as I checked by now, the practice continues, audit or no audit, FBI investigating the County's murky financial dealings or not.

Delaware County has a point - why deal with a paper trail that can expose corruption when no paper trail makes it easier to conceal corruption?

For example, recently in Texas it was reported that a high-ranking corporate executive may have been fired after an attorney complained about a sweet deal offered by his corporation to the decision-making county officials (a private stock offer) while the corporation was participating in a contract-bidding with the county.

And you know who the corporation fired?  Of course, the whistleblower who reportedly admitted to the practice.

So, the best solution is for Texas counties (and counties around the U.S.) to follow the example of the Delaware County, New York.

No public bidding, and no paper trail = no problem.

On identity-specific criminal laws in general and criminal statutes allowing some adults, but not others, to have sex with minors

Is it bad for a teacher to have sex with his or her school students? Well, it is certainly a bad idea.

Is it criminal for an adult to have sex with a teenager?

In Alabama, the age of majority is, let's say, confusing - it is 18 for some actions (in recognition of the federal age of majority of 18), 19 for other actions, and 21 in general.

The age of consent to sex in Alabama is 16, which is under the age of majority - in other words, sex with a minor over the age of 16 in Alabama is not a crime.

• Is it good law to allow adults to have sex with minors over the age of 16? 
• Is it good policy? 
• Do minors over the age of 16 understand the full consequences, in our modern society of having sex with an adult? 

I do not think so, as to all of these questions.

Yet, people of the State of Alabama apparently think otherwise, since their legal representatives enacted such laws.

At the same time, people of the State of Alabama made a crime for school personnel what it did not make a crime for anybody else - sex with a minor over the age of 16, but under the age of 19.

Such a crime is, under Alabama law, a B felony, and carries a punishment from 10 to 20 years in prison (and, of course, loss of rights to ever work in school).

Is it a good idea to make sex with a minor over the age of 16 a crime? 

My personal opinion - yes, it is.  Parents should be able to send their children to school, assured that the school protects their children from sexual predators, not exposes them to such predators.  Without such a statute, school will become a breeding ground for sexual predators.

Yet, my personal opinion is also that it is NOT a good idea to NOT make the same conduct a crime for everybody else - because it opens the door for challenges such as just was made in Alabama.

A former teacher is now challenging constitutionality of this "crime only for teachers" law on equal protection grounds.

Prosecution opposes the argument since discrimination is not based on "race, alienage or gender", simply on occupation.

Criminal laws, especially laws carrying such steep punishments as 10 to 20 years in prison, must be free of identity-classification.

If you are a school teacher, it is a crime for you to have sex with a MINOR (let's not forget that - the age of majority in Alabama is 19 to 21 depending on the issue).

If you do not work in school, it is not a crime for anybody else to, once again, have sex with a MINOR.

While trying to protect children in school from sexual predators, Alabama lawmakers failed sorely in protecting children from sexual predators out of school - where such predators are, likely, more difficult to detect, and that is not a good idea.

What states should do (my personal opinion) is TWO things:

1) prohibit identity-specific criminal prosecution of any kind, by a separate change of state Constitutions, if necessary - identity-specific criminal laws (it is a crime to do a certain thing if you are employed as an A, but not a B) are a bad idea, as such laws undermine people's perception and recognition of conduct as criminal, if it is criminal to some people, but not others; and

2) make the age of consent the same as the age of majority, otherwise it simply makes no sense.  No adult, anywhere, should be allowed to have sex with a minor, whether that adult is a teacher or not a teacher.

Such changes will not help in the particular case, one way or another, as laws do not work backwards, at least in criminal law, so the challenge will rise or fall on its own, whatever the Alabama Legislature may decide to do.

By the way, in the state of New York where I lived for 16 years and practiced law, there is also such a discrepancy:

• the age of majority is 18 for most issues, 21 for cut off of child support, and
• the age of consent is lower - 17, so it is lawful to have sex with a 17-year-old minor, which, again, makes no sense.

As to the result of this challenge, I will follow this case and report on the decision.

Stay tuned.

On "binding power" of uncontitutional statutes and court decisions. New York to its popular sovereign: you do not have a right to know whether you pay for employment of a torturer

On March 30, 2017, New York State Supreme Court Appellate Division, 1st Judicial Department, issued a decision, authored by 5 judges:

• #JudgeJohnWSweeny,Jr (presiding judge) (by the way, I found only one John W. Sweeney in New York Attorney Registration database - admitted in 1952, and now dead, and another John Sweeney, admitted in 1989 who works for New York City Law Department, the one that is interested in non-disclosure of information about police officers) ;

• #JudgeRolandoTAcosta (member of New York State Commission for Judicial Conduct, a group shredding complaints against judges without review or investigation);
• #JudgeKarlaMoskowitz (former prosecutor);
• #JudgeBarbaraRKapnick (a master of the American Inns of Court, a secret membership organization including attorneys and judges that meets with judges behind closed doors and wines and dines judges, as well as funds their national and international travel, and an author of a recent brainless dissent in the recent case People v Smith where Judge Kapnick claimed that a defendant somehow waives his constitutional right to a hearing when a person who is no longer his attorney, nevertheless claims to be one, and screws his case in his absence); and 
• #JudgeMarcyLKahn (former prosecutor who recently, together with Judge Acosta, approved Skype testimony in criminal proceedings - where teleprompting of such testimony cannot be excluded or controlled).

each sworn to protect federal and state Constitutions.

Yet, being sworn to protect and uphold the U.S. Constitution did not prevent these 5 judges from making a decision that put a FACIALLY unconstitutional New York Statute - Civil Rights Law 50-a - and a 1999 decision of the New York State Court of Appeals promoting that unconstitutional statute's agenda (blocking the public from knowing whether police officers in the public employ are committing misconduct) above the public's 1st Amendment right to know, and above criminal defendants' right to effective confrontation of police witnesses, guaranteed by the 6th Amendment.

In a decision in Matter of Luongo v Records Access Officer, Civilian Complaint Review Bd., these 5 justice reversed the decision of the lower court ordering release of employment information (complaints against the police officer and their resolution) regarding the police officer whose actions led to the choking death in detention of Eric Garner in New York in 2014.

The U.S. Constitution, through its Supremacy Clause, is the law of the land, trumping all inconsistent state laws.

Of course, justices of the Appellate Division 1st Department, lawyers with up to 51 years of practice (Judge Moskowitz) under their belts, know that. 

But, even though information about public servants regarding safety of the public must be disclosed, and so is the information whether a police officer whose actions resulted in the death of Eric Garner, is predator on the loose whom his employers failed to control and disable, thus exposing the public to danger - the law named "Civil Rights Law", section 50-a, actually blocks the public from knowing whether they are properly protected BY the police FROM the police force, from the bad apples in the police force.

The law was enacted - as the New York State Court of Appeals ruled in 1999 - for these purposes:

"Hence, when access to an officer's personnel records relevant to promotion or continued employment is sought under FOIL, nondisclosure will be limited to the extent reasonably necessary to effectuate the purposes of Civil Rights Law § 50-a — to prevent the potential use of information in the records in litigation to degrade, embarrass, harass or impeach the integrity of the officer".

That is a clear admission, in so many words, that New York State Legislature enacted a statute MEANT, FACIALLY, to prevent impeachment of police officers as witnesses in litigation - which means in the context of criminal proceedings, to prevent effective cross-examination of police officers as prosecution's witnesses, which is a FACIAL violation of the 6th Amendment's Confrontation Clause.

Did these 5 justices rise up in arms and say - I, Justice Sweeny (Acosta, Moskowitz, Kapnick, Kahn) - took MY OWN oath of office to uphold the U.S. Constitution, and I will not uphold a facially unconstitutional statute, which was introduced specifically to undermine effective cross-examination of police officers as witnesses of the prosecution, in violation of the 6th Amendment.

Instead, these justices preferred to sell out their oaths of office in order not to upset the powers-that-be that put them in office.

And, of course, neither of these 5 justices can be subjected to disciplinary proceedings for their betrayal of their constitutional oath of office.

After all, one of them, Judge Rolando T. Acosta, is the member of the New York State Commission for Judicial Conduct.

No wonder why New York is one of the states from where people run the fastest.

It's called voting with their feet, from the corrupt government, including the highly educated, but still biased (and very likely - corrupt) judges.

People must demand that judges adhere to their constitutional oath of office first and foremost, and that they pay no heed to facially unconstitutional statutes and precedents.

And, judges SHOULD NOT be on Judicial Conduct Commission.  It should be populated only by lay people who have no ties with the legal industry, no connections with a judge or an attorney.