Brief of Amicus Curiae The Rhode Island Affiliate of The American Civil Liberties Union, Mosby v. McAteer

STATE OF RHODE ISLAND PROVIDENCE, SC.

SUPREME COURT

CHARLES H. MOSBY JR. and STEVEN GOLOTTO Appellants :

Vs.

VINCENT MCATEER, in his capacity
as Chief of the Rhode Island Bureau of
Criminal Identification and SHELDON
WHITEHOUSE, in his capacity as
Rhode Island Attorney General Appellees :

C.A. No. 01-0161

BRIEF OF AMICUS CURIAE
THE RHODE ISLAND AFFILIATE OF THE
AMERICAN CIVIL LIBERTIES UNION

Thomas W. Lyons, Esquire (#2946)
STRAUSS, FACTOR, LAING & LYONS
403 South Main Street
Providence, RI 02903
Tel: (401) 456-0700
Fax: (401) 421-4730
E-Mail: tlyons@straussfactor.com

TABLE OF CONTENTS

Index of Citations

..................................................................

i

Travel of the Case

..................................................................

1

Facts

..................................................................

2

Issues Presented

.................................................................

8

Argument

..................................................................

9

I. Appellants Have Fundamental Constitutional Rights Protected by
the Rhode Island and United States Constitutions.

9

II. Appellants Are Entitled to Due Process Before Their Constitutional Rights
Are Denied or Restricted.

17

III. Appellees Failed to Provide Due Process By Failing to Notify Appellants of
the Factors Used to Decide Their Applications and By Failing to Hold a
Hearing Before Deciding on the Applications.


20

IV. The Administrative Procedures Act Requires The Department of the
Attorney General To Apply The APA's Rule-Making and Contested Case
Provisions To The Pistol Permit Program.


23

Conclusion ...................................................................................

27

INDEX OF CITATIONS

CASES

A.J.C. Enterprises, Inc. v. Pastore , 473 A.2d 269 (R.I. 1984).

17

American Trucking Association v. E.P.A. , 175 F.3d 1027, (D.C. Cir. 1999).

13

Amsden v. Moran , 904 F.2d 748 (1st Cir. 1990).

18

Aurelio v. Rhode Island Department of Administration, 985 F.Supp. 48 (D.R.I. 1997).

18

Avanzo v. Rhode Island Department of Human Services , 625 A.2d 208 (R.I. 1993).

18

Baffoni v. State Department of Health , 118 R.I. 226, 373 A.2d 184 (R.I. 1977).

16

Cole v. Housing Authority of the City of Newport , 312 F.Supp. 692 (D.R.I. 1970).

16,

17

Colonial Hilton Inns of New England, Inc. v. Rego , 284 A.2d 69 (R.I. 1971).

25

Considine v. Rhode Island Department of Transportation , 564 A.2d 1343 (R.I. 1989).

24

Corr v. Mattheis , 407 F.Supp. 847 (D.R.I. 1976).

18,

21

Dahl v. Begin , 660 A.2d 730 (R.I. 1995).

10

Davis v. Wood , 427 A.2d 332, appeal after remand, 444 A.2d 190 (R.I. 1981).

17,

19

DePetrillo v. Coffey , 118 R.I. 519, 376 A.2d 317 (1977).12
Dionne v. Bouley , 757 F.2d 1344 (D.R.I. 1985).19
Edwards v. Leavor , 102 F.Supp. 698 (D.R.I. 1952).16
Goldberg v. Kelly , 392 U.S. 254 (1970).

18

Hallmark Clinic v. North Carolina Department of Human Resources , 380 F.Supp.1153 (E.D.N.C. 1974).

16

Hooper v. Goldstein , 104 R.I. 32, 241 A.2d 809 (1968) .

26

In re: Rhode Island Bar Association , 118 R.I. 489, 374 A.2d 802 (1977) .

24

Jones v. State of Rhode Island 724 F.Supp. 25 (D.R.I. 1989).

18

Kasprowicz v. Fink , 574 N.W.2d 564 (N.D. 1998).14

Landry v. Farmer , 564 F.Supp. 598 (D.R.I. 1983).

24

Lee v. State of Rhode Island , 942 F.Supp. 750 (D.R.I. 1996).

18,

19,

21

Leone v. Town of New Shoreham , 534 A.2d 871 (R.I. 1987).

18

Lewis v. District of Columbia Commission on Licensure to Practice Healing Act , 385 A.2d 1148 (D.C. App. 1978).

18

Marran v. Baird , 635 A.2d 1174 (R.I. 1999).

11,

12

Matthews v. Eldridge , 424 U.S. 319, 335 (1976).

19

Massenzio v. Board of Review , 103 R.I. 473, 238 A.2d 350 (1968).

21

Millet v. Hoisting Engineers Licensing Division , 119 R.I. 285,
377 A.2d 229 (1977).

16

Mills v. Howard , 109 R.I. 25, 280 A.2d 101 (1971).

18,

19

Morey v. Martha's Vineyard Commission , 409 Mass. 813,
569 N.E.2d 826 (1991).

14,

15

Mosby v. McAteer , 2001WL91407 (R.I.Super. Jan. 10, 2001).

9-10

Murray v. Blatchford , 307 F.Supp. 1038 (D.R.I. 1969).18

New England Telephone and Telegraph Co. v. Fascio , 105 R.I. 711, 254 A.2d 758 (1969).

26

Nolan v. Representative Council of City of Newport , 73 R.I. 498, 57 A.2d 730,(1948).

17

Orabona v. Cianci , 2000WL33159152 (R.I. Super. March 20, 2000).15

Pawtucket School Committee v. Pawtucket Teachers Alliance , 610 A.2d 1104
(R.I. 1992).

26

Raper v. Lucey , 488 F.2d 748 (1st Cir. 1973).

18,

21

Silveira v. Lockyer , 312 F.3d 1052 (9 th Cir. 2002).

9

State v. Kilday , 90 R.I. 91, 155 A.2d 336 (1959).17

State v. Patterson , 2002WL31749398 (R.I.Super. Nov. 20, 2002).

14
State v. Storms , 112 R.I. 121, 308 A.2d 463 (1973).

9,

12,

22

The Providence Journal Company v. Pine , C.A. 96-6274, June 24, 1998.

5

United States v. Emerson , 270 F.3d 203 (5 th Cir. 2001), cert. den., 122 S.Ct. 2362 (2002).

9

United States v. Miller , 307 U.S. 174 (1939).

9

Valdez v. Ottawa , 105 Ill.App.3d 972, 62 Ill.Dec. 595, 434 N.E.2d 1192 (1982).

18

Warren Education Association v. Lapan , 103 R.I. 163, 235 A.2d 866 (R.I. 1967).

17

Westenfelder v. Ferguson , 988 F.Supp. 146 (D.R.I. 1998).

16

Yellow Cab Co. v. Public Utilities Hearing Board , 102 R.I. 100,
228 A.2d 542 (1967).


26

Yellow Cab Co. v. Public Utilities Hearing Board , 101 R.I. 292, 222A.2d 361 (1966).

26

CONSTITUTIONAL PROVISIONS

R.I. Const. Art. 22.

9

Due Process Clause of the Rhode Island Constitution.26
Due Process Clause of the United State Constitution.26

Equal Protection Clause of the United States Constitution.

15
Privilege and Immunities Clause of the United States Constitution.15
R.I. Const. Act. 6, §§1, 2.11
Second Amendment of the United States Constitution.

8

OTHER

2 Am.Jur.2d "Administrative Law", §152.14

STATUTES

R.I.G.L. §11-47-7.

11
R.I.G.L §11-47-8(a).11
R.I.G.L. §11-47-9.

11,

22

R.I.G.L. §11-47-10.

11

R.I.G.L. §11-47-11.

10,

15

R.I.G.L. §11-47-12.

10,

11

R.I.G.L. §11-47-15.11

R.I.G.L. §11-47-18.

10,

11,

25

R.I.G.L. § 42-35-1.

23

R.I.G.L. § 42-35-1.1.

26

R.I.G.L. § 42-35-1(a).

23

R.I.G.L. § 42-35-1(h).

24

R.I.G.L. § 42-35-2(a)(2).

23
R.I.G.L. § 42-35-2(a)(3).23

R.I.G.L. § 42-35-2(b).

23

R.I.G.L. § 42-35-3.

24

R.I.G.L. § 42-35-18.

26,

28

TRAVEL OF THE CASE

In 1998 and 1999, respectively, Plaintiffs Charles Mosby and Steven Golotto filed applications for pistol permits with the Attorney General, formerly defendant Sheldon Whitehouse. Defendant Vincent McAteer, on behalf of the Attorney General, decided that the Attorney General should deny those applications. In March and April 1999, the Department of the Attorney General issued pre-printed forms bearing the Attorney General's signature and denying the applications.

Plaintiffs filed suit in the Superior Court on December 22, 1999. After two days of testimony and arguments and submission of legal memoranda, the Court denied plaintiffs' various requests for relief and entered judgment for defendants on January 10, 2001. Defendants appealed.

FACTS

Plaintiff Charles Mosby is a mechanical and electrical engineer who lives in Massachusetts. He is a gun collector who has held gun licenses issued by the States of Massachusetts, New Hampshire, Maine, Florida and by the Bureau of Alcohol, Tobacco and Firearms. Plaintiff Steven Golotto owns a business in Smithfield. He has occasionally carried large sums of cash and was concerned about being robbed.

Defendant Vincent McAteer is chief of the Bureau of Criminal Information of the Department of the Attorney General. He "make[s] the final approval for the issuance of concealed weapon permits." (Hearing transcript at p.2). The Attorney General signs the permits. ( Id. ).

In March 1999, there was no written policy or procedure in the Department of the Attorney General respecting the issuance of pistol permits. (Hearing transcript, p. 8). The procedure McAteer followed in deciding whether to grant a permit consisted of reviewing the application and the applicant's initial letter stating why he or she wanted a permit. The applicants did not get any form of a hearing before McAteer made a determination on the application. (Hearing transcript, pp. 19-20). If McAteer did not see a "need" for a permit based on the application and letter he would send out a pre-printed form denying the application. The denial form did not state the applicant could request a hearing of any kind.

McAteer testified that whether a permit would be issued depended on whether the applicant had shown an "articulable risk." He defined this as whether "a person can actually point to a threat or at least a danger to him or her which would be alleviated by the use of, by his possession of a weapon." (Hearing transcript, p. 10). McAteer would then evaluate the "veracity" of the "articulable risk" relying on his law enforcement experience. (Hearing transcript, p. 11). Other factors would be "the perceived risk," "the weight of the risk" and "can that risk be eliminated or alleviated to the point where the person does not need the permit if he were to change his behavior." (Hearing transcript, p. 11). These factors were not disclosed to the applicants prior to McAteer's decision.
McAteer derived these factors based on his experience and knowledge of law enforcement. (Hearing transcript, p. 12). McAteer's experience in law enforcement consisted of 26 years in the Cranston Police Department during which he held a variety of positions including chief. He also attended various seminars on crime prevention and attended the Secret Service Dignitary Protection School. He sent people to firearms school. McAteer has a bachelor's and master's degree in criminal justice.

In March 1999, McAteer determined that Mosby did not need a concealed weapon permit based on Mosby's 1998 letter requesting a permit. That letter said Mosby was a gun collector and would like to take part in gun collecting activities in the State of Rhode Island. McAteer did not "see that as sufficient reason to issue somebody a permit to carry a weapon, either concealed or not concealed on his person in the State of Rhode Island." (Hearing transcript, pp. 13-15). McAteer felt that gun collecting did not provide a sufficient showing of need because: "If he makes a purchase, and he can transport the firearm, as long as its securely wrapped and unloaded and securely wrapped." (Hearing transcript, p. 66).

The denial letter sent to Mosby on March 25, 1999 did not state he could request an interview with McAteer. (Hearing transcript, p. 20). Mosby's counsel requested a copy of the Department's rules and regulations respecting permit applications and a formal hearing on the application. McAteer denied those requests but held an informal meeting with Mosby and his counsel. McAteer's decision did not change after the meeting.

Plaintiff Golotto filed his application in February 1999. McAteer sent a letter to the Smithfield police chief asking whether there was any reason to deny Golotto a permit. The police chief responded "I have no knowledge why the above applicant should not be granted the right to carry a concealed weapon." (Hearing transcript, pp. 53-54). McAteer's assistant contacted the Smithfield Police Department to ask whether there had been recent robberies in the area. The assistant wrote "I contacted Smithfield PD; and that stated this area has no problems to be concerned with." (Hearing transcript, p.50). There is no record or information who at the Smithfield Police Department made this statement. (Hearing transcript, p. 55). Based, in part, on this information, McAteer denied Golotto's application. Golotto was not told he could request a hearing and he apparently did not do so.

The Attorney General's office has since adapted an internal policy used to determine whether to grant a permit to carry a concealed weapon. (Hearing transcript, pp. 3-4). The policy was formulated in June 1999. (Hearing transcript, p. 5). The formulation consisted of discussions among attorneys and staff at the Attorney General's office which they drafted as "various suggestions" for review by their superiors. (Hearing transcript, p. 6). The document itself is three pages long. Id .

Before June 1999, McAteer would take phone calls from people about why their applications were denied. "We decided then to make it part of the process." (Hearing transcript, pp. 21-22). The application form itself was not changed to state the applicant could request an interview. (Hearing transcript, pp. 22-23). The three page policy document was not initially provided to the public when they requested an application. (Hearing transcript, p. 24). The policy document was given only to those who requested it. ( Id. )

The policy states, in part:

If an individual is able to demonstrate a proper showing of need, the Attorney General then has discretion to issue or deny a pistol permit. The Providence Journal Company v. Pine , C.A. 96-6274, June 24, 1998. No one in the State has a right to obtain a pistol permit. A pistol permit is a privilege left to the sound discretion of the Attorney General... the Attorney General shall retain the right to accept or reject any application for a pistol permit upon his sole determination of a "proper showing of need."

The policy set forth the factors McAteer had previously considered as well as a number of other factors, including: "Any and all other factors deemed lawful and appropriate by the Attorney General to demonstrate that the applicant is or is not a person suitable to possess a loaded fireman in public." Following these factors, the policy states: "After assessing the above factors, the Attorney General in his sole discretion shall grant or deny the pistol permit." The policy concludes: "This policy is not intended to and does not confer any rights on any person. As required by law, the Attorney General shall retain the right to accept or reject any application for a pistol permit upon his sole determination of a 'proper showing of need.' "

If McAteer deemed the application insufficient, he still sent out a preprinted form denying it. The form now states the applicant can request a meeting during which the applicant and McAteer discuss the applicant's need to carry a weapon. (Hearing transcript, pp. 16-17). McAteer said that these meetings take place:

. . . because a person who is writing his reason requesting a pistol permit does so in letter form, and the letter is vague, it doesn't include all the relevant information. Sometimes these are reasons which are not put down on paper which come out in the course of an interview with someone. And in this particular situation [i.e., Mosby's], looking at the letter itself, the letter was woefully inadequate as far as a request for the pistol permit went . . .

(Hearing transcript, p. 85-86).

McAteer also advises Rhode Island applicants they can apply to their local police chief for a permit. (Hearing transcript, pp. 17-18). McAteer testified he did not know what policies or procedures were used by local police chiefs. (Hearing transcript, pp. 69-70).

The Attorney General's written policy does not provide for an appeal from McAteer's decision. However, if someone is not satisfied with McAteer's decision, he or she could go see the Attorney General himself. (Hearing transcript, p. 18).

During the pendency of the lawsuit, after the hearing in Superior Court had started, the Attorney General's office changed its policy though an internal discussion and subsequent approval by the Attorney General. (Hearing transcript. p. 68). The policy now states that applicants will receive an entire packet with "all relevant information regarding pistol permits." (Hearing transcript, pp. 66-67). The entire packet is now also available on the Attorney General's website. (Hearing transcript. pp. 71-72).

Of thirty-two pistol permit applications produced by defendants at the hearing, eleven were granted. Of those eleven, nine were police officers, marshalls, constables or prison guards. One was a person who demonstrated fire arms to the police. (Hearing transcript, p. 115).

ISSUES PRESENTED

Whether Appellants Have Fundamental Constitutional Rights Protected by the Rhode Island and United States Constitutions?

Whether Appellants Are Entitled to Due Process Before Their Constitutional Rights Are Denied or Restricted?

Whether Appellees Failed to Provide Due Process By Failing to Notify Appellants of the Factors Used to Decide Their Applications and By Failing to Hold a Hearing Before Deciding on the Applications?

Whether The Administrative Procedures Act Requires The Department of the Attorney General To Apply The APA's Rule-Making and Contested Case Provisions To The Pistol Permit Program?

Argument

I. Appellants Have Fundamental Constitutional Rights Protected
By The Rhode Island and United States Constitutions

Article 22 of the Rhode Island Constitution provides a constitutional right to keep and bear arms. It states in its entirety: "The right of the people to keep and bear arms shall not be infringed." Notably, this provision, unlike the Second Amendment of the United States Constitution, does not contain the prefatory clause, "A well-regulated militia, being necessary to the security of a free state... ." A number of federal and state courts and perhaps, the Supreme Court, have held the prefatory clause limits the scope of the federal provision. See, e.g., Silveira v. Lockyer , 312 F.3d 1052 (9th Cir. 2002), citing the Supreme Court's "somewhat cryptic" discussion of the Second Amendment in United States v. Miller , 307 U.S. 174 (1939); contra , United States v. Emerson , 270 F.3d 203 (5th Cir. 2001), cert. den., 122 S.Ct. 2362 (2002). Those holdings would not necessarily apply to Article 22 which is written more broadly.

This Court has said Article 22 does not bar, "in broad terms," a state licensing scheme, nor does it prevent the state from barring pistols to criminals. State v. Storms , 112 R.I. 121, 308 A.2d 463 (1973). Nevertheless, the Article does grant some kind of constitutional right to keep and bear arms. Id. Beyond that, the Court has not defined the scope of Article 22.

The Superior Court's passing treatment of this issue is puzzling. It quotes the language of Article 22 providing a right to "bear arms" but immediately says this provision "does not guarantee a right . . . to carry a weapon." Mosby v. McAteer , 2001WL91407 at 6 (R.I.Super. Jan. 10, 2001). The court provides no explanation of how it reaches this conclusion. There is no review of the historical basis of Article 22 and no reference to any case law from other jurisdictions. The constitutional words "bear arms" mean something. Unfortunately, neither the Department's "policy" nor the Superior Court's decision provide a helpful analysis.

This amicus curiae submits that the Supreme Court should not resolve in this appeal the exact scope of Article 22. For that matter, it may be ill-advised to attempt that definition given the scanty record on that issue before the Court. See , Dahl v. Begin , 660 A.2d 730 (R.I. 1995) ("We shall not reach a constitutional issue unless and until it is absolutely necessary to do so.") Rather, the Court should decide that whatever the scope of Article 22, it is sufficient to establish liberty and property interests that are protected by constitutional and administrative due process requirements. The Court should remand the matter for further proceedings in accordance with those requirements.

Before discussing those due process requirements, this amicus curiae will finish reviewing the substantive constitutional rights that give rise to those requirements.

The General Assembly has passed a statute that on its face restricts to some degree the state constitutional right by requiring a permit to bear a pistol or revolver. The statute says:

No person shall, without a license or permit, issued as provided in §§11-47-11, 11-47-12 and 11-47-18, carry a pistol or revolver in any vehicle or conveyance or on or about his or her person whether visible or concealed, except in his or her dwelling house or place of business or on land possessed by him or her or as provided in §§ 11-47-9 [exemption for law enforcement officials] and 11-47-10 [exemption for taking pistol to target range].

R.I.G.L §11-47-8(a). This Court has said that the legislature's goal in enacting this provision was:

. . . to prevent criminals and certain other persons from acquiring firearms generally and handguns in particular without at the same time making unduly difficult such acquisition for other members of society.

State v. Storms , 308 A.2d at 464.

The General Assembly has delegated to the Attorney General and municipal authorities the power to issue pistol permits. The provision respecting the Attorney General states:

The Attorney General may issue a license or permit to any person twenty-one (21) years of age or over to carry a pistol or revolver, whether concealed or not, upon his or her person upon a proper showing of need, subject to the provisions of §§ 11-47-12 [licensing fee] and 11-47-15 [shooting accuracy test], that license or permit may be issued notwithstanding the provisions of § 11-47-7 [provision prohibiting aliens from having permits]. (emphasis added).

R.I.G.L. § 11-47-18.

This amicus curiae believes the Attorney General's interpretation of the statutory scheme potentially raises certain constitutional issues. One issue is the non-delegation doctrine. The Rhode Island Constitution forbids unrestricted delegation of legislative power by the General Assembly. R.I. Const. Act. 6, §§ 1,2; Marran v. Baird , 635 A.2d 1174 (R.I. 1999). The General Assembly may delegate its legislative powers if that delegation is limited by standards sufficient to continue the exercise of power for the purpose for which the delegation was made. DePetrillo v. Coffey , 118 R.I. 519, 376 A.2d 317 (1977).

Although this Court held in the Storms case, supra , that the statute did not violate the non-delegation doctrine, the issue arises again because of the Attorney General's present interpretation and application of his authority under the statute. Essentially, the Attorney General claims unfettered discretion to grant or deny pistol permit applications. For example, in the written policy the Department states: "This policy is not intended to and does not confer any rights on any person. As required by law, the Attorney General shall retain the right to accept or reject any application for a pistol permit upon his sole determination of 'proper showing of need.' " The policy also allows the Attorney General to consider "Any and all other factors deemed lawful and appropriate by the Attorney General to demonstrate that the applicant is or is not a person suitable to possess a loaded firearm in public." In other words, even if an applicant meets the previous criteria set forth in the policy, the Attorney General's policy apparently reserves the right to deny the application. Conversely, it is also possible the Attorney General is reserving the right to grant an application that does not meet those other criteria.

In any event, the policy as written gives the Attorney General overly broad latitude to grant or deny permit applications, depending, perhaps, on the Attorney General's personal views of gun rights. See , e.g ., American Trucking Association v. E.P.A. , 175 F.3d 1027, 1034-38 (D.C. Cir. 1999). In that case, the D.C. Circuit addressed the EPA's construction of some provisions of the Clean Air Act governing the acceptable levels of certain pollutants and the regulations the EPA adopted under those provisions. With respect to the extent of discretion claimed by the EPA, the Court said:

Here, EPA's [claimed] freedom of movement between the poles is equally unconstrained, but the poles are even further apart - the maximum stringency would send industry not just to the brink of ruin but hurdling over it, while the minimum stringency maybe close to doing nothing at all . . . here EPA's formulation of its policy judgment leaves it free to pick any point between zero [pollution] and a hair below the concentrations yielding London's Killer Fog.

Id . at 1037. The Court said such an interpretation of the statute, if accurate, constituted an unconstitutional delegation of power by Congress. Id . at 1038. It remanded the case to allow the agency an opportunity to develop an interpretation and to promulgate regulations that did not violate the non-delegation doctrine. Id .

The North Dakota Supreme Court recently interpreted its state concealed weapon licensing statute. There, the chief of the Bureau of Criminal Information was delegated the authority to decide such license applications after an investigation by the sheriff. The sheriff recommended disapproval of the plaintiff's application. The BCI chief decided the application was incomplete because it lacked the sheriff's approval. The court remanded the plaintiff's appeal holding the BCI chief must make the final decision. The court made a number of comments very pertinent to this case:

A statute vesting unfettered discretion in a public official or agency raises questions of constitutionality. [citations omitted]. "We interpret statutes to avoid constitutional questions if possible." [citations omitted]...

The legislature has not specified in detail how the BCI chief is to exercise his licensing authority or the extent of any discretion the BCI chief may exercise in deciding whether to issue or deny a license... "unbridled discretion allows for capricious and arbitrary discrimination in violation of the due process clauses." [citation omitted].

Kasprowicz v. Fink , 574 N.W.2d 564, 568 (N.D. 1998).

This amicus curiae doubts the General Assembly would have intended that a permit depend on the political predilections of whoever happened to be Attorney General. Certainly, constitutional rights cannot depend on such predilections. For example, we can easily imagine that permit applications could be treated very differently under Attorney General Charlton Heston than they would be under Attorney General Sarah Brady, a situation that may be neither constitutional nor advisable. Yet, that precisely the position the Attorney General presently takes.

On the other hand, if the Attorney General incorrectly assumes unbridled discretion, then his "policy" is ultra vires . Courts have recognized that administrative actions that exceed legislatively delegated authority are unlawful. See , e.g ., State v. Patterson , 2002WL31749398 at p. 5 (R.I.Super. Nov. 20, 2002) (Justice Thunberg), citing 2 Am.Jur.2d "Administrative Law", §152; Morey v. Martha's Vineyard Commission , 409 Mass. 813, 569 N.E.2d 826 (1991). The trial justice himself has recognized this principle. See , Orabona v. Cianci , 2000WL33159152 at 3 (R.I. Super. March 20, 2000).

Other constitutional issues arise when one compares the provision delegating authority to the Attorney General with the provisions of R.I.G.L. §11-47-11 that require a city or town licensing authority to issue a permit to any resident meeting the statutory qualifications:

The licensing authority of any city or town shall, upon application of any person twenty-one (21) years of age or over having a bona fide residence or place of business within such city or town,... issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state for four (4) years from date of issue, if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed. (emphasis added).

Under this statute local authorities must issue permits to qualifying residents.

The upshot is that qualified local residents and businesspeople can get licenses through local authorities but those non-locals, including a Massachusetts resident like Mosby with numerous other state and federal licenses, who have to apply to the Attorney General are subject to his unfettered discretion. Although the statutes do not contain identical criteria for a permit, the Attorney General's "policy" appears to reduce or eliminate the differences, except for his discretion. Potentially, the result could be that people who are not local residents or business people could find it much more difficult to get permits.

This potential discrimination against non-residents would violate the state and federal Due Process Clauses. R.I. Const. Art. 1, §2; U.S. Const. amend. 14, §1. See , Baffoni v. State Department of Health , 118 R.I. 226, 373 A.2d 184, 188-89 (R.I. 1977) (statute requiring non-resident electrologists to serve an apprenticeship with a resident electrologist was an arbitrary and unreasonable exercise of the police power); Millet v. Hoisting Engineers Licensing Division , 119 R.I. 285, 377 A.2d 229 (1977) (Licensing regulation that discriminated against non-residents was unconstitutional). "[D]ue process cannot tolerate a licensing system that makes the privilege of doing business dependent on official whim." Id. at 236, quoting Hallmark Clinic v. North Carolina Department of Human Resources , 380 F.Supp.1153, 1158 (E.D.N.C. 1974).

Similarly, the discrimination would also violate the Equal Protection and the Privileges and Immunities Clauses of the federal constitution. U.S. Const. Amend. 14, §1; Edwards v. Leavor , 102 F.Supp. 698 (D.R.I. 1952) (Rhode Island statute that required license for taking of menhaden and which limited licenses to Rhode Island residents or corporations 51 percent owned by Rhode Islanders abridged privileges and immunities of individuals who were citizens of other states); see , Westenfelder v. Ferguson , 988 F.Supp. 146 (D.R.I. 1998) (Durational residency requirement for full welfare benefits penalizes fundamental right to travel and thus was subject to strict scrutiny under equal protection challenge); Cole v. Housing Authority of the City of Newport , 312 F.Supp. 692 (D.R.I. 1970) (Housing regulation that imposes residency requirement violates equal protection clause and constitutional right to travel).

Accordingly, to avoid constitutional issues, it may be necessary to read the statute to state that the Attorney General "must" issue a permit "upon a proper showing of need," not "may" issue a permit. The word "may" in a statute can be interpreted to mean "shall" when necessary to carry out the statute's intended purpose. Warren Education Association v. Lapan , 103 R.I. 163, 235 A.2d 866, 872-73 (R.I. 1967): Nolan v. Representative Council of City of Newport , 73 R.I. 498, 57 A.2d 730, 734 (1948); cf. State v. Kilday , 90 R.I. 91, 155 A.2d 336 (1959). The courts may save vague legislative standards from a due process challenge by providing the necessary specificity in a judicial interpretation. A.J.C. Enterprises, Inc. v. Pastore , 473 A.2d 269 (R.I. 1984); Davis v. Wood , 427 A.2d 332, appeal after remand, 444 A.2d 190 (R.I. 1981).

Two significant considerations bear against attempting to resolve all these constitutional issues now. First, the Court may not have an adequate record to address them. Second, they may become moot if defendants are required to provide appellants with constitutional and administrative due process.

II. Appellants Are Entitled to Due Process Before Their Constitutional Rights
Are Denied or Restricted

Any attempt to restrict a constitutional right is subject to the Due Process Clauses of the state and federal constitutions. The Fourteenth Amendment of the United States Constitution and Article 1, Section 2 of the Rhode Island Constitution provide that no state may deprive any person of a constitutional right without due process of law. Aurelio v. Rhode Island Department of Administration , 985 F.Supp. 48 (D.R.I. 1997); Lee v. State of Rhode Island , 942 F.Supp. 750, 759 (D.R.I. 1996); Jones v. State of Rhode Island 724 F.Supp. 25 (D.R.I. 1989). "Simply put, there is a right of procedural due process amounting to a 'guarantee of fair procedure.' " Lee , supra , quoting Amsden v. Moran , 904 F.2d 748, 753 (1st Cir. 1990).

Due process requires that applicants be given notice of the standards by which their applications will be reviewed and a meaningful opportunity to be heard before defendants make a decision on those applications. Lee , supra ; see , Goldberg v. Kelly , 392 U.S. 254 (1970); Raper v. Lucey , 488 F.2d 748 (1st Cir. 1973); Avanzo v. Rhode Island Department of Human Services , 625 A.2d 208 (R.I. 1993). The notice must reasonably inform the applicant of the standards by which his application will be judged. See , Raper v. Lacey , supra , Corr v. Mattheis , 407 F.Supp. 847 (D.R.I. 1976); Valdez v. Ottawa , 105 Ill.App.3d 972, 62 Ill.Dec. 595, 434 N.E.2d 1192 (1982); Lewis v. District of Columbia Commission on Licensure to Practice Healing Act , 385 A.2d 1148 (D.C. App. 1978).

A "meaningful" hearing includes the opportunity to address all the applicable standards and the evidence against the applicant. Murray v. Blatchford , 307 F.Supp. 1038, 1054-55 (D.R.I. 1969); see , Leone v. Town of New Shoreham , 534 A.2d 871 (R.I. 1987) (applicants for renewal of moped license entitled to a hearing); Mills v. Howard , 109 R.I. 25, 280 A.2d 101 (1971) (alleged Family Court contemnor entitled to hearing before incarceration). In Lee , the District Court found unconstitutional an administrative scheme that deprived drivers of their licenses before providing them an opportunity to explain.

Also, in administrative hearings, there must be a separation between the hearing officer and the prosecutor to assure fairness. When the same individual who investigates and prosecutes the case before the administrative agency then becomes a fact finder in the same proceeding, the adjudicatory stage of the proceeding has been unconstitutionally tainted. Davis v. Wood , 427 A.2d 332, 337 (R.I. 1981). A hearing officer must be impartial and must not attempt to establish proof to support the position of any party to the controversy. Once he does so, he becomes an advocate or participant, thus ceasing to function as an impartial trier of fact. Such a transformation gives rise to a lack of the fundamental fairness required by due process. Id .

The extent of due process required generally depends on three factors:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.

Dionne v. Bouley , 757 F.2d 1344, 1350 (D.R.I. 1985), quoting Matthews v. Eldridge , 424 U.S. 319, 335 (1976).

Here, the private interest affected is a right explicitly granted by the Rhode Island constitution, the right to bear arms. The risk of erroneous deprivation certainly was and may still be very high. As McAteer admitted in his testimony, permit applicants, especially those unaware of his unwritten and then written factors, would often fail to address in their application or their letter the factors upon which he based his decision. Moreover, there are inherent biases in the existing process because McAteer acted essentially as investigator, advocate and judge. Finally, while the record is devoid of evidence of the costs of any alternative process, the costs should not be that large given the apparently small number of applications (32) the Department produced. Moreover, by its willingness to hold informal "interviews," the Department acknowledges both the need for and the relatively minor burden of an actual hearing.

In general, the Department's conduct since the denial of appellants' applications admits they are entitled to some form of due process. The Department informally promulgated "rules," eventually began notifying applicants of those "rules" and began offering informal hearings. However, the Department's pistol permit program should fully and formally comply with the Due Process Clauses.

III. Appellees Failed to Provide Due Process By Failing to Notify Appellants of the Factors
Used to Decide Their Applications and By Failing to Hold a Hearing Before Deciding on
the Application

Appellees failed to provide due process in the application process. Appellees failed to inform appellants of the substantive "factors" by which their applications would be determined. Raper v. Lucey , supra , Corr v. Mattheis , supra . Instead, McAteer kept those factors in his head. At best, applicants learned of them only if they happened to call McAteer after their applicants were denied and he disclosed the factors during a phone conversation or informal meeting. Even so, the applicants would have no time to prepare a response apart from what occurred to them on the spot.

Even after the Department formulated a written policy, it did not distribute it or volunteer its existence to applicants. Only those applicants who specifically asked received the policy. Just recently, the Department began distributing the policy and posting it on a website.

Moreover, appellants failed to provide any kind of hearing before denying appellants' applications. Lee v. State of Rhode Island, supra . McAteer only met informally after the denial with Mosby whose attorney had requested a formal hearing. Apparently Golotto was never offered a hearing. Only in June 1999, did McAteer begin meeting after denials with applicants who called him to learn why their applications were denied.

Appellants are entitled to a formal hearing at which they can present the evidence properly supporting their application and counter the evidence, if any, against them. A claimant in an administrative proceeding must have a reasonable opportunity to challenge the correctness of the evidence upon which the board may rely. Massenzio v. Board of Review , 103 R.I. 473, 238 A.2d 350 (1968). Here, for example, McAteer relied, in part, on a hearsay (or multiple hearsay) statement about the lack of robberies in Smithfield to deny Golotto's application. Golotto had no knowledge of the hearsay and no opportunity to object to it or to refute it.

Similarly, McAteer believed Mosby would not need a permit for his gun collecting activities if any gun he was transporting "is securely wrapped and unloaded . . .." However this amicus curiae is unable to locate a statutory provision that supports McAteer's belief. Unfortunately, there is no transcript to reflect whether Mosby and McAteer addressed this point during their informal meeting.

The Pistol Policy explicitly does not substitute for due process because it says:

This policy provides only internal Department of Attorney General guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative purgatives of the Department of Attorney General.

To date, it appears no pistol permit applicant has received a formal hearing that comports with due process.

This amicus curiae also notes that virtually all the pistol permit applications from non-law enforcement personnel were denied. It appears the Attorney General believes only law enforcement personnel can show "proper need" for a permit. (Most of whom may be exempt from the permitting requirement under R.I.G.L. §11-47-9, anyway). If so, that interpretation seems contrary to this Court's opinion in Storms .

IV. The Administrative Procedures Act Requires The Department of the Attorney General
To Apply The APA's Rule-Making and Contested Case Provisions To The Pistol Permit
Program

The Administrative Procedures Act, R.I.G.L. § 42-35-1, et . seq ., ("APA") governs the administration of the pistol permit program by the Department of the Attorney General. This includes the Department's promulgation of a policy respecting pistol permits and its adjudication of individual applications. The APA requires all agencies, including the Department to:

- adopt rules of practice, setting forth the nature and requirements of all formal and informal procedures available, and including a description of all forms and instructions used by the agency, R.I.G.L. § 42-35-2(a)(2); and,

- make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted or used by the agency in the discharge of its functions.

R.I.G.L.§ 42-35-2(a)(3). Moreover, no agency rule is valid or effective against anyone, nor may it be invoked by the agency unless it has been made available for public inspection. R.I.G.L. § 42-35-2(b).

The APA's requirements apply to the Department's pistol permit program. McAteer's "factors" and the three page policy are administrative "rules." The APA states that "rules" mean each agency "statement of general applicability that implements, interprets, or prescribes law or policy . . ." R.I.G.L. § 42-35-1(h). McAteer's own factors and the Pistol Permit Policy itself are agency statements of general applicability that implement, interpret or prescribe state law and policy on the issuance of pistol permits.

Morever, the Department of the Attorney General is an agency under the APA. The Act defines "agency" as "each state board, commission, department or office, other than the legislature or the courts, authorized by law to make rules or to determine contested cases . . ." (emphasis added). R.I.G.L. § 42-35-1(a); Landry v. Farmer , 564 F.Supp. 598 (D.R.I. 1983); Considine v. Rhode Island Department of Transportation , 564 A.2d 1343 (R.I. 1989); In re: Rhode Island Bar Association , 118 R.I. 489, 374 A.2d 802 (1977).

The APA provides a specific procedure for the adoption of rules. R.I.G.L. § 42-35-3. This includes public notice of an agency's intended action and a reasonable opportunity for all interested persons to submit their views orally or in writing. Id. Here, the Department failed to follow APA requirements in promulgating its pistol permit policy. The public never received any notice of the Department's intention to adopt McAteer's "factors" and then incorporate them in the written policy. The public never had an opportunity to comment on the proposed policy.

The Policy explicitly does not substitute for APA rule-making. By definition, APA rule-making creates substantive or procedural rights. However, the Department's policy says:

This policy provides only internal Department of Attorney General guidance. It is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. Nor are any limitations hereby placed on otherwise lawful litigative purgatives of the Department of Attorney General.

The amicus curiae observes that actual administrative rule-making could also provide a factual and legal record helpful to deciding the scope of Article 22, if necessary.

Further, when the Department makes a determination of an individual's application for a pistol permit that determination is a "contested case" under the APA which requires administrative notice and a hearing. Colonial Hilton Inns of New England, Inc. v. Rego , 284 A.2d 69 (R.I. 1971). A contested case is one where ". . . the legal rights, duties or privileges of a specific party are to be determined by an agency after an opportunity for hearing." In this case, it is not the Firearms Act that requires a hearing, it is the Due Process Clauses of the state and federal constitutions. The Department of the Attorney General is attempting to determine the applicants' right to bear arms. The constitutions require a hearing before that right can be abridged. Accordingly, the APA rules respecting a "contested case" govern the Department's adjudication of that issue.

In addition, the hearing officer must provide a reasoned, written (or transcribed) explanation of his or her decision. Administrative decisions:

. . . must be factual as well as conclusional, must contain a statement of the reasons and grounds upon which it is predicted, and must point out the evidence upon which the ultimate findings rest. These requirements exist . . . because the parties as well as the Court are entitled to know and should not be required to speculate on the basis for a board's decision.

Hooper v. Goldstein , 104 R.I. 32, 241 A.2d 809 (1968). Notably, the only explanation of McAteer's decisions is his testimony in this case some two years after he made his decisions.

Nothing in either the Firearms Act or the APA exempts the Department of Attorney General's pistol permit program from the APA's requirements. The APA applies to all administrative rule-making and adjudication unless expressly exempted under the APA final provision, R.I.G.L. § 42-35-18. See , R.I.G.L. § 42-35-1.1; Pawtucket School Committee v. Pawtucket Teachers Alliance , 610 A.2d 1104 (R.I. 1992) (APA applies to state school commissioner's proceedings because they are not expressly exempted); Yellow Cab Co. v. Public Utilities Hearing Board , 102 R.I. 100, 228 A.2d 542 (1967); (APA applies to Public Utility Hearings Board proceedings); Yellow Cab Co. v. Public Utilities Hearing Board , 101 R.I. 292, 222 A.2d 361 (1966) (APA applies to administrative appeals not expressly exempted). Neither the Department of the Attorney General nor pistol permit applications are expressly exempted from the APA.

The purpose of the APA was to provide a "uniform and consistent approach to the problems created by the increasing number and expanding jurisdiction of state administrative agencies." New England Telephone and Telegraph Co. v. Fascio , 105 R.I. 711, 254 A.2d 758 (1969). "Implicit" in this purpose is the understanding that statutes providing inconsistent administrative procedures are repealed. Id. Therefore, both the rule-making and contested case provisions of the APA apply to the Department's administration of the pistol permit program.

Conclusion

The Court should hold under the Due Process Clauses of the Rhode Island and United State Constitutions and the Administrative Procedure Act that the Attorney General must adopt reasonable and constitutional regulations governing the application for and determination of an application for a license under R.I.G.L. §11-47-18, and must conduct hearings respecting contested applications pursuant to those constitutional clauses and the Administrative Procedures Act. Further, the Court should remand this matter to the Superior Court for the entry of an order consistent with its holding.

Respectfully submitted,

______________________________
Thomas W. Lyons, Esq. #2946
Rhode Island Affiliate
American Civil Liberties Union
403 South Main Street
Providence, RI 02903
Tel: 401-456-0700
Fax. 401-421-4730
Email: tlyons@straussfactor.com

Dated:

CERTIFICATION OF SERVICE

Thomas Palombo, Esq
Susan E. Urso, Esq.
Department of the Attorney General
150 South Main Street
Providence, RI 02903

David J. Strachman, Esq.
McIntyre, Tate, Lynch & Holt
321 South Main Street, Ste. 400
Providence, RI 02903

James W. Archer, Esq.
10 Crestview Drive
Greenville, RI 02828

The undersigned hereby certifies that a true copy of the within has been sent to the above attorney of record by regular mail, postage prepaid on this _______ day of January, 2003.

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