Tag: Political Science

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

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

The Economic Question

How do we reform the American economy and governmental structure to provide equality as to personhood at birth and a social arrangement based upon merit? Economic and political equality look to liberty, fairness and justice within a democratic republic. Neither a fascist autocracy nor a collective state will achieve an environment for self-governing individuals. Political expressions of both the far left and the far right arise when they perceive a threat to norms they deem permanently determinative of their existence. These norms are within the innate human personality and may be only mitigated and not undone by the structures and powers of government.

Leftist and rightist autocracies seek dominating leadership that is self-serving rather than self-governing. Both are dominated by norms that look beyond the individual to the state.

Republican democrats in America assert a belief in the normative values of freedom, justice, equality and rule of law, supported by a belief in American patriotism. A belief in republican democracy is a midpoint within the spectrum. Our new economy will accord value to merit and provide for employee self-sufficiency within our republican democracy.

Lori Gayle Nuckolls

Featured

When is Personal Status a Crime?

Is it moral, ethical and or proper to criminalize personal decision making that does not challenge the individual identity and or personhood of another? Does a right of citizenship or even of the individual exist if one is unable to disclose the structure of one’s social existence because the structure is proscribed by law and criminalized by the government under which one collectively lives?  This question applies to all attributes of the individual, whether it be gender, marital structure, race, source of income, and many other common and current practices of modern existence.

 

If harm is not imposed upon another, in the thinking of John Stuart Mill (1806-1873), these personal attributes are expressions of liberty and freedom, derived from existence and nature, and may not be ethically restrained by the government. Persons exist within the fellowship of existence. Law and government which encroach upon one’s personal individuality, liberty and freedom are ensured only by prejudice according to Mill.

 

Even the most liberal and inclusive of elected statesmen has not yet remedied all such personally experienced difficulties in which one is unable to disclose the structure of one’s existence by virtue of one’s life structure being, in some aspect,  prohibited by law. We can know the spoken and written words of our governing officials and candidates. Yet, how can we fairly evaluate their demeanor if the material source of their identity, their life structure, is prohibited from being disclosed to the public. Their temperament, regardless of intensity, may not unilaterally be determined by matters in discussion before them.

 

In his Thoughts on the Present Discontents, Sir Edmund Burke (1729-1797) expressed the view that:

Government is deeply interested in everything which, even through the medium of some temporary uneasiness, may tend finally to compose the minds of the subjects, and to conciliate their affections. I have nothing to do here with the abstract value of the voice of the people. But as long as reputation, the most precious possession of every individual, and as long as opinion, the great support of the State, depend entirely upon that voice, it can never be considered as a thing of little consequence either to individuals or to Government.

(emphasis added). Under American law, as derived from the words of Edmund Burke, as well as countless additional voices of all hues and genders, all should have full, complete, and unfettered participation with one voice. The voice of the individual, not that of the abstract “tyrannous majority” is the founding principle of our government.

 

Some indicia of personal status, which upon actus reus, or effectuating conduct, constitute a crime in virtually all of the 50 American states are a noncriminal personal status of mental intent, such as a personal yet unconsummated devotion to a career of prostitution or the intent to engage in multiple marriages upon reaching the age of puberty without equal treatment under formal legal acknowledgment of the marital union. If, upon the effectuating act, traditions of liberty in America exist untranscended, is there an ethical rationale for this criminalization?

 

Sir Burke agrees that a nation is merely the composite of the individuals comprising it in cellular diversity. The principles of respect and ethics by which our nation of individuals is governed are derived via prescription from the very principles by which individual humans share and comport with one another. In the words of Burke:

 

Nations are governed by the same methods, and on the same principles, by which an individual without authority is often able to govern those who are his equals or his superiors, by a knowledge of their temper, and by a judicious management of it; I mean, when public affairs are steadily and quietly conducted: not when Government is nothing but a continued scuffle between the magistrate and the multitude, in which sometimes the one and sometimes the other is uppermost — in which they alternately yield and prevail, in a series of contemptible victories and scandalous submissions.(emphasis added). Anglo-Saxon, conservative thought upon which America was founded provides due precedent for legalization of many American civil privileges long acknowledged and many that might be.

 

Such support in the writing of Burke long preceded the day and era of American poet Emma Lazarus (1849-1847) and her poem The New Colossus, in which she wrote:

Not like the brazen giant of Greek fame,

With conquering limbs astride from land to land;

Here at our sea-washed, sunset gates shall stand

A mighty woman with a torch, whose flame

Is the imprisoned lightning, and her name

Mother of Exiles. From her beacon-hand

Glows world-wide welcome; her mild eyes command

The air-bridged harbor that twin cities frame.

“Keep, ancient lands, your storied pomp!” cries she

With silent lips. “Give me your tired, your poor,

Your huddled masses yearning to breathe free,

The wretched refuse of your teeming shore.

Send these, the homeless, tempest-tost to me,

I lift my lamp beside the golden door!”

 

 America lives by a written social contact of enlightened popular democracy. All participate equally. Participation requires an equal voice. A voice hindered and encumbered when such encumbrance is not materially required is unjust. Conservative theorists suggest that persons come together in society when encouraged and implored by a subconscious sense of order, even in present times.

 

In the thoughts of our President Franklin Roosevelt, democratic patriotism is the right of all on American soil, to seek freedom from prejudice and unkindness, which he deemed an affront not only against the one but also as against the many within the American public. Declaring life structures that are harmless to another to be harmful to the general public when the argument declaring such is  not based upon an understanding of the manner in which the rights of individuals and of the government are compromised is invalid.  Such assertions of criminal conduct deprive all of liberty and freedom. It is not patriotism under any theory of a respect for our constitutional rights or the national security of our nation, domestic or abroad. For, most importantly, government that is open is government that is most wise, most fair and most just. The people professing life structures we currently criminalize such as:  prostitution, multiple marriages, and controlled of substance use, are currently the people we regulate from the criminal and noncivil side of the line as currently drawn. If no injury to others, why not the civil side of the line?

 

 Legal right to the privilege of government acknowledgment of our personal identity and personhood are prerequisites to a constitutionally acknowledged right to speak freely and participate in government.  Men and women who offer sexual services for monetary compensation, and sister wives and brother husbands are currently deemed status criminals as to the social contacts to which they are a party. If the multiple wives and brothers seek formal written and governmentally filed licenses of marriage, they are illegal by virtue of intent to misrepresent their family structure and chosen social contract. If men and women who trade currency for sexual favors do so they consummate written and or oral contracts that contravene governing law. If the only proper and ethical concerns of American government are the respect for the rights of our citizens and America’s founding principles of justice and fairness, and not the various tenets and principles long ago giving rise to various proscriptions against certain social contracts, upon what proper bases are these proscriptions founded? For, they continue to exist in numerous and myriad informal and unregulated forms that have been deemed to readily devolve into abuse in previously no longer criminally contexts.

 

Sex commerce and multiple marriage partners deserve the ordinary rights of citizenship under state and federal law. These rights include the centuries old rights to: real property ownership and management; state and local tax treatment; business commerce and  investments; banking privileges; family and juvenile law; no less participation in voting and elections; expressions of faith; and public education, with its long acknowledged absence of truancy compliance, and the aggregations of proceeds brought to America, etc. Only with open access to government and society, that legalization brings, may many honest people not live in fear.

 

Lori Gayle Nuckolls, Esq.

 

 

Do Young People Understand the Creation of the Law?

When looking at our three branches of government in America this electoral season, the role, place and stature of the executive, legislative and judicial branches should be well studied, Federal, State and Local. All citizens and residents, of all ages, should know the names of our governing officials from all three branches and their role in our community.

In guiding our young people, we need to go beyond a mention or two of the name of our Congressperson or the name of the Mayor or a member of our City Council. Children in this the second decade of our 21st century are truly knowledgeable of current events in the modern era, more so than ever in America’s history. They have seen the most recent national elections and campaigns. The know by first name Barack, Bernie, Bill, Colin, Condoleezza, Eric, George Sr., George W., Hillary, Loretta, Madeleine, and Mitt. They know that the current President is Donald and that the next might be Joe III.

Yet, we must share with them more than this. Especially, our young people need an acknowledgment and appreciation of the scholarship of the judiciary.  Popular understanding of our judicial system and its stewards guarantees the freedom of thought of those who appear before them as well as of our nation. Judicial decision making in the public interest benefits from a knowledgeable public.

A truly fundamental common law subject as the creation of a contract may provide a basis for an objective discussion of how we learn from our Judges and so gain an equal understanding of the three branches of government in America. Contract law is of general interest, noncontroversial and permits discussion of the art of the judiciary.

An example is taken from a legal opinion written by Federal Magistrate Judge Michael Newman of the Southern District of Ohio. Judge Newman is the recent President of the Federal Bar Association. His term in private legal practice prior to the bench was as a law firm Partner in Cincinnati and was lengthy and well accomplished.

In Traton News LLC v. Traton Corp., No. 3:11-cv-435, 914 F. Supp. 2d 901, (S.D. Ohio 2012), Judge Newman expressly acknowledged that the case posed “an issue of first impression in [his] Court.” 914 F. Supp. 2d at 909. Namely, the question newly presented was whether a person using the Internet and who accesses a certain website, in doing so, agrees to the Terms and Conditions set forth in the website as specified by the Terms and Conditions. And, would this create a binding agreement that would support personal jurisdiction pursuant to the governing Terms and Conditions? Judge Newman found that this did not create a contract for want of consideration. In this instance, the Internet user accessing the website did not receive a benefit supporting the existence of a bilateral contractual obligation.

We must appreciate such judicial thought and show such appreciation with greater encouragement of participation in community and government discussion? Popular understanding that Judges impart wisdom when new questions arise is needed. Civil peace and understanding require that young people learn American government at a young age.

In Cincinnati, do young teenagers understand the theory of the judiciary and its role in fashioning our common law from our amorphous popular thinking? In theory, Judges turn custom into law, and in fashioning the law, they educate our customs. The scholars of William Blackstone argue that our customs may only become common law if their tenets conform to our sense of natural reason and justice. Do we teach this to our young people so that they may grow up to understand an increasingly more complex nation, with a far more applicable hierarchy of institutions of higher education in that all of us within the 50 states must defer to the established hierarchy of universities and colleges? The young in turn may guide their parents in an increased understanding of the modern world and a respect for the judiciary.

The American public must be taught to defer to the constitutional function of the judiciary: the administration of legal decision making as to residents, citizens and government. With the fragile delicacy of Marbury v. Madison in its creation of our doctrine of judicial review, all within our nation must respect the separate, equitable power of the American Judiciary as to the executive and legislative branches of government. Popular understanding of our popular self-interest, in a country whose government force and power are derived and ensured only as individuals understand our principles of government, will only be stronger.

Lori Gayle Nuckolls, Esq.