Appellant's brief filed on 60-day issue

Discussion in 'GWL News & Information' started by jrm, Oct 17, 2006.

  1. jrm

    jrm Sledgehammer

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  2. rajl

    rajl New Member

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  3. jrm

    jrm Sledgehammer

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    Yes, thanks.
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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  5. mzmtg

    mzmtg Active Member

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    So, how long do these thing usually take?

    Is there a statutory time limit? (LOL)
     
  6. jrm

    jrm Sledgehammer

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    The very last day it could be (and they do adhere to this) is July 16, 2007.
     
  7. kkennett

    kkennett New Member

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    I find the brief to be very well written and persuasive, but I am a particularly biased observer. Seems to me the judge will be forced to argue points in contradiction to common sense, much the same as the 'depends on what the definition of is is' type. Here is my fear: the C of A, boxed into a corner, rules either 1) the case is mooted (which is dumb because it contradicts very recent GA S Ct language about issues escaping judicial review), or 2) rules very narrowly against the judge regarding her particular technique, but leaves danglng the question of the drop dead 60 day deadline. Something like, "she has to follow the procedure laid out by the statute, but if that takes over 60 days, well that's OK." Perhaps we'll get a great ruling that can be paraphrased, 'read the rules and follow the rules.' Godspeed to this one.
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Mootness is not really an issue in this appeal, so I do not expect it to be mentioned at all. The trial court threw in that the case is not moot, but there was no notice of cross appeal filed by the other side regarding that issue, and I do not think they really argued it in the case below. An issue not argued below cannot be argued for the first time on appeal.

    Essentially, mootness would have related only to the issue of mandamus, which was dropped once the license was issued to the plaintiff.

    Once the response brief is filed, we will have a better idea of what the Court of Appeals may have to say on the issue.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    :rotfl:
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    UPDATE: Judge Cranford's appellee brief has now been filed with the Georgia Court of Appeals and is available HERE
     
  11. kkennett

    kkennett New Member

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    Well, that was entirely uninspiring. Let's state about 4 times: "Although a literal reading of the statute says x, we've been doing y and enjoying it since 1974." Similarly, let's argue, "the Court simply cannot find that the statute means what it appears to mean when you read it." And finally, "we realize the legislature wrote, 'NCIS', but we suspect that they didn't really mean that." Good grief, Charlie Brown.
     
  12. kkennett

    kkennett New Member

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    And she does cite the AG opinion from 1978. Would be nice to have an updated version for a reply. Any word on Mr. Drolet's progress?
     
  13. USMC - Retired

    USMC - Retired New Member

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    I spoke with Mr Drolet last Wednesday and he still has the review in his pending file. He asked me to call him back two weeks later (8 Nov) to check his progress. My impressoin is that he wants to get it done and off his desk but is being tasked with other more high profile matters.
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Kkennett, that neatly sums it up for those not inclined to read the brief.

    As I predicted, no mootness argument whatsoever. The only real issue is whether the court of appeals will decide that the statute allows probate judges to wait for the fingerprint-based background check of 129(d)(1) when (d)(4) says that no report is required if no derogatory information is found.

    The judge insists that she now requests the NICS check, so her argument about having to wait for a federal history over her GCIC history (which theoretically might omit a disqualifying crime committed outside Georgia) is out the window.

    I think this is now a one-issue appeal (other than whether she has judicial immunity from court costs being assessed).

    May a probate judge who already has an applicant's entire criminal history in hand, wait beyond the sixty days allowed in the statute for a fingerprint based check, on the off chance that the applicant is not whom he says he is, when the statute states that no report is required unless derogatory information is discovered?

    :?:

    If no report is required, and none ever comes, how long may a judge wait?
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    A new AG opinion will not change anything once the Court of Appeals speaks to the issue. The AG does not make law. Rather, he reviews the statutes and case law and then issues his opinion. In other words, his opinion is going to be whatever the Court of Appeals rules on the issue.

    It is worth noting that the 1978 opinion was written at a time when there was no such thing as NICS and there was only one background check in the statute - a check of the records to which the local law enforcement agency "had access." The addition of these other checks was well after the 1978 AG opinion.
     
  16. USMC - Retired

    USMC - Retired New Member

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    What if his new opinion is out before the Court of Appeals rules?
     
  17. kkennett

    kkennett New Member

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    Oh, I realize the AG makes no law. Just hoping for another arrow in the quiver.

    If the judge can wait forever if none comes, then the 60 days is completely superfluous language, which violates statutory construction precedent. If the 60 days means that the legislature meant to put some time limit in there to protect a citizen's right, then what is that time limit and who suffers when it is not met? So if the legislature intended some time limit, who gets to decide what that limit is? The FBI, GBI, the local judge. Oh wait, I know, how about the law?
     
  18. Gunstar1

    Gunstar1 Administrator

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    I like how they say that NICS check is not enough evidence and subject to fraud, so if a license is issued it could allow a criminal to buy a handgun, yet NICS is the method the Feds use to determine if you can buy a handgun. So it is good enough for the US to buy guns, but not for her to issue a carry permit, which could be used to buy a gun. :screwy:

    So she is assuming that she is dumb enough to fall for a fake ID to pass a NICS check and get a license to carry and NICS exemption at purchase, but gun dealers are smart enough to catch the fake ID and not sell a gun to that person.
     
  19. Mike from Philly

    Mike from Philly New Member

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    That would be bad because we want a court order, not an administrative letter that could be changed on whim or new office holder.

    We should not pursue any decisions from the AG. Once he is re-elected, he may decide that he wants to achieve higher office as a Democrat. If that is his goal, expect him to start kissing up to the anti gun crowd, which is the core of the Democrats and most of the wealthy supporters. He could generate his new found Democrat "bone fides" on the back of our
    liberty.

    We just don't know if he is a true 2nd Amendment friend. Sure, he has come out for 2nd Amendment causes but he hasn't proactively defined the limits of the CCW law. We should avoid Thurbert and the AG office in order to avoid unintended consequences.

    The best use of our time and energy is lobbying our legislators for change of the law, especially after election day.
     
  20. Gunstar1

    Gunstar1 Administrator

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    I also had another couple of thoughts, I know this is an appeal but I dont remember the Unofficial Opinion being mentioned previously? How can they bring it up now? Like it means anything, being 28 years old and the law going through multiple changes since then.



    On page 18 it says that the law changed and is now requiring NICS, there is absolutly no evidence that the Judge refuses to run a NICS check before then. However if you read the Gavel from Nov 05 (probate court newsletter) it says
    http://www.georgiacourts.org/councils/p ... ov2005.pdf
    So never running a NICS check before the change of law means by not runing NICS she was violating state policy, to continue to do so means she is violating law. Either way you slice it a nics check is or was required and the Judge does not trust it.

    Most funny is that the ATF said fingerprint based background checks are not enough (or needed) for NICS exemption, a NICS check must be performed for license exemption. Yet this judge is argueing that NICS is not enough to issue a license that could be used to purchase a firearm.