In Pursuit of Both Common Good and Public Interest, Governmental Entities Should be Required to Promote Self-Governance (Written testimony before the Joint Committee on Agency Rule Review of the Ohio General Assembly.)

The text below is of a letter submitted yesterday, Christmas Day, in comment testimony before the Ohio General Assembly Joint Committee on Agency Rule Review. It concerns proposed rule making by the Attorney General for the State of Ohio in implementation of federal funding to provide support services to victims of sexual abuse. It is to be considered during the Committee’s next regularly scheduled meeting, tentatively scheduled for January 8, 2018.

Lori Gayle Nuckolls, Esq.

December 25, 2017

Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215

Sent Via Email to: jcarr1@jcarr.state.oh.us

Re: Attorney General Proposed Rules 109:7-1-05 (disbursements) and 109:7-1-06 (definitions)

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed addition to the Ohio Administrative Code of new rules 109:7-1-05 and 109:7-1-06 by the Attorney General regarding the implementation of funding provisions for rape crisis programs under the auspices of the federal centers for disease prevention and control and denominated in the Ohio Revised Code as the “Rape crisis program trust fund.” Ohio Revised Code § 109.921. This program, as enacted, envisions comprehensive services for victims of sexual trauma.

The Ohio Revised Code mandates the Attorney General to provide funding to a “Rape crisis program,” which, as most broadly defined by statute, includes a “nonprofit [nongovernmental] entity that provides a full continuum of services to victims of sexual assault, including hotlines, victim advocacy, and support services from the onset of the need for services through the completion of healing ….” § 109.921(A)(1)(c) (emphasis added). And, the Ohio Revised Code states that “[a] rape crisis program that receives funding … shall use the money received … for the following purposes [among others]:” “(2) … hotlines, victim advocacy, or support services.” O.R.C. § 109.921(D) (emphasis added). However, in contradiction to the foregoing express grant of statutory authority for the funding of “victim advocacy,” the new rule 109-7-05 proposed by the Attorney General expressly prohibits the use of funds for “Lobbying activities.” Proposed Rule 109-7-05(F)(1).

It does not seem that the Attorney General has included a definition of “Lobbying” in the proposed new rules. See, Proposed Rule 109:7-1-06 (definitions governing the trust fund). Nor does a definition of either “advocacy” or “lobbying” seem to appear in any other source of authority that would be applicable to this funding provision, apart and distinct from those generally previously existing under Ohio law. See, O.A.C. § 109:7-01-03 (definitions governing trust fund) and O.A.C. § 109:7-1-04 (procedures for submitting funding requests). See also, O.R.C. §101.70(E) (to “Actively advocate” deemed “Legislative lobbying.”); O.R.C. § 121.60(I) (“[C]ontacts made to promote, oppose, or otherwise influence … an executive agency decision” deemed “lobbying activity.”); and O.R.C. § 3517.20(A)(1), (2), & (3) (defining “Political communications” as those statements “for or against” or “advertising”).

The funding by the Attorney General should encourage productive informal discussions on diverse topics. The proposed funding would, and is needed to, do so. However, the prohibition on lobbying efforts in the proposed rule should be clarified for those entities to be funded. Discussion by program participants should relate to important, current issues in the community, especially as to those seeking support for transitions in difficult times. Activities financed under this trust fund would be an act of the governmental or nonprofit entity, and would not constitute a use of the funds by individual persons in behest of personal expression on various topics. Thus, some revision is indicated for the avoidance of express contradiction of the proposed rules with the authorizing legislation, and even as to contradiction within the very proposed rules, as to the use by the Attorney General of both “advocacy” and “lobbying.”

I offer that the Attorney General should modify the proposed rules to not expressly reach issues of “lobbying,” which under Ohio law includes advocacy. Rather, the Attorney General should only expect funding recipients to remain in compliance with the general laws governing lobbying and political influence. Consequently, funded centers could guide program participants on an individual basis as to personal issues and only be reviewed if they as fund recipients assert interested positions. This would prohibit persuasive statements or presentations by the funded entities which would constitute lobbying under Ohio law, yet still permit funds to support conversation among participants. And, the written informational material and oral presentations of advocacy organizations unaffiliated with the fund recipients could be made available in the ordinary course to permit informed decision making by program participants.

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

Sincerely,

Lori G. Nuckolls

Should State Agencies be Required to Schedule Public Hearings When Adopting Regulations? (Written testimony before the Joint Committee on Agency Rule Review of the Ohio General Assembly.)

The below is the text of a Comment Letter I submitted this morning to the Ohio General Assembly’s Joint Committee on Agency Rule Review for consideration when the Committee reviews a proposed new regulation of the Ohio Department of Agriculture, during its regularly scheduled meeting on Monday, December 11, 2017. I ask the essential question of whether an agency as significant as Agriculture should be allowed to confuse the public as to whether a public hearing is obligatory when it adopts new regulations. If Agriculture finds public hearings useful and has conducted them upon public request, why has the Ohio Government not imposed the requirement of a public meeting upon its agency action? The public is fearful of even considering whether or not to participate. This is especially the case if they fear that they might make errors in interpreting procedural rules governing public comment. Perhaps Ohio law should be amended to require public hearings for agency action of all Ohio agencies of a certain size.

Joint Committee on Agency Rule Review
The Ohio General Assembly
Vern Riffe Center
77 South High Street
Concourse Level
Columbus, Ohio 43215

Sent Via Email to: jcarr1@jcarr.state.oh.us

Re: Ohio Department of Agriculture Proposed Rule 901: 0-4-01

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed addition to the Ohio Administrative Code of new rule 901: 0-4-01 by the Department of Agriculture regarding its procedure for conducting administrative hearings. I am concerned that the proposed rule exceeds the power and authority currently conferred upon the Department of Agriculture by Ohio Revised Code § 901.03. Consequently, I write in opposition to the proposed rule.

As presently drafted, the proposed new rule imposes confusing and burdensome language upon the public. It asks that those seeking to participate in an agency hearing reconcile the procedural requirements of Chapter 119 of the Ohio Revised Code with the provisions of the agency’s own Administrative Hearing Manual, found at: www.agri.ohio.gov. Neither the proposed new rule nor any proffered revision of the agency’s manual clearly indicate whether the express language of the proposed rule, specifically that “all administrative hearings shall be conducted in accordance with Chapter 119 of the Oho Revised Code,” imposes the hearing requirement incumbent within Chapter 119 upon the Department of Agriculture, or, if, instead, the burden remains upon the public to formally request a hearing in both rulemaking and adjudicatory contexts as indicated in the Department’s manual and in the current rule.

The Joint Committee on Agency Rule Review must ask if the Department of Agriculture, in the proposed new rule, clearly informs the public of whether primary governing authority as to Department of Agriculture rule making hearings is possessed by Chapter 119 or instead its agency manual. Otherwise, the Committee must ask if the agency is to be permitted leeway to revise its manual to so clearly inform the public after the proposed rule is issued and effective.

It must be acknowledged that 901: 0-4-01, as proposed, is a great step toward permitting the Department of Agriculture to reach the procedural goals and objectives of the Ohio Revised Code Chapter 119 mandatory agency hearing, currently a condition for action by certain agencies pursuant to their enabling legislation. O.R.C.§ 119.01; See also, O. R.C. §§ 113.061 (Treasurer) and 3752.03 (Director of Environmental Protection). And, in declining to issue an invalidating recommendation as to this proposed new rule, the Committee would permit the Department of Agriculture to retain the flexibility of self-governance, by imposing upon itself, through its authority under O.R.C. § 901.03 to “adopt reasonable rules and regulations,” the Chapter 119 hearing requirement, while not yet being statutorily bound to do so. For, Ohio Revised Code § 901.26, merely grants the power to conduct hearings to the Director of the Department of Agriculture while not requiring that the Director so conduct. These relevant provisions of the Ohio Revised Code governing the Department of Agriculture became effective in October of 1953, and have not been subsequently amended.

Governing agencies engage in varied forms of decision making, relying upon a variety of resources for data and information. We act to achieve both administrability and efficiency within our regulatory agencies, in behest of their respective individual statutory purpose. But, a rule should be clearly written, and an agency should not be permitted to obtain its required experience and learning by burdening the public after a rule is promulgated.

The Department of Agriculture should be commended in seeking to increase popular participation in its rule making process. The proposed rule informs the public of the availability of both, at a minimum, the right to request a hearing and, as well, the existence of a periodically revised instructional manual to guide its exercise of this right. However, it should be noted that the Department of Agriculture’s most recently published The Rule-Making Process: a Guide to the Rule-Making Process of the Ohio Department of Agriculture is dated January of 2010, though agency guides to public participation in rule making are required to be prepared, published and revised as necessary or advisable by O.R.C. § 119.0311. While guides are not deemed rules by the General Assembly under O.R.C.§ 119.0311, this, again, poses a source of confusion as to the proposed rule that should not be overlooked.

As professed by the philosopher Michel Foucault, we must look to how the rules governing discussion and debate ideally facilitate or, instead, lessen participation. Discourse is a means of transforming procedural structures into the material facts of our day-to-day existence. Ohio’s agriculture relies upon the Department of Agriculture to provide good government that encourages profit and prosperity to the utmost. Perhaps it is the case that both the Department of Agriculture and the general public would benefit from mandatory Chapter 119 hearings in agrarian rule making. But, perhaps again, this agency, like others, and the general public as well, would more greatly benefit if this were to be achieved by the General Assembly, and not the proposed rule, even with the aid of the agency’s manual.

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

Sincerely,

Lori G. Nuckolls

Post-Election, The “Rule of Law” in America

Perhaps we should begin a discussion about our reliance in America upon words, as both citizens and residents. Our governing legal documents are written, and we rely upon the exactness of their words. They are: (1) the Declaration of Independence; (2) the Constitution of the United States; (3) the United States Code, and the implementing Code of Federal Regulations; (4) the Constitution of each of the 50 States, and their supporting statutes and regulations; and (5) the laws passed by the local governments within each of our States.

Our written documents are to be read and understood by all. We should respond in writing to both the words and thoughts of our governments, as well as private commercial entities and individuals, when they act or speak in a manner that conflicts with, or contradicts, the laws and rules which we are all obligated to respect and abide. The supremacy of our laws secures our individual rights as citizens of the world. Our national, Federal government is omnipotent and supreme. Our central government is the government!

A Proposal of Tenets and Theses:

(1) We must not engage in individual, anarchical acts of direct democracy.

(2) We must rely upon and demand the freedom of our press and media.

(3) We must ensure that our Courts remain hierarchically reviewable both in law and in practice.

(4) We must secure our individual personhood, liberty and freedoms, and not permit informal and or administrative arrests or detainments, and also demand just and fair juries.

Life in America requires education and hard work, by each of us. To be free, we must each know what freedom requires and how to ask for it. We must seek law and freedom from those who most immediately govern us, from our local officials to the zenith of our national. The theory of a Federal government, especially in our newfound era of GOP conservatism and “small government,” is that we rely upon the “trickle down” of rules, laws and financial privation, from capitalism, commerce and government. This may not be all to which we look. It is our personal and individual responsibility to ensure the Humane Rule of Law.

Lori Gayle Nuckolls

A Return to Etiquette and Civility, Revisited. Or, Do Hate Speech Laws Conquer Hate Crimes?

In America, should we accept as expressions of public opinion speech and conduct that defy our traditions of etiquette and civility? Is civility a word with a definition that is, or should be, coextensive with the public peace and order. In the future, perhaps we could encourage thought and discussion about our world in a kind and peaceful manner by requiring every licensed driver in the State of Ohio be automatically registered to vote upon mere renewal of the State issued drivers license. But, until such legislation, we might consider the propriety of the exercise of prosecutorial discretion in regulating hateful speech and conduct under Ohio law. At a minimum, State law, and eventually Federal, should be invoked to criminalize speech, and similarly expressive conduct, either intended, or likely, to evoke a harmful or violent response from nearby persons, in general, or one given person to whom a hateful or derogatory comment is directed.

Under longstanding Ohio judicial precedent, a criminal charge may be brought against a person for words, even by virtue of their content. Words may be deemed “likely, by their very utterance, to … invoke the average person to an immediate retaliatory breach of the peace.” State v. Turner, 2007 Ohio 5449, ¶ 109 (Ct. App. 8^th Dist. 2007)(citing, State v. Hoffman, 57 Ohio St. 2d 12, at ¶ 1 (1979). In offering this view of the First Amendment, the Court in Turner, was commenting upon Ohio Revised Code § 2917.11(A), effective Jan. 25, 2002, which was enacted after the statements of the Ohio Supreme Court in Hoffman. The Court in Turner also concluded that such speech, regardless of content, had been previously found to be “fighting words” under Ohio law. Turner, 2007 Ohio 5449, at ¶ 109.

Since 2002, Ohio courts, State and Federal, have not been asked frequently to rule upon the manner in which Ohio Revised Code § 2917.11 regulates “hate speech” or “fighting words.” In the advent of the many complicated political and social discussions during this time in American history, we should look to the long extant legal provisions that have been reviewed across the country. § 2917.11 is such a statute. For, this law expressly deems actus reus both: (1) “offensively coarse utterance [and] gesture[,]” as well as (2) “insulting [or] taunting [conduct] … likely to provoke a violent response.” § 2917.11(A)(2), (3). Chapter 2917 of the Ohio Revised Code designates this criminal law “Disorderly Conduct,” as one of many “Offenses Against the Public Peace.”

As citizens in our communities in the State of Ohio, the recognition and proscription of fighting words and hate speech derive from the foundations of our democracy, and their requisite respect for the individual. Our laws against speech and gestures that invoke either a fear of violence, violent urges, or violence itself deter those inclined to so act. Even more importantly, these criminal laws serve as a didactic to instill a code of conduct we rely upon in a community in which the people govern. Social activity and public debate should not provoke violence. We should, instead, look to partisan politics and the creation of third parties in our traditional two-party system, as well as the judicial third branch of government for adversarial resolution of disputes by courts and arbitrators.

Though the United States separated itself from England, our law owes much to the earlier enacted hate speech law in the United Kingdom, Public Order Act 1986, Chapter 64, Part I, Section 4, as amended (http://www.legislation.gov.uk/ukpga/1986/64/section/4). In its broadest provision, this law prohibits acts “whereby [a] person is likely to believe that … violence would be used or it is likely that …. violence will be provoked.” This does not impose an element of criminal intent upon the actor. Moreover, it also declares a person guilty who “distributes or displays to another person any writing [or] sign … threatening, abusive or insulting.” Id.

This British law would meet Justice Scalia’s requirements for constitutional restrictions upon speech in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Essentially, R.A.V. prohibits restrictions upon speech and conduct which treat speech on one topic or within the one category differently, by virtue of viewpoint. In its Syllabus, R.A.V. states:

The ordinance, even as narrowly construed by the State Supreme Court, is facially unconstitutional, because it imposes special prohibitions on those speakers who express views on the disfavored subjects of “race, color, creed, religion or gender.” At the same time, it permits displays containing abusive invective if they are not addressed to those topics. Moreover, in its practical operation, the ordinance goes beyond mere content, to actual viewpoint, discrimination. Displays containing “fighting words” that do not invoke the disfavored subjects would seemingly be useable ad libitum by those arguing in favor of racial, color, etc. tolerance and equality, but not by their opponents. St. Paul’s desire to communicate to minority groups that it does not condone the “group hatred” of bias-motivated speech does not justify selectively silencing speech on the basis of its content. Pp. 391-393.

505 U.S. at 378. And, the municipal ordinance at issue in R.A.V. proscribed conduct that “one knows or has reason to know ‘arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’” Id. Arguably, this imposes a criminal penalty without a requirement of criminal intent.

Both the UK statue and R.C. § 2917.11 prohibit the act of improper speech or conduct, in itself, regardless of intent or an effect of actually producing a violent response. This is in the nature of a balancing of the interests of the public good in the guarantee of our right to free speech versus the proper regulation of speech and conduct harmful to the public good and the public peace

Speech likely to incite violence may possess noteworthy ideas we seek to have fully presented before us. And, we may not censor speech or conduct potentially deemed fighting words or acts because they exhibit a certain content or view. Rather, to be hate speech, the words, gestures or conduct used may not be found to be essential to the ideas sought to be conveyed. Instead, the words or conduct must go beyond free expression to communicate via a means not proper for civil discussion within a representative democracy of a self-governing people. R.A.V., 505 U.S., at 385.

In Ohio Revised Code § 2917.11, we do not justify the criminalization of acts and speech with reference to their viewpoint. Turner; Hoffman; State v. Cunningham, 2006 Ohio 6373, at ¶ 22 (Ct. App. 10^th Dist. 2006); accord, R.A.V., 505 U.S., at 389. In the thought of Justice White offered in his Concurring Opinion in R.A.V.:

Fighting words are not a means of exchanging views, rallying supporters, or registering a protest; they are directed against individuals to provoke violence or to inflict injury. Chaplinsky, 315 U.S. at 572. Therefore, a ban on all fighting words or on a subset of the fighting words category would restrict only the social evil of hate speech, without creating the danger of driving viewpoints from the marketplace. See ante at 387.

In light of the many creative legislative proposals in Ohio regarding Sanctuary State and Sanctuary City status, as well as the mandatory voter registration of licensed drivers, would Ohio political subdivisions benefit from more stringent fighting word or hate speech provisions. Such local laws could be tailored to their unique popular demographics, topics in discussion, and independent concerns of State and Federal law.

The First Amendment exists to ensure that when the popular majority imposes its lawful preferences as to the obligatory manner of public debate, and specifies and restricts certain categories of speech, it does not penalize the speech or conduct it specifies and restricts by topic content or viewpoint. We must enact our restrictions and adjudicate each defendant presented as possibly guilty with the requisite sensibilities of other than the hateful, resentful and tyrannous majority.

Lori Gayle Nuckolls

Should the Federal Government Pay Tuition for Higher Education to All for All?

Admission to American colleges and graduate schools is duly regulated by several nongovernmental organizations, notably, entities such as The College Board, the Educational Testing Service and the American Bar Association. And, our secondary and elementary schools are similarly reviewed and ranked as to merit, both within political subdivisions and across the nation, by educators, journalists and governing officials.

Would an assumption of tuition payments for all American college and graduate programs by the Federal government undermine current private governance by those currently governing and affiliated with America’s private schools of higher education? Would it undermine the aura and efficacy of local history and culture within our publicly owned and governed colleges and universities?

Perhaps, the objectivity of the nongovernmental organizations responsible for admissions testing and school ranking in American higher education already provides and requires obligatory accuracy and fairness as to merit and quality across the nation in a way that state, local and private control of funding currently may not affect. Private and state decision-making in higher education must currently yield to duly enacted legislation and promulgated regulation, and a replacement of the monetary source for tuition, from the student, parent and or school to the Federal government, could not transcend present governmental procedures. Our schools would, in every respect, remain fully self-governing and retain due and fair competition.

The question then is whether Federal tuition runs only to the public good and public interest, and if the American economy can afford to pay the tuition of all college and university students? There seems to currently be neither an economic necessity nor an economic value in requiring students and parents, as the recipients of the goods and services of American colleges and universities, to make the tuition payments, when the ultimate beneficiary of educated Americans is America. Educated Americans determine America’s reputation and goodwill and the relative efficacy and value of its democratic government. In doing so, the American public receives goods and services provided by those who do not earn the true value of the service they provide over the course of their careers.

Salaries of ordinary citizens and residents barely pay living expenses, no less do these salaries provide for college tuition. And, it is hoped that American families contain more than one child. College graduates and licensed professionals earn less than professional athletes and corporate executives. Our governing officials, doctors and lawyers provide more to keep America sane and rational than do CEOs, pitchers and quarterbacks. How can CEOs and athletes work day-to-day without professionals and government officials overhead. And, non-managerial employees and traditional small business men and women, who would receive college tuition for their children, would still benefit from American capitalism. Students and graduates of the long existing 2-year colleges, who receive learning in the technical arts and vocations, would certainly provide more to the public good as interns during school years in subjects related to their studies than as employees of those within their community who offer the highest pay in part-time employment regardless of the task.

A parent’s future payment of tuition to American colleges and universities is a for-profit incentive in the American and international marketplace. Currently, parents look to a child’s academic achievement, and the competitiveness of admission to America’s colleges and graduate schools, as an incentive for business success. Federal tuition would lessen stresses unrelated to achievement, regardless of parental income. And, the once thought long entrenched competitive advantage of students attending private elementary and secondary schools, is, now, rarely a concern, for advances in teaching, curriculum and college recruiting have provided economies of scale within local governing political subdivisions, and create a just capitalism in education.

If America’s professionals and college graduates are deemed, as our governing principles intend, to grow and raise children who make the most of our academic institutions, how do these professionals provide for their children’s tuition, even in two professional households, and even if with only one child? How does such a family pay for its children’s college and graduate school attendance, even if they are, themselves, among the American socio-economic elite? And, are not these very children of American professionals and college graduates socially obligated, themselves, by our social contract as citizens and residents, to not squander what has been provided to them by their parents and secondary school educators?

The centuries-old legal principle of discerning the merit and value of prospective legal and or governmental reform, as I profess to personally coin and denominate: “experimentation among the States,” may be in order. For, it provides that, if not all Americans are ready for a proposed reform, one State, or a few, in the Federal Union might enact a variation upon the proposed reform, for review and evaluation by citizens and judges. Today, governmental payment of tuition to public colleges and universities, especially as recently announced in the State of New York, may provide a basis for Federal reform, especially by our current President and noted businessman Donald Trump. For, President Trump professes a belief in the economic competition, efficiency and small government that Federal tuition payments to all American schools of higher education would provide. This may be achieved by President Trump from now through the inauguration of his successor in 2025!

Lori Gayle Nuckolls