Philosophy, Law and Politics

A formal submission of Public Comments regarding a dispute between the Federal Housing Finance Agency and the Office of Management and Budget. Comments to the OMB on the proposed collection of government information by the FHFA are due today by 11:59 p.m.

Lori Gayle Nuckolls, Esq.

1237 Paddock Hills Avenue

Cincinnati, Ohio 45229-1219

 

Lori.Nuckolls@post.harvard.edu

lnuckoll@wellesley.edu

lorigaylenuckolls@cinci.rr.com

513-305-7902

August 30, 2018

Office of Information and Regulatory

Affairs of the Office of Management and Budget

Attention: Desk Officer for the Federal

Housing Finance Agency

Washington, D.C. 20503

Submitted via email to: OIRA_submission@omb.eop.gov

Re: Proposed Collection; Comment Request: Minimum Requirements for Appraisal Management Companies, (No. 2018-N-08)

Dear Desk Officer,

I write in formal response to the Notice in request for Public Comments published by the Federal Housing Finance Agency (the “FHFA”) regarding the Proposed Collection by the FHFA entitled the “Minimum Requirements for Appraisal Management Companies, (No. 2590-0013),” pursuant to the Paperwork Reduction Act of 1995. (83 Fed. Reg. 36931-36935 (July 31, 2018)) (the “Notice”). This Proposed Collection concerns the possible amendment of State and Federal law governing real estate appraisers and appraisals offered in support of federally related consumer real estate transactions. And, specifically, this request for comments concerns the bureaucratic functioning of the FHFA with respect to the reporting and recordkeeping duties to be imposed upon the FHFA by federal law. The FHFA has asked the public to comment on four subjects, and  I quote: “(1) [w]hether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of  FHFA’s estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents .,,,” (83 Fed. Reg. 36931-36935 (July 31, 2018)). I offer comments fully in support of the proposed minimum collection standard as presently drafted as to the FHFA.

 

As one nation, the United States possesses an historical diversity in its legally recognized forms of real property, by both type and use. American citizens and residents will, in the future, continue to create many increasingly more complex and sophisticated transactional agreements in written contract for the transfer of real property to both consumers and business entities.

 

The right of owning real property, the right to own a residence of one’s own, is a foundation of liberty and of self-governance. This perception of the inherent value of real property as being attendant to freedom is truly noted in an era of the gainful employment of both professional and vocational unmarried women and men, as well as of unmarried yet same-sex partners. Thus, it is to be presumed that more and not fewer appraisers within the States and Territories will seek to participate in federally regulated transactions. Without a guiding system of didactic regulatory compliance, such as been proposed, Americans and residents in less sophisticated and more provincial regions will not benefit to the extent possible in the course of ordinary interstate commerce.

 

It is the legal acknowledgement of the right to a permanent situs of residence, usually by recognition of title, from which one may exercise one’s right of electoral franchise. Only with an interest in real property may one participate in government and determine one’s own life, future actions and place in America. For, in the words put forth by Sir William Blackstone:

“the thought of the most usual and universal method of acquiring a title to real estates is that of alienation, conveyance, or purchase in its limited sense: under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another; whether that be effected by sale, gift, marriage settlement, devise, or other transmission of property by the mutual consent of the parties.”

(Commentaries on the Laws of England, Bk II, Chap. 19, 287).  In some manner, since the day of Blackstone (1723-1780) such numerous and varied means of tendering real estate for value have required an assessment and an agreement upon the value of the real property.

 

Then and now, real property consumer transactions rely upon the skill and expertise of nonparties to the transaction in order to support the agreed upon opinion as to the value of the real property being transferred. The expertise of these third parties, such as appraisers of real estate, possess influence as governance of the attribution of value. We are still remedying the Anglo-Saxon form of property once existing in the American Colonial era when indentured labor was personal property. Presently, relative to the purchase of land as a stick in our bundle of property rights, perhaps a fair and reasoned regulation of the services of an appraiser of real property might be in order.

 

Pursuant to the Notice, under currently existing, jointly promulgated rules, the FHFA and three additional federal agencies, namely: the Board of Governors of the Federal Reserve System (the “Board”); the Federal Deposit Insurance Company (the “FDIC”) and the Office of the Comptroller of the Currency (the “OCC”) govern Appraisal Managing Companies (an “AMC” or the “AMCs”) in fifty-five state and territories. (83 Fed. Reg. 36931-36935 (July 31, 2018)).  The AMCs are comprised of a minimum number of licensed and certified real estate appraisers who grant appraisals in support of federally related consumer real estate transactions. Id.

 

At the discretion of the AMC, an AMC may either chose to register as an appraisal management services business with a State created agency that certifies, licenses and regulates real estate appraisers. Or, it may, instead, conduct such a business as a federally regulated AMC, under the auspices of one of the previously enumerated federal financial agencies, namely the:  Board, FDIC, FHFA, or OCC.

 

Each AMC reports certain information and engages in record keeping and governance of the meritocratic work product standards and ethical conduct of its member appraisers. The AMCs would be named to a national registry of managing companies.  Each State would, for itself and on behalf of the AMCs overseen by one of the three federal agencies, submit collected information from the AMCs to an Appraisal Subcommittee (the “ASC”) of the Federal Financial Institutions Examination Council (the “FFIEC”) for creation of a national registry. (83 Fed. Reg. 36931, 36932 (July 31, 2018)).  The AMCs are responsible at a fundamental level below, both the state and federal governments, for ensuring the due and credible qualifications and ethical work product of their licensed and certified appraisers, as determined by law. This is a national standard applicable to all.

 

It is proposed in the Notice, that the purpose and function of the FHFA do not require that the FHFA participate in the collection of information as would be envisioned by the regulations. Yet, it has been suggested that, though FHFA participation would be required, the four agencies have agreed that the duties imposed as to recordkeeping and reporting as to AMCs that become owned or controlled by a federal agency will only be divided among the three federal agencies governing depositary financial institutions, for the entities governed by the FHFA may not become an owner of an AMC as may those entities regulated by the other federal agencies under current law, (83 Fed. Reg. 36931-36933 (July 31, 2018)).

 

The Notice states that the FHFA would, however, retain, with the other three agencies, its one-fourth share of the obligatory federal oversight burden of review of the reports tendered to the ASC by States which register AMCs. The FHFA would also retain one-fourth of the burden of reviewing the State registration systems in development and State compliance with substantive issues of with legal and ethical standards.

 

The foregoing bureaucratic duties and obligations of the FHFA are not excessive, and are more than within its obligatory purpose and duty. Federal regulation establishing a minimum standard for a uniform system of compliance in consumer real estate transactions is one of  essential notions of imposing a governing didactic of honesty and fairness within the marketplace. Such notions are essentially, in America, premised upon the time honored historical principles of the republican form of government since the historical times of Ancient Rome.

 

This proposed collection is a uniform, national system of review founded upon a uniform required reporting and recordkeeping applicable even to the smallest of America’s real estate markets involved in federally related transactions. Uniformity in governance from above, a principle of federalism, provides efficiency and economy to the fifty states and five jurisdictions to which this law governing federally real estate lending and appraisals applies.

 

This regulatory system, even as to the FHFA, provides a comprehensive method that yields quality and increasing merit in the development of appraisal methodology and governance. According to the Notice, as of July 26, 2017, only five of the governed 55 states and jurisdictions “do not possess a system for registering Appraisal Management Companies” (83 Fed. Reg. 36931-36933 (July 31, 2018)) (emphasis added). And, more importantly, according further to the Notice, there are only 200 AMCs currently registered. (83 Fed. Reg. 36931-36933 (July 31, 2018)). The question then is whether participation in the collection currently, or will in the future, pose a burden upon the FHFA to a greater extent than its purpose justifies participation.

 

With respect to the inclusion of the FHFA in the national regulation of appraisers and its requisite periodic burden as to recordkeeping and reporting,  national uniformity as to the smallest of transactions and the least sophisticated of consumers is the hallmark of American democracy, justice and fairness. This system of regulations provides a de minimis level of State and Federal regulation, a “level floor of competency” below which the nation’s real estate appraisers in federally supported transactions may not go.

 

In no way does or could this duty of reporting and recordkeeping pose a burden upon the FHFA requiring a commitment of resources outweighing its due allocation and use of resources. It is by no means excessive or greater in any extent than the purpose of the FHFA as an agency. Under the proposed collection, the FHFA will not participate to the full extent as the other three federal financial institution regulatory agencies. For, the FHMA may not, under current law, obtain indirect ownership of or control over an AMC, as the other federal agencies may through a regulated depository institution as an intermediary.

 

In the context of the Proposed Collection, the FHFA should consider that it is the role of the Director of the Office of Management and Budget to:

“‘promulgate rules, regulations, or procedures necessary to exercise the authority provided by this chapter.” It is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated by or for the Federal government.” 5 C.F.R. §1320.01.

The Director increases the efficiency of American government through managing participation. The Director enables an agency to more greatly achieve its statutory purpose. The reduction of the regulatory duty and burden of the FHFA to the extent based upon its inherent purpose, function and bureaucratic structure is a reasoned reduction in agency paperwork and it has been so agreed upon by the agencies. No further reduction would enable the FHFA to enable struggling home buyers or restore our market of residential housing with adequate financial safety and soundness. When the reduction in agency duty is premised upon a lowering of the review standard required of real estate appraisers and real property is the fundamental asset supporting the difficult consumer transaction, the inherent purpose of the FHFA is undermined.

 

I thank you greatly for considering my thoughts and concerns. Please contact me as indicated above if you would require additional information.

 

Sincerely,

Lori G. Nuckolls

Lori Gayle Nuckolls, Esq.

 

 

 

 

cc: Federal Housing Finance Agency,

via email to: RegComments@fhfa.gov

 

cc: http://www.regulations.gov

Philosophy, Law and Politics

Is It Becoming a Meritocracy?

I attended the annual CBA-Roundtable Minority Summer Law Clerk Reception of the Cincinnati Bar Association, held this year in the Cincinnati headquarters of historic Taft Stettinius & Hollister LLP. Taft made a stupendous effort in welcoming law students far beyond the bounds of the traditional path of the “stocks and bonds” law firm. The large gathering included prominent Cincinnati  attorneys and governing officials whose careers began much before the era of “discussions of Diversity and Inclusion.” Several first in the family college graduates and law students, whose summer private sector position was a continuation of their academic year law clerkship, expressed true and sincere appreciation for participation early in their careers. Many years ago, fear and resentment would have been evident, but less so in the era of the Clintons and the Obamas. Attorneys who are graduates of elite law schools are now a known entity.

My personal view toward issues of diversity and inclusion, as well as to most all subjects, does not go beyond one of academic diplomacy, based upon merit. I rarely, if ever, form an opinion which I would sternly support against another. Perhaps, doing so would be necessary if the law in Cincinnati and Ohio, state and federal, were more competitive as to client interests. It seems, rather, you may draft beyond reasonably anticipated future challenges.

Fundamentally, the issue of diversity and inclusion in the Cincinnati remains a question, even in light of the true expression of grace at this year’s Minority Law Clerk Reception, of revisionism in the interpretation of local history. Diversity and inclusion are, together, of the many questions asking the manner in which Ohio, and, specifically, Cincinnati, reach the accomplishments reached long ago by many cities and states in America. In some respect, modern issues of inclusive and diverse public and private policies require historical due diligence. This diligence would ask as to the possibly causative and still existing precursors to our issues of, as is our lengthy litany: “affirmative action;” “ending separate-but-equal or defacto segregation;” “integration;” “lack of discrimination;” and “transcending segregation.”

As a Sole Practitioner admitted into practice in the States of Ohio and New York, I have returned to my primary legal subject of administrative law, state and federal, after years in researching and writing on topics of federal litigation. Before, I was not permitted to present arguments found in the judicial opinions of courts beyond the Sixth Circuit, nor in scholarly secondary legal sources.

In solo general private practice, I have given comment on a variety of proposed Ohio Administrative Code provisions, as well as proposed regulations of the U.S. Securities and Exchange Commission and the U.S. Department Health and Human Services. With interpretative reliance upon the founding principles of American government and traditional legal methods of research and argument, one may readily suggest improvements in our governing law.

One belief I do hold is that, in America,  private legal practice, even mine, is the source of American common law. For, our common law  is actualized from custom unto law by courts and commercial contractual  dealings.

From this, questions arise as to how we might garner acceptance of all law school graduates, equally, by all employers. Have we asked how we do this without great disregard for personhood as to any? For, justice is not thereby accomplished. In asking that the least graduated are accepted first by the traditionally reclusive within the legal community, as is being done in both the private and public legal sectors, how will accreditation bullying be dissuaded if it is accorded profit and merit by being paid first?

In the last 25 years or so, Cincinnati has dramatically experienced major economic growth and prosperity. The local universities are more noteworthy than ever before for notable faculty and truly more expansive research programs and centers. Yet, the law in Ohio, has not similarly kept pace.

The Ohio Administrative Procedure Act, in its present form, dates from the mid-1950’s. The Ohio Revised Code has not been revised to encourage economic advance, no less to permit the successful management and retention of the material success Ohio, and Cincinnati, have enjoyed. Most developing cities and states have managed both law and money.

 Cincinnati does not live under the aura of national institutions of higher education that benefit Ohio’s northern cities. And, Ohio law has also not developed as has our international commerce has developed. To an even greater extent, the agenda of pending maters before the weekly meeting of the Ohio Joint Committee on Agency Rule Review, indicates that Ohio’s administrative law is scarcely worthy of being deemed “final agency action” in 2018 by state and or federal standards.

Relative to the laws written by attorneys in the State of New York and within the federal government, the laws of Ohio are truly a cruelty.  Even if the cruelty does not result from enforcement of obsolete legal standards, the cruelty occurs when those who have chosen to reside and make commitments to neighbors and institutions are then finding themselves under an anvil of suppressive statutes and administrative rules lacking the modern reasoning and logic of the material goods, services and technologies imported into the State of Ohio  in interstate commerce to which they commit their funds.  Funds and services these arcane statutes profess to govern.

If our laws lack clarity and reasoning, no one can self-govern, regardless of partisanship or opinion. How do clients, attorneys and law students know the source of anxiety in professionalism and in consummating legal services? Without, a best-efforts approach to legal services and best-efforts selection of attorneys and law clerks how will any meritocracy ever be accepted or regarded? To what does our democracy then devolve?

As citizens, as well as attorneys, we have no publicly shared actualizing dialectic, Hegelian or otherwise. Our American government and economy, private and public, are defined as a natural, meritocratic system of profit-based competition, permitting the creation and ownership of value with respect for liberty and privacy.

In Cincinnati, the concern is that the majority of residents do not inform themselves and do not form opinions. They seem mentally transient, as I seem to believe I have heard others say. They seem without a sense of Hohfeldian right, or even privilege, to mentally consider information readily available to the public, no less form an opinion. There is a sense of self-imposed mental repression.

Perhaps the two major political parties gave for too long and without due meritocratic review opportunity to hold government office to those from a variety of social strata not ever before officeholders in America. These are those in the nation who were not among those graduated from elite academic American institutions of higher education. These are those not from the moneyed classes.

Yet, delegating the power to draft and or effectuate legislation and imprison citizens to those for centuries deemed scarcely qualified to hold office is neither democracy nor justice unless the officials demonstrate equal or superior merit.  These not yet officeholders were long denied candidacy for office, in part, because they were not of the rich and powerful aristocracy in America, among other reasons. This is the basis for the argument that the absence of participation as representatives was unjust. It is not an expression of unfairness that one is denied nomination because another candidate is of a greater college board ranking than thou. Such a denial is not violative of the thought of Edmund Burke, nor Jack Randolph, nor T.J. Such a denial or exclusion similarly comports with meritocratic selection of attorneys and legal arguments.

My thoughts on “what is wrong” in Cincinnati and Ohio, as the once Chair of Democrat Ward 7 John Albert “Socko” Wiethe, as the immediate predecessor to my father Charles Nuckolls,  as Chair, used to say, are derived from the phrase: “Let history be our guide.”

Lori Gayle Nuckolls, Esq.

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Philosophy, Law and Politics

Should Income Parallel Success, Private and Government?

 The current salary of a Federal appellate judge sitting within one of the U.S.  judicial circuits is $220,600 per year. http://www.uscourts.gov/judges-judgeships/judicial-compensation. This includes the current annual salary of sitting Judge Brett Kavanaugh of the D.C. Circuit. If Judge Kavanaugh is promoted to the U.S. Supreme Court, he would be an Associate Justice and would earn $255,300 sitting under Chief Justice John Roberts. The Chief Justice earns $267,000.  http://www.uscourts.gov/judges-judgeships/judicial-compensation. Do their salaries adequately compensate them for the value of their labor and contribution to America and to Americans? How do we justly and fairly value their contribution?

 

Antifederalist No. 1 said of the proposed U.S. Constitution, in its “General Introduction: A Dangerous Plan of Benefit Only to the “Aristocratick Combination:”

 “I am pleased to see a spirit of inquiry … upon the subject of the NEW PLAN …. If it is suitable to the GENIUS and HABITS of the citizens of these states, it will bear the strictest scrutiny. The PEOPLE are the grand inquest who have a RIGHT to judge of its merits. The hideous daemon of Aristocracy has hitherto had so much influence as to bar the channels of investigation, preclude the people from inquiry …. At length the luminary of intelligence begins to beam its efflugent rays upon this important production….”

 In our modern words, We as the People of America govern our country having, liberated our American Colony from the British Empire, and having established a republican form of government. The Founding and Governing Fathers and Mothers, then deemed and still deem, their beloved People and Publick, the “tyrannous majority.” For, though we are all worthy of the essential human nature of mankind, we are not all worthy of ascending unto those among us who “represent the masses” comprising our American Republic. The Founding and current Governing Persons of America are of the privately governing intelligentsia of America, our “natural aristocracy,” not solely to be derived from the governing “Aristocratick Combinationand “daemon of Aristocracy” of Anti-Federalist parlance. Before the American Declaration of Independence, Englishman William Blackstone said, similarly of the English aristocracy, governing “peers of the realm are by birth hereditary counsellors.” (William Blackstone. Commentaries on the Laws of England, Book the First: Of the Rights of Persons. Ch. 5, l. 6.)(1765). How do we reform an economic structure in which value and income are determined and derived, not by merit and contribution to the administration and governance of society and our community, but by Roman game like, enzombieing, entertainment, tendered to a nonparticipatory public that is uninformed and is not capable of self-governance?

 

A philosophical appeal in English Statesman and Philosopher Edmund Burke‘s “Letter from The New to The Old Whigs” in, 1791, suggests that:

“A true natural aristocracy is not a separate interest in the state, or separable from it. It is an essential integrant part of any large body rightly constituted. It is formed out of a class of legitimate presumptions, which, taken as generalities, must be admitted for actual truths. To be bred in a place of estimation; to see nothing low and sordid from one’s infancy; to be taught to respect one’s self; to be habituated to the censorial inspection of the public eye; to look early to public opinion; to stand upon such elevated ground as to be enabled to take a large view of the widespread and infinitely diversified combinations of men and affairs in a large society; to have leisure to read, to reflect, to converse; to be enabled to draw and court the attention of the wise and learned, wherever they are to be found; to be habituated in armies to command and to obey; to be taught to despise danger in the pursuit of honour and duty; to be formed to the greatest degree of vigilance, foresight, and circumspection, in a state of things in which no fault is committed with impunity and the slightest mistakes draw on the most ruinous consequences; to be led to a guarded and regulated conduct, from a sense that you are considered as an instructor of your fellow-citizens in their highest concerns, and that you act as a reconciler between God and man; to be employed as an administrator of law and justice, and to be thereby amongst the first benefactors to mankind; to be a professor of high science, or of liberal and ingenious art; to be amongst rich traders, who from their success are presumed to have sharp and vigorous understandings, and to possess the virtues of diligence, order, constancy, and regularity, and to have cultivated an habitual regard to communative justice: these are the circumstances of men that form what I should call a natural aristocracy, without which there is no nation.”

American democracy guarantees: (1) liberty to act without encroachment; (2) freedoms of belief and expression; (3) a right to property; and (4) representative participation.  In drawing the line between the rights of personal and real property rights to enforce and those rights of personal and real property to not enforce, how should we draw the law attributing ownership? Do our governing authorities possess a metaphysical, in-kind contribution of productive labor, not yet acknowledged and compensated?  How do we attribute the right of ownership and upon what criteria do we base value?

 

Monetary creation, if to forever remain democratic in our society, requires an assurance of justice and fairness, guaranteed to the youngest of age within the smallest of political subdivisions. Justice and fairness are required within the smallest of political subdivisions in the United States of America to the largest. Within the U. S. of A., the sitting U.S. Supreme Court sits within America, as a political subdivision. America, itself, is within the various international entities to which the U.S.A. belongs. And, America’s own international political subdivision boundary exists coextensively with the sovereign political boundary of the United States itself. The financial compensation paid in America to our governing authorities, our natural aristocracy, should permit any American to ascend to the utmost respected stratum of a career in American government regardless of socio-economic stratum of origin. Such should be a coextensive definition of human rights under governing international law.

 

In creating and administering the three branches of our representative democracy in America, how do we determine the value of guaranteeing democracy itself, the value of the attorney work product of governing officials and of attorneys and judges?  Their work tasks are deemed entrusted to them by the people and deemed to be of inestimable value, for their tasks guarantee to every citizen freedom, liberty and justice.

 

Yet, how do we compensate governing judges and officials so that those who write, administer and interpret our laws may be those for whom doing so is within the “American dream,” regardless of socio-economic stratum of origin? All in government are held in proper honor and esteem for the values they hold dear and that they guarantee? Is a mere civil servant, governor, assemblyman, state judge, and the work they produce for the community less important than that of the president, senator, congressman, federal judge or agency secretary? How do we imbue citizens with patriotism and love of county when the salaries of their governing members are exceeded by those of professional sports team players, though the players express thoughts and values publicly protected by these governmental actors every day? How will the next Justice of the U.S. Supreme Court “make ends meet?”

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

To Legalize, Or, Not To Legalize?

In discussing the current debate of whether the use and sale of marijuana should be generally allowed in each of the 50 States, and no longer be deemed a criminal activity, requires that thought be given to American history and traditional theories of the law. And, perhaps our debate should focus on the history of Prohibition, last century.

Currently proposed legislation before the U.S. Congress asks if the Federal government may, or should, dictate that the use of marijuana is legal conduct for every citizen in every state. Or, should the Federal Government respect the aged-old American doctrine of States Rights and the prudent theory of experimentation within and among jurisdictions, whether they be the Federal judicial Appellate Circuits, the States themselves, or the various political subdivisions therewithin?

As citizens, we must ask in what manner marijuana differs from the time honored American  custom of enjoying fermented and distilled spirits – alcohol. If marijuana is properly legal in the United States, regardless of locale, for social, and not only medical, purposes, what is the scientific rationale for permitting it being criminalized in any jurisdiction within the country? If legal in any State and deemed safe by our scientific community, is there a valid legal rationale for treating the use of marijuana differently from the current regulation of our use of alcohol?

Traditional grassroots, self-governance of communities in America is the foundation of our democracy, our representative republic. Governing jurisdictions, as small as towns and villages, may dictate legal policy as to the sale and use of alcohol within their jurisdictions. Yet, they may not proscribe the use of alcohol. This has only been done and repealed by a revision of the U.S.  Constitution. Marijuana, like alcohol, should properly be regulated below the Federal level by State and Local Governments only as they regulate  commerce within their boundaries. Like alcohol, marijuana requires more regulation than English muffins and wheat bread. Such regulation, though, results from theories of corporate and business structure, and the proper purposes of land use management – zoning restrictions.

If legal in one State, marijuana should be legal in all. And, the existence of the 50 States, and our various political subdivisions and territories, permits American capitalism to experiment.  Various business forms may evolve from the art of the “dry county,” the State owned and or regulated, stand alone “brick and mortar” business concern, or the State regulated, corner shop in the interstate or international grocery store.

And, there cannot be an argument for not fully expunging the criminal records of conviction and time served for offenders penalized for personal expression before their governing officials “saw the light.” It goes without saying, then, that, too, all criminal defendants currently “serving time” for marijuana only offenses should be released through existing transitional, reentry programs. Not doing so would be merely a creative theory of law ex post facto.

Lori Gayle Nuckolls, Esq.

Do Young People Understand the Creation of the Law?

When looking at our three branches of government in America this electoral season, the role, place and stature of the executive, legislative and judicial branches should be well studied, Federal, State and Local. All citizens and residents, of all ages, should know the names of our governing officials from all three branches and their role in our community.

In guiding our young people, we need to go beyond a mention or two of the name of our Congressperson or the name of the Mayor or a member of our City Council. Children in this the second decade of our 21st century are truly knowledgeable of current events in the modern era, more so than ever in America’s history. They have seen the most recent national elections and campaigns. The know by first name Barack, Bernie, Bill, Colin, Condoleezza, Eric, George Sr., George W., Hillary, Loretta, Madeleine, and Mitt. They know that the current President is Donald and that the next might be Joe III.

Yet, we must share with them more than this. Especially, our young people need an acknowledgment and appreciation of the scholarship of the judiciary.  Popular understanding of our judicial system and its stewards guarantees the freedom of thought of those who appear before them as well as of our nation. Judicial decision making in the public interest benefits from a knowledgeable public.

A truly fundamental common law subject as the creation of a contract may provide a basis for an objective discussion of how we learn from our Judges and so gain an equal understanding of the three branches of government in America. Contract law is of general interest, noncontroversial and permits discussion of the art of the judiciary.

An example is taken from a legal opinion written by Federal Magistrate Judge Michael Newman of the Southern District of Ohio. Judge Newman is the recent President of the Federal Bar Association. His term in private legal practice prior to the bench was as a law firm Partner in Cincinnati and was lengthy and well accomplished.

In Traton News LLC v. Traton Corp., No. 3:11-cv-435, 914 F. Supp. 2d 901, (S.D. Ohio 2012), Judge Newman expressly acknowledged that the case posed “an issue of first impression in [his] Court.” 914 F. Supp. 2d at 909. Namely, the question newly presented was whether a person using the Internet and who accesses a certain website, in doing so, agrees to the Terms and Conditions set forth in the website as specified by the Terms and Conditions. And, would this create a binding agreement that would support personal jurisdiction pursuant to the governing Terms and Conditions? Judge Newman found that this did not create a contract for want of consideration. In this instance, the Internet user accessing the website did not receive a benefit supporting the existence of a bilateral contractual obligation.

We must appreciate such judicial thought and show such appreciation with greater encouragement of participation in community and government discussion? Popular understanding that Judges impart wisdom when new questions arise is needed. Civil peace and understanding require that young people learn American government at a young age.

In Cincinnati, do young teenagers understand the theory of the judiciary and its role in fashioning our common law from our amorphous popular thinking? In theory, Judges turn custom into law, and in fashioning the law, they educate our customs. The scholars of William Blackstone argue that our customs may only become common law if their tenets conform to our sense of natural reason and justice. Do we teach this to our young people so that they may grow up to understand an increasingly more complex nation, with a far more applicable hierarchy of institutions of higher education in that all of us within the 50 states must defer to the established hierarchy of universities and colleges? The young in turn may guide their parents in an increased understanding of the modern world and a respect for the judiciary.

The American public must be taught to defer to the constitutional function of the judiciary: the administration of legal decision making as to residents, citizens and government. With the fragile delicacy of Marbury v. Madison in its creation of our doctrine of judicial review, all within our nation must respect the separate, equitable power of the American Judiciary as to the executive and legislative branches of government. Popular understanding of our popular self-interest, in a country whose government force and power are derived and ensured only as individuals understand our principles of government, will only be stronger.

Lori Gayle Nuckolls, Esq.

Is a Failure to Prosecute Utterances of “Hate Speech” and “Fighting Words” a Violation of Due Process by Ohio County Prosecutors in Not Protecting the Victim’s Constitutional Rights of Liberty, Privacy and Personhood?

Under Ohio law, Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.”  This statute expressly prescribes “offensively coarse utterance [and] gesture[,]” and  “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3).  This law lies within criminal provisions of the Ohio Revised Code denominated “Disorderly Conduct,” as one of many “Offenses Against the Public Peace” of Chapter 2917. Has any duly elected Ohio County Prosecutor recently invoked this provision?

How does the community resident evaluate whether the absence of arrest and prosecution in his or her Ohio County is a proper exercise of prosecutorial discretion in regulating conduct under Ohio law? In what other ways are the constitutionally protected, basic and fundamental rights of Ohio citizens and residents to privacy and personhood, as incumbent within our essential rights of liberty and freedom, protected from independent, idiosyncratic, and isolated acts of speech contrary to personal integrity?

Ohio Revised Code § 2917.11 should be used by Ohio County Prosecutors to guide popular conduct, as a didactic tool. Section 2917.11 deters visceral, unkind speech directed, especially, to a person the potential perpetrator does not even know. And, importantly, this law looks to proscribe harmful words spoken when no logical rationale exists for devolving into such conduct when long historically permitted forms of expression and advocacy exist.

If traditional forms of expression, speech and  participatory politics are possible, conduct subject to prosecution under Ohio Revised Code § 2917.17 only evokes either fear harmful to one’s sense of personhood or, more difficultly, fear expressed in the form of a harmful or violent response from the victim of the unkind speech. Do we instead prosecute the victim for engaging in an improper response to unprovoked hate speech and let the utterer of fighting words go free? Why is the fearful, dependent spouse convicted of homicide for shooting a long abusive, domineering spouse while asleep and unlikely to rise up in confrontation? When is self-defense illegal?

Is an Ohio County Prosecutor’s  failure to prosecute hate speech and fighting words an unconstitutional disregard for the right of every individual to liberty,  privacy and personal integrity, all long respected by the U.S. Supreme Court? Should the Ohio County Prosecutor, as a state actor, be subject to civil action, under Section 1983 of  Title 42 of the U.S. Code, for such a failure to prosecute? The right to Due Process includes one’s liberty interests, and the duty of the Ohio County Prosecutor to protect the liberty interests of Ohio citizens and residents subject to personally intrusive fighting words and hate speech by prosecuting those engaging in hateful speech.  Does Section 1983 include a substantive due process right to challenge in Federal Court an Ohio County Prosecutor for the absence of prosecution of fighting words perpetrators under Ohio law?

The consequences arising from an Ohio County Prosecutor’s decision to not prosecute acts criminal under Ohio Revised Code § 2917.11 are self-defining and derive inherently from the Anglo-American Common Law giving rise to the U.S. Constitution. A want of review, regulation and criminalization results in a perpetuation and acculturation of illegal intent and conduct within our country. American criminal law has many purposes, including, deterrence, rehabilitation, restitution and retribution. Laws exist on the “statute books” for a reason. These are the reasons for Ohio Revised Code § 2917.11 .

How do we begin? How does the first individual abused as to self and personhood come forward in Federal Court and ask why his or her Ohio County Prosecutor did not seek redress on his or her behalf under expressly worded Ohio Law? Should such prosecution on the individual’s behalf be so permissive, and not a mandatory obligation of the duly ethical Ohio County Prosecutor under the professional rules and judicial decisions of the Ohio Supreme Court?

Life in our American Republic requires free speech and a sense of participation without fear and without improper inhibition. Justice and fairness in our democracy require that Ohio County Prosecutors act zealously, with best efforts and with a sense of being conservative to the utmost. Non action and a failure to prosecute potential perpetrators under enacted legislation is not conservative, it is the opposite. Prosecutorial discretion is both permissive and mandatory. Where do our State and Federal Courts draw the line?

In a democracy, free speech is a property right. It is not to only be accorded governmental protection as a permissive privilege.  In America, a citizen or resident should not feel as if he or she must ask permission of an equal to speak or live, for fear of becoming a victim of hostile words. He or she should freely speak. If the equal is inhibiting in a manner contrary to § 2917.11, the Ohio County Prosecutor should act.

Lori Gayle Nuckolls

A Want of Diversity in the Legal Community in Cincinnati, Ohio

In thinking about making Cincinnati’s legal community more diverse and inclusive, there are several questions with which we may begin.  First, what is the synthetic relationship between achieving diversity among corporate clients, corporate in-house counsel and law firm partners? Second, is diversity in the legal profession possible if inclusion and diversity are not sought at the same time, in a synchronized manner, among these three commercial participants? Third, how do we encourage each of these participants to simultaneously seek diversity and inclusion while consummating their business transactions? Fourth, is the only guiding principle to encourage diversity the due deference to fair and equal competition with the meritocratic review of attorneys?

Commercial clients seek attorneys who have a known reputation for quality legal advice within the marketplace. They want an attorney who, as to opposing counsel, can “cut the best deal” or “make court precedent,” for future business profit. This produces competition among law students whose Professor has recently published a book, or whose Professor is well-respected by centuries-old American and foreign corporations. There is competition between law faculty and their former students, now Senior Partners in Major Firms in Major Cities. These Senior Partners wonder throughout their career: “A law professor, why not I?”  This Faculty vs. Alumni competition promotes corporate business competition, and competition among Associates along the Partnership track. The quality in attorney work product Faculty vs. Alumni competition produces promotes competition among law students for positions as Summer Associates at top-tier law firms, who then compete for the offer of permanent employment.

To achieve diversity and inclusion within the legal profession, all law students must have access to and the opportunity to seek employment in the private sector, regardless of attributes of the diversity and inclusion debate, namely:  nation-state, gender, religion, sexual orientation and socio-economic status. In America, the marketplace and academic institutions are supported and determined by competition. Our country is no longer aristocratic or oligarchical. One cannot buy achievement and success.

Positions with a Law Review, prestigious law firm, respected Judge, major government agency or large non-profit entity depend upon academic achievement. And, the positions are sought by virtue of the learning to be gleaned from the experience and not the income to be derived. Lawyers in America, even at the height of success in the private law firm, have traditionally earned far less than their corporate client executives, though the level of academic training required of attorneys is far greater and far more expensive.

Like government, legal practice should be governed by merit, though remaining a marketplace for the survival of the fittest.  Permitting access to the private sector, while retaining necessary privileges of proprietary information and private property, poses difficult questions for drafting public standards for employment review. Perhaps, greater substantive participation of younger law firm associates in local, state and national bar association activities, such as the American Bar Association, as well as substantive participation in law school alumni activities, would more readily provide a comfortable sharing of ideas and views on the practice areas of interest to corporate clients. An academic sharing of learning and ability in an informal “study group” manner would allow governing partners and their clients to review the work product of attorneys of diversity in the context of current legal issues and pending matters.

While younger attorneys might not lead in specialized bar association sections, they may readily provide liaison to their recently attended law school and continue to share developments in the law gleaned from law faculty engaged in ongoing scholarship. Private sector attorneys of diverse attributes may then more readily acquire practice area knowledge and understanding expected by corporate clients to whom law firms putatively kowtow when making hiring and partnership decisions.

Client development by Senior Associates in behest of making Partner is not a matter of access to the wealthy corporate executives among us. Rather, it is determined by one’s ability to offer and  demonstrate an understanding of current law. And, most importantly, it is determined by a truly in-depth capacity for creative legal thinking to revise current law so that it better meets the needs of the corporate client and provides a competitive advantage and  niche in the for-profit marketplace.

Diverse attribute students and attorneys bear the same ethical and fiduciary duties and obligations as do the traditional attorneys of the majority stratum. These duties and obligations require all attorneys to reconcile the corporate client’s  goals of prosperity with the prosperity and public good of the nation.  Premier lawyers and law firms derive their earnings from the “institutional client” which has retained a given law firm for even possibly centuries with successive Senior Partners inheriting responsibility for the legal advice provided the client over the years. A lawyer of diverse attributes must share a learning of the law that is competitive in order to achieve success in the private sector.

Law students who study and think analytically, deductively reasoning from legal theory in order to understand statutes and case law, are the nouveau “Old Boys’ Network,” making Partner regardless of attributes of diversity. The son of the CEO, playing golf with lawyers once a week at various Country Clubs around the world, no longer  imposes a monopolistic, barrier to entry  impeding the success of the granddaughter of the Separate-but-Equal School Principal, whose father, as a Junior High School Principal, played golf  in a School Teacher’s League once a week on a Public course. The time has come. We need to name names, for neither David Pepper nor I have made Partner in Cincinnati, Ohio.

Oh, what could the matter be? Perhaps Cincinnati is ruled by the alumni of the University of Cincinnati College of Law  “sitting the bench,” State and Federal! David continues on as the Chair of the Democratic Party in Ohio. Though a daughter of a former Democratic Ward Chair and the President of the Democrat Club when a student at Hillary Clinton’s Wellesley College, I just sent dues to the GOP, membership I trust is “effective upon dispatch.” Diversity needed on many fronts, please!

Lori Gayle Nuckolls

Law Students Before the Judiciary, Revisited

On Christmas Eve, last, I asked if the Rules formally adopted by the Ohio Supreme Court to govern the Ohio Bar might be amended to improve the educational opportunities of Ohio’s law students prior to their graduation. Supreme Court Rules for the Government of the Bar of Ohio, R. II., “Limited Practice of Law by a Legal Intern.”   Perhaps, all Ohio law students should be permitted to share in providing formal legal representation to clients when mentored by a supervising attorney. This is something Cincinnati’s current Mayor John Cranley did as a student at Harvard Law School. He participated in a student practitioner program in the Massachusetts court system as a member of the Harvard Legal Aid Bureau, as I had done myself many years before. The Supreme Judicial Court of Massachusetts permits Second Year law students to engage in supervised civil representation, and Third Year law students to engage in both supervised civil and criminal representation. S.J.C. Rule 303.

Currently, when mentored by an Ohio attorney, the Ohio Supreme Court permits Ohio law students to act as student practitioner legal interns in both civil and criminal matters, and before courts, administrative boards and government agencies. Gov. Bar R. II. Sec. 5.   Yet, the Ohio Supreme Court only permits law student practitioners to do so in their Third Year of law school. Gov. Bar R. II. Sec. 2.

Support truly exists for permitting Ohio law students to begin student legal internships in their Second, or even First, Year of law school. Ohio’s law students are usually employed part time while full time law students, as law clerks in law firms, corporations, governmental agencies, as well as in the offices of State and Federal partisan elected officials. Student practitioner duties would not diminish attention given legal studies.

Paid part time legal employment supplements participation in law school Moot Court and Clinical programs. Many students engage in law related employment before entering law school. Both the practice customs and economic structure of Ohio’s legal community would encourage the Ohio Supreme Court to expand upon its own court rules, and those of other States, to permit student practitioners to provide formal legal representation to clients. Currently, Ohio’s Third Year law students may only represent the financially needy and governmental entities, though in both civil and criminal matters.  Gov. Bar R. II. Sec. 5.

If the clear majority of Ohio law students currently work in a for profit or personally interested capacity during law school, for law firms, corporations and partisan elected officials, why would an ethical concern arise if their current for profit or personally interested client work product were accorded the formal sanctioning of Rule II legal intern status? The for profit or partisan attorneys by whom they are currently employed are subject to the same professional ethical duties as are the government and public interest attorneys presently sanctioned by Rule II. The due and proper incentive of government should enable students to derive the most from the structure, both formal and informal, of their academic environment during their tenure as students.

We should agree that if law students maintain employment begun before enrollment through their First Year, law school studies would not suffer if they were given Rule II student practitioner privileges for this, or similar, work during First Year. Rather, our theories of client interest and adversarial practice, as the guiding principles of our judicial system, indicate that formal legal representation during law school enhances understanding of both law school studies and substantive for profit work product.

Acknowledgement by the Ohio Supreme Court of the substantive, for profit legal work currently incumbent upon law students in the private sector would enhance the depth of their legal study, and they would then more greatly succeed upon graduation into private practice.  In for profit law clerk employment, law students research and draft, with the obligatory duty incumbent upon a practitioner, as do  the current Rule II law students with governmental and public interest entities.  The formal right to appear in a representative capacity, in deference to a mentoring attorney, allows a law student to fully understand the burden of client representation regardless of the economic status of the client.

Law students rely upon law school course work and law clerk employment to develop required skills in legal methods, specifically, analyzing judicial opinions, conducting Federal and State legislative histories, and the comparative analysis of both primary and secondary legal sources. With the addition of formal practice during First and or Second Year, Ohio law students would make a more informed choice of practice areas, and more readily begin their practice after graduation. Even our best known legal practitioners in Ohio, and we need not name names, would, I am sure, concede that, as graduates of Ohio law schools, they would have truly benefited from such an Hohfeldian right and privilege.

Lori Gayle Nuckolls