Police Com'r of Boston v. Robinson

• Citation: 47 Mass.App.Ct. 767,716 N.E.2d 652
• Decision Date: 21 September 1999
• Docket Number: No. 97-P-1584,97-P-1584
• Parties: POLICE COMMISSIONER OF BOSTON v. Larry ROBINSON & another. 1
• Court: Appeals Court of Massachusetts

Page 652

716 N.E.2d 652

47 Mass.App.Ct. 767

POLICE COMMISSIONER OF BOSTON v. Larry ROBINSON & another. ¹

No. 97-P-1584.

Appeals Court of Massachusetts Suffolk.

Argued March 9, 1999.

Decided Sept. 21, 1999.

Gary E. Lambert, Boston, for Larry Robinson.

Jed M. Nosal, Boston, for the plaintiff.

Present: PERRETTA, PORADA, & LENK, JJ.

LENK, J.

For almost ten years the appellant Larry Robinson held a license to possess and carry firearms for the purpose of target practice. This case has its genesis in the Boston police commissioner's revocation of that license on September 11, 1995, and in the notice the commissioner sent Robinson of that revocation. Under the pertinent provisions of G.L. c. 140, § 131, then in effect, ² the commissioner was required to send Robinson written notice of the revocation and his reason for revoking it. That notice was to be delivered "by hand or any other means necessary to effectuate notification to the licensee." The commissioner sent notice by certified mail on September 11, 1995, which was returned to him unclaimed about a month later. In response to an inquiry Robinson's attorney had made earlier in 1995, he was informed on January 30, 1996, that Robinson's license had been revoked and of the commissioner's effort to serve Robinson by certified mail in September and October of 1995.

Robinson appealed from the revocation on February 29, 1996. The pertinent portion of G.L. c. 140, § 131, provides that a person whose license has been revoked may file a petition for judicial review in Boston Municipal Court "within forty-five days of notification of said revocation." If the date of notification was either the day the commissioner sent notice by certified mail, September 11, 1995, or the last date delivery was attempted, October 10, 1995, Robinson's appeal was untimely. If, however, Robinson was not notified until January 30, 1996, his appeal was timely. The Boston Municipal Court judge ruled that notification occurred on January 30, 1996. The Superior Court judge reviewing the matter pursuant to an action brought by the commissioner in the nature of certiorari disagreed, concluding that notification had occurred in the fall of 1995 and that Robinson's appeal was untimely. That is the nub of the matter now before us.

Background. Robinson, at the time a sixty year old long time Boston homeowner and security guard, held a license to possess and carry firearms for the purpose of target practice from 1985 until February 13, 1995, when he was arrested by Boston police officers for gun related offenses. ³ Robinson left his Roslindale home that day planning to go target shooting in Braintree. While in his driveway inspecting damage to his truck, Robinson was confronted by a local gang member, Miguel Montanez. Robinson suspected Montanez of having damaged the vehicle after Robinson ordered Montanez the previous evening to leave the first floor apartment in Robinson's home. Montanez barraged Robinson loudly with threats to his home and family and refused to leave the Robinson yard. Police arrived to find Robinson pointing his handgun at Montanez.

The criminal charges against Robinson were subsequently dismissed by a judge of the West Roxbury District Court, who ordered police on May 8, 1995, to return Robinson's gun and license; only the gun was returned. Four months later, on September 11, 1995, the commissioner's licensing unit revoked Robinson's license because he was determined not to be a "suitable person" to carry a firearm. Notice was sent that day by certified mail and was returned to the licensing unit on October 16, 1995, the envelope indicating that the letter was unclaimed, with delivery having been attempted on September 13 and October 10, 1995. On January 30, 1996, counsel for the commissioner responded to written inquiry from Robinson's lawyer earlier in 1995 concerning the license, informing Robinson's lawyer that the license had been revoked on September 11, 1995, and copying him with the written notice, unclaimed envelope and receipt for certified mail attached to that notice.

Robinson filed a petition for judicial review in Boston Municipal Court on February 29, 1996. The commissioner moved to dismiss the petition as untimely. After an evidentiary hearing, the judge issued written findings of fact and rulings of law. He denied the motion to dismiss, ruling that the commissioner had not presented "any credible evidence to show that [Robinson] was ever notified of the revocation of his license before January 30, 1996." As to the merits of Robinson's petition, the judge ruled that Robinson had produced substantial evidence to show that he is a proper person to hold a license to carry a firearm, that the police investigation was inadequate to support an informed decision to revoke Robinson's license for cause, that there was no reasonable ground for the revocation of that license, and that the commissioner's action was arbitrary and capricious. The judge reinstated Robinson's license.

The commissioner sought review in the Superior Court by means of an action in the nature of certiorari pursuant to G.L. c. 249, § 4. His complaint alleged that the judge had erred as matter of law in denying the commissioner's motion to dismiss and in finding that the license revocation was arbitrary and capricious. The commissioner also claimed error in the judge's exclusion of hearsay evidence offered to contradict Robinson's account of the February, 1995, incident. The Superior Court judge stayed the Boston Municipal Court judgment, and ordered the commissioner to file a record of the proceedings before the Municipal Court sufficient to determine the issue of excluded hearsay evidence within thirty days. The commissioner failed to comply. Based on the record that was before him, the Superior Court judge subsequently concluded that Robinson had notice of the attempts at service made upon him by certified mail in the fall of 1995 and that the commissioner had thereby satisfied the statutory notice requirement for license revocation set forth in G.L. c. 140, § 131. Robinson's appeal was accordingly untimely and, in light of this ruling, the judge did not reach the merits, including the commissioner's allegation concerning improperly excluded hearsay evidence.

Robinson appeals from the Superior Court judgment, asserting error in two respects. First, he claims that the Superior Court judge exceeded the scope of an action in the nature of certiorari, either because he reversed a fact finding made by the Boston Municipal Court judge or because any error of law by the Boston Municipal Court judge was insubstantial and did not adversely affect material rights. Second, he contends that notice sent by certified mail and returned unclaimed to the sender is insufficient to satisfy the statutory notice requirement for license revocations set forth in G.L. c. 140, § 131.

Discussion. We need not linger long over Robinson's contention that the Superior Court judge exceeded the scope of an action in the nature of certiorari. It is certainly true that the function of a court acting pursuant to G.L. c. 249, § 4, is "not to reverse or revise findings of fact but to correct errors of law." Johnson Products, Inc. v. City Council of Medford, 353 Mass. 540, 541 n. 2, 233 N.E.2d 316, cert. denied, 392 U.S. 296, 88 S.Ct. 2061, 20 L.Ed.2d 1108 (1968). The reviewing judge is limited to what is contained in the record of proceedings below, and it is settled that "[t]he standard of review in an action in the nature of certiorari is 'to correct substantial errors of law apparent on the record adversely affecting material rights.' " MacHenry v. Civil Serv. Commn., 40 Mass.App.Ct. 632, 634, 666 N.E.2d 1029 (1996), quoting from Commissioners of Civil Serv. v. Municipal Ct. of Boston, 369 Mass. 84, 90, 337 N.E.2d 682 (1975).

To the extent that Robinson suggests that the commissioner may not seek, by means of an action under G.L. c. 249, § 4, judicial review of a judgment entered pursuant to G.L. c. 140, § 131, ordering a firearms license to be restored to an individual whom the commissioner thinks unsuitable, Robinson is incorrect. See Chief of Police of Shelburne v. Moyer, 16 Mass.App.Ct. 543, 453 N.E.2d 461 (1983). While it is true that "[a] writ of certiorari will not issue for errors 'which have not resulted in manifest injustice to the petitioner or which have not adversely affected the real interests of the general public,' " W.J. Manning, Inc. v. Boston Traffic & Parking Commn., 350 Mass. 24, 26, 213 N.E.2d 382 (1965) (citations omitted), the real interests of the public may very well be adversely affected when a firearms license is erroneously reinstated.

" 'The goal of firearms control legislation in Massachusetts is to limit access to deadly weapons by irresponsible persons.' Ruggiero v. Police Commr. of Boston, 18 Mass.App.Ct. 256, 258, 464 N.E.2d 104 (1984). Among the principal measures adopted in furtherance of that goal are the provisions of G.L. c. 140, § 131, governing the licensing of persons to carry firearms. Id. at 258-259, 464 N.E.2d 104." MacNutt v. Police Commr. of Boston, 30 Mass.App.Ct. 632, 635, 572 N.E.2d 577 (1991). Robinson's contention that an erroneous reinstatement of a firearms license to an unsuitable person does not adversely affect material rights flies in the face of the goal of G.L. c. 140, § 131, i.e., "to limit access to deadly weapons by irresponsible persons," see ibid., and is accordingly without merit.

The question before us, then, is whether the Superior Court judge erred in reversing the Boston Municipal Court judgment on the basis that Robinson's appeal of his license revocation to the Boston Municipal Court under G.L. c. 140, § 131, was untimely. In concluding that the appeal was untimely, the Superior Court judge determined both that a revocation notice sent by certified mail meets the statutory notice requirement of G.L. c. 140, § 131, ⁴ and that the...