Dywinski v. State Of New York (SAFE Act Challenge)

[LancelotLink]

Originally Posted by Maxb49
As a matter of law, temporary restraining orders cannot be granted against a State, body, or officer from carrying out Statutory law. You need a full injunction. This is the way it was in the CPLR, every judge's hands are tied regarding TROs. Nevertheless, the team applied for a TRO. The judge simply cannot grant the request. This isn't simply a lawsuit. The way the order is written places the burden on the State to demonstrate the Constitutionality of the law. That's a major shift from the Petitioner having to prove that the law is unconstitutional. Remember, the judge was not required to sign the order. Further, Mr. Holtz now has a court order. That's a big deal.


This is not always the case.

Edit to add bold until I find the quote button.

[Spats McGee]

Welcome to TFL, LancelotLink!

Do you practice law in NY?

[ChrisWNY]

That's true, but people who claim to know the law don't even agree with each other on what this even means. That's the problem.

The legislators who passed the SAFE Act don't know the law very well either, which is why they're likely to face an injunction over a Constitutional challenge. Hell, few if any of the lawmakers in NYS seem to know the true legal ramifications of the SAFE Act itself. They can't answer basic legal questions when asked (such as questions pertaining to penalties, how the act will be enforced, how registration will be handled, the list goes on)...

Interested in Lancelot's legal background as well. I'll defer to Max to address the more technical legal matters brought up in those 2 posts.

[JimDandy]

The legislators who passed the SAFE Act don't know the law very well either,

Including a law enforcement exemption.

[LancelotLink]

Hi Spats

I am an attorney in NYS.

The language in an order show cause that's causing the confusion is this:

LET THE DEFENDANT or his attorney SHOW CAUSE before Part ____ of this Court, to be held in and for the County of XXXX at the Courthouse located at Room _____, XXXXX, New York shall, on the _____ day of ___________, 2013, at 9:30 A.M. in the forenoon of that day, or as soon thereafter as counsel can be heard, why an Order should not be made:

(Insert what your asking for here)


This is simply the language used in every routine filing. Its just a notice provision, stating essentially, hey you, on such and such a day, i want a court order that does this. If you don't show up, it will proceed on your default.

The side filing the order to show cause still has to prove their case, not the other way around.

Now, it is possible to obtain a TRO when an order to show cause is submitted, but that's even rarer and doesn't seem to be the case here. If it is, then that cause for a huge celebration. But that doesn't seem to be what happened.

Edit: clarify
Second Edit: I have since found out there are other factors that were not known to me initially.

[Spats McGee]

Thanks, LancelotLink.

I haven't seen the show cause order in the instant case, nor do I practice in NY. With that said, let me ask this: How strict might the court be about having exactly that language in the show cause order?

[Dr Big Bird PhD]

This is extremely inaccurate and if the legal team is taking this position they will lose.

I am very unfamiliar with law, let alone NYS law. Why do you think they will lose under those pretenses?

[Maxb49]

[Redacted]
The CPLR prohibits temporary restraining orders from being issued against State bodies or officers in carrying out their statutory duty. This is directly from the CPLR and why the basis the Judge gave for not signing the TRO.

[LancelotLink]

You claimed the following:

(1) Signing an order to show cause is monumental.
You weren't clear why. Normally its fairly routine.

(2) The burden is now on the state to prove the law constitutional.
For normal motion practice, this is not correct. But outside of motions, this general rule may not apply.

Article 22 of the CPLR governs motion practice. David Siegel's New York Practice goes into which party has the burden of proof with motions filed by order to show causes.

I haven't seen the papers filed, so you have that advantage. I'm just basing my comments on what been posted.

[2ndsupporter]

County supreme courts reject article 78 claims? Not trying to stir the poop. Just trying to discern facts here.

[LancelotLink]

So Gov Cuomo walks into bar. ... he comes out SAFE.

[Maxb49]

Lancelot,

The four attorneys in the office right now do not wish to litigate this matter on an anonymous Internet forum.

This thread is here to bring news of the Dywinski case to The Firing Line. The Holtz case has it's own thread. Mr. Holtz would like to keep people updated.

The Order to Show Cause is an Order. TROs will not be issued against State, although they were applied for. We are now on our way to a hearing for an injunction.

[LancelotLink]

article 78 can only be filed in appellate court correct?
County supreme courts reject article 78 claims?


§ 7804. Procedure. (a) Special proceeding. A proceeding under this
article is a special proceeding.
(b) Where proceeding brought. A proceeding under this article shall be
brought in the supreme court in the county specified in subdivision (b)
of section 506 except as that subdivision otherwise provides.

Article 78 proceedings are normally brought in Supreme Court as a special proceeding.

Supreme Court is the lowest trial court in New York

[Maxb49]

[Redacted]

Let's wait until the Holtz lawsuit is published before we start debating it's merits.

[LancelotLink]

Gov Cuomo sees 10 bars. Can he go to only 7?

Edited.

[Spats McGee]

Warning: Y'all can argue the law all day long. That's fine. The name calling and the bickering need to stop, though.

[Al Norris]

Mr. Lancelot, this thread is about the Dywinski case. In that case the Justice did not sign the order.

In another thread, Holtz v. State of New York, the order was signed. Please go to that thread to discuss the order to show cause. Otherwise, it is off topic for this thread.

FYI, there is no quote button on TFL. All quotes must be manually managed. See How do I quote from a post?, for details.

[LancelotLink]

Mr. Lancelot, this thread is about the Dywinski case. In that case the Justice did not sign the order.

In another thread, Holtz v. State of New York, the order was signed. Please go to that thread to discuss the order to show cause. Otherwise, it is off topic for this thread.

FYI, there is no quote button on TFL. All quotes must be manually managed. See How do I quote from a post?, for details.

Thanks for the info on quoting.

I realize I came here like a bolt out of the blue.

I'll tone down my posts here, especially since I'm brand new out of the box.

And I'm certainly not looking to gather secret info either.

I was responding to specific statements that were made by Max, that were unclear. But since I kind of sandbagged him, it really wasn't fair to expect a civil debate, even more since I haven't seen the actual papers.

So how about a do over intro.

Peace Max?

Edit to add: I've since learned more and certain things now make more sense.

[Maxb49]

Thanks for the info on quoting.

I realize I came here like a bolt out of the blue. I did so after a monumental announcement was proposed only to find it was only for a motion.

I'll tone down my posts here, especially since I'm brand new out of the box.

And I'm certainly not looking to gather secret info either.

I was responding to specific statements that were made by Max, that I believe, are inaccurate. But since I kind of sandbagged him, it really wasn't fair to expect a civil debate.

So how about a do over intro.

Peace Max?

Lancelot,

No hard feelings!

Look, as you are an attorney, I'm sure you could understand that there are some things, particularly with respect to strategy, that can truly be considered monumental, but you wouldn't necessarily want to discuss that strategy on a public forum. I'm not trying to keep you out of the loop or put you off in any way.

there has been another attorney, going around, attempting to discredit the lawsuit and bad-mouthing my father. That man is my hero, and I'm not going to let anyone discredit his good name.

Now with that being said, sure, let's start over.

I have to go right now, but I'll be back in a little while. I'll explain the public aspect of the case, why we think this is monumental, and you can reach your own conclusion. Of course, you're free to disagree. But, in the final analysis, we're all on the same side here. We have all, at least those of us in New York, been stripped of our civil rights. We believe we have a very good chance of securing back those rights which have been taken from us.

I'm sorry if I said anything that may have personally offended you, or hurt your feelings in any way. I sure didn't intend for that.

[Spats McGee]

It looks like this one has hit the news:

http://www.thetruthaboutguns.com/201...ct-injunction/

[LancelotLink]

Lancelot,

No hard feelings!

Look, as you are an attorney, I'm sure you could understand that there are some things, particularly with respect to strategy, that can truly be considered monumental, but you wouldn't necessarily want to discuss that strategy on a public forum. I'm not trying to keep you out of the loop or put you off in any way.

there has been another attorney, going around, attempting to discredit the lawsuit and bad-mouthing my father. That man is my hero, and I'm not going to let anyone discredit his good name.

Now with that being said, sure, let's start over.

I have to go right now, but I'll be back in a little while. I'll explain the public aspect of the case, why we think this is monumental, and you can reach your own conclusion. Of course, you're free to disagree. But, in the final analysis, we're all on the same side here. We have all, at least those of us in New York, been stripped of our civil rights. We believe we have a very good chance of securing back those rights which have been taken from us.

I'm sorry if I said anything that may have personally offended you, or hurt your feelings in any way. I sure didn't intend for that.

I've got a thick skin so no worries. And yes, we are all on the same side, including non New Yorkers, because they are spreading.

And so that we're clear, you better not go beyond the public aspect of a case with someone with an 8 post count. If you tried that, I'd get my own gag order against you.

Seriously though, from my end I saw some posts that I saw as giving false hope on aspects of the proceeding that are fairly routine, while ignoring the bigger picture.

With that being said, let me see if I can sum up what can be said publicly and where the confusion arises, not to fight but to make whatever updates you post clearer.

1) Both cases are Article 78 proceedings.
2) Article 78 Proceedings are special proceedings which by definition, are fast tracked.
3) Discovery and motion practice is limited in an Art 78 (this is where I think the confusion arose over the OSC)
4) You got an OSC in an Art 78, which is rare. Outside a 78, its common.
5) An OSC is a motion, but its also an order.

So the OSC is big because its part of the Art 78, that's my take on what you're saying.

Do you mind if I ask if you're a lawyer too?

And finally, I will stipulate that you're a fighter. Man, you came back like a coiled snake.

[Aguila Blanca]

After reading the above exchange, I (as a non-New Yorker) have some mild concerns that Max is perhaps broadcasting more of the thought processes behind the cases than is perhaps wise, at least on an open forum. A good poker player never lets the other players in the game know what he's holding -- which, to me, in s legal matter translates to what (and how) he's thinking.

[Maxb49]

That's all pretty much public information, but if it worries you, I'll redact that and send it in a pm.

[LancelotLink]

PM received and responded. Thanks for clarifying a few things. Hopefully my PM will put what I said in better context.

So, where do I pick up the award for the most memorable entry to forum.

[speedrrracer]

So if we "win" an injunction in this, the lowest court in NY, how does the appeal of the injunction go?

Does the injunction gets stayed pending the appeal, meaning the law goes forward?

Thanks from those of us unfamiliar with law in general and esp NY law