Appeal on denial or revocation of GFL

Discussion in 'GA Laws and Politics' started by geaux_tigers, Jul 30, 2006.

  1. geaux_tigers

    geaux_tigers Member

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    I am not clear on the appeal process if a probate judge denies an application for a GFL or revokes an existsing GFL. I was reading Minnesota's statutes and found this:

    Code:
    [HEARING UPON DENIAL OR REVOCATION.] (a) Any 
     10.2   person aggrieved by denial or revocation of a permit to carry 
     10.3   may appeal by petition to the district court having jurisdiction 
     10.4   over the county or municipality where the application was 
     10.5   submitted.  The petition must list the sheriff as the 
     10.6   respondent.  The district court must hold a hearing at the 
     10.7   earliest practicable date and in any event no later than 60 days 
     10.8   following the filing of the petition for review.  The court may 
     10.9   not grant or deny any relief before the completion of the 
     10.10  hearing.  The record of the hearing must be sealed.  The matter 
     10.11  must be heard de novo without a jury. 
     10.12     (b) The court must issue written findings of fact and 
     10.13  conclusions of law regarding the issues submitted by the 
     10.14  parties.  The court must issue its writ of mandamus directing 
     10.15  that the permit be issued and order other appropriate relief 
     10.16  unless the sheriff establishes by clear and convincing evidence: 
     10.17     (1) that the applicant is disqualified under the criteria 
     10.18  described in subdivision 2, paragraph (b); or 
     10.19     (2) that there exists a substantial likelihood that the 
     10.20  applicant is a danger to self or the public if authorized to 
     10.21  carry a pistol under a permit.  Incidents of alleged criminal 
     10.22  misconduct that are not investigated and documented, and 
     10.23  incidents for which the applicant was charged and acquitted, may 
     10.24  not be considered.
    You guys think something like this might be useful here in Georgia? It sounds pretty slick to me. I bet it would ruffle some feathers in a few jurisdictions. :)
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    We already have such a provision.

    Nobody gets to use it, though, because the typical process is to not deny the license.

    Do you actually know anybody who has been denied?

    Rather, the probate judge just never issues the license.

    And they would get away with it, too, if it wasn't for these meddling kids . . .
     

  3. geaux_tigers

    geaux_tigers Member

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    :rotfl:

    No, but I thought I saw a post on this board once where some was claiming that a judge would not issue on "moral character" grounds.

    Hmmm. Sure would be nice to have something in our code to catch that and maybe the failure to issue in 60 days at the same time. "If the probate court does not issue a firearms license or written denial of a firearms license in 60 days..."
     
  4. Gunstar1

    Gunstar1 Administrator

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    There is an appeal process for a denial of a GFL (costs $25), unfortunatly it is to the same Probate Judge that gave the denial.

    I have this strange feeling that if a judge denies your app (when it should not have been), you would be waisting $25 trying to appeal it to the same person.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    I saw that post, too, but I do not know that the judge ever formally denied the license, just judging by the posts here on the forum. Rather, the judge never issued the license.


    As for the law addressing this, well, the statute already says, "Not later than 60 days the probate judge shall issue . . ."

    I suppose they could add, "And we really, really, really, really mean it," or provide for some sort of criminal sentence or something, like pushing a wall over on them on the close of business on the 60th day.
     
  6. ber950

    ber950 Active Member

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    I would still try it. First it would tell the probate judge you mean business and second I wouldn't want my falure to do so to interfere with further legal action.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    . . . exhaustion of administrative remedies . . .
     
  8. jrm

    jrm Sledgehammer

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    This presupposes that there is a denial. I have heard of a few cases where a license is not issued. I'm not sure I ever heard of someone being denied (where something saying "denied" was sent to the applicant. If there is no denial, there is nothing more to do with the probate court.
     
  9. ber950

    ber950 Active Member

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    In that case I guess the thing to do would be.

    1. Hire Assualt lawer
    2. File for Writ of Mandamus.
    3. Take out 2nd mortgage on house.
    4. If county is small then run against probate judge. I'm not a lawyer so I can't run in large county.
     
  10. geaux_tigers

    geaux_tigers Member

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    I like the wall idea, but I was think more along the lines of:

    "If the probate court does not issue a firearms license or written denial of a firearms license in 60 days, the applicant may use his copy of the application as a permit until such time that the court issues a firearms license or written denial."

    Of course, the statute would have to require the applicant to get a copy of the application which would probably be nice anyway. It would also help if the application was standardized across the state.
     
  11. Gunstar1

    Gunstar1 Administrator

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    What, you mean like put something in the law that says the Department of Public safety should create a form and give it to all the probate courts? It is already in the law. The Department of Public Safety gives the form out (I posted the first page of it here. However once again it is the locals that are ignoring what the law says and doing what they want to.

    Maybe the law should say, failure to follow any of these instructions will be punished by... a swift kick to the butt by the applicant.
     
  12. geaux_tigers

    geaux_tigers Member

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    I think the statute says that the Department of Public Safety will supply a suitable form to the Probate Court. I believe that it also says that the applicant must be supplied with a form that collects only information pertinent to determining the applicant's elligibility. I do not believe that it says explicitly that the Probate Court is required to use the form supplied by the Department or Public safety.

    Did the author of the statute intend for the Probate Court to use the provided forms without substitution? Heck if I know. I suppose you could argue that. I think you could also argue that the person that crafted the statute only meant to ensure that Probate Court had a suitable form on hand to be used if the court didn't feel like crafting their own.

    If the phrase "the probate court shall issue the applicant a license" doesn't mean that they have to give you a license, having no language like "the probate court must use the form furnished by the Department of Public Safety" makes me think that the court can't be compelled to do so. :(
     
  13. Gunstar1

    Gunstar1 Administrator

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    Well there is the shall do this, only if X, Y and Z are done. Which is where the moral character stuff clouds up the "shall issue". If they can make up a moral character reason, then you do not meet Z so the criteria needed for that shall is not met.

    Then there is the shall that just means do it. Like in "The appropriate local law enforcement agency in each county shall then make two sets of classifiable fingerprints". That is not conditional, pay your $5 if they require it, but they have to take your prints.

    Now, for the application...
    That is a lot of shalls...

    That says to me that the forms the applicants are "prescribed" to fill out is the form that is furnished by DPS.

    Remember that the AG is the ones saying shall does not mean must, not a court of law.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The statute on appeals of the denial of a firearms license is here:

    http://www.legis.state.ga.us/cgi-bin/gl ... de=15-9-60

    O.C.G.A. 15-9-60(i)

    (i) Costs for hearings in contested matters:
    (1) For conducting trials of contested matters or for formal hearing on the denial of an application for a firearms license before the probate court, the cost shall be $25.00 per one-half day or portion thereof;
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    No person may be a probate judge unless she has:

    (E) Has obtained a high school diploma or its recognized equivalent

    15-9-2

    :lol:

    If they have their G.E.D., that means they ought to be able to read.
     
  16. glocked_n_loaded

    glocked_n_loaded New Member

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    look who's back in town

    still haven't heard anything from probate on my permit..... i wrote that big letter she asked for and havent heard anything..... i have another case pending in the same court house right now and i am awaiting closure of that case before moving ahead with my permit situation. 8 and a half months so far.......
     
  17. geaux_tigers

    geaux_tigers Member

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    Yet not one of them says "The Probate Court shall use the forms supplied by the Department of Public Safety."

    My uneducated guess is that the Probate Courts could argue that their own home-grown forms are "prescribed and furnished free of charge to persons wishing to apply for the license"; they could say that if the Assembly intended to require them to use those forms the law should say so and not simply say that that a form will be furnished to the court at no cost, implying doing so simply eases administration of the statute. If the assembly intended the form to be used uniformly, why stipulate that the forms be provided to the court rather than allowing me to request the form directly from DPS?

    I don't like the idea. I just think there is some wiggle room and we all know how the probate courts love to wiggling. :roll:
     
  18. Gunstar1

    Gunstar1 Administrator

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    I see what your saying... I am sure a probate judge/court would try to argue that too, I just don't see them winning the case with it.