Philosophy, Law and Politics

Law Is Our Only Legally Required Social Didactic

Do we only garner community support and respect when we firmly plant our feet in the soil, or, in our concrete of modern times, and discuss our world from top to bottom. Those concerns of science are most significant and are necessary to our daily, quotidian existence. They are on top and are accorded a greater priority than those related to aesthetics and art. We respect our civilized lives, culture and government, as our governments have arisen from more, primitive versions of written governing documents: federal, state and local. We defend the rights and privileges our democratic republic grants and pledges to ensure to citizens and, in some cases, residents not yet citizens.

Every citizen, and those not yet citizens, in America, possess details that give rise to abstractions as attributes of personhood. Our American soil and modern concrete imparts into our indicia of personhood, and synergizes within our American populace and guests, a refinement of our civilization.

Americans will refine society until achieving natural extinction of our planet. America’s continuing writing of its history, and the contributions of its history makers, will share within the pages. In learning how to make and share history, we must explain the puzzles as we solve them. We mature within the course of both our history and our future, and the varied social institutions. More importantly, we must explain our popular lawmaking, both within the formal, authorized bodies of government, as well as lawmaking through the informal popular influence of citizens and residents.

Each law in America is an historical fact, from our legislatures as statute, and as common law and law at equity from state and federal judiciaries. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.) As the history and nation grows and refines, commerce advances, and our world increasingly becomes more complex as do the contracts governing transactions. Legislatures enact and reform statutes. Governmental agencies study and regulate specialized subject maters. Our courts define words, review state action and rule upon issues of law and fact.

The communities we live in grow to more and more contain aesthetics, literary attributes, sciences, and technologies. Our laws increase to permit our use, and our continued revision of our laws permit their continued use. Most of our new laws arise from contracts between two or more parties. Contracts impart principles of fair and honest dealing, which Judges — elected and appointed — review and interpret, with justice and fairness to the parties, the legal community and society. The contracts increase in complexity and sophistication.

Generationally, each of us, as did our predecessors and as will our future descendants, gleans a sense of self. This sense of individual, personal morality exists distinct from our popular majority’s collective value system we voluntarily self-impose. (See, Twain, Mark. The Adventures of Huckleberry Finn, Chap. I.) All the laws of the community, as well as the values embodied within us, create a sacredness we and government respect. (See, Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Chap. IX.)

In the words of my father, Charles Butler Nuckolls, Jr., a retired history teacher: “patriotism is a love of country not for what it is, but for what it is able to become.” Our personal and collective morality, and the laws arising from them, are to be revised and remedied if we are to be properly accorded respect thereunder.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

How Do Federally Funded Entities Provide for the Family Planning of Minors and Vulnerable Adult Populations?

The Comments Letter below was Submitted Today Regarding Proposed Rulemaking by the U.S. Department of Health and Human Services.

Lori Gayle Nuckolls, Esq.

July 22, 2018

Office of the Assistant Secretary for Health

Office of Population Affairs

Attention: Family Planning

U.S. Department of Health and Human Services

Hubert H. Humphrey Building, Room 716G

200 Independence Avenue, S.W.

Washington, D.C. 20201

Via Electronic Submission to: www.regulations.gov

Re: Docket No.: HHS-OS-2018-0008 (“Family Planning”)

Dear Assistant Secretary,

I write with interest in the proposed amendment of 42 C.F.R. Part 59, and, specifically, the promulgation of regulations, to be codified at 42 C.F.R. § 59.17, by the Department of Health and Human Services (“HHS” or, alternatively, the “Department”). The proposed rules concern current agency restrictions upon funding pursuant to 42 U.S.C §§300-300a-6, originally enacted in 1970 as the Public Health Service Act (P.L. 91-572) (the “PHS Act” or the “Act”). Please consider this letter formal comments upon this proposed rule in response to the Department’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on June 1, 2018. (83 Fed. Reg. 25502-25533). I support this proposed rule, in part, and I believe it achieves the primary objectives of the Act, “to support preventive family planning services, population research, infertility services and other related medical, information, and educational activities.” (H.R. Rep. No 91-1667, at 8-9 (1970) (Conf. Rep.) (as quoted in 83 Fed. Reg. at 25502).

The Department envisions that proposed new rule 42 C.F.R. §59.17 will aid in the achievement of the expressed statutory purpose in the new rule’s implementation of a requirement that entities receiving funding for the authorized purpose, both public and private not-for-profit, duly comply with all applicable State and Local laws requiring notification or reporting of sex crimes against both minor and adult clients. See, Consolidated Appropriations Act, 2018, P.L. 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (83 Fed. Reg. at 25519-25520). In providing this protection to both minors and vulnerable adult populations, the proposed rule imposes an ongoing obligation upon funded family planning counselors to “comply with all State and local laws requiring notification or reporting of child abuse, child molestation, sexual abuse, rape, incest, intimate partner violence or human trafficking (collectively, ‘State notification laws’),” regardless of the age of the client. (to be codified as 42 C.F.R. §59.17(a)).

Under the proposed rule, each funded entity would reconcile this broader purpose with its prefunding certification attestation as to compliance with a further duty that it: “encourages family participation in the decision of minors to seek family planning services.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 207, 132 Stat. 348, 736 (2018)(quoted in 83 Fed. Reg. at 25503). This narrower duty also requires that it “provides counseling to minors on how to resist attempts to coerce minors into engaging in sexual activities.” Id. And, as previously stated, in doing the foregoing “no provider of services … shall be exempt from any State law requiring notification or the reporting of child abuse, child molestation, sexual abuse, rape, or incest.” Consolidated Appropriations Act, 2018, Public Law 115-141, Div. H, sec. 208, 132 Stat. 348, 736 (2018) (as quoted at 83 Fed. Reg. 25503).

Apart from the regulatory provisions setting forth the type of family planning counseling funded under the proposed amendment of 42 C.F.R. Part 59, the Department should consider that the concern intended to be met by this amendment envisions that certain adults and certain unemancipated minors are residents within compromised households and relationships. They are without full exercise of their legal privilege and right of self-governance, and, as presumed by the current and proposed regulations, live without legal recourse. Most importantly, many in a compromised living situation, act improperly and contrary to criminal law prior to becoming the victim envisioned by the proposed rule. They engage in what is properly denominated criminal conduct when acting in self-defense so that they do not, if able, become the type of victim this proposed rule seeks to aid. In remedy, perhaps the Department should impose upon funding receipts a similar requirement to report all instances of general criminal conduct within the family unit or relationship, as to all adults and all children, even if the possible misconduct is not related to acts of sexual abuse.

In the explanation of the proposed rule, the Department acknowledges that funded family service providers at times do not inquire as to the age of the child or teenager receiving services, for maintaining confidentiality encourages young people to seek counseling. (83 Fed. Reg. 25520). Similarly, compromised adults and children might not disclose problems of nonsexually related criminal conduct. Yet, compromised individuals develop an unfounded sense of personal shame and self-blame, even when they are not those who act in self-defense before services are needed.

Perhaps, in remedy, the Department should require funded providers to not only notify or report as to the possibly victimized client to whom services are provided. But, providers should, as well, notify or report to State and Local governments all suspected criminal offenses, committed by minors as well as adults, of which a provider becomes aware in assessing the needs and living situations of their client. Specifically, in addition to reporting putatively criminal facts learned of when counseling vulnerable adults, the funded entity would notify or report as to all possible criminal activity of which it becomes aware when complying with the provider’s obligation under the new rule “to conduct a preliminary screening of any [minor under the legal age of consent] who presents with a sexually transmitted disease (STD), pregnancy, or any suspicion of abuse, in order to rule out victimization of a minor.” (to be codified as 42 C.F.R. 59.17(b)(1)(iv).

In summary, proposed new rule 42 C.F.R. §59.17 provides, as intended, that “minors and vulnerable populations” within the United States are protected by requiring family planning providers to comply with State and Local laws as to possible abuse. Yet, the providers might also include within their mandatory reporting all possible criminal offenders learned of in the course of providing counseling to both minors and adults, even if the activity does not constitute sexual abuse. Children, their parents, as well as adults and their families, alike, should benefit fully from guidance made possible with authorized Federal funds, to the extent of present law. With adequate legal monitoring, through notice and reporting, adults, children and their family members may not, not disclose, fully, the factual circumstances resulting in their compromised living situation. For, such difficulty is often a result of criminal activity that proceeds sexual abuse. Only, with adequate disclosure, discussion and remedy will Federally funded family planning guidance be effective.

The Department’s amendment of 42 C.F.R. Part 59 places the burden of compliance upon the funded provider which must possess adequate procedures for meeting the requirements of relevant State and Local law as a precondition of funding approval. And, this achieves the Department’s purpose of providing for minors and vulnerable populations upon whom the burden would never lie. Perhaps, the Department need only expand this protection to require funded family counselors to apprize State and Local governing officials of all suspected criminal activity within personal relationships, to the extent permitted or required by law.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls

Lori G. Nuckolls

Philosophy, Law and Politics

Greenspace and Culture for All!

The Cincinnati park of Burnet Woods is a wonderful asset of the Cincinnati community, and has been so since first begun in 1872. And, our community is obligated to both maintain and transition this park into a modern greenspace. Cincinnatians and learned science professionals, together, should discuss and decide the proper changes to Burnet Woods and Cincinnati’s greenspaces, generally. The current proposal for two community center buildings in Burnet Woods brings to popular discussion an issue not yet mentioned that is less related to concerns of environmental preservation. Specifically, the proposal to place a building within Burnet Woods that would essentially serve the current purposes of the Clifton Cultural Arts Center asks questions about equal planning for our various neighborhoods in Cincinnati.

Currently, the Clifton center provides cultural events and educational resources to those beyond the neighborhood of Clifton. Many young and old within Cincinnati would like to continue to rely upon the center. And, its location in Burnet Woods would have to be generally accessible by car and school bus. For, it is unlikely that it would be as currently within reach of those visiting by foot from nearby. But, more importantly, the center would place on public land a resource generally needed, yet unavailable, in most neighborhoods. The Clifton center arose from the needs and requests of one Cincinnati neighborhood. And, it has ably done so. Yet, a similar cultural resource has been long discussed and requested by many neighborhoods similarly in need, including the neighborhood of Ohio Representative Alicia Reece, namely Bond Hill.

Most neighborhoods would not be provided for by the arts center proposed for Burnet Woods. Before the Burnet Woods center is approved, we have an obligation to discuss providing access to cultural arts equally within the city. It is unlikely and unwise that each neighborhood community requesting such a center could request a similar grant of land to do so by the Cincinnati Park Board. The Burnet Woods proposal is not properly precedent, or ratio decidendi.

The discussion of providing beyond the neighborhood recreation centers is a difficult one, and neighborhoods such as Bond Hill have long puzzled the question of transitioning an aged commercial business district for modern use. A small cultural center was proposed for an area near the intersection of Reading Road and California Avenue. It would have been similar to the current centers in Kennedy Heights and Pleasant Ridge. Perhaps it, alone, would not have completely sufficed. Yet when does capitalism not permit trial and error of not-for-profit ventures as for our for-profit, start-up entrepreneurial ones. Essentially, the Burnet Woods center only initiates review and discussion obligatorily within the purview of our discussion of fair and equal neighborhood planning.

For our neighborhoods stymied as to a beginning, even a small urban gardening space, such as one upon a space near the proposed cultural center in Bond Hill, would begin discussion with a venture not requiring a permanent decision or commitment, and which, even if only short term, would ameliorate an available space.

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.

Philosophy, Law and Politics

Is the Mandatory Reporting of Convictions to Relevant Agencies Necessary for Fairness and Justice in Our Courts?

Adequate diligence and complete information are necessary for fair and sound decisions by judges, in both civil and criminal matters. Might States benefit from an enhanced requirement that criminal convictions of licensed professionals, for both lesser and more severe offenses, be reported to the State agency governing the defendant’s profession?

A measure before the New York State Legislature, Assembly (A11057-A) and Senate (S8909-A), would amend the New York education law to require reporting to the governing New York State Education Department the criminal convictions and determinations of professional misconduct of persons licensed by the Education Department. The District Attorney for each county within the State of New York would be required to report each conviction of a licensee to the Professional Conduct Officer of the Education Department. The licensee is similarly bound by an obligation of self-reporting. The licensee must self-report criminal convictions to the Education Department. The licensee is also required to report determinations of professional misconduct to the Education Department, regardless of jurisdiction.

A statutory system of fair reporting and due information provides those governed, such as those licensed by the New York Education Department, with both an incentive for proper professional conduct and a deterrence of nonprofessional conduct, before any ill deed is done. Professional codes provide learning within one’s professional disciple throughout one’s career, long after one’s formal academic training. And, a system of fair reporting insures that employers and the courts make fair, adequate and just determinations.

In founding the first American newspaper, Publick Occurrences, first sold in Boston on September 25, 1960, Benjamin Harris stated in his prospectus:

“That something may be done toward the Curing, or at least the Charming of that Spirit of Lying, which prevails amongst us, wherefore nothing shall be entered, but what we have reason to believe is true, repairing to the best fountains for our Information. And when there appears any material mistake in anything that is collected, it shall be corrected in the next. Moreover, the Publisher of these Occurrences is willing to engage, that whereas, there are many False Reports, maliciously made, and spread among us, if any well-minded person will be at the pains to trace any such false Report, so far as to find out and Convict the First Raiser of it, he will in this Paper (unless just Advice be given to the contrary) expose the Name of such Person, as A malicious Raiser of a false Report. It is suppos’d that none will dislike this Proposal, but such as intend to be guilty of so villainous a Crime.”

Neither the public nor the courts benefit from acting upon an absence of information. And, no one subject to a mandatory reporting requirement benefits if deprived of the rehabilitative purpose of ostensibly putative measures by inadequate information.

Lori Gayle Nuckolls, Esq.

Philosophy, Law and Politics

Promoting Reasonable and Consistent State Agency Regulation in Ohio

Proposed new regulations of Ohio Executive Agencies are reviewed for adequacy by the Ohio Joint Committee on Agency Rule Review, composed of members of the Ohio Senate and House. In the current proposed revision of Ohio law governing the Joint Committee on Agency Rule Review (SB 221, amending Ohio Revised Code 106.021), perhaps it should be made mandatory that JCARR undertake review of whether a proposed regulation is contrary to law and similarly be required to request an invalidation of a proposed rule by the Ohio General Assembly upon making a finding that a proposed regulation is contrary to law. Under current law, both are left to JCARR’s discretion.

Mandatory review and invalidation is necessary because JCARR should be precluded from permitting unreasonable proposed rules and regulations to become effective. A regulation must be reasonable to be lawful. Agencies should adequately justify their decision making with sufficient analysis and explanation. It is the duty of JCARR to ensure as a balance and check on government that the agencies make wise and reasoned policy choices. JCARR does not supplant its policy choices for that of the agency, rather it only looks to the due and proper procedure and basis upon which the agency relies for the rule its seeks to promulgate. Such a requirement of reasonableness would result in regulation that is consistent with and does not conflict with governing law, without first relying upon a court for judicial review after the harm has been done. No committee of a state legislature should have within its discretion non-action upon arbitrary and capricious proposed agency regulation.

A review of the possible “adverse impact” of a proposed regulation is a preexisting requirement as to Ohio Revised Code 106.021(F). Usually neither an analysis nor finding of a possible adverse impact is reported for consideration as to the validity of a proposed regulation. Review of potential adverse impact usually merely addresses fiscal, business considerations, and not the substantive analysis required in legal drafting.

SB 221, Line 103, amending Ohio Revised Code 101.352, proposes to permit JCARR to seek an agency’s appearance to explain whether current rules reflect the principles and policies of the agency, or rather whether the agency should propose new rules that establish its present basis for regulation. Yet, this duty is permissive and subject to JCARR’s discretion and is not mandatory, even if JCARR is on notice that an agency’s regulations are not up to date? Would a mandatory provision place too great an administrative burden upon JCARR?

SB 221, Line 134, amending Ohio Revised Code 101.352, similarly permits that upon initiating review of an agency’s regulations and receiving an agency’s testimony at a hearing, JCARR “may” but is not required to vote upon whether to recommend that the agency review its regulations. Would making the vote mandatory create a violation of the separation of powers among the legislative, judicial and executive branches? Or, would it no more enhance the power and authority currently permitted JCARR than the creation of its power to review proposed executive agency regulations in the first instance?

SB221, Lines 1541-1619, amending Ohio Revised Code 121.931, permits a person to petition an agency to request a review of whether the agency has not properly revised or restated its regulations. If the agency denies the petition, the petitioner may appear at an agency hearing. In such a proceeding, how is the agency’s standard of review – that the petitioner has shown that the agency’s action in not revising its regulation is “erroneous” – to be defined? Is the burden of proof borne by the petitioner – that the agency’s previously stated “intention to deny the petition [for revision] is erroneous” — the same as a required showing of erroneousness by the petitioner as to the agency’s rationale for not granting the petition and undertaking a revision or restatement of the rule? Does an inquiry as to whether the agency’s action is erroneous go only to questions of fact or also to whether the agency may have committed an error of law? Is a finding of erroneousness too high a standard for the petitioner to bear? Given that a petitioner may not appeal a denial of a petition within the agency, is an agency denial of a petition a final agency action permitting judicial review?

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.

Our Duties as Ohio Citizens to Cultivate a Life of Learning

We should encourage self-sustaining government that develops our young people within the State of Ohio to participate nationally. Ohio cannot rely upon benevolent carpetbaggers to serve in office so that Ohio can compete nationally. Our own citizens and residents may seek a national education in noteworthy academic institutions across the nation and return to Ohio.

With the advent of Universal Pre-K education throughout Ohio, we can guarantee that our young people benefit from modern America and the great advances in learning and ability our young people now possess. Pre-K program and curriculum should enable the great diversity discernible among our children to be encouraged. Current educational scholarship and learning allows humane “tracking” among the very young by interest, inclination and ability. Achievements should be cultivated from advanced classical curriculum to that mitigating and correcting learning disadvantages whether societal or physiological.

In “Keeping-up-with-the Joneses,” Ohio schools and businesses must also look to self-sustainability in promoting development in energy resources. For, without energy resources modern society cannot exist. Our universities might not invent our energy patents in use, but we must provide a didactic rubric for competitive development of alternative energy sources within our State. Ohio government must look to academics and scientists within the State of Ohio to aid in drafting and revising statutes and administrative regulations that provide an overarching framework for bringing energy technology into Ohio. Interstate collaboration will permit a long viable modernization of the energy industry in Ohio. Our laws and regulations must be competitive.

Perhaps Former Speaker John Boehner and his soon to be The Boehner Institute at Xavier University in Cincinnati might begin policy formulation and regulation drafting on the topics of education, energy, management of government bureaucracies, as well as many others.

Lori Gayle Nuckolls

America Relies Upon a Learned and Informed Public

In the United States, as a country of a majority population that is not indigenous to its North American soil, how do we reconcile nationalism and democracy? As a community of diverse ethnic origins and heritages, diverse faiths, and diverse periods of time resident within the county, can an existence of a nation-state community ever be achieved? Does the theory of the “melting pot” of an immigrant nation undo properly existing cultural lines of identity that are distinct, have merit and are centuries old?

We should encourage a community diverse in cultural identity that lives under the governing principles of American democracy: equality, freedom, and justice. In America, its people have freely chosen to reside under America’s governing principles. Citizenship and the rights of noncitizen residents transcend the diverse cultural identities of national origin. America’s governing principles, constitutions and laws create an equal right to personhood and identity that transcends governmental decision making based upon stereotypes and, especially pejorative, presumptions. The rule of law does not look to one’s culture, ethnicity or religion.

The governing principles of America are created, respected and maintained by an academically learned intelligentsia that exercises a just governance of the majority. An educated public and deference to individual merit and ability are the foundations of a democracy. A state cannot survive without an educated public, whether possessing one or many national identities.

In our world, only representative democracies are viable forms of government. Direct democracies defy the economy of scale required for complex decision making and regulation in the modern age and are not even attempted. Dictatorships, with the veil of legislative and military decision-making especially during the post-colonial period the 1900’s, can neither demand nor evoke a legally compliant population of self-governing individuals.

Without a public that understands the principles of America as a country from a young age of early education between grades 4 to 6, with reaffirmation in between both grades 7 to 9 and grades 10 to 12, our public will not be able to participate as citizens and residents as they engage in specialized careers of science, business and nonpublic policy fields. Thus, all college students should have a required course in the fundamentals of American government.

All in America bear the responsibility of treating all among us as free and equal, with rights and privileges of fairness and justice. Our world is complex, and all Americans must be sufficiently learned to debate and understand America and their own place in the world.

Lori Gayle Nuckolls, Esq.

Popular Participation and Involvement is Truly Feasible and Obligatory, Even as to the Most Complex Subject Matters of State Action (Comments submited to the U.S. Securities and Exchange Commission.)

I submitted the Comments below in response to a Notice of formal Rulemaking by the U.S. Securities and Exchange Commission.

Lori Gayle Nuckolls, Esq.

January 22, 2018

Secretary

Securities and Exchange Commission

100 F Street NE

Washington, DC 20549-1090

Sent via Email to: rule-comments@sec.gov

Re: File Number S7-09-17

Dear Secretary,

I write with interest in the proposed amendment of 17 C.F.R. Part 200, and the promulgation of regulations, to be codified at 17 C.F.R. §§ 200.80-200.80(g), by the Securities and Exchange Commission (the “SEC” or, alternatively, the “Commission”) regarding agency compliance with the Freedom of Information Act (the “FOIA”), 5 U.S.C §522, as amended by the FOIA Improvement Act of 2016 (the “Improvement Act”), Public Law 114-185, 130 Stat. 538. Please consider this letter submission of comments upon this proposed rule in response to the Commission’s notice of proposed rulemaking and request for comments, as published in the Federal Register, on January 3, 2018, 83 Fed. Reg. 291-302. I support this new rule and I believe it achieves the Commission’s primary objectives as stated in the notice: to make revisions required by the Improvement Act, as well as to amend beyond the scope of the Improvement Act and utilize the necessary amendment to also “clarify, update, and streamline” current SEC regulation. 83 Fed. Reg. 292 (2018).

The supplementary information in the notice of this proposed rule states that the new rule essentially “codifies several existing practices” of the SEC, such as electronic responses to information requests and determination of the fees charged therefor. 83 Fed. Reg. 293 (2018). The SEC is longstanding, truly, in its fair reliance upon the incentives inherent within the American economy, and its principles of capitalism, to utilize advances in science and technology, primarily of the profit based commercial sector and marketplace, to the benefit of not only securities investors but also to the benefit of the nation.

In summary, the proposed rule permits reliance by major corporations upon information technologies currently in use, yet ensures individual requesters that their requests will be neither costly nor burdensome, with codification of a permissive outline of fees to be charged. 83 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. § 200.80(g)(3)(i)). The proposed rule revises SEC FOIA request and response procedures to require the SEC to make disclosures of information available to the public in both the existing, traditional paper form as well as in various newly available electronic forms. 83 Fed. Reg. 295 (2018) (to be codified at 17 C.F.R. § 200.80(a)). The new rule also provides all with assurances as to issues of privacy and financial records and data. 83 Fed. Reg. 295-296 (2018) (to be codified at 17 C.F.R. §200.80(b), (c)).

As in this instance, the SEC periodically refines and revises its own internal standards and procedures. It relies upon these informal decisions to transform intra-agency custom unto newly promulgated governing regulation. This proposed new rule is such an example. This rule provides user friendly information in which all participants, or, as denominated by the SEC “stakeholders,” in the global economy may share through due compliance, from the small individual investor, to the small, medium and large domestic or multinational business entity.

The new rule expressly acknowledges the various uses made of government information by diverse international market participants. For, it categorizes and defines anticipated requesters of information, from the individual investor, the commercial entity, the publicly interested academic or scientific organization, to the journalist of the fourth estate. 82 Fed. Reg. 298-301 (2018) (to be codified at 17 C.F.R. §200.80(g)).

The SEC further achieves great clarity for the benefit of the public, as well as for the other branches of government, in that this new rule proposes to also define and explain the services the SEC offers and relies upon in responding to requests for information. 82 Fed. Reg. 298-302 (2018) (to be codified at 17 C.F.R. §200.80(g)). The rule states that a “search” for information maintained by agencies of the Federal government is agency action to determine whether information is relevant to a specific request, contra distinct from a “review” of records maintained by agencies of the Federal government, which is agency action to determine whether specific information requested is exempt from disclosure as required by law. 82 Fed. Reg. 299 (2018) (to be codified at 17 C.F.R. §200.80(g)(2)(vii), (viii)). And, the SEC charges fees for these defined services which vary according to the category of a specific information requester. 82 Fed. Reg. 299-300 (2018) (to be codified at 17 C.F.R. §200.80(g)(3), (4)).

The new rule places the burden of compliance with SEC FOIA request procedures, not upon the requester of information but, rather, upon the SEC itself. In that, the new rule requires that SEC staff members provide individual guidance to requesters, both before the requester initiates a request, and after the SEC acknowledges having received a request. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(b)(3)). The new rule, though cautioning requesters that the SEC Office of FOIA Services is primarily responsible for evaluating information requests, expressly provides guidance for requests “misdirected” to a division or office of the SEC other than the Office of FOIA Services. The rule also indicates that the SEC will collaborate, both intra-agency within the SEC and among the other Federal agencies, if necessary in order to respond to a request for information. 82 Fed. Reg. 296 (2018) (to be codified at 17 C.F.R. §200.80(c)(2), (3)).

In drafting and promulgating regulation over a practitioner’s continuum, the SEC achieves equilibrium in the burden of regulatory compliance to be borne itself, as the governing agency, and as to that to be borne by the public. It, thus, internally evaluates regulatory alternatives prior to offering a new rule for public review. The SEC both protects and encourages investment and maintains market efficiency, and thereby produces national prosperity and capital growth. It gleans, from public participation, research that provides diversity in thought in policy making, examination and enforcement, and so provides both information and guidance to private investors.

I thank you greatly for considering my comments on this rule. And, I may certainly be contacted as indicated above.

Sincerely,

Lori G. Nuckolls