If a probate court says they do not have to issue in 60 days becuase of an Attorney General opinion U78-45, the letter below is a good response:
A copy of the opinion is here:
A copy of the opinion is here:
Honorable _____ _____
Judge, Probate Court of _____ County
city, Georgia zip
Dear Judge ______,
Thank you for ______________. I do wish to point out, however, that I applied on _______ __, 200_, which means that your office took __ days longer than allowed by O.C.G.A. 16-11-129(d).
The justification your office gave me for the delay was a 28 year old Attorney Generalâ€™s Unofficial Opinion that refers to a law enforcement agency report as a "condition precedent." Since the state law appears so clear on the subject that a probate judge shall issue on the 60th day, I was naturally curious and recently obtained a copy of U78-45.
I reviewed the Attorney General's unofficial advice on this matter, and I learned that this opinion is not "binding" on the Probate Court of _____ County. Rather, it is a lawyer's opinion of the law as it was in 1978. In 1978, the law relating to the issuance of a firearms license was substantially different from today. In fact, the opinion says, in pertinent part:
"You will note in both the 1976 and 1978 Acts that this report may initially be given to the judge by way of telephone, but must ultimately come to the judge in written form."
Today, however, the law says:
"When no derogatory information is found on the applicant bearing on his eligibility to obtain a license, a report shall not be required." OCGA 16-11-129(d).
Since the law is now different from when the opinion was written, and a report is no longer required, the opinion should no longer be considered valid as applied to today's statute.
I would also like to take the opportunity to point out that the Unofficial Opinion ignores the fact that if any information is found after the 60 day limit, the Probate Judge may revoke the license. Because this is not mentioned in the Opinion I can only assume this portion of the statute came from a later amendment as well and gives yet one more reason why the three decades old Unofficial Opinion does not apply to today's circumstances.
As I previously mentioned, the law enforcement agency is no longer required to issue a report if no derogatory information is discovered. Also, "Not later than 60 days after the date of the application the judge of the probate court shall issue the applicant a license to carry any pistol or revolver if no facts establishing ineligibility have been reported . . ." OCGA 16-11-129(d). This too has changed since 1978. In 1989 the firearm licensing code was changed from "May Issue" to the "Shall Issue" which is the law today.
May I request a favor?
Would your office contact the Attorney General for an updated opinion that reflects current law? As you probably already know, the Attorney General does not respond to requests for an opinion from any citizen of the state of Georgia, but rather provides opinions to state officers, such as legislators, judges, or district attorneys. I believe that Unofficial Opinion U78-45 needs to be revised to reflect the statute as it currently exists. Attorney General opinions are not carved in stone but, as the Attorney General web site states, "From time to time, opinions may be withdrawn, revised or otherwise made obsolete."
It is my hope that a review by the Attorney General of the applicable Codes and Opinions will result in U78-45 being revised or withdrawn, allowing future applicants to receive their Firearms Licenses in a punctual manner pursuant to current Georgia state law. Thank you for your review and consideration of this matter, and thank you again for your staff's professionalism and courtesy.