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Bach v. New Hampshire Department of Safety

Supreme Court of New Hampshire

June 2, 2016

SCOTT L. BACH & a.
v.
NEW HAMPSHIRE DEPARTMENT OF SAFETY

         Merrimack

          Argued: February 10, 2016

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

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

          BASSETT, J.

         The petitioners, Scott L. Bach and the Association of New Jersey Rifle and Pistol Clubs, Inc. (ANJRPC), appeal a decision of the Superior Court (Smukler, J.) entering summary judgment in favor of the respondent, the New Hampshire Department of Safety (Department). The petitioners had challenged, as ultra vires and invalid, Department administrative rules that require nonresidents applying for a concealed-carry license in New Hampshire to provide proof of a "resident state license" to carry a concealed weapon. The trial court concluded that the administrative rules were valid. Because we conclude that the rules at issue are ultra vires, we reverse and remand.

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

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

         In July 2013, new administrative rules became effective that "set forth the procedures for nonresidents who wish to obtain a license to carry a [concealed] revolver or pistol in New Hampshire." N.H. Admin. Rules, Saf-C 2101.01. The rules require applications for a concealed-carry license to include the applicant's name, address, date of birth, physical description, occupation, whether he or she has ever been previously denied a pistol permit or license, and his or her resident state license number. N.H. Admin. Rules, Saf-C 2102.01-.02. "[R]esident state license" is defined as "a license to carry a pistol or revolver concealed in the state where the applicant resides." N.H. Admin. Rules, Saf-C 2102.03(a) (quotation omitted). The rules further provide that "[n]o nonresident license shall be issued unless the applicant provides a copy of the applicant's resident state license, or unless the applicant displays, for verification, a resident state license." N.H. Admin. Rules, Saf-C 2102.03(b).

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

         In October 2013, the petitioners filed a petition for declaratory judgment. The petitioners argued that, because RSA 159:6 does not require nonresidents to produce proof of their resident state licenses to obtain concealed-carry licenses in New Hampshire, the administrative rules requiring this proof are invalid and unenforceable. The petitioners also raised various constitutional and statutory claims. The Department moved for summary judgment, arguing that the ANJRPC lacked standing, and that the petitioners' claims lacked merit.

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

         "In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party." Farrelly v. City of Concord, 168 N.H. __, __, 130 A.3d 548, 561 (2015) (quotation omitted). "If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment." Id. at __, 130 A.3d at 561-62 (quotation omitted). "We review the trial court's application of the law to the facts de novo." Id. at __, 130 A.3d at 562 (quotation omitted).

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

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


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