Upon reading the House Journal Majority report on this Bill, I am reminded of Strother Martin’s line in Cool Hand Luke, “What we have here…is failure to
communicate…” House Bill 29, was deemed “Inexpedient to Legislate” this past week for reasons that can be best characterized as, “Bizarre.” The bill was an adjustment to the N.H. RSA 159:6-c which addresses Appeal, denial and Revocation of pistol and revolver licenses. Under current law, such actions are heard only in District Court.
In writing for the majority, State Representative Larry Gagne confusingly writes, “RSA 159:6-c was designed to allow a denial to be heard in a district court. This allows the applicant to appeal the decision of the issuing authority either pros or cons with an attorney.” I haven’t the foggiest idea what this means! The Bill has nothing to do with the particular merits of a denial or revocation of a pistol revolver license. Moreover, this bill has absolutely nothing to do with the representation an appellant has or does not have in seeking a remedy under this chapter. HB 29 deals instead with the “forum” in which a remedy is sought from denial or revocation.
Representative Gagne in reporting for the majority continues, “If the issuing authority did not follow the procedure outlined in RSA 159:c, License to Carry, the procedure then is outlined in RSA 159:6-d, which allows the applicant to file in superior court…”
However RSA 159:6-d states, “Notwithstanding the provisions of RSA 159:6, no nonresident holding a current and valid license to carry a loaded pistol or revolver in the state in which he resides or who is a peace officer in the state in which he resides, shall be required to obtain a license to carry a loaded pistol or revolver within this state if:
I. Such nonresident carries upon his person the license held from the state in which he resides; and
II. The state in which such person is a resident provides a reciprocal privilege for residents of this state…”
Perhaps Representative Gagne was actually referring to N.H. RSA 159:6-e, which actually states, “Any person aggrieved by a violation of the licensing sections of this chapter by a licensing entity may petition the superior court of the county in which the alleged violation occurred for injunctive relief. The court shall give proceedings under this chapter priority on the court calendar. Such a petitioner may appear with or without counsel. The petition shall be deemed sufficient if it states facts constituting a violation of the licensing sections of this chapter by the licensing entity, and may be filed by the petitioner or the petitioner’s counsel with the clerk of court or the justice. The clerk of court or any justice shall order service by copy of the petition on the licensing entity or a person employed by the entity. If the justice finds that time is of the essence, the justice may order notice by any reasonable means, and shall have authority to issue an order ex parte when the justice reasonably deems such an order necessary to insure compliance with the provisions of this chapter.
So, on the one hand, we have 159:6-c, which states a petition may be brought in district or municipal courts to for a determination whether or not the issuing authority, by clear and convincing evidence, properly revoked, suspended or denied the issuance or holding of a New Hampshire pistol revolver license.
On the other hand, 159:6-e states that any person aggrieved by a violation may petition the Superior court for “injunctive relief”. Are you kidding me? It’s use is generally limited to tort claims! “Injunctive Relief” is when the court makes an order, that requires someone to do (or not do) a specific deed. Injunctive relief is an extraordinary remedy that courts are hesitant to utilize. Injunctive relief is given in special cases where there is a need to preserve some status quo or specific action to prevent an injustice. Courts simply will not issue injunctions where they feel there is some other alternate remedy available.
Summarily, a prior legal determination must exist for injunctive relief. In many courts, four elements are required: a) There must be a substantial likelihood of success on the merits of the petition/application; b) There is no other adequate remedy at law; c) An injunction will serve some public interest; and, d) Irreparable harm will occur unless the status quo is maintained. In the simplest terms, an issuing authority must deny or revoke a pistol revolver license. Thereafter, the appellant must seek redress through the District court. If the appellant prevails, and the issuing authority still fails to act, then the next legal remedy is this supposed injunction, that is, if that appellant can convince the court he or shee meets the elements.
The majority opinion on this bill appears to errantly imply RSA159:6-e is a remedy of review and error or possibly a “de novo” remedy. That simply is not true. What the majority gleans from it, is either by mistake, ignorance or laziness.
Finally the majority report states, “The passage of HB 29 would be costly and time consuming for both the applicant and the issuing authority. It would also be costly for the taxpayers…” Seriously? Let us not forget there are a number of legal issues in the New Hampshire legal arena where both the Superior and District Courts exercise concurrent jurisdiction of the subject matter. So this whole notion that cost is an issue is nothing more than a red herring.
Such an assertion wrongly assumes two facets: first, denial of pistol revolver licenses is widespread and the remedies exercised are a budgetary constraint on the court system; and, Second, concurrent jurisdiction to hear these cases would be an unsustainable expense on the court system, despite concurrent jurisdiction in other boddies of law. It should also be noted this bill has no fiscal impact note. Had there been a substantial fiscal impact, that would have been so reflected. Is that assumed to be an oversight?
Finally the one other ugly truths is that some district courts around the state are simply unreliable for both local political considerations and faulty application of the law. If ever there is a place where judges get cute and creative with law, it’s in the district courts…One need only ask any landlord that has been before the district courts in either Durham or Manchester, seeking relief. In several cases of appeal of a denial, courts find violations, but refuse to award the statutorily provided for fees and costs, despite its black letter presence in the statute. This change isn’t asking for a second “bite at the apple.” This change merely affords more confidence in remedy.
HB 29 should go to the floor for a roll call vote. Let everybody see “who” is really serious about even handedness in the administration of justice and who is not. I hate taking my Republican friends to task over such issues, but by God, that doesn’t mean I won’t.
The explanation for the ITL is weak, ham-fisted and disjointed. If this committee wants to hang it’s hat on it, Then by all means do so…and enjoy future blogs yet to come.
CROSS POSTED