challenging 8103 and nics improvement act

WORK IN PROGRESS

§ 40915. Relief from disabilities program required as condition for participation in grant programs
 
(a) Program described. A relief from disabilities program is implemented by a State in accordance with this section if the program--
(1) permits a person who, pursuant to State law, has been adjudicated as described in subsection (g)(4) of section 922 of title 18, United States Code, or has been committed to a mental institution, to apply to the State for relief from the disabilities imposed by subsections (d)(4) and (g)(4) of such section by reason of the adjudication or commitment;
(2) provides that a State court, board, commission, or other lawful authority shall grant the relief, pursuant to State law and in accordance with the principles of due process, if the circumstances regarding the disabilities referred to in paragraph (1), and the person’s record and reputation, are such that the person will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest; and
(3) permits a person whose application for the relief is denied to file a petition with the State court of appropriate jurisdiction for a de novo judicial review of the denial.

34 U.S.C. § 40915
(LexisNexis, Lexis Advance through Public Law 118-22, approved November 17, 2023).)
 

Cal Wel & Inst Code § 8103 (f)(4) – (9) reads
 
If the court finds by a preponderance of the evidence that the person would be likely to use firearms in a safe and lawful manner, the court may order that the person may own, control, receive, possess, or purchase firearms, and that person shall comply with the procedure described in Chapter 2 (commencing with Section 33850) of Division 11 of Title 4 of Part 6 of the Penal Code for the return of any firearms.
 
We address the concern that should a district appellate court find that the CA relief program be considered in compliance with 34 U.S.C. § 40915, said court would in effect read the public interest requirement out of the federal statute, contravening § 105 of the NICS Improvement Amendments Act of 2007, Pub. L. No. 110-180, 121 Stat. 2559, (NIAA) which lays out clear requirements for such a determination. Congress did not intend for this language to be superfluous and thus § 105 will not be construed to render it as such. (Keyes v. Lynch (M.D.Pa. 2016) 195 F. Supp. 3d 702, 705.).
We acknowledge that it is not an appellate court's role to rewrite the statutes that the legislature enacts; no matter how much rewriting may be desired by a particular group or by the appellate court. The court may not rewrite a statute to conform to an assumed intent that does not appear from its language. Just as courts are not allowed to eliminate words that were purposely included in a statute via judicial interpretation, they are also obliged not to add new words or clauses where the legislature purposely omitted. (Thompson v. Western Constr., Inc., 2023 W. Va. App. LEXIS 187, *1) The appellate court’s role is limited to interpreting and applying the Welfare and Institutions Code as it currently exists (Pittman v. Cook Paper Recycling Corp. (Mo.Ct.App. 2015) 478 S.W.3d 479, 480.). Courts may not, under the guise of statutory construction, enlarge or otherwise change the terms of a statute.
In determining the legislative intent, the subject matter, effect, reason for the statute and consequences of proposed interpretations must all be considered, quoting *1209 State ex rel. Hager v. Iowa Nat'l Mut. Ins., 430 N.W.2d 420, 422 (Iowa 1988)); Acker, 541 N.W.2d at 519 (citing identical rules to those quoted from Miller above, and adding that “we will not construe a statute in a way that would produce impractical or absurd results,” and that the court must look at the whole statute and not the separate parts.
We assert that Appellate courts may not rewrite unambiguous statutes or rewrite the clear language of a statute to broaden the statute's application. It is only when the language supports more than one reasonable construction that we consult legislative history, the ostensible objects to be achieved, or other extrinsic aids in order to select the construction that most closely comports with the legislative intent. (Melissa R. v. Superior Ct., 207 Cal. App. 4th 816, 144 Cal. Rptr. 3d 48 (2012)); (In re I.A., 40 Cal. App. 5th 19, 23, 252 Cal. Rptr. 3d 774, 777 (2019)). Furthermore, a court may consider the language used in the statute, the objects sought to be accomplished, the evils and mischiefs sought to be remedied and place a reasonable construction on the statute which will best effect its purpose rather than one which will defeat it. (Prudential Ins. Co. of Am. v. Rand & Reed Powers P'ship, 972 F. Supp. 1194, 1208 (N.D. Iowa 1997), aff'd, 141 F.3d 834 (8th Cir. 1998)
 
Additionally, a determination that a person is able to act in a manner safe to the public and granting of relief would not be dangerous to the public interest is implicit in a finding at a section 8103 hearing. In other words, section 8103’s findings of safe and lawful firearm handling adequately subsumes the inquiry. In supporting this declaration, we turn to both the construction of section 8103 and the overall ambit of the LPS Act.
That said, we need to examine Wel & Inst Code § 8103 (f)(4) – (9). The phrase “safe and lawful” These two words are written in the conjunctive meaning that each word is separate and bears equal weight in the court’s determination. The court may not find that the person can safely use a firearm but bears a tendency to use the firearm in such a manner that may violate state and federal law given that the legislature did not write this clause in the disjunctive with an “or”. The words “lawful” implicates public safety. [continued]
 
Next, we turn to the legislature’s intent. Welfare and Institutions Code section 8103 (f)(4)-(9) was written within the larger LPS Act.
The LPS Act was passed in ____ and was codified to provide prompt evaluation and treatment for the mentally ill and to ensure public safety. (Jacobs v. Grossmont Hosp., 108 Cal. App. 4th 69, 76, 133 Cal. Rptr. 2d 9, 13 (2003), holding modified by Gonzalez v. Paradise Valley Hosp., 111 Cal. App. 4th 735, 3 Cal. Rptr. 3d 903 (2003) Section 8103 (f)(4)-(9) was passed in 2019 as a part of ________. However, its subsequent passage does not preclude it from the protections afforded by the LPS Act. A statute must be construed in context, keeping in mind its statutory purpose vis a vis with other statutory sections relating to the same subject so that all must be harmonized, both internally and with each other, to the greatest extent possible. A statute should be construed whenever possible so as to preserve its constitutionality. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1383 [241 Cal.Rptr. 67, 743 P.2d 1323].)