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.

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

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

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

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