Greene County playing fast and lose with CHP 45 day issue rule

[Marco]

Greene County playing fast and loose with CHP 45 day issue rule:


Today my wife went to the Greene County clerks office to see about getting her cert copy of her chp app. as it has been over 45days since she submitted her CHP renewal, (she let her CHP expire unwittingly).

18.2-308.05
If the court has not issued the permit or determined that the applicant is disqualified within 45 days of the date of receipt noted on the application,the clerk shall certify on the application that the 45-day period has expired,and send a copy of the certified application to the applicant. The certified application shall serve as a de facto permit, which shall expire 90 days afterissuance, and shall be recognized as a valid concealed handgun permit when presented with a valid government-issued photo identification until thecourt issues a five-year permit or finds the applicant to be disqualified. Ifthe applicant is found to be disqualified after the de facto permit is issued,the applicant shall surrender the de facto permit to the court and the disqualificationshall be deemed a denial of the permit and a revocation of the de facto permit.If the applicant is later found by the court to be disqualified after a five-year permit has been issued, the permit shall be revoked.


The Clerk informed her the app just went to the Judge today and he doesn't consider the 45day period to start until the app hits his desk.

She explained to the clerk that is not how the law reads, the clerk stated "that is how the judge works".

I'll be speaking with the Sheriff tomorrow.

The wife doesn't want me to make this an issues. LOL

 

[Grapeshot]

Greene County playing fast and loose with CHP 45 day issue rule:


--snipped--

I'll be speaking with the Sheriff tomorrow.

The wife doesn't want me to make this an issues. LOL

Fighting the good fight - thank you.

 

[mobeewan]

This came up a few years ago and VCDL recommended contacting the Chief Justice of the Virginia Supreme Court. It was said he was the one who supervises the judges in Virginia and had taken a interest at the time with judges doing exactly what this one is doing to you by violating Virginia law and not issuing defacto permits. They said to make sure to give details and act respectfully when contacting the Chief Justice. I tried to search the VCDL web site and am having problems finding it.

 

[2a4all]

Greene County playing fast and loose with CHP 45 day issue rule:


Today my wife went to the Greene County clerks office to see about getting her cert copy of her chp app. as it has been over 45days since she submitted her CHP renewal, (she let her CHP expire unwittingly).

18.2-308.05
If the court has not issued the permit or determined that the applicant is disqualified within 45 days of the date of receipt noted on the application,the clerk shall certify on the application that the 45-day period has expired,and send a copy of the certified application to the applicant. The certified application shall serve as a de facto permit, which shall expire 90 days after issuance, and shall be recognized as a valid concealed handgun permit when presented with a valid government-issued photo identification until the court issues a five-year permit or finds the applicant to be disqualified. If the applicant is found to be disqualified after the de facto permit is issued,the applicant shall surrender the de facto permit to the court and the disqualification shall be deemed a denial of the permit and a revocation of the de facto permit.If the applicant is later found by the court to be disqualified after a five-year permit has been issued, the permit shall be revoked.

The Clerk informed her the app just went to the Judge today and he doesn't consider the 45day period to start until the app hits his desk.

She explained to the clerk that is not how the law reads, the clerk stated "that is how the judge works".

I'll be speaking with the Sheriff tomorrow.

The wife doesn't want me to make this an issues. LOL

The statute puts the clock on the clerk, not the judge. I can understand her reluctance to not poke the bear, but if her right to keep and bear is being infringed, what choice does she have? She'll need to be the complaining party, as it's her permit.

Who's your senator? Judges are elected by the senate.

 

[mobeewan]

True, the responsibility is on the clerk, however she has stated that the judge doesn't work that way. It is his court, he has given his instructions to her on how things work, so both the clerk & judge need to be straightened out by higher authority.

Quote from original post:

The Clerk informed her the app just went to the Judge today and he doesn't consider the 45day period to start until the app hits his desk.

She explained to the clerk that is not how the law reads, the clerk stated "that is how the judge works".

A writ of mandamus might be necessary to compel the clerk to do her job regardless of what the judge has instructed. One was used against the Petersburg CC for making extra requirements not required by law.

http://gunwatch.blogspot.com/2013/05/vcdl-takes-on-petersburg-va-circuit.html?m=1

It's a shame that after over 20 years of shall issue and having to constantly amend the CHP law to stop all the silly crap the judges and clerk's keep pulling that it continues to happen over and over again. Part of which is caused by people not wanting to cause issues. That is why they get away with it.

 

[Marco]

The statute puts the clock on the clerk, not the judge. I can understand her reluctance to not poke the bear, but if her right to keep and bear is being infringed, what choice does she have? She'll need to be the complaining party, as it's her permit.

Who's your senator? Judges are elected by the senate.

emphasis mine^
I know and will go with the wife (this time) to help the Clerk understand she is not fulfilling her duties. Might even make the clerk a youtube star.
The Judge isn't the issue yet, but I will contact my Senator if the need arises.

 

[Marco]

UPDATE:

My wife wasn't able to get off work early enough on Fri 8/10, to make it to the County clerks office.

 

[Marco]

Update:
On Friday 8/10 I made several emails and calls to folks I believe could assist in the matter.
All but one contacted me back.. so no more money from them (National Org).

The local orgs and elected officials got back to me ASAP.




Monday, 8/13
I received a call from the Greene County Clerks office at 10:51am stating my wife could pickup her permit today or they could mail it to her, whichever she preferred.

At apprx 12:10pm my wife picked up her permit from the Greene County Clerks office.

We don't wish other Greene County residents to experience this or similar issues so the matter is not completely resolved.


This is an email I received from one of the parties I contacted:



"I have emailed the Clerk of Court, Brenda Compton, to ask that your wife be given a certified copy of her application in accordance with the law. I do not have the Constitutional authority to force the clerk to act, but I do hope she will provide a copy anyhow and that this matter will be resolved.

If it is not resolved on Monday, please let me know or give my office a call"

 

[Marco]

Just got off the Phone;


VCDL (Pres. Phil) and several elected officials were extremely helpful and they contacted the Clerks office and even spoke with the Judge (happens to be new) and helped to got this issue resolved.

And from what I'm told it should be the last time this happens.
,

Looks like the matter is resolved.

 

[Grapeshot]

Just got off the Phone;


VCDL (Pres. Phil) and several elected officials were extremely helpful and they contacted the Clerks office and even spoke with the Judge (happens to be new) and helped to got this issue resolved.

And from what I'm told it should be the last time this happens.
,

Looks like the matter is resolved.

thank you for using your abilities and the direct approach.

 

[Marco]

thank you for using your abilities and the direct approach.

Imho, if we don't standup for ourselves we are doomed. Now the Clerk etc... are on notice.
Kudos to Phil and John..



here is another email I received:

I agree with you that what happened in your wife’s case was not in accordance with the law. Unfortunately,there is no criminal remedy that this office can pursue. Your only remedy would be civil in nature (and thus outside my jurisdiction). You might also prevent this from happening in the future by reaching out to groups like the Virginia Citizens Defense League, and telling them about your experience.

For my part, I have reached out to the Clerk of Court and will shortly speak tothe judge as well to make sure Greene County’s policies are fully compliant with the law. Beyond that, I am afraid I cannot help under current law.

Best,

Matthew D. Hardin
Greene Co. Commonwealth’s Attorney

 

[blahpony]

Good job!

 

[user]

My first observation: it's the court, not the clerk, that is required to issue the permit. Va. Code sxn 18.2-308.04. The judge is a part of the court, as is the clerk, the sheriff, and the other court officers. The onus falls upon the judge, as he rules in his court. I think that if a writ of mandamus were filed with the Supreme Court of Va. (in the exercise of its original jurisdiction), it ought to name the court as the defendant, not any particular person, e.g., The Circuit Court for the County of Greene, and the Sixteenth Judicial Circuit of Virginia" (there's no such place as "Greene County", the true and correct name is "County of Greene").

This is precisely why I suggest making duplicate originals of the application (both notarized) and take both in person to the clerk's office for filing - no mailing. When you file the one that becomes the official filed copy, have the duplicate file-stamped by the clerk (they're required to do this, don't take "no" for an answer - if it becomes an issue, don't argue with the deputy clerk, ask to speak to The Clerk of Court). Any time you file an original pleading (which includes petitions, complaints, applications, etc.) with the clerk, that creates a new civil case with its own case number. You're entitled to a file-stamped copy of whatever you file with the case number on it. Ask to have it certified, extra two bucks, optional but could come in handy. Make sure you make copies or scan your file-stamped copy to PDF, in case some smart-arsed cop decides to do something bad with your original.

So you've got your file-stamped duplicate original with you and the forty-five days are up. Take it back to the clerk's office and ask for the certification required by Va. Code sxn 18.2-308.05. It IS the duty of the clerk to perform that act, regardless of what the judge thinks of it or tells the clerk to do. THE FAILURE OF A CONSTITUTIONAL OFFICER (e.g., the clerk of court) TO PERFORM A DUTY REQUIRED BY LAW CONSTITUTES THE CRIME OF MALFEASANCE IN OFFICE, for which he can be sued civilly. The crime is a class-one misdemeanor, punishable by up to twelve months in jail and $2500, but the serious penalty in this particular class of crime is that the officer found guilty is forever prohibited from serving in any public office in Virginia.

That that copy of the application, showing the date on which it was filed, as certified by the clerk's office, is good as a temporary permit. If the clerk refuses to do so, you can hand your duplicate original to the cop who may ask, showing the date of filing, pointing out that it's been more than forty-five days and this functions as your temporary permit. The failure of the Clerk to perform the duty required is the fault of the Commonwealth, not the citizen, and you'd have a perfect defense in case the cop is too stupid (it does happen on rare occasions) to figure out what the right thing to do is, and arrests you anyway. (And, if he keeps it or crumples it up and throws it away, or some such thing as that (destruction of evidence is a crime, by the way) you've always got your "ace in the hole" copy tucked away. )

 

[Marco]

My first observation: it's the court, not the clerk, that is required to issue the permit. Va. Code sxn 18.2-308.04. The judge is a part of the court, as is the clerk, the sheriff, and the other court officers. The onus falls upon the judge, as he rules in his court. I think that if a writ of mandamus were filed with the Supreme Court of Va. (in the exercise of its original jurisdiction), it ought to name the court as the defendant, not any particular person, e.g., The Circuit Court for the County of Greene, and the Sixteenth Judicial Circuit of Virginia" (there's no such place as "Greene County", the true and correct name is "County of Greene").

This is precisely why I suggest making duplicate originals of the application (both notarized) and take both in person to the clerk's office for filing - no mailing. When you file the one that becomes the official filed copy, have the duplicate file-stamped by the clerk (they're required to do this, don't take "no" for an answer - if it becomes an issue, don't argue with the deputy clerk, ask to speak to The Clerk of Court). Any time you file an original pleading (which includes petitions, complaints, applications, etc.) with the clerk, that creates a new civil case with its own case number. You're entitled to a file-stamped copy of whatever you file with the case number on it. Ask to have it certified, extra two bucks, optional but could come in handy. Make sure you make copies or scan your file-stamped copy to PDF, in case some smart-arsed cop decides to do something bad with your original.

So you've got your file-stamped duplicate original with you and the forty-five days are up. Take it back to the clerk's office and ask for the certification required by Va. Code sxn 18.2-308.05. It IS the duty of the clerk to perform that act, regardless of what the judge thinks of it or tells the clerk to do. THE FAILURE OF A CONSTITUTIONAL OFFICER (e.g., the clerk of court) TO PERFORM A DUTY REQUIRED BY LAW CONSTITUTES THE CRIME OF MALFEASANCE IN OFFICE, for which he can be sued civilly. The crime is a class-one misdemeanor, punishable by up to twelve months in jail and $2500, but the serious penalty in this particular class of crime is that the officer found guilty is forever prohibited from serving in any public office in Virginia.

That that copy of the application, showing the date on which it was filed, as certified by the clerk's office, is good as a temporary permit. If the clerk refuses to do so, you can hand your duplicate original to the cop who may ask, showing the date of filing, pointing out that it's been more than forty-five days and this functions as your temporary permit. The failure of the Clerk to perform the duty required is the fault of the Commonwealth, not the citizen, and you'd have a perfect defense in case the cop is too stupid (it does happen on rare occasions) to figure out what the right thing to do is, and arrests you anyway. (And, if he keeps it or crumples it up and throws it away, or some such thing as that (destruction of evidence is a crime, by the way) you've always got your "ace in the hole" copy tucked away. )

Thank you!!!!!
This right here should be made a sticky and posted so others can use!!!!