Doe v. Becerra

• Citation: 229 Cal.Rptr.3d 43,20 Cal.App.5th 330
• Decision Date: 08 February 2018
• Docket Number: C081994
• Court: California Court of Appeals
• Parties: Alvin DOE et al., Plaintiffs and Appellants, v. Xavier BECERRA, as Attorney General, etc., et al., Defendants and Respondents.

20 Cal.App.5th 330

229 Cal.Rptr.3d 43

Alvin DOE et al., Plaintiffs and Appellants,

v.Xavier BECERRA, as Attorney General, etc., et al., Defendants and Respondents.

C081994

Court of Appeal, Third District, California.

Filed February 8, 2018

Benbrook Law Group, Bradley A. Benbrook, Sacramento, and Stephen M. Duvernay for Plaintiffs and Appellants.

Xavier Becerra, Attorney General, Marc A. LeForestier, Acting Senior Assistant Attorney General, Stepan A. Haytayan and Jeffrey A. Rich, Deputy Attorneys General, for Defendants and Respondents.

RENNER, J.

This case involves a challenge to the California Department of Justice's (DOJ) policy that individuals who possess a federal license to collect "curio and relic" firearms cannot, by virtue of possessing that license, purchase more than one non-curio or relic handgun in a 30-day period. DOJ's position is based on an interpretation of Penal Code section 27535,¹ which both limits the number of handguns that can be purchased in a 30-day period and exempts individuals with the federal collector's license (and a certificate of eligibility from DOJ) from that limit. DOJ announced the disputed position in a 2014 letter to California firearms dealers.

DOJ's position was challenged by two licensed firearms collectors, who alleged DOJ failed to comply with the Administrative Procedures Act (APA) ( Gov. Code, § 11340 et seq. ) in adopting this policy, and also sought a declaration of rights. The trial court granted defendants and respondents Attorney General Xavier Becerra and Chief of the Bureau of Firearms Stephen J. Lindley's motion for summary judgment and denied plaintiffs and appellants Alvin Doe and Paul A. Gladden's cross-motion for summary judgment on plaintiffs' complaint for declaratory relief. The trial court ruled that DOJ's position embodied the only legally tenable interpretation of section 27535.

On appeal, plaintiffs argue the interpretation DOJ announced in 2014 is void because (1) it is inconsistent with section 27535 and (2) it was not adopted in compliance with the APA. We agree with plaintiffs and address their arguments in reverse order. Regarding their second argument, we conclude DOJ's policy is not exempt from being promulgated under the APA because it does not embody "the only legally tenable interpretation" of the statute. ( Gov. Code, § 11340.9, subd. (f).) Having decided that DOJ's 2014 interpretation of section 27535 is void for failure to comply with the APA, we resolve any ambiguity regarding the proper construction of the statute and construe it as allowing individuals with the designated federal license, and certificate of eligibility, to purchase more than one handgun within 30 days regardless of the type of handgun being purchased. In doing so, we agree with plaintiffs' first argument as well. We reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Section 27535 contains both a limitation on the number of handguns that can be purchased in a 30-day period and several exceptions from that limit. The statute provides, in relevant part:

"(a) No person shall make an application to purchase more than one handgun within any 30-day period.

"(b) Subdivision (a) shall not apply to any of the following:

"[¶] ...[¶]

"(9) Any person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, and has a current certificate of eligibility issued by the Department of Justice pursuant to Article 1 (commencing with Section 26700) of Chapter 2." As we discuss in more detail below, a person who is licensed as a collector under title 18 United States Code section 921 and the regulations issued pursuant thereto holds the aforementioned federal license to collect "curio and relic" firearms.

In 2005, the deputy attorney general who was representing what was then called the Firearms Division, responded by email to an inquiry from a licensed collector regarding an earlier version of section 27535, subdivision (b)(9). The deputy attorney general explained, "I have been advised that it is our long-standing policy for DOJ to exempt all firearms purchases by [curio and relic] licensees from the provisions of [former section] 12072[, subdivision] (a)(9)(A) [the ‘one gun per month’ limit], even if the firearms are not curios and relics."

On May 8, 2014, Chief Lindley sent a letter to California firearms dealers regarding the licensed collector exemption that took a decidedly different position.² The letter relied on federal regulations referenced by the statutory exemption and explained, "it is clear that federal law does not permit the licensee to use the curio and relic license in transactions other than those involving curio and relic firearms, nor grants them any other special status over a non-licensee when the transaction involves non-curio and relic firearms. These provisions of federal law are specifically referenced in ... section 27535, subdivision (b)(9). [¶] Therefore, the exemption provided in ... section 27535, subdivision (b)(9), shall not be used for the sale of any handguns other than those defined as curio and relics under federal law, and any such transaction shall be discontinued immediately. Any transactions violating California or federal law that are not canceled by the dealer will be canceled by the California Department of Justice, Bureau of Firearms." Prior to announcing this policy, DOJ did not follow the rulemaking procedures set forth in the APA.

Plaintiffs, who are licensed collectors under federal law and have current certificates of eligibility issued by DOJ, subsequently filed a complaint stating two causes of action for declaratory relief. The first cause of action alleges a controversy between plaintiffs and defendants regarding the interpretation of section 27535 and whether it only exempts purchases involving curios or relics.³ The second cause of action seeks a judicial declaration that DOJ's enforcement policy regarding section 27535 is invalid because it was adopted without complying with the APA.

The parties filed cross-motions for summary judgment on plaintiffs' complaint and stipulated to the relevant facts. The trial court granted defendants' motion and denied plaintiffs' motion.

The trial court held the plain meaning of section 27535, subdivision (b)(9)"recognizes that [curio and relic] licenses relate to the purchase of curios and relics" and the exemption therefore "extends only to curios and relics." The trial court determined the legislative history of a prior unpassed bill, that suggested a different conclusion, had no bearing on the interpretation of section 27535, and the legislative history of section 27535 itself "simply indicate[s] that ‘licensed collectors' are exempt from the rule, but in no way indicate[s] that they are exempt from the rule for anything other than curios and relics." The trial court emphasized section 27535"was enacted to curtail the illegal gun market, disarm criminals and save lives by preventing multiple purchases of handguns, even through legitimate channels . [Citation.] Such history does not reflect a goal of permitting collectors of curios and relics to purchase an unlimited number of modern handguns."

The 2005 email did not alter the trial court's decision: "[T]here is no showing how [the deputy attorney general] was ‘advised’ of any such policy.

There simply is no showing that the DOJ has reversed course on a long standing policy such that the position set forth in the 2014 [letter] is not entitled to deference." The court determined the letter was entitled to significant deference because DOJ has expertise in enforcement of firearms laws, but the deference accorded in this situation "is at most a minor issue given the Court has found that the ... [e]xemption in [ section] 27535 can only be interpreted in the manner urged by Defendants." Indeed, the court held DOJ was not required to comply with the APA because its construction of section 27535, subdivision (b)(9) was the only "legally tenable" interpretation: "[T]he Court finds that the ... [e]xemption ‘can reasonably be read only one way[,’] that is to apply only to curios and relics."

The trial court entered judgment accordingly, and plaintiffs timely appealed.

II. DISCUSSION

A. Standard of Review

The trial court's resolution of the cross-motions for summary judgment and the underlying statutory construction issue is subject to our de novo review because it raises pure questions of law. ( Regents of University of California v. Superior Court (1999) 20 Cal.4th 509, 531, 85 Cal.Rptr.2d 257, 976 P.2d 808.)

B. Compliance with the APA

The APA sets forth procedures for the adoption of an administrative regulation and provides that a failure to follow them voids the agency action. ( Gov. Code, § 11340.5, subd. (a) ; Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 572, 59 Cal.Rptr.2d 186, 927 P.2d 296.) The APA defines "regulation" broadly to include "every rule, regulation, order, or standard of general application or the amendment, supplement, or revision of any rule, regulation, order, or standard adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure." ( Gov. Code, § 11342.600.)

Defendants contend the APA's procedural requirements do not apply because their policy "embodies the only legally tenable interpretation of a provision of law." ( Gov. Code, § 11340.9, subd. (f).) "This exception codifies the principle that ‘[i]f certain policies and procedures ... are ... "essentially [ ] a reiteration of the extensive statutory scheme which the Legislature has established" ... then there is obviously no duty ... to enact regulations to cover such reiterations, since the sixth commandment of "nonduplication" prescribes "that a regulation does not serve the same purpose as a state ... statute. ..." [Citation.] But to the extent any of...