Osterweil v. Bartlett
| Decision Date | 15 October 2013 |
| Docket Number | No. 167.,167. |
| Citation | 21 N.Y.3d 580,2013 N.Y. Slip Op. 06637,977 N.Y.S.2d 153,999 N.E.2d 516 |
| Parties | Alfred G. OSTERWEIL, Appellant, v. George R. BARTLETT, III, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Greenbaum, Rowe, Smith & Davis LLP, Woodbridge, New Jersey (Daniel L. Schmutter of counsel), and Bancroft PLLC (Paul D. Clement, of the District of Columbia bar, admitted pro hac vice, and D. Zachary Hudson, of the District of Columbia bar, admitted pro hac vice, of counsel) for appellant.
Eric T. Schneiderman, Attorney General, New York City (Claude S. Platton, Simon Heller, Barbara D. Underwood and Richard Dearing of counsel), for respondent.
The United States Court of Appeals for the Second Circuit, by certified question, asks us to decide whether an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere is eligible for a New York handgun license in the city or county where his part-time residence is located. We answer the certified question in the affirmative, on the basis of the relevant statute. As we explain below, it is therefore unnecessary for us to decide the constitutional issues raised by appellant.
Appellant Alfred G. Osterweil, a resident of Summit, New York, a town in Schoharie County, applied on May 21, 2008 for a New York State pistol/revolver license pursuant to Penal Law § 400.00. The Schoharie County Sheriff initiated the required background investigations (see Penal Law § 400.00 [4] ). On June 25, in the course of correspondence on an unrelated matter, Osterweil informed the Sheriff that he had bought a home in Louisiana and that he intended to “make that state my primary residence,” while keeping “a vacation property here in Schoharie County.” Osterweil asked whether he would still be eligible for a handgun license.
At the heart of Osterweil's query is the distinction between residence and domicile. Generally, establishing residence “turns on whether [one] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year” (Antone v. General Motors Corp., Buick Motor Div., 64 N.Y.2d 20, 30, 484 N.Y.S.2d 514, 473 N.E.2d 742 [1984] ), whereas “[e]stablishment of a domicile in a [place] generally requires a physical presence in the [place] and an intention to make the [place] a permanent home” (id. at 28, 484 N.Y.S.2d 514, 473 N.E.2d 742 ), i.e., intent to remain there for the foreseeable future. It follows that an individual can have more than one residence, but only one domicile (see id. ). Osterweil maintained a residence in Schoharie County, but could no longer claim it as his domicile. Therefore, if a New York domicile is required for a handgun license, the statute makes him ineligible.
The Sheriff forwarded Osterweil's application and query to respondent George R. Bartlett, III, Schoharie County Court Judge and also the county's licensing officer. Osterweil submitted an affidavit to Judge Bartlett, stating that he and his wife continued to play a role in “social, political and community affairs” in Summit, even though they no longer made their primary residence there. He also cited the United States Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), in which the Supreme Court struck down a District of Columbia law banning the possession of handguns in the home, holding that “the absolute prohibition of handguns held and used for self-defense in the home” is unconstitutional under the Second Amendment (id. at 636, 128 S.Ct. 2783 ; see also McDonald v. Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 [2010] ).
In May 2009, Judge Bartlett denied Osterweil's application for a handgun license, relying on Penal Law § 400.00(3)(a) and an Appellate Division decision, Matter of Mahoney v. Lewis, 199 A.D.2d 734, 605 N.Y.S.2d 168 (3d Dept.1993), which held that “as used in this statute the term residence is equivalent to domicile” (id. at 735, 605 N.Y.S.2d 168 ). Judge Bartlett further ruled that such a domicile requirement was constitutional, under Heller, as a lawful regulatory measure.
In July 2009, Osterweil commenced this action pursuant to 42 USC § 1983 in the United States District Court for the Northern District of New York, alleging that Judge Bartlett had violated his Second Amendment right to keep and bear arms and his Fourteenth Amendment right to equal protection, by denying his license application on the ground of his domicile.
He sought an injunction ordering the State to grant his application. Judge Bartlett, represented by the Attorney General's office, and Osterweil each moved for summary judgment.
On May 20, 2011, the District Court granted Judge Bartlett summary judgment, rejecting Osterweil's Second Amendment and Fourteenth Amendment claims (see Osterweil v. Bartlett, 819 F.Supp.2d 72, 85–87 [N.D.N.Y.2011] ). On appeal, before the United States Court of Appeals for the Second Circuit, Osterweil reiterated his position that a domicile requirement for handgun possession is unconstitutional. The Attorney General now argued that Penal Law § 400.00(3)(a) does not in fact contain a domicile requirement, obviating the need to reach the constitutional issues. On January 29, 2013, the Second Circuit, in an opinion by retired United States Supreme Court Justice Sandra Day O'Connor, certified the following question to us:
“Is an applicant who owns a part-time residence in New York but makes his permanent domicile elsewhere eligible for a New York handgun license in the city or county where his part-time residence is located?” (Osterweil v. Bartlett, 706 F.3d 139, 145 [2d Cir.2013].)
We accepted the certified question, pursuant to section 500.27 of the Rules of Practice of the Court of Appeals (22 NYCRR) (20 N.Y.3d 1058, 961 N.Y.S.2d 832, 985 N.E.2d 428 [2013] ), and now answer it in the affirmative.
In this unusual case, both appellant and respondent would have us answer the certified question in the affirmative. However, respondent asks us to answer the question purely on the basis of the statute, whereas appellant urges us to rule that the law cannot require domicile for handgun license eligibility because that would be unconstitutional.
We take a straightforward approach to this dispute. If Penal Law § 400.00(3)(a) does not require domicile, then there is no need to decide the constitutionality of a hypothetical statute that requires domicile. The question concerning the meaning of the statute at issue—the question certified to us—must be answered prior to any question concerning its constitutional validity. This is not a case in which we are faced with an ambiguous statute requiring us to favor an interpretation that renders it constitutional over constructions that would invalidate it.
Penal Law § 400.00(3)(a) states that applications for a license to carry a pistol or revolver “shall be made and renewed ... to the licensing officer in the city or county, as the case may be, where the applicant resides, is principally employed or has his principal place of business as merchant or storekeeper.” The applicant's residence is referred to in the context of delineating the procedure whereby an individual files an application for a license. The applicant is instructed to apply to the licensing officer in the city or county where he resides (or is principally employed, etc.). The plain language of the statute is not consistent with the theory that the law requires an applicant to establish domicile as an eligibility requirement. Were it so, we would expect to see the manner of proof of domicile set out in the statute.
Moreover, the legislative history of the statutes that underlay Penal Law § 400.00 evinces an intent to ensure that an applicant for a handgun license applies in his place of residence, rather than an intent to limit licenses to applicants who make their domicile in New York. The residency language was added to the Penal Law by chapter 792 of the Laws of 1931. Former Penal Law § 1897 was amended by adding a subdivision, (9–a), which read as follows:
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