2014-0721, Scott L. Bach & a. v. New Hampshire Department of Safety

to provide proof of a “resident state license” to carry a concealed weapon. The require nonresidents applying for a concealed - carry license in New Hampshire chall enged, as ultra vires and invalid, Department administrative rules that New Hampshire Department of Safety (Department). The petitioners had Court (Smukler, J.) entering summary judgment in favor of the respondent, the Jersey Rifle and Pistol Clubs, Inc. (ANJRPC), appeal a decision of the Superior BASSETT, J. The petitioners, Scott L. Bach and the Association of New

general, on the memorandum of law and orally), for the respondent. Joseph A. Foster, attorney general (Dianne Martin, assistant attorney

the brief and orally), for the petitioners. Hartman & Winnicki, P.C., of Ridgewood, New Jersey (Daniel L. Schmutter on Cohen & Winters, PLLC, of Concord (Andrew S. Winters on the brief), and

No. 2014 - 0721 Merrimack

page is: http://www.courts.state.nh.us/supreme. 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 to press. Errors may be reported by E - mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concor d, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule p. 2 22 as 2

to produce proof of their resident state license s to obtain concealed - carry The petitioners argued that, because RSA 159:6 does not require nonr esidents In October p. 2 2013, the petitioners filed a pet ition for declaratory judgment.

p. 2 2103.01(b) (listing reasons to deny a concealed - carry license). to a denial of a concealed - carry license. See N.H. Admin. Rules, Saf - C mental health commitments, and protection orders — any of which could lead and local level, such as records pertaining to drug addiction, involuntary to using certain national databases, rely up on records maintained at the state provided”). When conducting the background check, state officials, in addition house or place of business, without a valid license therefor as hereinafter loaded pistol or revolver . . . concealed upon his person, except in his dwelling, added)); see also RSA 159:4 (2014) (stating that “[n]o person shall carry a purpose, and that the applicant is a suitable person to be licensed” (emphasis license “shall issue . . . i f it appears that the applicant... has any proper New Hampshire. See RSA 159:6 (Supp. 2015) (providing that a concealed - carry applicant is “suitable” to be issued a license to carry a concealed weapon in Unit conducts a background check to determine whether the nonresident After an application is submitted, t he State Police Permits and Licensing

for verification, a resident state license.” N.H. Admin. Rules, Saf - C p. 2 2102.03(b). copy of the applicant’s resident state license, or unless the applicant displays, that “[n]o nonreside nt license shall be issued unless the applicant provides a Admin. Rules, Saf - C 2102.03(a) (quotation omitted). The rules further provide pistol or revolver concealed in the st ate where the applicant resides.” N.H. Saf - C 2102.01 -. 02. “[R] esident state license” is defined as “a license to carry a or license, and his or her resident state license number. N.H. Admin. Rules, occupation, whether he or she has ever been previously denied a pistol permit include the applicant’s name, address, date of birth, physical description, 210 1.01. T he rules require applications for a conceal ed - carry license to [concealed] revo lver or pistol in New Hampshire.” N.H. Admin. Rules, Saf - C the procedures for nonresidents who wish to obtain a license to carry a In July 2013, new administrative rules became effective that “set forth

supporting and defending the Second Amendment.” (Quotation omitted.) shooters, hunters, competitors, outdoors people, and those with an interest in comprised of “more than one million law - abiding firearms owners, target The ANJRPC is a nonprofit corporation in New Jersey. It states that it is

or revolver. H e did not apply to renew his license when it expired in p. 2 2013. 2013, he held a New Hampshire nonresident license to carry a concealed pistol not possess a New Jersey license to carry a co ncealed weapon. From 2004 to The following facts are undisputed. Bach, a New Jersey resident, does

conclude that the rules at issue are ultra vires, we reverse and remand. t rial court concluded that the administrative rules were valid. Because we p. 3 3

in this case. W e, however, need not decide that issue because there is no We also note that the parties dispute whether the ANJRPC has standing

under both the State and Federal Constitutions. Department further argues that the petitioners’ equal protection argument fails r egardless, the administrative rules are consistent with RSA 159:6. The petitioners’ claim that the rules are ultra vires is not preserved, and that, State and Federal Constitutions. The Department counters that the the administrat ive rules violate the guarantee of equal protection under the requirements of RSA 159:6 and are, therefore, ultra vires and invalid; and (2) reversed because: (1) the administrative rules at issue change the On appeal, the petitioners argue that the trial court ’s decision should be

novo.” Id. at ___, 1 p. 3 30 A.3d at 562 (quotation omitted). omitted). “We review the trial court’s application of the law to the fac ts de grant of summary judgment.” Id. at ___, 130 A.3d at 561 - 62 (quotation the moving party is entitled to judgment as a matter of law, we will affirm the our review of that evidence discloses no genuine issue of material fact, and if Concord, 168 N.H. ___, ___, 130 A.3d 548, 561 (2015) (quotation omitted). “If in the light most favorable to the non - moving party.” Farrelly v. City of the affidavits and other e vidence, and all inferences properly drawn from them, “In r eviewing the tri al court’ s grant of summary judgment, we consider

followed. nonresident’ s ongoing eligibility” for a concealed - carry license. This appeal nonresident applicants” and “allow[] New Hampshire to ascertain the “reasonable aid in the New Hampshire determination of the suitability of agreed with the Department that the administrative rules at issue are a information is necessary to determine whether the applicant is suitable,” and “contemplates access to information about an applicant because such administrative rules at issue. The trial court observed that RSA 159:6 involved with pistols and revolvers,” which was sufficient to justify the State “has a c ompelling interest in protecting the public from certain dangers unreasonably infringe upon that right. The trial court also stated that the assuming that such a right existed, the administrative rules at issue do not nor federal constitutional right to carry a loaded concealed weapon, and, even person so long as it is not concealed,” see RSA 159:4, there is neither a state nonresidents generally have the right to carry a pistol or revolver on their claims. The trial court explained that, although “New Hampshire residents and ANJRPC lacked standing, and rejecting Bach’s constitutional and statutory T he trial court granted the Department’s motion, concluding that the

that the ANJRPC lacked standing, and that the petitioners’ claims lacked merit. and statutory c laims. T he Department moved for summary judgment, arguing invalid and unenforceable. The petitioners also raised various constitutional license s in New Hampshire, the administrative rules requiring this proof are p. 4 4

N.H. p. 4 499, 502 (2009). “In construing rules, as in construing statutes, where interpreting both statutes and administrative rules. Petition of Parker, 158 162 N.H. 38, 42 (2011). We use the same principles of construction when administrative rules; therefore, our review is de novo. See Appeal of Keelin B., A ddressing these arguments requires us to interpret st atutes and

nonresident licen se to carry holders.” this state, and allows the Department to “ensure the ongoing eligibility of has regarding the suitability of nonresidents to carry a concealed weapon in concealed weapon “addresses th[e] lack of information” that the Dep artment “requirement that a nonresident present a resident state license” to carry a the suitability requirement of RSA 159:6. According to the Department, the in RSA 159:6. The Department counters that the rules are “consistent with” effectively impose a higher standard than the “suitability” standard contained a concealed - carry license in states like New Jersey, the administrative rules that, because it is “nearly impossible to satisfy” the requirements for obtaining requirements of RSA 159:6.” (B o lding and capitalization omitted.) They argue a home state permit . . . fundamentally and unlawfully alter [s] the T he petitioners a ssert that requiring a nonresident applicant t o “produce

basis for his argument” (quotation omitted)). not use term “due process,” counsel sufficiently alerted trial judge “to the legal that due process argument was preserved because, although trial counsel did argument is preserved. See State v. Bruce, 1 p. 4 47 N.H. 37, 40 (2001) (concluding by the petitioners before the trial court, we conclude that their ultra vires from, or modify” RSA 159:6. (Quotation omitted.) Given the arguments made petitioners argued that the challenged administrative rules “add to, detract in their objection to the Department’s motion for summary judgment, the prerequisite to eligibility for a New Hampshire non - resident license.” More over, “is no basis in law to require such licensing of the non - resident as a must first have a license from his state of residence,” and, further, that there “[n]owhere in RSA [159:6] does New Hampshire law require that a non - resident term “ultra vires” in their petition for declaratory judgment, they did assert that include such a claim.” We disagree. Although the petitioners did not use t he preserved because “nowhere in their original Petition did [the petitioners] As a threshold mat ter, the Department a sserts that this argument is not

rules are ultra vires. will first address the petitioners’ argument that the challenged administrative v. Brouillette, 166 N.H. p. 4 487, 489 (2014) (quotation omitted). Accordingly, we a constitutional provision, we first will address the statutory argument.” State necessary, when a claim of error is based upon both a statutory provision and “Because we decide cases on constitutional grounds only when

arguments as to the merits of the issues before us. dispute that Bach has standing, and Bach and the ANJRPC advance the same p. 5 5

establish a “justifiable need” in New Jersey, (West 201 p. 5 5); see N.J. Admin. Code § 13:54 - 2.3 (a)(3) (2016). In order to has a “justifiable need to carry a handgun.” N.J. Stat. Ann. § 2C:58 - 4(c) - (d) — concealed or otherwise — in New Jersey must demonstrate that he or she For example, an applicant seeking to obtain a permit to carry a handgun

license in their home state s. residents of other states must satisfy in order to ob tain a concealed - carry different from those set forth in RSA 1 p. 5 59:6 — namely, those requirements that administrative rules effectively import i nto New Ha mpshire law requirements By requiring nonresidents to submit proof of their resident state license s, the suitable person to be licensed.” Garand, 159 N.H. at 141 (quotation omitted). or property or (b) any proper purpose; and (2) whether the applicant is a (1) whether the applicant has either (a) good reason to fear injury to his person two — and only two — determinations in deci ding whether to grant a license: Rather, under RSA 159:6, the licensing authority has the authority to “make 2102.01 -.03. However, this requirement i s found nowhere in RSA 159:6. submit proof of their resident state license s. See N.H. Admin. Rules, Saf - C obtain license s t o carry a concealed pistol or revolver in New Hampshire to T he administrative rules at issue here require nonresidents seeking to

(2009) (quotation s omitted). and unexplained arrest history.” Garand v. Town of Exeter, 1 p. 5 59 N.H. 136, 141 159:3 - a. “An indivi dual may also be unsuitable if he or she has a significant the purposes of obtaining a license to carry a concealed weapon. See RSA groups of people, such as felons convicted of certain crimes, are unsuitable for the statutory scheme does not define the term “suitable,” it provides that some be considered a proper purpose.” RSA 159:6, I(a) (emphasis added). Although suitable person to be licensed. Hunting, target shooting, or self - defense shall per son or property or has any proper purpose, and that the applicant is a appears that the applicant has good reason to fear injury to the applicant’s that a license to carry a concealed pistol or revolver “shall” be issued “if it Police Dep’t, 155 N.H. 693, 696 (2007). The statute provides, in pertinent part, obtain permits to carry loaded, concealed weapons.” Bleiler v. Chief, Dover RSA 159:6 is “part of a statutory scheme that requires individuals to

the statute which they are intended to implement.” Id. (quotation omitted). omitted). “Thus, administrative ru les may not add to, detract from, or modify purpose of the statute.” Appeal of Mays, 161 N.H. 470, 473 (2011) (quotation designed only to permit the [agency] to fill in the details to effectuate the execution of the laws,” the “authority to promulgate rules and regulations is administrative agencies the power to promulgate rules necessary for the proper A lthough it “is well settled that the legislature may delegate to

N.H. Dep’t of Safety, 1 p. 6 60 N.H. 474, 477 (2010) (quotation omitted). possible, we ascribe the plain and ordinary meaning to the words used.” Doe v. 6

sufficient information to the Department to prove his suitability. See license in New Hampshire, it is incumbent upon an applicant to provide authority, s ee RSA 159: p. 6 6 - c. Consequently, in order to obtain a concealed - carry ultimate burden of proving the lack of suitability rests with the licensing suitability, see Silverstein v. Town of Alexandria, 150 N.H. 679, 682 (2004), the As we have observed, although the applicant must initially demonstrate

regarding suitability, th at need does not justify the rules at issue here. assuming that the need for information justifies the promulgation of rules to carry concealed weapon s in this state. We are not persuaded. E ven information” that the Department has regarding the suitability of nonresidents submit their resident state license s is necessary to “address[] th[e] lack of Nonetheless, t he Department argues that requiring nonresidents to

most courts have upheld prohibitions on carrying concealed weapons). Columbia v. Heller, 554 U.S. 570, p. 6 626 (2008) (recognizing that, historically, the applicant had a p roper purpose and was otherwise suitable. See D istrict of New Hampshire license to carry a concealed weapon, irrespective of whether existing regulatory scheme, residents of that state would be unable to obtain a another state prohibited the carrying of concealed weapons, then, under the well. For example, as the Department acknowledged during oral argument, if A similarly anomalous result c ould occur under other circumstances as

requirement. Hampshire because he is not able to satisfy the New Jersey “justifiable need” licensed” — he may not be able to obtain a concealed - carry license in New RSA 159: p. 6 6 — that he has a “proper purpose” and “is a suitable person to be although a New Jersey resident may be able to satisfy the two requirements of A.3d 728, 740 (N.J. Super. Ct. App. Div. 2013) (quotation omitted). T hus, that he or she has a justifiable need to carry a handgun.” In re Wheeler, 81 lawfully carry a firearm in a public place unless that person can demonstrate condition, a well - trained and wholly law - abiding and responsible person cannot Jersey observed that “[r]egardless of training and absence of a disqualifying Rev. 515, 520 (2009). T he Appellate Division of the Superior Court of New Kopel, Pretend “Gun - Free” School Zones: A Deadly Legal Fiction, 42 Conn. L. to obtain a permit” to carry a handgun given the “justifiable need” requirement. New Jersey “it is essentially impossible for anyone except a retired police officer N.J. Admin. Code § 13:54 - 2.4 (d)(1) (2016). O ne commentator has noted that in

incidents to the appropriate law enforcement agencies. specific threats or previous attacks by reference to reports of such Where possible the applicant shall corroborate the existence of any avoided by means other than by issuance of a permit to carry a handgun. demonstrate a special danger to the applicant’s life that cannot b e protection, as evidenced by specific threats or previous attacks which a private citizen shall specify in detail the urgent necessity for self - p. 7 7

DAL I ANIS, C. J., and HICKS, CONBOY, and LYNN, JJ., con c urred.

Corp., 161 N.H. p. 7 707, 713 (2011). appeal that were not briefed are deemed waived. See Waterfield v. Meredith petitioners’ constitutional argument. Finally, any issues raised in the notice of Because we hold that the rules are ultra vires, we need not address the

modified our interpretation of a statute, the rules were ultra vires). (noting that, to the extent administrative rules added to, detracted from, or invalid. See Formula Dev. Corp. v. Town of Chester, 156 N.H. 1 p. 7 77, 182 (2007) concealed - carry license s in New Hampshire — are ultra vires and, therefore, provide proof that they hold resident state license s in order to obtain Accordingly, we conclude that the challenged rules — requiring nonresidents to intended to implement,” Mays, 161 N.H. at 473 (quotation omitted). 159:6, and thus, “add to, detract from, or modify the statute which they are issuance of concealed - carry licenses, the rules change the requirements of RSA concealed - carry licenses the requirements established by other states for the issue here effectively incorporat e into New Hampshire’s requirements for that differ from New Hampshire’s statutory requirements. B ecause the rules at New Jersey, may simply be unable to satisfy state requirements for a license Further, we cannot disregard the fact that residents of certain states, like

resident state license. information regarding his suitability in ways other than providing proof of a a nonresident applicant could provide the Department with sufficient the appli cant has a resident state license. As the p etitioners correctly observe, administrative scheme to require a nonresident applicant to supply proof that Silverstein, 150 N.H. at 682. G iven this burden, we see no need for the