Garand v. Town of Exeter

• Decision Date: 31 July 2009
• Docket Number: 2008–721.,Nos. 2008–606,s. 2008–606
• Citation: 159 N.H. 136,977 A.2d 540
• Parties: Dan GARAND v. TOWN OF EXETER & a.
• Court: New Hampshire Supreme Court

159 N.H. 136

977 A.2d 540

Dan GARAND

v.TOWN OF EXETER & a.

Nos. 2008–606

2008–721.

Supreme Court of New Hampshire.

Argued: March 17, 2009.

Opinion Issued: July 31, 2009.

Law Offices of Penny S. Dean, of Concord (Penny S. Dean on the brief and orally), for the plaintiff.

Flygare, Schwarz & Closson, PLLC, of Exeter (Daniel P. Schwarz on the brief and orally), for the defendants.

HICKS, J.

The plaintiff, Dan Garand, appeals orders of the Superior Court (McHugh, J.): (1) dismissing his appeal from a decision of defendant Richard Kane, Chief of Police for defendant Town of Exeter, that denied the plaintiff a license to carry a loaded pistol or revolver (license to carry), see RSA 159:6 (Supp.2008) ; and (2) denying his motion to introduce late authority to the court. We affirm.

The trial court found or the record supports the following facts. On April 14, 2008, the plaintiff filed an application with Kane for a license to carry. By letter dated April 22, 2008, Kane denied the application, specifically citing "many contacts [the plaintiff had] with the Exeter police department starting in 2001," including a number of arrests. Kane concluded:

You have consistently showed a disregard for the law. You have displayed a violent behavior. You have threatened to kill a police officer. You have a history of drug use, which you denied to me on the phone. This type of behavior is of great concern to me in allowing you to carry a concealed weapon. As a result of the above information, I am rejecting your application under my powers as outlined in RSA 159:6. According to RSA 159:6–c you may appeal this denial to the Exeter District Court within 30 days.

Instead of filing an appeal with the district court, the plaintiff filed with the superior court a pleading captioned, "PETITION FROM DENIAL OF LICENSE TO CARRY—PURSUANT TO NEW HAMPSHIRE RSA 159:6–c – f." (Bolding omitted.) The petition requested the court to "[o]rder the Town of Exeter to issue a license to carry to [the plaintiff]" and alleged, inter alia, that: (1) the plaintiff had a "proper purpose and was a suitable person to be licensed" (quotations omitted); (2) the denial failed to state any criminal conviction that would prohibit the plaintiff from possessing a gun; (3) "denial without valid statutory reason is in violation of ... RSA 159:6"; and (4) "this petition is necessary in order to obtain compliance with RSA 159:6 et seq." Finally, the petition stated:

This Petition seeks judicial review and redress pursuant to RSA 159:6–e, a reversal of the licensing authority's denial, and the issuance of an order directing the Exeter Chief of Police to issue [the plaintiff's] license and an award of all attorneys' fees, and related costs and filing and other fees for the bringing of this Petition.

The defendants moved to dismiss, arguing that the action must be brought in district court rather than superior court. The superior court agreed and granted the defendants' motion. Following the denial of his motion for reconsideration, the plaintiff filed a motion to bring late authority to the attention of the superior court, which the court denied. The plaintiff appealed both the decision on the merits and the denial of the motion to submit late authority, and the two appeals were consolidated.

The plaintiff argues that the trial court erred: (1) in determining that the superior court has jurisdiction over only procedural violations of RSA 159:6 ; (2) in "refus[ing] to allow him to amend his Petition to allege that the Chief (through his agents) had in fact specifically violated RSA 159:6, II by demanding a copy of [his] drivers license"; (3) in failing to find that Part I, Article 15 of the State Constitution and the 14th Amendment to the Federal Constitution require that he be allowed to elect his choice of forum as provided by New Hampshire law; and (4) in refusing to allow the introduction of late authority.

Before addressing the plaintiff's arguments, we review the relevant statutes. RSA 159:6 provides, in pertinent part:

I. The selectmen of a town or the mayor or chief of police of a city or some full-time police officer designated by them respectively, upon application of any resident of such town or city, ... shall issue a license to such applicant authorizing the applicant to carry a loaded pistol or revolver in this state for not less than 4 years from the date of issue, if it appears that the applicant has good reason to fear injury to the applicant's person or property or has any proper purpose, and that the applicant is a suitable person to be licensed. Hunting, target shooting, or self-defense shall be considered a proper purpose.... The license shall be issued within 14 days after application, and, if such application is denied, the reason for such denial shall be stated in writing, the original of which such writing shall be delivered to the applicant.... The director of state police is hereby authorized and directed to prepare forms for the licenses required under this chapter and forms for the application for such licenses and to supply the same to officials of the cities and towns authorized to issue the licenses. No other forms shall be used by officials of cities and towns_____

II. No photograph or fingerprint shall be required or used as a basis to grant, deny, or renew a license to carry for a resident or nonresident, unless requested by the applicant.

RSA 159:6.

The two provisions specifically at issue are RSA 159:6–c (2002) and RSA 159:6–e (2002). RSA 159:6–c provides:

Appeal From Denial, Suspension, or Revocation. Any person whose application for a license to carry a loaded pistol or revolver has been denied pursuant to RSA 159:6 or whose license to carry a loaded pistol or revolver has been suspended or revoked pursuant to RSA 159:6–b may within 30 days thereafter, petition the district or municipal court in the jurisdiction in which such person resides to determine whether the petitioner is entitled to a license. The court shall conduct a hearing within 14 days after receipt of the petition. During this hearing the burden shall be upon the issuing authority to demonstrate by clear and convincing proof why any denial, suspension, or revocation was justified, failing which the court shall enter an order directing the issuing authority to grant or reinstate the petitioner's license. The court shall issue its decision not later than 14 days after the hearing on whether the petitioner is entitled to a license.

RSA 159:6–e, in turn, provides:

Violation. Any person aggrieved by a violation of the licensing sections of this chapter by a licensing entity may petition the superior court of the county in which the alleged violation occurred for injunctive relief. The court shall give proceedings under this chapter priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of the licensing sections of this chapter by the licensing entity, and may be filed by the petitioner or the petitioner's counsel with the clerk of court or the justice. The clerk of court or any justice shall order service by copy of the petition on the licensing entity or a person employed by the entity. If the justice finds that time is of the essence, the justice may order notice by any reasonable means, and shall have authority to issue an order ex parte when the justice reasonably deems such an order necessary to insure compliance with the provisions of this chapter.

The plaintiff contends that "[b]oth statutes provide an avenue for appeal from a violation of RSA 159:6" and that the plaintiff may choose either forum. The trial court disagreed, ruling:

A person is charged with the responsibility of petitioning either the district or superior court depending upon how his application for a license to carry a weapon has been considered by a town. If for example a town simply ignores an application or formally denies an application without giving any reasons for such a decision then the aggrieved person's only remedy is seeking an injunction in superior court forcing the town to comply with the requirements of the statute. If however a person has received a letter from a town denying an application complete with specifics as to why that application was denied, then the town has complied with its licensing requirement under RSA 159. In that event a person's only remedy is to appeal the factual determination by the town to the local district court.

The issue before us is one of statutory construction, which we review de novo, Formula Dev. Corp. v. Town of Chester, 156 N.H. 177, 178, 934 A.2d 504 (2007), applying well-settled standards:

We are the final arbiter of the intent of the legislature as expressed in the words of the statute. When construing the statute's meaning, we first examine its language, and where possible, ascribe the plain and ordinary meanings to words used. If the language used is clear and unambiguous, we will not look beyond the language of the statute to discern legislative intent.

We will, however, construe all parts of the statute together to effectuate its overall purpose and to avoid an absurd or unjust result.

Formula Dev., 156 N.H. at 178–79, 934 A.2d 504 (citations omitted). "The legislature is not presumed to waste words or enact redundant provisions and whenever possible, every word of a statute should be given effect." Town of Amherst v. Gilroy, 157 N.H. 275, 279, 950 A.2d 193 (2008). We also "presume that the legislature does not enact unnecessary and duplicative provisions." State v. Gifford, 148 N.H. 215, 217, 808 A.2d 1 (2002). Finally, "we interpret statutes in the context of the overall statutory scheme and not in isolation." State v. Balliro, 158 N.H. 1, 4, 959 A.2d 212 (2008) (quotation omitted).

RSA 159:6–e "is part of a statutory scheme that requires individuals to obtain permits to carry loaded concealed weapons." Bleiler v. Chief, Dover Police Dep't, ...