Mosby v. Devine

• Citation: 851 A.2d 1031
• Decision Date: 10 June 2004
• Docket Number: No. 2001-161-Appeal.,2001-161-Appeal.
• Parties: Charles H. MOSBY, Jr., et al. v. William V. DEVINE, in his capacity as Chief of the Rhode Island Bureau of Criminal Identification, and Patrick C. Lynch, in his capacity as Rhode Island Attorney General.
• Court: United States State Supreme Court of Rhode Island

851 A.2d 1031

Charles H. MOSBY, Jr., et al. v. William V. DEVINE, in his capacity as Chief of the Rhode Island Bureau of Criminal Identification, and Patrick C. Lynch, in his capacity as Rhode Island Attorney General.¹

No. 2001-161-Appeal.

Supreme Court of Rhode Island.

June 10, 2004.

David J. Strachman, Providence, for Plaintiff.

Susan Orso, for Defendant.

Present: WILLIAMS, C.J., FLANDERS, GOLDBERG, FLAHERTY and SUTTELL, JJ.

OPINION

WILLIAMS, Chief Justice.

Few topics have been as controversial as that of the government's right to restrict an individual's capacity to carry a gun. The current controversy began when the plaintiffs, Charles H. Mosby (Mosby) and Steven Golotto (Golotto) (collectively referred to as plaintiffs), applied to the Rhode Island Department of the Attorney General for permits to carry a concealed weapon. The defendants, the chief of the Rhode Island Bureau of Criminal Identification and the Rhode Island Attorney General (collectively referred to as the department), denied the plaintiffs' applications. The plaintiffs sought Superior Court review of the department's decision. A Superior Court motion justice concluded that an application to carry a concealed weapon was not a contested case because a hearing is neither required under the terms of the permitting statute nor under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Because the review of an application to carry a concealed weapon is not a contested case, the plaintiffs' case was dismissed for lack of subject-matter jurisdiction under the Administrative Procedures Act (APA), G.L. 1956 chapter 35 of title 42. We affirm the judgment of the Superior Court.

I Facts and Travel

In 1998, plaintiffs submitted separate applications to the department seeking permits to carry concealed weapons pursuant to the Firearms Act, G.L. 1956 chapter 47 of title 11. The department, under § 11-47-18(a), is authorized to issue a concealed weapons permit "upon a proper showing of need." According to plaintiffs' complaint, Mosby sought a permit because he is a gun collector who sometimes travels with large amounts of money. Golotto, a self-employed shopkeeper, submitted his application because he also travels with large amounts of money and is concerned about the number of robberies in the area where his shop is located.

The department reviewed and denied Mosby's and Golotto's applications by separate letters dated March 25, 1999, and April 29, 1999, respectively. Both denial letters said: "The Department * * * has determined insufficient need to issue a permit for you to carry a concealable weapon as defined in § 11-47-18 of the General Laws of Rhode Island, as amended." Neither letter mentioned the possibility of meeting with the department to contest the denials. However, at Mosby's request, he and his attorney met with former Chief of the Rhode Island Bureau of Criminal Identification, Vincent McAteer (Chief McAteer), to discuss the reasoning behind the rejection. After the meeting, Chief McAteer affirmed his rejection. Golotto never spoke with anyone at the department about the denial of his application.

In June 1999, the department first promulgated a document setting forth its guidelines for reviewing applications to obtain a permit under the Firearms Act. At the time plaintiffs submitted their applications, the department had no written guidelines explaining the application process or the criteria used to review applications. The plaintiffs' applications were judged based on an unpublicized standard, under which individual applications were considered on a case-by-case basis. Decisions of the department were made based upon whether the applicant had demonstrated "an articulable risk" to his life or property and whether the applicant could change his lifestyle to prevent the need for a permit.

The plaintiffs brought the instant suit in Superior Court, arguing that the department's denial of their original applications violated the APA and their civil rights as guaranteed under the Rhode Island Constitution. Consequently, plaintiffs sought a declaratory judgment or a writ of mandamus ordering that the licenses be issued. Alternatively, plaintiffs asked the department to (1) conduct a hearing on their applications, (2) provide written copies of the rules, procedures and standards that the department used to review applications for licenses, and (3) pursuant to the APA, promulgate rules applicable to applications to carry concealed weapons filed under § 11-47-18.

The department moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure. The hearing justice determined that the APA did not vest the Superior Court with subject-matter jurisdiction to review the department's decision because the application process under § 11-47-18 was not a contested case. Consequently, the hearing justice granted the department's motion to dismiss.

The plaintiffs appealed to this Court, and the parties were directed to appear and show cause why the issues raised in the appeal should not summarily be decided. After hearing oral arguments on October 1, 2002, this Court concluded that cause had been shown and, because of the importance of the issues raised in the appeal, that further briefing and argument would be appropriate. We also invited the public to submit amicus curiae briefs discussing the issues in the case. Many organizations accepted our invitation, and we gratefully acknowledge their memoranda.²

II Appellate Filing Fees

We begin by addressing a procedural problem affecting Golotto's appeal. The notice of appeal, filed on February 9, 2001, named both plaintiffs and was signed by their attorney. However, our records indicate that only one filing fee was tendered.³

Although Article I, Rule 3(b) of the Supreme Court Rules of Appellate Procedure allows two parties to file a joint notice of appeal, pursuant to Rule 5(a), each is required to pay the prescribed $150 filing fee. This Court repeatedly has held that the "[f]ailure of a party to tender the requisite fee renders its appeal invalid." Kirby v. Planning Board of Review of Middletown, 634 A.2d 285, 288 (R.I.1993); see also Tateosian v. Celebrity Cruise Services, Ltd., 768 A.2d 1248, 1249 n. 1 (R.I. 2001). Our records reveal that, of the two plaintiffs, the only name written on the receipt issued by the Superior Court clerk's office is Mosby's. Thus, we conclude that the only fee tendered in this case was on his behalf. Consequently, Golotto is not a party to this appeal.

III Subject-Matter Jurisdiction

The hearing justice dismissed Mosby's case for lack of subject-matter jurisdiction under the APA. The APA's judicial review provision provides that: "[a]ny person who has exhausted all administrative remedies available to him within the agency, and who is aggrieved by a final order in a contested case is entitled to judicial review under this chapter." Section 42-35-15(a). (Emphasis added.) The APA defines a contested case as "a proceeding, including but not restricted to ratemaking, price fixing, and licensing, in which the legal rights, duties, or privileges of a specific party are required by law to be determined by an agency after an opportunity for hearing." Section 42-35-1(c).

The hearing justice considered whether the department's decision on Mosby's application must be made "after an opportunity for hearing" under two theories. Under the first, he considered whether the denial of Mosby's application infringed on his right to keep and bear arms as provided by art. 1, sec. 22, of the Rhode Island Constitution. If so, the argument goes, then the Due Process Clause of the Fourteenth Amendment to the United States Constitution would require that Mosby be afforded a hearing on his application. Alternatively, the hearing justice considered whether there is an implicit hearing requirement in the Firearms Act. We address each issue seriatim.

A

Due Process

"The Due Process Clause applies when government action deprives a person of liberty or property * * *." Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979). Protected liberty or property interests "may arise from two sources — the Due Process Clause itself and the laws of the States." DiCiantis v. Wall, 795 A.2d 1121, 1126 (R.I.2002) (quoting Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)).

In determining whether a person has a protected liberty or property interest, "we must look not to the `weight' but to the nature of the interest at stake." Greenholtz, 442 U.S. at 7, 99 S.Ct. 2100 (quoting Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Lynch v. Gontarz, 120 R.I. 149, 157, 386 A.2d 184, 188 (1978) (quoting Roth, 408 U.S. at 577, 92 S.Ct. 2701).

The constitutionally protected concept of liberty has not been defined with exactness. "Liberty * * * is a broad concept including not only freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, and generally to enjoy privileges long recognized as essential to the orderly pursuit of happiness by a free people." In re Advisory Opinion to the House of Representatives Bill 85-7748, 519 A.2d 578, 581 (R.I.1987) (citing Roth, 408 U.S. at 572, 92 S.Ct. 2701).

Only when we conclude that a constitutionally protected interest has been infringed "[will] we inquire whether the procedures afforded were `constitutionally sufficient.'" DiCiantis, 795 A.2d at 1126 (quoting Thompson, 490 U.S. at 460,109...