AG's Office - Clarification of 'Shall Issue'

Discussion in 'Ga. County Licensing Information' started by Cacique500, Jun 14, 2006.

  1. Cacique500

    Cacique500 New Member

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    IANAL so if I miss a term please cut me some slack...

    I called the AG's office this morning and after a few conversations with various staff I was given to a state attorney so he could explain the code to me. Seems that the word 'SHALL' does not mean what we hope (and think) it should mean.

    He told me that if there are no penalties specificed in the code then the word 'shall' means discretionary (which means the 60 days is a soft target). If there are penalties specified (shall issue within 60 days or the judge will be in trouble...) would be a 'directive' use of the word 'shall' and would mean the 'shall' we're all thinking about.

    The attorney I talked with was a very nice & polite individual and I appreciate the time he took to talk with me. Sounds like we're going to have to work with our state reps to get the wording of the code changed and put in some 'penalty' language for the judge if they don't comply.

    I've been absolutely amazed at the lack of knowledge at the probate court level. I've heard so much erroneous BS it makes my head swim. I realize they can't know all the laws but for heavens sake if you don't know what the actual statute says please don't make crap up and expect to impress me with your lack of knowledge. A simple "I don't know" would be fine! :evil:
     
  2. jrm

    jrm Sledgehammer

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    cacique500,

    The GA supreme court disagrees with the attorney with whom you spoke. They have said that "shall" is mandatory unless the context clearly indicates otherwise.
     

  3. Cacique500

    Cacique500 New Member

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    Thanks for the additional info...as I said IANAL.

    Do you by chance have a link to the GA Supreme Court decision on the use of the word 'shall'? Trying to get my hands on any 'ammo' I can to take to the probate court!
     
  4. jrm

    jrm Sledgehammer

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    I don't have a link, but I can give you a quote and a citation.

    "In it's ordinary signification, 'shall' is a word of command, and the context ought to be very strongly persuasive before that word is softened into mere permission." Termnet Merchant Services v. Phillips, 277 Ga. 342, 344, 588 S.E.2d 745, 747 (2003).
     
  5. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    What Remedy?

    So then if "shall" is a commandment, and as a matter of law a county must issue your license within 60 days of the proper application by a qualified person, what is the remedy when a county fails to make the deadline? There is no penalty to the county in the statute, is there? Can you sue? Ask for a writ of mandamus-- a judge's order commanding a local official to issue the license?

    If there is no clear answer at this time, I'll suggest one: Say that the applicant may, after 60 days, carry a weapon using a photocopy of his application and an affidavit swearing that on a certain date more than 60 days ago he submitted that application to X County officials for processing, and he has neither been issued a license nor denied a license, and he believes himself eligible to be licensed. This application and affidavit would be a substitute for a GFL. Oh, and he would not have to have them literally on his person (it would be several pages of full-size paper), but he would have to have them near enough to his person that he could quickly retrieve them, himself, to show an officer or public official.
     
  6. kkennett

    kkennett New Member

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    IANAL, but it seems to me that mandamus would be the way to go. File for the writ in the local superior court circuit, and ask for it expedited so that your request is not mooted by a suddenly responsive probate judge. Whatever the superior court judge decides, it would probably be appealed to the Court of Appeals, which would then generate the precedential opinion that would be needed in other counties. The penalty would not be for the county, but contempt for any probate judge that did not follow a writ of mandamus issued by the superior court or appeals court. In fact, a lower court that did not follow mandamus would probably be removed from office.
     
  7. Gunstar1

    Gunstar1 Administrator

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    Lucky you, when I called I got a lady that was quite rude.

    We are basically debating with the Probate judges and the AG on the meaning of "shall": it is either "must" or "may".

    If you look at just the law as it is right now you can debate which is which. If you look at the legislative intent of the law when it was changed in 1989 from "may issue" to "shall issue", it gets pretty hard to say that "shall"="may" when in 1989 the Assembly changed the law from "may" to "shall", which means the legislature intended for it to have a different meaning.
     
  8. Gunstar1

    Gunstar1 Administrator

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    I think some of the laws are so confusing people that work for the state/city/county use handbooks and word of mouth instead of reading the law. Some citizen does not no more than the person who trained them, you are wrong and they are right. (which is why it is good to bring a copy of the code when dealing with the under/il/mis-informed)

    I have actually gotten used to that because it is everywhere. The ones that really urk me are the ones that know the law and say so what or change their story/lie every time you ask.
     
  9. USMC - Retired

    USMC - Retired New Member

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    I spoke with State Senator Carter on this issue this morning and he is going to address it with the AG and get back with me. I also spoke with him on revising the public gathering laws and forwarded him some info to help him in getting things moving. We'll see what happens, he was one of the sponsors of SB 396 and he is definitely on our side in this. I encourage everyone to contact their State Senators and Representatives and voice your concerns. If you can't reach them the first time you try, keep calling till you do. Remember, the squeaky wheel gets the oil so the more folks we have calling the more chance there is that things might start to turn our way. Politicians work off what they perceive is public opinion so the loudest and most numerous voices will be heard above the others.
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Curious who?

    Let's make it 12 months in jail, then, minimum! :twisted:

    The "soft target" of 60 days then meaning, of course, 6 months? 18 months? Whatever the Probate Judge wishes?

    I think not.

    jrm has it right with his cite. Let me add to it (in the context of a "school victim disarmament zone").

    "Every public school shall prepare a school safety plan to help curb the growing incidence of violence in schools...." School safety plans prepared by public schools shall address security issues in school safety zones as defined in OCGA § 16-11-127.1(a)(1) ." The word " 'hall' is generally construed as a word of command." Therefore, OCGA § 20-2-1185 mandates the preparation of a school safety plan which addresses security issues for every public school in this state. The duty is absolute, and, as a result, ministerial.

    Leake v. Murphy, 274 Ga. App. 219, 617 S.E.2d 575 (2005).
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The cases the polite attorney at the AG's was citing to you involve the question of whether something performed by a public official should be declared invalid if it is performed late. In those cases, an act performed late will not be held to be void if (1) there is no penalty in the law for the failure to do the act within the time specified, (2) there is no injury to the defendant (these are invariably criminal cases), and (3) the public official has substantially complied with the law.

    You see there is more to it than simply a declaration that the law contains "no penalty" and therefore the government can ignore the rule of applicable law. With that having been said, you would not want your firearms license declared invalid because it was issued late, would you? Me, either.

    This case law has to do with nothing more than "declaring proceedings void."

    Well, that would have been my polite response to the polite attorney at the AG's office.
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    If you want a cite for that, look here. Hardison v. Fayssoux, 168 Ga.App. 398, 309 S.E.2d 397 (1983). In that case, the DPS hearing officer was sick on the day of the DUI guy's license suspension hearing, and the hearing got delayed six weeks. The statute says "shall" hold the hearing within 30 days.

    No penalty in statute, no injury to defendant, and substantial compliance with the law mean that the suspension of drunk guy's license will not be declared void because the hearing was not held within 30 days.

    This does not really apply to the issuance of a firearms license, other than to declare that the license will not be void because it was issued after day 60, which is a good thing!
     
  13. spectre056

    spectre056 New Member

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    The remedy would be mandamus...not terribly practical.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Why not?
     
  15. ICP_Juggalo

    ICP_Juggalo Active Member

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    While we're on the issue of "shall issue" here is how GA code defines the difference between "shall" and "may".

    O.C.G.A. 1-3-3 (10)
    'May' ordinarily denotes permission and not command. However, where the word as used concerns the public interest or affects the rights of third persons, it shall be construed to mean 'must' or 'shall.'

    Here is also something else of intrest..
    O.C.G.A. 1-2-6. Rights of Citizens
    (a) The rights of citizens include, without limitation, the following:
    (1) The right of personal security;
    (2) The right of personal liberty;
    (3) The right of private property and the disposition thereof;
    (4) The right of the elective franchise;
    (5) The right to hold office, unless disqualified by the Constitution and laws of this state;
    (6) The right to appeal to the courts;
    (7) The right to testify as a witness;
    (8. The right to perform any civil function; and
    (9) The right to keep and bear arms.
    (b) All citizens are entitled to exercise all their rights as citizens, unless specially prohibited by law.


    Subsection A says that citizens have the following rights with limitation, but subsection B contradicts that by saying unless specifically prohibited by law. Gotta love our GA code! :screwy: :shakehead:
     
  16. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I dunno. :-k Does the word "specially" in (b) mean anything, or is it superfluous?

    I mean, they could have just written "unless prohibited by law."
     
  17. jrm

    jrm Sledgehammer

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    Sometimes "specially" is used to mean something like "specifically." With that meaning, the prohibition would have be clear that it applied to that right. That is, a general statute could not be interpreted to prohibit the right.
     
  18. geaux_tigers

    geaux_tigers Member

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    I think we should get the code changed so that it reads "Not later than 60 days after the date of the application the judge of the probate court, barring a martian landing on the court house, had better cease making excuses and issue the applicant a license to carry ..."

    That might get the point across. :roll: 96 days and counting... I think I've got a lot more counting to do...
     
  19. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Re: What Remedy?

    OR the probate judge could just issue the license based on the background check that the Sheriff's Dept. runs. Oh, or the one that the Probate Judge runs right on her terminal in her office. After all, this is the only "report" contemplated in the statute. It is the same report that is not necessary if there is no derogatory information discovered.

    This is, by the way, the same records check that the GBI (GCIC) and, subsequently, the FBI (NCIC) runs. The only difference is that the GBI and FBI are comparing your fingerprints.

    What I mean to say is, nothing different comes back from the FBI or the GBI than what the Probate Judge already has.

    By the way, for those of you who have never run a criminal background check on someone, it takes about two minutes, if the system is really busy, sometimes less.

    :)
     
  20. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Fingerprints

    Yeah, I agree that the fingerprints are unnecessary. Just make it a requirement that the applicant bring proper photo ID or other proof of identity. Otherwise, unqualified people may apply for a license using the name, date of birth, and social security number of some friend or relative of theirs who has a clean background. This kind of thing happens all the time with regard to credit applications.

    We can expect that once in a blue moon, a citizen will be unable to produce any ID other than a video club membership card and a copy of a cellphone bill. Such a person ought to be faced with the choice of either getting more positive ID or submitting to the fingerprinting.