The following is a paper I wrote for my English class. We were allowed to write on just about any subject so long as we got it approved from the professor. I wanted to write my paper on probate judges. Matthew [redacted] Prof. [redacted] English 1102 25 April 2007 Probate Judges of Georgia: Above the Law? Theodore Roosevelt, one of America's great presidents, was famously quoted as saying that no man is above the law. However, for several probate judges in Georgia those words ring hollow. The problem that some Georgians are facing is that they are not being issued their Georgia Firearms License (GFL) in the sixty-day time frame that is mandated by law. In addition to there being a problem with judges issuing regular firearms licenses, some judges are outright refusing to issue temporary renewal licenses, which is probably the most glaring example of their non-compliance. This is further complicated by some judges that believe the word â€œshallâ€ is not binding upon them and is more of a suggestion or leaves certain action to their discretion. Certainly, the probate judge's refusal to follow the law is cause for alarm to all Georgians because it could have a scope that extends well beyond firearms licenses. Ultimately, what these separate incidents boil down to is a simple question: Are probate judges above the law? Before I can begin to explain why Georgia Firearms Licenses are not being issued in some cases, I feel that it is important for the reader to understand what exactly these licenses are and a little about the process of obtaining one. According to the Official Code of Georgia Annotated (O.C.G.A.) a GFL allows someone to legally carry a pistol or revolver on their person, either concealed or open for all to see, in certain places not specifically prohibited by law. It gives Georgians the option of armed self-defense in most public places. There are some places that are off-limits to persons with the license, such as places that sell alcohol for consumption on the premises, places of worship, sporting events not involving shooting, schools, local, state and federal buildings, political rallies, and the very ambiguous â€œpublic gatherings.â€ Anyone who is a citizen of Georgia, and twenty-one years or older, may obtain a license so-long-as they are not felons, have mental health problems, are chemically dependent (have been convicted of a crime involving illegal drugs), or were involved in a domestic violence situation. When a person desires to obtain a Georgia Firearms License they must go to their county probate court to fill out paperwork, submit fingerprints, and pay a fee to cover the cost to the court and for the background check. The background check is performed by the Federal Bureau of Investigation (FBI) as well as local law enforcement running an instant check through the National Instant Criminal Background Check System (NICS). It is important to note that according to (O.C.G.A.) a report is not necessary for a license to be issued, only that no negative information be found within fifty days, after which the judge is told in writing and by telephone of any derogatory information that may preclude a person from getting their license. The controlling legislation for this can be found under OGCA 16-11-129 (d) (4) which in pertinent part states: The law enforcement agency shall notify the judge of the probate court within 50 days, by telephone and in writing, of any findings relating to the applicant which may bear on his or her eligibility for a license or renewal license under the terms of this Code section. When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required. (emphasis added) Where the problem for some citizens comes into play is that some probate judges insist that, despite the law saying otherwise, they must wait for a complete background report to be furnished. This misinterpretation has resulted in at least one probate judge, Judge Mary Cranford of Coweta County, being sued. Craig Moore felt it was necessary to sue his county probate judge to force her to comply with state law. He was suing for both declaratory and injunctive relief, with the former being an order from the judge outlining and clarifying the plaintiff's rights under the statutes or contract, and the latter being an order to compel the defendant to follow the law in all subsequent dealings, which in this case would be with issuing Georgia Firearms Licenses within sixty days. According to court document from Georgia Carry Organization (GCO), at the time of the cases filing, Mr. Moore had still not received his GFL (a full 126 days after he applied) so he also sought a writ of mandamus, which if ordered would have forced Judge Cranford to issue a GFL to the plaintiff. Of particular importance to Mr. Moore's case is specific language in O.C.G.A. 16-11-129 that says: â€œ...Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license or renewal license to carry any pistol or revolver...â€ (emphasis added). It was because of this language that the plaintiff believed he had a strong case. However, by the time the case reached a judge, Mr. Moore's Georgia Firearms License was already issued, so the plaintiff no longer was seeking a writ of mandamus. Part of Judge Cranford's argument in her response to the plaintiff's motion for summary judgment is that she must wait for a background check from the FBI before she can issue a GFL. Moreover, that her hands are tied in the matter of issuance because she cannot issue without the information that the agency provides. This is simply a fallacious line of thinking because according to O.C.G.A. 16-11-129 (d) (4) â€œ...When no derogatory information is found on the applicant bearing on his or her eligibility to obtain a license or renewal license, a report shall not be required...â€ (emphasis added) Therefore, the judge does not need to wait for any report. Although, if there is any derogatory information that is found during the background check that is returned to the judge after they have issued the license they always has the option to revoke an issued license. Another important aspect of the Moore case is that in O.C.G.A. 16-11-129 (d) (4) the word â€œshallâ€ is used to command the action to be taken by the probate judge. â€œ...Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license or renewal license to carry any pistol or revolver...â€ (emphasis added) This diction is particularly important since there is a vast difference between â€œshall,â€ as the law says, and the word â€œmayâ€ as judge Cranford's argument seems to suggest. If her contention is that she cannot issue a license without certain information then that would mean that the code section is merely a guide as to what her actions should be, and not what they must be. The Supreme Court of Georgia said in Termnet Merchant Services, Inc. vs. Phillips â€œâ€˜n its ordinary signification, â€œshallâ€ is a word of command, and the context ought to be very strongly persuasive before that word is softened into a mere permission.â€™" Obviously, the Georgia Supreme Court resolutely feels that the word â€œshallâ€ is not to be taken lightly. But what if for a moment we were to suspend reality and believe that the code section does say â€œmayâ€ instead of â€œshall,â€ how would things be different? Would it then allow probate judges to issue Georgia Firearms Licenses in a time frame they are comfortable with? The answer is no. The reason is because then the code section would be in contradiction with itself. â€œ...Not later than 60 days after the date of the application the judge of the probate court [may] issue the applicant a license or renewal license to carry any pistol or revolver...â€ The judge is still directed to commence action before sixty-one days by the first part of the code section. They cannot be told that they may issue a permit, but you have to issue permits before sixty-one days. A reading of the code like that is simply inconsistent. Unfortunately for Mr. Moore, the Superior Court of Coweta County ruled against his case, with the Court giving the following reasons: judges must be sure that the applicant is of good moral character, the FBI must give a complete background check, the FBI report is more thorough then a NICS report because it uses fingerprints, since FBI reports take longer than sixty days the probate judge is allowed to take longer than that, and the defendant is entitled to judicial immunity and cannot be sued to monetary damages (legal fees). The Court was wrong on all points. First, it is not necessary that the probate judge make the determination that the applicant is of good moral character at the time of issuance, because if any derogatory information is brought to the judge's attention through the background checks after they issue the license they may simply revoke it. Second, according the the FBI's website, a National Instant Criminal Background Check System report, which can be obtained instantaneously, has more information than a background check that goes through the National Crime Information Center (NCIC). So if more information can be gained through an instant check than by sending in fingerprints to the FBI, the Court is incorrect in stating that the FBI must do a background check because it is more thorough. Thirdly, since we now know that there is no need to wait for the longer FBI background check there is no reason for the probate judge to take longer than sixty days. In fact, since most probate judges have access to a terminal in their building that can generate a NICS report they can perform the check that same day and issue a permit within a few days, which is what some counties already do. Fourth, the Court says that Judge Cranford is entitled to judicial immunity. This would be correct if her actions were in conjunction with her actual judicial duties. But the processing of Georgia Firearms License is administrative in nature, much like a marriage license. Therefore, judge Cranford is not entitled to her judicial immunity in this case and Mr. Moore is in fact entitled to receive monetary compensation for his legal fees. Mr. Moore's case is currently on appeal in the Georgia State Court of Appeals. An interesting parallel to Georgia Firearms Licenses not being issued in the proper time frame, is how some county probate judges are refusing to issue temporary and, in some instances, replacement permits. A temporary permit is usually requested when a person goes to reapply for a GFL because their current one is about to expire. What is important to note here is that there is absolutely no leeway in the controlling code sections that would allow a probate judge any discretion over whether to grant one of these licenses or not. That being said, there is a surprising number of counties that were in non-compliance, like: Fulton, Gwinnett, Murray, Dekalb, and Cobb to name a few. Legally, O.C.G.A. 16-11-129 (i) (1,2, & 5) are the most important subsections because they address how, how much, and for whom. The principle points from those sections are that a person with a GFL can apply for a temporary license if they are within ninety says of expiration of their current license, the judge shall issue the temp at the time of application, and the cost shall be $1. All of this information is clearly worded and unambiguous. However, according to Georgia Carry Organization, which is a grassroots pro-gun group, members who spoke to their probate judge said that many of the officials cited a piece of legislation that was passed to amend certain parts of the Georgia Code dealing with GFLs for the reason they no longer had to issue temporary permits. The law that these judges are talking about would be House Bill 1032. HB 1032 did amend a portion of O.C.G.A. 16-11-129, although the only parts that it amended were sections (a) through (d), while the section that deals with issuing temporary permits is section (i). So the judges' assertion that they could not issue temporary permits based on legislation that changed section (i) is without merit. Fulton County on the other hand, had a rather interesting excuse. Judge Pinkie Toomer said that her court would not issue a replacement licenses because there was a conflict in Federal law that would invalidate the Georgia Firearms License as a substitute for a NICS report which is needed when a Georgian wishes to purchase a handgun. Information from Georgia Carry Organization's website indicates that the Federal law that Judge Toomer was citing was 18 U.S.C. Â§ 922 (t)(3). It was her belief that if a replacement license was issued without another background check being performed it would invalidate Georgia's NICS exemption for GFL holders. She incorrectly thought that background checks had to be run each time a person was given a licenses. But according to 27 C.F.R. Â§ 478.102(d)(1), which is the controlling statute for exemptions to NICS: (d) Exceptions to NICS check. The provisions of paragraph (a) of this section shall not apply if-- (1) The transferee has presented to the licensee a valid permit or license that-- (i) Allows the transferee to possess, acquire, or carry a firearm; (ii) Was issued not more than 5 years earlier by the State in which the transfer is to take place; This shows that so long as a background check was run on the permit holder within the past five year, no further checks will be needed. Ed Stone, the president of Georgia Carry Organization, communicated to me that the Fulton County probate judge and GCO talked about this issue and the judge decided to comply with the law rather that be engaged in a lawsuit over this matter. Above all, I believe it is necessary at this point to consider the scope that these judges' noncompliance has on the greater judicial system of Georgia. It would be quite easy to dismiss this as a problem that solely affects person's seeking temporary, replacement, or regular Georgia Firearms Licenses. However, I see the various incidents as a much more disturbing trend by the probate judges. It shows that these judges are willfully refusing to uphold and follow the letter of the law as created by the legislature; and in a society that is dependent on the the rule of law this could have disastrous results for the citizens of Georgia. For if the courts will not follow the law then our tripartite system of government will fail. It is imperative that the judicial branch act as the arbiter of the law and be very careful to not act as a super-majority against the legislative branch, except in clear cases where law is found to be unconstitutional. When the laws created by the legislative branch are constitutional, the judiciary is bound to follow them. If the probate judges wish to see a change in the law they are free, like every other citizen, to try to persuade their state assembly person to offer legislation that would amend the parts they do not agree with. However, it would be a very dangerous path for the judiciary to take to start striking down laws with which they do not agree. Furthermore, it would be a clear abuse of their power to use their position to in effect change the law without actually amending it. In any case, Georgians have at least one recourse available to them to stop judges that act beyond the scope of their office. Probate judges are elected officials, therefore they can be removed if the people so desire. In the final analysis, we see that some Georgia probate judges do not wish to follow the law. A valid question to ask is: is this all just about a bias against guns? Perhaps it is, but no judge would come out and make their position know in so bold of a form. What we know is that for some, all it took was a letter with supporting documents from a concerned citizen to get their judge to work within the bounds of the system, others needed a strongly worded memorandum from a lawyer to get their attention, while some chose to stick to their guns and had to be sued into submission. But we come back to the question first proposed in the very title of this paper. Are Georgia Probate judges above the law? It has been demonstrated through statutory evidence that they are in fact in violation of the law. I, unfortunately, cannot definitively answer the question because it is not a decision that I alone can make. In time, Georgians will have their answer when the appellate level, or even the State Supreme Court, issues a ruling on the matter. And until the time that this clarification is given, the citizens of Georgia will be left wondering, are probate judges above the law?