As I previously blogged about, I wrote a letter to the PA Gaming Control Board requesting that it invalidate 58 Pa.Code § 465a.13, as it had unlawfully regulated the possession of firearms in casinos, pursuant to 18 Pa.C.S. § 6109(m.3)(2). On September 8, 2014, I heard back from the PA Gaming Control Board that it would be rescinding the regulation of firearms, pursuant to a Legal Opinion of Attorney General Kane. At that time, I was not provided a copy of the Legal Opinion but have since come into possession of it.
On August 5, 2014, Attorney General Kane issued a Legal Opinion letter stating:
“…the Board’s regulation at 58 Pa.Code § 465a.13(a) contravenes 18 Pa.C.S. § 6109(m.3)…Section 6109(m.3), on the other hand, prohibits a Commonwealth agency from regulating the possession of a firearm in any manner inconsistent with Title 18. The Board is a Commonwealth agency….Accordingly, the Board’s regulation is inconsistent with the provisions of Title 18 inasmuch it regulates the possession of firearms in a location (licensed casino facility) not contemplated by Title 18.”
It looks like many other Commonwealth agencies (Dept of State, PASSHE, DCNR, Bureau of Workers’ Compensation, … etc) may be on the receiving end of demands to rescind their unlawful regulations…
On August 28, 2014, I submitted a Right to Know Law (RTKL) Request to Perry County for all receipts and disbursements by Nauman Smith Law Firm in relation to its representation of the Perry County Auditors. Pursuant to Section 506(d)(1) of the RTKL, third parties possessors must disclose public record, pursuant to the RTKL. On August 29, 2014, it was forwarded to Nauman Smith Law Firm. On September 8, 2014, pursuant to Section 902, Nauman Smith Law Firm requested thirty (30) additional days to respond.
I am somewhat perplexed as to why Nauman Smith Law Firm is unable to immediately provide an accounting of its receipts and disbursements (financial records) related to its representation of the Perry County Auditors. It should not take 30 days to prepare an accounting in a matter that has been billed the entire time. Maybe someone should hire an auditor to assist…It’ll be interesting to see what the accounting reflects….
As many of our viewers are aware, several months ago, on April 19, 2014, I submitted a written request to the Pennsylvania Gaming Control Board to invalidate Section 465a.13, as it violated 18 Pa.C.S. § 6109(m.3). In June, I heard from Chief Counsel of the PA Gaming Control Board that the issue had been forwarded to Attorney General Kane. Today, I heard back from Chief Counsel Sherman that the Attorney General issued a Legal Opinion (I don’t yet have a copy) and that the AG determined that
amendments in 2011 to the Pennsylvania Uniform Firearms Act prohibit the PGCB and other Commonwealth agencies from regulating the possession of firearms in a manner inconsistent with that Act. Accordingly, the Attorney General states that the Board no longer may by Regulation limit the possession of firearms in a licensed casino facility by persons who possess a valid permit to carry a concealed firearm. Given this result, we are preparing an amendment to Board regulation 465a.13 will be presented to the Board at its September 17, 2014 meeting to address this issue. (emphasis added)
Attorney Sherman then continued on to point out that the
Attorney General’s Opinion is not an evaluation of whether the private owners of a state-licensed casino facility may or may not limit the possession of firearms in the privately-owned casino. Thus, each licensed casino facility may or may not chose to limit the possession of firearms on its property. That is a determination which will be left to the discretion of each casino.
So that makes two wins in one day for LTCF holders!
Today, Judge Zanic issued his decision on Sheriff Nace’s Preliminary Objections filed against the Perry County Auditors’ Complaint. A copy of the Order can be obtained here. A copy of the Decision can he obtained here.
The Order simply states, “AND NOW, this 8th day of September, 2014, the Preliminary Objection of Defendant in the nature of a demurrer is SUSTAINED and Plaintiffs’ Complaint is DISMISSED.”
The Decision reviews several of the legal issues involved and declares,
In the case at bar, we have determined that the Complaint is legally insufficient, and as such, a dismissal is required. The Auditors have failed to overcome the demurrer of the Sheriff for two clear and distinct reasons. First, the Complaint improperly seeks to increase the statutory authority of the Perry County Auditors by alleging that auditors in this Commonwealth have the duty to obtain information that was never intended by the statutory language of 16 P.S. §1721 or 16 P.S. §1724. Second, the Complaint does not make any allegation that the Sheriff’s actions have caused the Auditors to fail in performing their statutory duty to audit.
The Decision goes on to state,
Thus, the Complaint appears to be nothing more than a fishing expedition for information unrelated to the Plaintiffs’ statutory duty to audit.
As many of our viewers are aware, I am representing Sheriff Carl Nace in relation to a lawsuit filed against him by the Perry County Auditors to force him to disclose confidential license to carry firearms (LTCF) information. The hearing is currently scheduled for September 2, 2014, at 1:30 PM in Courtroom 1 of the Perry County Courthouse.
Since my last blog on the PA Sheriffs’ Associations Amended Petition for Leave of Court to file Amicus Curiae, a number of documents have been filed:
- The Court Order continuing the matter until September 2, 2014 – here.
- President Judge Zanic’s Order GRANTING the PA Sheriffs’ Association’s Petition for Leave to File Amicus Curiae – here.
- The Auditors’ Brief in Opposition to our Preliminary Objections – here.
- Sheriff Nace’s Brief in Support of the Preliminary Objections – here.
- A Petition to Intervene by John Doe 1, 2, 3 and Jane Doe and Preliminary Objections – here.
Judge Zanic has stated that the Petition to Intervene will not be considered at the hearing on September 2nd and will be considered at a later time, if the Preliminary Objections are overruled. Also, I was informed that the reason for the continuance of the hearing (originally scheduled for today) was a result of Courtroom 1 being utilized today for another matter and the fact that only Courtroom 1 is of sufficient size to accommodate the expected attendance.
Today, we received notice in four separate matters that the determinations of the Pennsylvania State Police (PSP) were being overturned by an Administrative Law Judge (ALJ) appointed by the Attorney General. Attorney Joshua Prince, Chief Counsel of the Firearms Industry Consulting Group (FICG), a division of Prince Law Offices, P.C., represented the four individuals in their appeals from the PSP. These unrelated matters included two occasions, where the PSP refused to accept an out-of-state expungement/set-aside as relieving the individual’s firearm disability, one where an individual was stripped of his right to bear arms during probation, where the court had not ordered such restriction and one where the PSP contended the appeal was untimely, when the individual never received notice of the determination as required by law, even though the PSP conceded that the individual was not prohibited.
We wish to congratulate Attorney Prince on these successes and ensuring that our right to keep and bear arms shall not be infringed.
On August 11, 2014, the Pennsylvania Sheriffs’ Association filed an Amended Petition for Leave To Participate Amicus Curiae and now includes an additional twelve (12) State Representatives. You can download a copy of the Amended Amicus Petition – here.
I was also informed, but have not yet received the notice, that the hearing has been continued to September 2, 2014 at 1:30PM.