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

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.
 
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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.
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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.
 
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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.
 
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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?
 
[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.
 
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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.
 
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article 78 can only be filed in appellate court correct?

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

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