As has been noted, the states have a right to license individuals to practice.
This does not restrict this to a monopoly (such as a PI license exclusively).
In fact, though the states can license, they can not exclusively license in the
manner being suggested. This is important.
So the rule is licensed, not a PI license.
This goes back a long way in judicial history. Relevant to the present point
were the arguments, picking up Justice Cooke's remarks, that access to the
courts was so fundamental in our kind of polity that it could not be removed
even by Parliament itself. Whilst noting the lineage of this doctrine through
Chief Justice Coke's judgment in Dr Bonham's Case [1] (a case referenced by
Jefferson in the creation of the US constitution, and I am the non-American
here teaching constitutional origins - ironic?. In fact Jefferson included
Coke's Institutes in his 1814 list of books for law students as the first texts
to be studied);
Coke, CJ:
"It appears in our books that in many cases the common law will control acts of
parliament and sometimes adjudge them to be utterly void; for when an act of
parliament is against common right and reason, or repugnant, or impossible to
be performed, the common law will control it and adjudge such act to be void".
In Bonham's Case, Court of Common Pleas, it was held that the common law courts
would not enforce the statutory monopoly over medical practice held by the
London College of Physicians [2]. The college's charter gave it the power to
enforce its own monopoly, and to the court this made one of the parties to the
cause also its judge [3]. The holding was narrow and followed the familiar
maxim that a party could not judge his own cause. The court stated that "when
an Act of Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will control it, and adjudge such
Act to be void". This was used to restrict legislative authority in general
[4].
What this means is that though a state has right to license an action, they can
not exclude the sole right of deed to a monopoly party. This is, there is and
needs be alternatives or at the least, the opportunity to introduce an
alternative licensure.
Bonham's Case arose from a dispute regarding the unlicensed practice of
medicine. Dr. Thomas Bonham had received a degree in physic medicine from the
University of Cambridge. In 1606, Bonham was revealed to be practicing medicine
in London with no license. Dr Bonham was fined and subsequently imprisoned by
the Royal College of Physicians for practising medicine devoid of the required
licence from the College. Dr Bonham initiated an action against the College for
false imprisonment. Chief Justice Sir Edward Coke determined that under the
empowering statute, the College received half of all fines so levied[5].
In all of the PI Boards, they act as investigating bodies and take action under
the various occupation statues. This means that they are in effect only judges
but also parties in any cases come before them unless an alternative foundation
may be sought. The effect for this discussion is that a monopoly board is not
legal under the maxims of law. The effect is that other boards may also issue
licenses and also other licensures will apply to the provision of digital
forensic services.
Regards,
Craig Wright (GSE-Compliance)
[1] The College of Physicians v Dr. Thomas Bonham (1609) 8 Co Rep 107a at
118a; 77 ER 638 at 652.
[2] 77 Eng. Rep. 646 (1610).
[3] "The censors cannot be judges, ministers and parties: judges to give
sentence or judgment; ministers to make summons; and parties to have the moiety
of their forfeiture...." 11 Eng. Rep. 646, 652
[4] 77 Eng. Rep. at 652.
[5] 14 &15 Hen VIII, c 5.
On Coke:
Klopfer v. North Carolina, 386 U.S. 213 (1967):
Chief Justice Warren cited Coke saying - "Coke's Institutes were read in the
American Colonies by virtually every student of the law. Indeed, Thomas
Jefferson wrote that at the time he studied law (1762-1767), 'Coke Lyttleton
was the universal elementary book of law students.' And to John Rutledge of
South Carolina, the Institutes seemed 'to be almost the foundation of our law.'
To Coke, in turn, Magna Carta was one of the fundamental bases of English
liberty. Thus, it is not surprising that when George Mason drafted the first
of the colonial bills of rights, he set forth a principle of Magna Carta, using
phraseology similar to that of Coke's explication: 'In all capital or criminal
prosecutions,' the Virginia Declaration of Rights of 1776 provided, 'a man hath
a right . . . to a speedy trial. . . .'" Klopfer @ 225.
Craig Wright
Manager of Information Systems
Direct : +61 2 9286 5497
Craig.Wright@bdo.com.au
+61 417 683 914
BDO Kendalls (NSW)
Level 19, 2 Market Street Sydney NSW 2000
GPO BOX 2551 Sydney NSW 2001
Fax +61 2 9993 9497
http://www.bdo.com.au/
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-----Original Message-----
From: cce2-bounces@certified-computer-examiner.com
[mailto:cce2-bounces@certified-computer-examiner.com] On Behalf Of dave kleiman
Sent: Wednesday, 27 February 2008 6:04 PM
To: 'CCE List'
Subject: [CCE] Kentucky PI rule
Anyone know Kentucky's rules for Digital Evidence Collection?
Respectfully,
Dave Kleiman - http://www.davekleiman.com
4371 Northlake Blvd #314
Palm Beach Gardens, FL 33410
561.310.8801
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