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 This has only been done and repealed by a revision of the U.S. Constitution.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.

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

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

We Should Share Our Political Faith

This November, we determine our choices for government. And, we should look to the momentous advances in American society over the past few decades to guide the decisions we make as to our State, County, City, Town, and Village governments. In the minds of many, the great English philosopher John Locke expressed the concern that, without the ownership of property, a member of society does not live with justice and fairness. One would imagine that this would include both the due and proper definition of property, and its enforcement. Thus, justice and freedom require that one first have a government upon which one may rely in order to possess and own property.

Americans live in the hypothetical, as to our right, power, and privilege of self-governance. Our personal decisions and life choices are individual, yet based upon a common understanding about the world in which we live. We each possess a theme, an abstract view of ourselves, our family and our community. This theme guides our particular opinions, both negative and positive. It constitutes our political faith.

So, how do we achieve political faith? Our individual tenets of political faith are derived from our social customs, and our understanding of how we relate to society and our community. All of our governmental leaders: national, state and local, are empowered to invoke the authority of government. And, in doing so, they should look, collectively, to our individual tenets of political faith. Thereby, they enact the federal laws and regulations, state statutes, and local ordinances that create and enforce our rights of property. This might constitute a Lockean sense of justice, for our political beliefs and opinions create and provide the property we bequeath to our children, and how we participate generationally in our country.

In evaluating candidates and referenda this election season, we should ask certain questions. First, how do I view the relationship between the candidates offered for my political subdivision and our American governing officials? Second, in what manner do the offered candidates express a view on the ownership and development of my property rights? Third, do the offered candidates look to our nation’s reliance upon principles of capitalism and the marketplace to enhance and secure my property and prosperity, and that of my political subdivision? Fourth, which of the offered candidates for my political subdivision may best collaborate with the officials of our State and Federal governments to so revise and enforce definitions of property?

In asking these questions, so that we may participate and comment upon society and government, we must each individually have a sense of our own property. We could look to a sense of the traditional Anglo-American common law definition of property as derived from John Locke, namely, that individual property rights are created from our individual investment of labor in the act of property creation. In this sense, how is our labor to be defined and described, and what is the property it creates? Our property rights as individuals determine our political and social power.

We must each provide a description of our property, both to share amongst ourselves in the course of ordinary conversation, and in offering our comments to candidates and elected officials. Our definition of our property is determined by what we know and how we know. As Locke might say, these rights are based upon each individual’s perfect control and dominion in right of ownership of property. As to property, this would be a tenet of political faith.

Lori Gayle Nuckolls