2008-606 & 2008-721, DAN GARAND v. TOWN OF EXETER & a.

Court (

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

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

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

2008-721 Nos. 2008-606 editorial errors in order that corrections may be made before the opinion goes Rockingham Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as authority, and the two appeals were consolidated.

p. 2 both the decision on the merits and the denial of the motion to submit late

in “refus[ing] to allow him to amend his Petition to allege that the Chief Petition.

Exeter to issue a license to carry to [the plaintiff]” and alleged,

attention of the superior court, which the court denied. The plaintiff appealed reconsideration, the plaintiff filed a motion to bring late authority to the Finally, the petition stated: and granted the defendants’ motion. Following the denial of his motion for 2 petition is necessary in order to obtain compliance with RSA 159:6 et seq.” without valid statutory reason is in violation of . . . RSA 159:6”; and (4) “this

superior court has jurisdiction over only procedural violations of RSA 159:6; (2) related costs and filing and other fees for the bringing of this

(Bolding omitted.) The petition requested the court to “[o]rder the Town of

brought in district court rather than superior court. The superior court agreed this denial to the Exeter District Court within 30 days.

conviction that would prohibit the plaintiff from possessing a gun; (3) “denial

The plaintiff argues that the trial court erred: (1) in determining that the [the plaintiff’s] license and an award of all attorneys’ fees, and

LICENSE TO CARRY – PURSUANT TO NEW HAMPSHIRE RSA 159:6-c-f.”

The defendants moved to dismiss, arguing that the action must be outlined in RSA 159:6. According to RSA 159:6-c you may appeal information, I am rejecting your application under my powers as licensed” (quotations omitted); (2) the denial failed to state any criminal allowing you to carry a concealed weapon. As a result of the above

issuance of an order directing the Exeter Chief of Police to issue 159:6-e, a reversal of the licensing authority’s denial, and the the superior court a pleading captioned, “PETITION FROM DENIAL OF This Petition seeks judicial review and redress pursuant to RSA

(1) the plaintiff had a “proper purpose and was a suitable person to be the phone. This type of behavior is of great concern to me in

2001,” including a number of arrests. Kane concluded: Instead of filing an appeal with the district court, the plaintiff filed with “many contacts [the plaintiff had] with the Exeter police department starting in letter dated April 22, 2008, Kane denied the application, specifically citing

officer. You have a history of drug use, which you denied to me on displayed a violent behavior. You have threatened to kill a police You have consistently showed a disregard for the law. You have

14, 2008, the plaintiff filed an application with Kane for a license to carry. By The trial court found or the record supports the following facts. On April cities and towns. . . . . p. 3 issue the licenses. No other forms shall be used by officials of

supply the same to officials of the cities and towns authorized to

chapter and forms for the application for such licenses and to and directed to prepare forms for the licenses required under this applicant . . . . The director of state police is hereby authorized

writing, the original of which such writing shall be delivered to the

application is denied, the reason for such denial shall be stated in shall be issued within 14 days after application, and, if such defense shall be considered a proper purpose. . . . The license

or municipal court in the jurisdiction in which such person resides

suitable person to be licensed. Hunting, target shooting, or self-

to RSA 159:6-b may within 30 days thereafter, petition the district

or property or has any proper purpose, and that the applicant is a

nonresident, unless requested by the applicant. loaded pistol or revolver has been suspended or revoked pursuant has been denied pursuant to RSA 159:6 or whose license to carry a whose application for a license to carry a loaded pistol or revolver Appeal From Denial, Suspension, or Revocation. Any person applicant has good reason to fear injury to the applicant’s person 159:6-e (2002). RSA 159:6-c provides: less than 4 years from the date of issue, if it appears that the The two provisions specifically at issue are RSA 159:6-c (2002) and RSA applicant to carry a loaded pistol or revolver in this state for not

basis to grant, deny, or renew a license to carry for a resident or II. No photograph or fingerprint shall be required or used as a

authority.

. . . shall issue a license to such applicant authorizing the

statutes. RSA 159:6 provides, in pertinent part:

by New Hampshire law; and (4) in refusing to allow the introduction of late Constitution require that he be allowed to elect his choice of forum as provided Article 15 of the State Constitution and the 14th Amendment to the Federal respectively, upon application of any resident of such town or city, city or some full-time police officer designated by them I. The selectmen of a town or the mayor or chief of police of a

Before addressing the plaintiff’s arguments, we review the relevant

demanding a copy of [his] drivers license”; (3) in failing to find that Part I, (through his agents) had in fact specifically violated RSA 159:6, II by provisions of this chapter.

p. 4 deems such an order necessary to insure compliance with the

with its licensing requirement under RSA 159. In that event a

authority to issue an order ex parte when the justice reasonably justice may order notice by any reasonable means, and shall have the entity. If the justice finds that time is of the essence, the

as to why that application was denied, then the town has complied letter from a town denying an application complete with specifics requirements of the statute. If however a person has received a

copy of the petition on the licensing entity or a person employed by

injunction in superior court forcing the town to comply with the

the justice. The clerk of court or any justice shall order service by the petitioner or the petitioner’s counsel with the clerk of court or sections of this chapter by the licensing entity, and may be filed by

decision then the aggrieved person’s only remedy is seeking an denies an application without giving any reasons for such a for example a town simply ignores an application or formally

sufficient if it states facts constituting a violation of the licensing

The trial court disagreed, ruling:

appear with or without counsel. The petition shall be deemed

the district or superior court depending upon how his application

from a violation of RSA 159:6” and that the plaintiff may choose either forum. petitioner is entitled to a license. decision not later than 14 days after the hearing on whether the or reinstate the petitioner’s license. The court shall issue its chapter priority on the court calendar. Such a petitioner may for injunctive relief. The court shall give proceedings under this superior court of the county in which the alleged violation occurred

A person is charged with the responsibility of petitioning either

The plaintiff contends that “[b]oth statutes provide an avenue for appeal

court shall enter an order directing the issuing authority to grant

sections of this chapter by a licensing entity may petition the

denial, suspension, or revocation was justified, failing which the authority to demonstrate by clear and convincing proof why any petition. During this hearing the burden shall be upon the issuing Violation. Any person aggrieved by a violation of the licensing

RSA 159:6-e, in turn, provides:

court shall conduct a hearing within 14 days after receipt of the to determine whether the petitioner is entitled to a license. The person to be licensed.”

p. 5 property or (b) any proper purpose; and (2) whether the applicant is “a suitable whether the applicant has either (a) good reason to fear injury to his person or – and only two – determinations in deciding whether to grant a license: (1)

overall purpose and to avoid an absurd or unjust result.

licensed.” RSA 159:6, I. Thus, the licensing authority is required to make two

obtaining a license to carry a concealed weapon. An individual

has any proper purpose, and that the applicant is a suitable person to be

the language of the statute to discern legislative intent. We will, language used is clear and unambiguous, we will not look beyond ascribe the plain and ordinary meanings to words used. If the certain convicted felons are unsuitable for the purposes of purposes. RSA 159:3 (2002) and RSA 159:3-a (2002) provide that applicant has good reason to fear injury to the applicant’s person or property or By statute, hunting, target shooting and self-defense are proper

revocation. We noted: obtain permits to carry loaded concealed weapons.” We discussed these determinations in Bleiler in the context of a license

statutory scheme and not in isolation.”

meaning, we first examine its language, and where possible,

possible, every word of a statute should be given effect.” licensing authority to issue a license to an applicant “if it appears that the Police Dep’t, 155 N.H. 693, 696 (2007). RSA 159:6 directs the appropriate

RSA 159:6-e “is part of a statutory scheme that requires individuals to

(quotation omitted).

215, 217 (2002). Finally, “we interpret statutes in the context of the overall not enact unnecessary and duplicative provisions.” State v. Gifford, 148 N.H. Gilroy, 157 N.H. 275, 279 (2008). We also “presume that the legislature does in the words of the statute. When construing the statute’s

presumed to waste words or enact redundant provisions and whenever Formula Dev., 156 N.H. at 178-79 (citations omitted). “The legislature is not

We are the final arbiter of the intent of the legislature as expressed

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

town to the local district court. person’s only remedy is to appeal the factual determination by the licensure.

p. 6 enacting the statute.” interpretation, it provides significant indication of the legislature’s intent in 6 “licensing sections” of RSA chapter 159 within the meaning of RSA 159:6-e. concludes that denial of a license to a qualified applicant is a violation of the

the applicant does not meet the suitability or proper purpose requirements for 159:6-c (Supp. 1979) appeals,”

appeal provision. “While the title of a statute is not conclusive of its

pertaining to the mandated forms. It did not do so.” The plaintiff therefore and reasoned:

ministerial duties and does not provide a means to appeal a determination that prior version of the statute, we “consider[ed] the standard of review in RSA Silverstein v. Town of Alexandria, 150 N.H. 679, 681 (2004). Interpreting a scope “is limited to the issue of whether the petitioner is entitled to a license.” consistently interpreted RSA 159:6-c as an appeal provision and noted that its terms. State v. Gubitosi, 157 N.H. 720, 725 (2008). We have determination by the licensing authority, but merely compliance with their

First, unlike RSA 159:6-e, RSA 159:6-c is, according to its title, an

remedy found in RSA 159:6-e was limited to violations by the licensing entities “[i]f the legislature had wanted to, it could have clearly required that the fingerprints or photographs in violation of RSA 159:6[,] II,” by asserting that RSA 159:6-c, applies only to alleged derelictions of a licensing authority’s that RSA 159:6-e, read as a whole and construed in light of RSA 159:6 and clearly refer only to the procedural requirements of RSA 159:6, we conclude While the term “licensing sections,” RSA 159:6-e, taken alone, does not

notification of denial. Execution of these provisions does not require a

provision] is not unconstitutionally vague on its face.” “procedural violations of the licensing statute, such as a demand for of the term ‘suitable person,’ discussed above, . . . RSA 159:6-b [the revocation The plaintiff counters the argument that RSA 159:6-e applies only to

license, the time frame in which the decision must be made, and the form of authority may not require or use in making the decision to issue or deny a regarding the form of the application, certain information the licensing RSA 159:6 also contains certain mandatory provisions primarily

statutory limitations on the phrase ‘proper purpose’ and the judicial narrowing Alexandria, 150 N.H. 679, 683 (2004)). We concluded that “[i]n light of the Bleiler, 155 N.H. at 702 (citation omitted) (quoting Silverstein v. Town of

unexplained arrest history.” may also be unsuitable if he or she has a “significant and decision-making. p. 7 RSA 159:6-e, connotes a breach of duty rather than an error in deliberative suited to enforcing such provisions. The term “violation,” which is the title of

than the exercise of deliberation. Indeed, the remedy of injunctive relief is well

superior court.

chapter 159 that require strict compliance by the licensing authority rather

we stated in

a petition under that section is addressed to the original jurisdiction of the clarify that our reference to RSA 159:6-e as an avenue of appeal was mistaken; authority. See RSA 159:6-e (2002).” Silverstein, 150 N.H. at 681. We now Rather, it offers a means of enforcing those procedural provisions of RSA for alleged violations of the licensing sections of RSA chapter 159 by a licensing

dicta that “[a] separate appeal avenue to superior court is provided

159:6-c is limited to the issue of whether the petitioner is entitled to a license,” we conclude that RSA 159:6-e does not provide a means for appealing a We note that in Silverstein, after stating that “[a]n appeal under RSA

“violation” to include “the contravention of a right or duty”).

anything suggesting that it prescribes an appellate process. or proper purpose requirements for licensure) of the licensing authority. license.” decision (i.e., a determination that the applicant does not meet the suitability

the exercise of original, and not of appellate, jurisdiction in the case.”). Thus, standard of review is far from deferential, RSA 159:6-c still clearly provides an necessary to enforce the jurisdiction of the issuing appellate court] would be 554 (1878) (“[I]ssuing an injunction for . . . a purpose [other than when

App. Ct. 1999) (noting that “[a]n action for injunctive relief implicates the See Consol. Freightways v. Human Rights Com’n, 713 N.E.2d 148, 150 (Ill. issuance of an injunction is an exercise of original, not appellate, jurisdiction. Rather, it provides a mechanism for obtaining “injunctive relief.” Id. The

RSA 159:6-e, on the other hand, does not contain the word “appeal” or its own determination “whether the petitioner is entitled to a

appeal from a decision of the issuing authority.

suspension, or revocation was justified.” RSA 159:6-c. Although the statutory authority “to demonstrate by clear and convincing proof why any denial, The statute was amended in 1998 to place the burden upon the issuing

Kozerski, 121 N.H. at 472.

contemplates that the district court would hear evidence and make decision of the selectmen. It appears to us that the statute 1979) that any presumption of reasonableness be accorded the (Supp. 1979), there is no requirement under RSA 159:6-c (Supp. Unlike many other appeal statutes, e.g. RSA 541:13; RSA 31:78 by referencing RSA 159:6[,] II in a memorandum of law. Moreover

p. 8 now attempt to bootstrap his claim that this Court has jurisdiction

month. when my father applied for a Pistol/Revolver License in the past

the memorandum is merely a red herring. The plaintiff cannot itself said section was never mentioned. Thus the reference to it in jurisdiction to hear his appeal, the Court notes that in the appeal

Chief personally demanded to copy my father’s drivers license

demanding a photograph.” He further alleged:

memorandum in support of his belief that this Court has

and practice of the Exeter Police Department the Exeter Police Pistol/Revolver License; as further evidence that this is the pattern the plaintiff] should be given an opportunity to amend.” provide his driver license with his Application for a Resident

further response, arguing,

Hampshire law and envisioned by the legislature.” (Bolding omitted.) he “be allowed to elect his choice of forum as clearly mandated by New plaintiff “claim[ed] that the Chief violated [RSA] 159:6[,] II by essentially the plaintiff’s argument regarding the alleged constitutional requirement that Although the plaintiff references [RSA 159:6, II] in his

arguments, we trace their procedural history. In its order granting the motion to dismiss, the trial court ruled:

defective . . . [for failing to specifically allege a violation of RSA 159:6, II, then received [the plaintiff’s] application demanded that [the plaintiff]

159:6, II was not alleged in the plaintiff’s petition. The plaintiff then filed a The defendants filed a responsive pleading, noting that a violation of RSA

plaintiff’s objection to the motion to dismiss for lack of jurisdiction. There the chapter 159 does not provide a choice of appellate forum, we need not address

his petition to allege such a violation. In order to properly address these

The male dispatcher/officer of the Exeter Police Department that

The first reference to RSA 159:6, II in the record before us appears in the the statutory language is ambiguous”). Moreover, having found that RSA

upon legislative history. referencing a violation of RSA 159:6, II; and (2) by not allowing him to amend he was trying to bootstrap his argument that the court had jurisdiction by The plaintiff next argues that the trial court erred: (1) by suggesting that

N.H. 510, 511 (2006) (noting that we “will not examine legislative history unless

meaning of the words used, we need not address the plaintiff’s argument based Having found the legislative intent unambiguously expressed in the plain driver’s license. p. 9 whether the defendants violated RSA 159:6, II by requesting the plaintiff’s that he is not a suitable person for licensure. We express no opinion as to

the plaintiff’s Motion for Reconsideration is denied.

he seeks (issuance of a license) in light of the not yet validly challenged finding

character dispute to be heard in the District Court. Accordingly,

the alleged violation of RSA 159:6, II – it could not grant the plaintiff the relief

Police rejection letter. The legislature intended this type of the plaintiff himself which is detailed specifically in the Chief of However it is clear that the basis for the denial is the character of that even if it took cognizance of the only claim over which it had jurisdiction – was not a suitable person for licensure. The court also correctly concluded it with jurisdiction over the plaintiff’s appeal of Kane’s determination that he

still denied the motion, ruling: an action in superior court captioned as a petition under RSA 159:6-c from violation.” The court reversed its position on the violation of RSA 159:6, II, but Petition, [the court] allow the [plaintiff] to amend his Petition to allege that It appears from the record provided us that the plaintiff in McQuade filed

the McQuade case. factually similar to the instant one. The defendants dispute the relevance of plaintiff, the Court finds that such a request was improper. which the plaintiff asserts the superior court exercised jurisdiction over a claim McQuade v. Donovan, Rockingham Cty. Super. Ct., No. 04-E-0507, a case in in the plaintiff’s petition of an alleged violation of RSA 159:6, II would not vest the introduction of late authority. Specifically, he sought to introduce Finally, the plaintiff argues that the trial court erred by refusing to allow

clearly alleged the photograph violation of [RSA] 159:6[,] II in his original

photograph or fingerprint before agreeing to grant a license to the RSA 159:6, II.”

We find no error. The trial court correctly concluded that the inclusion

that “[i]f the court’s denial of the Petition hinges on [the plaintiff] not having

. . . To the extent therefore that the defendant did request a driver’s license is not a photograph and thus taking a copy of it did not violate plaintiff has argued that the defendant has violated RSA 159:6[,] II. In an apparent effort to keep this case in Superior Court, the

The plaintiff moved for reconsideration, requesting in his prayer for relief

Presumably the court’s final reference is to the defendants’ contention that “a

said section even if it was ripe for decision on its merits. the Court adopts the defendant’s position on the applicability of p. 10 10 introduce late authority. Accordingly, we uphold the trial court’s denial of the plaintiff’s motion to

legislature as expressed in the words of the statute,”

case that purportedly advances a legal proposition we have rejected.

RSA 159:6-c proceedings. As “we are the final arbiter of the intent of the

Thus, the plaintiff cannot be prejudiced by the trial court’s failing to consider a

herein that the superior court does not have subject matter jurisdiction over BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.

unreasonable to the prejudice of his case.” the [party] must demonstrate that the court’s ruling was clearly untenable or of the trial court.”). “To show that the trial court’s decision is not sustainable, 178, a contrary decision by the superior court has no precedential value. discretion. Formula Dev., 156 N.H. at

the plaintiff’s position, he cannot now show prejudice in light of our holding We find no reversible error because, even assuming McQuade supported “neither party” docket markings. The plaintiff considers resolution” could be achieved. The case was later terminated by stipulated 296 (2001) (quotation omitted).

further evidence on a motion for reconsideration rests in the sound discretion

Cf. Farris v. Daigle, 139 N.H. 453, 454 (1995) (“Whether to receive

We review the trial court’s ruling for an unsustainable exercise of

RSA 159:6 et seq. and that it exercised jurisdiction pursuant to RSA 159:6. that the superior court routinely and properly hears cases filed pursuant to

assented-to motion in which the parties expressed hope that an “extrajudicial denial of a license to carry. A hearing was scheduled, but continued by