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Is the United States of America under Siege?

Following the storming of the United States Capitol on January 6, 2021, in the ordinary course of legislative business, one must ask the place of this event in history. To what does it give rise, where does it lead America, and what does it indicate for its citizenry?

One could argue that there is too much hostility within the American majority, too much dissension, for America to continue with a republican form of government, for the United States Constitution to remain. A democratic military relies upon patriotism and a caring respect for government. Its military is derived from the majority population. If the majority no longer believes in justice and freedom under the U.S. Constitution, the military will not possess the moral force to protect the government from threats both at home and abroad.

The storming of the American Capitol was a rebellion, a failed revolution. The cause cannot be deemed that of madness or irrationality. Rather, it must be acknowledged to be an expression of a competing ideology. For, regardless of the methodology of the acts of violence against a government, such acts embody and express an ideology.

Consequently, diplomacy is required to reach agreement and compromise, to heal a country and the world. Denial of the existence of the beliefs and positions of the rebelling entity begets further uprisings and intermittent rebellion. An inclusive truce is necessary. Moreover, in the world’s history, uprisings, rebellions and revolutions, including the American Revolution, have long been subjected to the ad hominem of madness and irrationality, without their being evidence of proof other than reference to acts embodying a competing ideology.

Why Did the Attempted Revolution Occur?

Throughout the world’s existence, history’s development and progress has exhibited great hardship and horror. The storming of the American Capitol could be an example of the development of the world by means of such hardship and horror. Many deem this to be development through the reason and spirit in history, the Hegelian dialectic. According to Georg Wilhelm Friedrich Hegel, in the world there is the existence of the status quo; the critique or destruction of the status quo; and then the collective synthesis of a new, positive result in history. One would attribute to this phenomenon, the slow but developing and evolving state of human progress.

In some sense, Hegel deemed this the actualization of the known and preexisting universe and cosmos by the spirit of history. Yet, those living in each intermittent era of unknowing naivete ask why the negative, destructive critique of the status quo is necessary to evolve and develop, regardless of the result produced. Does it have to do with human nature and the mind of man? Does reasoned critique possess limits necessitating a reliance upon negative destruction? If a destructive negation is not necessary, perhaps society should strive to divert destructive animosity toward reasoned discussion.

In the thought of Hegel, we ask what is the positive result of the negative undoing and destruction of the U.S. Capitol. Does the storming indicate that, in addition to criminal penalties, some form of political reform will or should result? Could the rebellion give rise to either the creation of third and or fourth political parties, or a parliamentary form of government?  

If third parties are cultivated, ideology through rebellion could express itself lawfully in the form of party platforms and representatives in elected office.  If transition into a parliamentarian form of government, the United States would no longer rely upon a separately elected executive with a greater concentration of power in the form of a right of veto over the legislative body. Parliamentary government would require a significant reform of American government. Yet, rebellion and attempted revolution are significant acts.

There must be a humane and positive response by government and society to the rebellion, regardless of what one believes to be its cause. Rebels seek an answer to their demands. They seek their definition of justice. We cannot loft above them an ideal, utopian definition of justice which has been long deemed beyond reach by the world’s greatest elected officials, academics and philosophers. We must seek and strive toward a viable definition of justice: the right of all people to political participation through peaceful expression.

If America abided the principles and text of the Constitution, specifically, and rule of law, generally, differences and disagreements would be settled in the context of traditional political debate and law making. The United States must maintain the quality of its existence as a representative democracy governed by a natural aristocracy. It must act according to law and include the concerns and needs of all within the course of day-to-day debate. Ignoring any segment of the public results in an emotional response such as rebellion. Providing justice to all will avoid such in the future.

America should not attempt to avoid Hegelian peaceful critiques of the status quo, for debate and critique are the basis of the American political system. But, Americans must channel critique within structural modes of expression. From the ordinary member of the public to those occupying the highest office in the land, political participation and the ability to self-govern combine to avoid the recent cathartic event witnessed in the storming of the American Capitol. For, no rebellion or revolt takes form in short order. No one person could be responsible for persuading so many to act against their country. Revolt and rebellion result from a long felt disheartening of many people with their country. The only remedy is to provide a sense of enfranchisement and receptive, meritocratic government.

As J. Hector St. John de Crèvecoeur stated: from soil values grow. American democracy is premised upon the dignity of the individual and respect for all. A storming of the bastion of the people’s government indicates that an overwhelming number of citizens require that government be restructured to meet their needs. The United States needs to bring democracy closer to the soil of America.

Third Parties May Be an Answer to America’s Current Debate

Third parties are often factions that leave major parties over certain issues. America must discern the grievances possessed by America’s rebels. They ostensibly are supporters of former President Donald Trump. However, such violence coalesces and surrounds more than one person. It evolves over time and involves a plentitude of issues.  The Capitol revolt was not the temperance party, the women’s suffrage movement or Teddy Roosevelt’s Bull Moose party. These ideological expressions were serious and longstanding. Yet, they did not reach the level of violence as the recent storming of the American Capitol. Consequently, the deep seated, violence inducing concerns and grievances of the Capitol rebels rely on more than what might be offered by one person. For, in expressing their grievances, they sought to destroy the very government former President Trump represents. 

Permanent realignment of the two major political parties in America into third parties may require some phenomenon such as a rebellion or near revolution. Broad based, grassroot rebellion expressed in the form of movements such as the Capitol rebels could coalesce to form a third party. Some of the rebels could be akin and ideologically similar to the Libertarian party which acknowledges an expression of faction and inter-party strife within the two major parties in America, with the Libertarian party combining fundamental American ideals with conservative economics.

Despite the dramatic events of January 6th, would the Capitol rebels fail as a third party as have most others in American history? The two major parties in America could adopt the ideological grievances and positions of the Capitol rebels and thus lessen any incentive to form new parties. Yet, the Capitol rebels may be so long underrepresented in politics and government that they cannot avail themselves of traditional forms of political participation that a political party offers. Perhaps, for the sake of democracy and diplomacy, citizens who agree and are sympathetic with the positions of the Capitol rebels should lead a new party to which the rebels could belong. This would transcend typical obstacles to formation of a third party such as inadequate financial resources and local and state support. And, a greater increase in popular participation in politics would benefit the emergence of a new party.

The Capitol Rebels Are Due the Benefits of Political Association

Regardless of punitive sanction, the civil self-government of the Capitol rebels should be cultivated. Political parties provide an opportunity for self-expression and civil debate in pursuit of principles and public policy goals. Parties provide a didactic function in educating their members in the art of civics and government. Most importantly, parties foster trust among members by encouraging members to self-govern in a trustworthy manner. Political parties permit representation in a republican form of government. Political parties diffuse the tyrannous majority. This is the guidance the Capitol rebels need.

Political parties embrace general philosophies and thus permit inclusion of as many people as possible. As a result, over time America has evolved into a two-party system.  The party of traditional moral values and business interests is the Republican, and the party supporting working class labor and minorities is the Democratic.  To transcend this duopoly, third parties must draft a broad-based philosophy that is not a single-issue attraction. In what way do the two major parties not offer ideals, principles and ideology appealing to the Capitol rebels so that a third party would not be a viable alternative?

Is the American experiment in democracy more democratic, more fair and more just with two, adverse political parties willing to expand and be more inclusive? To return to sound and civil government, America must enumerate the possible philosophical bases for third parties, including the Capitol rebels.

In what way do the Capitol rebels represent diversity within the United States? Are they urban and rural, of higher education and not? What are their unifying principles and concerns? In what way did the ideology of Donald Trump find expression in the rebellion of January 6th? Could the Capitol rebels support the theories of meritocracy and natural aristocracy upon which the United States is founded?  Promoting a third-party expression of fascist rebellion could be avoided in a free democracy. Listening to and incorporating itinerant concerns into the political structure would be preferable to forcing violent forms of expression. Third parties possess grievances often expressed through violence when the subject of structural exclusion.

Supporters of former President Donald Trump indicate that they are considering forming a third “Patriot Party.” This demonstrates the perceived need for structuring the public support he possesses into a viable form of expression. Whether one considers Donald Trump to be a “cult of personality” leader or not, he cannot utilize his support unless it assumes effective form. Also, he must create a generational legacy amassed around his positions, opinions and ideology that transcends his being deemed a mere one election figurehead.

Perhaps, the Capitol rebels will create a fourth party. Another grassroots movement may become as entrenched and as well-known as the Patriot Party.  Would such a fourth party readily follow on the coattails of the Patriot Party if it quickly announced its existence?

Former President Donald Trump holds grassroot Republican support and must maintain its trust. He must do so by cultivating civil participation. A rebellion or attempted coup is an indication that the cultural voluntary servitudes of entertainment and athletics are no longer an effective panacea. They are enjoyed but do not support or supplant reasoned self-government. Rebellion indicates the cry for a remedy, and the rebels themselves have no answer. Exchanging attributions and projections of blame by governing officials will only result in continued public negativity. People must be encouraged from a grassroots level to engage in traditional political participation.

Representative Democracy Is the Answer

As a republican form of government in the modern era, America is a great, expansive experiment. In merely three hundred years, it has demonstrated a slow but effective development toward justice, fairness, equality and inclusion. A small yet painfully effective rebellion cannot undermine three hundred years of history. Rather, violent uprisings indicate a need for even further progressive democracy.

A democracy must be premised upon trust held by the people in each other, among themselves as they engage in self-government, as well as trust evoked by the government between it and its citizenry. A political party must similarly remain true to its principles and party platform. Promises unkept are hypocrisy. In the recent era of duopoly, no competition exists between the parties. They each have turf dominated by party leadership and no incentive to honor promises made each election. As a result, elections flip flop with exchanges in elected figureheads with no real change in power possessed.

As a result, the U.S. Capitol was stormed by the partyless and unrepresented. They are ostensibly amassed by and the adherents of Donald Trump. But, do they know anything more than that he sought their support. What specifically do they stand for given that they sought to destroy the government they sought for him to lead? The only answer for the rebels is their participation in the American government in some structured form. And, this means participation in the form of a political party, one currently existing or a new, third party. Or, do they remain American citizens who feel that they will always be outside the bounds of government, always unrepresented.                                  

Lori Gayle Nuckolls

Philosophy, Law and Politics

Judicial Determination of City Council Suspensions is a Good Thing

City of Cincinnati Council Member Betsy Sundermann has offered an amendment to the City Charter which would permit the Cincinnati City Council to sanction council members for alleged criminal activity. The proposed amendment is a comprehensive and extensive exercise of Home Rule. The amendment contends that the current disciplinary procedure is lengthy and complex, and that the proposed Charter amendment will provide an efficient and expedient method for removing council members. However, the proposed amendment overlooks several fundamental democratic principles.

 The Charter amendment would eliminate the current right of voters to sue a council member for removal from office when the council member may have received illegal compensation for official duties, been interested in the profits of a city contract, have acted in a capacity in addition to being a council member with respect to work of the city, or been guilty of misfeasance or malfeasance in office. The proposed Charter amendment replaces this procedure with one that includes several potential sources of political impropriety.

The amendment permits City Council to suspend one of its own members under a state or federal indictment or charge of a crime of moral turpitude by vote of Council.  A council member facing suspension is subject to the unfettered discretion of City Council, for the proposed procedure does not offer a standard governing Council’s suspension power other than the alleged misconduct of the council member.

Rather, the amendment permits a suspension to be determined by a mere majority vote of Council as if it were any other ordinary legislative act of the representative body. Matters such as suspension from office should be subject to a standard striving toward nonpartisanship. Since suspensions are not mandatory or automatic, the disciplinary procedure should seek to prevent the possibility that a suspension may be based upon reasons other than the alleged misconduct. By way of example, in the instance of the United States Congress, each House may expel a member only upon a two-thirds vote. Similarly, the Senate may convict an executive or judicial official on trial in the impeachment process only upon a two-thirds vote. Council must even itself admit that important, extraordinary and extreme acts such as the Charter amendment by emergency ordinance being used to initiate this disciplinary reform may only be approved upon a two-thirds vote of Council. Even the present authority given to municipalities by Ohio Revised Code Section 731.45 to expel one of its own members for disorderly conduct requires a two-thirds vote. Yet, Council asks for the power to oust one of its own by only a majority vote.

The two-thirds, supermajority standard for important measures was chosen historically for two reasons. First, measures which transcend and supplant the will of the people, such as suspension of an elected official, should require more than an ordinary exercise of the power of the representatives. And, second, a supermajority places acts initiated for mere political objectives beyond the reach of collaborative faction. Suspension should not be a political matter.

In addition to the probate court removal power the Charter amendment seeks to replace, the primary disciplinary method under Ohio law is also judicial. It provides that suspension from office before a council member is proven guilty undermines our democracy unless done by the highest court in the state with the assistance of a lower court in filling any vacancy. This is closer to an innocent until proven guilty standard.

This primary disciplinary procedure only permits a council member’s suspension from office if the council member is charged with a felony under state or federal law and the alleged crime relates to performance of the council member’s official duties or is adverse to the rights and interests of the public at large. It also requires participation by two branches of Ohio government, the Attorney General or the Council’s county prosecuting attorney in the Executive Branch and the Supreme Court in the Judicial.

Under this method, the Attorney General or Council’s county prosecutor determines whether the alleged felonious conduct relates to the council member’s official duties or is otherwise adverse to the public. If, so the Attorney General or prosecutor informs the Chief Justice of the Supreme Court who then convenes a special commission of three retired justices or judges, one of the same political party as the council member in question. The special commission then makes a preliminary determination as to whether the council member’s conduct adversely affected the member’s office or the rights and interests of the public, and, consequently, whether the official should be suspended from office. 

If the special commission finds that the allegedly illegal conduct does not pose a threat to the member’s office or the public interest, the council member is not suspended from office. If, instead, the special commission reaches a preliminary finding that the council member’s conduct does adversely affect the office or the public rights and interests and that the council member should be suspended from office, the council member is given an opportunity to appear before the special commission and contest the preliminary determination of suspension. The special commission makes a final determination after the meeting and the council member is suspended immediately if the special commission finds that the council member’s conduct was adverse to the office or the public’s rights or interests. The final determination of suspension by the special commission has the same force and effect as a court judgment. The council member may appeal the special commission’s finding to the Supreme Court. The official remains suspended until there is a reversal by the Supreme Court or the council member is found not guilty of the allegedly illegal conduct.

Judicial determination of suspension of a legislative official possesses the traditional “checks and balances” of dividing government to avoid abusive concentrations of power and to mitigate partisan exploitation. It seems unwise to replace a judicial determination of suspension with a procedure that could result in a partisan vote of the legislature within which the member in question sits.

One would hope that one motivation for the proposed Home Rule amendment is not to lessen the burden on the judicial docket, generally, and with respect to suspension cases, specifically. We need a preventative solution to the problem of corruption in government, greater care in local government, not merely a transfer of power for remedying corruption.

Lori Gayle Nuckolls

Protected: Philosophy, Law and Politics

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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

Clarity and Equality in the Ohio Sales Tax Statute?

 

The following Comment Letter was submitted today to the Ohio General Assembly Joint Committee on Agency Rule Review for consideration during its review of a proposed amendment of an Ohio Sales Tax regulation regarding interstate commerce.

 

May 10, 2018

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: Department of Taxation Proposed Amendment of Rule Number 5703-9-39 (Interstate commerce)

Dear Members of the Joint Committee on Agency Rule Review,

I write with interest in the proposed amendment of Rule Number 5703-9-39 of the Ohio Administrative Code by the Department of Taxation regarding the imposition of a tax upon retail sale transactions between Ohio residents and out-of-state vendors. The Rule Summary and Fiscal Analysis submitted by the Department of Taxation to accompany this proposed amendment states that the Department seeks merely to make grammatical corrections in the Rule and not adopt any substantive changes.

The proposed amendment does not adequately revise the text of the Rule to correct certain wording that is confusing to citizens and residents of the various States who would engage in commerce, as well as those engaging in commerce abroad. For, it does not clearly indicate that purchases are exempt from taxation if delivered via an interstate carrier to either the buyer or the agent of the buyer and, instead, gives the sense that the exemption applies only to interstate carrier deliveries made to an agent.

Similarly, the proposed amendment retains reference to “an agent of his” in acknowledgement that Ohio purchasers of goods from foreign vendors may avail themselves of an agent to receive the goods purchased. Legal drafters in the 21st century style to no longer use personal pronouns reflective of gender when the concept of gender is not materially relevant to the import and substance of the law.

Finally, the Rule would also lessen confusion if it did not refer to the sales tax as a “retail sales tax” unless such is done consistently throughout Ohio Revised Code Chapter 5703: Sales Tax and Ohio Administrative Code Chapter 5703-9: Sales and Use Tax. For, the sales tax is more often referred to as an “excise tax,” and O.R.C. §5739.02, in implementing the sales tax, expressly states that “an excise tax is hereby levied on each retail sale made in this State.”

In respect of the foregoing, I offer the following modification of the amendment, with proposed changes italicized:

5703-9-39 Interstate commerce.

When tangible personal property is sold within the State and the vendor is obligated to deliver it to a point outside of the State, or to deliver it to a carrier or to the mails for transportation to a point outside of the State, the Ohio Sales sales Tax tax does not apply. However, where tangible personal property pursuant to a sale is delivered in this State to either the buyer or to an its agent, of his other than an interstate carrier the retail Sales Tax sales tax applies, unless the delivery is made by means of an interstate carrier, notwithstanding that the buyer may subsequently transport the property out of the State.

 The grant of a sales tax exemption for purchases made by Ohioans from out-of-state vendors whom, themselves, have no physical presence within Ohio or nexus with Ohio, is a great encouragement to the advance of commerce. It provides economic efficiency to domestic purchasers and encourages reciprocity in the tax policy of other States.

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

Sincerely,

Lori G. 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