Opinion
05-07-2024
In the Matter of the application of Eric E. Benedetti, Applicant.
Eric E. Benedetti, Applicant, Pro Se.
Eric E. Benedetti, Applicant, Pro Se.
Thomas Marcelle, J.
Eric Benedetti ("applicant") is a fine outstanding citizen who seeks a license to possess and carry a handgun. Since the Second Amendment's core freedoms encompass carrying a gun for self-defense, the court must grant the license unless a proper justification exists to disqualify the applicant (New York State Rifle & Pistol Ass'n, Inc. v Bruen, 597 U.S. 1, 32 [2022]). Benedetti's application, without a doubt, presents no barriers to obtaining a license.
However, the question here is not whether the applicant has a right to a license, but rather, does the court possess the power to grant it. In this context, power translates to jurisdiction. Thus, if the court lacks jurisdiction, it is powerless to issue the license.
The legislature has established procedures governing the issuance of gun licenses (Penal Law § 400.00 et seq). In particular, the legislature instructed that "[a]pplications shall be made... to carry or possess a pistol or revolver to the licensing officer in the city or county... where the applicant resides [or] is principally employed..." (Penal Law § 400.00 [3] [a]). Accordingly, the applicant must have a geographic nexus to the county where he makes his application. In particular, the applicant must either reside or be principally employed in the county where he seeks licensure.
The problem here is that the applicant lives in Erie County and performs (carries out) his work in Erie County. Thus, the applicant has no personal connection with Albany County. However, his employer, the New York State Tax and Finance Department, has its principal place of business in Albany County. Against this backdrop, the court must determine if it has the authority to grant a license.
Normally, the geographic limitations are not an issue. But with increased frequency, employees of the government, for whatever reason, have been instructed to apply for their pistol licenses in Albany County (see hearing tr. pp. 2:19-20, 2:25-3:3, 4:12-13).
To begin with, the court must decide if Penal Law § 400.00 (3) (a)'s geographic provision presents as a venue restriction (flexible in nature) or a jurisdictional restriction (inflexible in nature). As explained below, this issue's resolution settles the matter.
The terms venue and jurisdiction are part of the judicial nomenclature. However, this case is unusual, it arises not in the course of deciding a dispute between parties-which is the court's constitutional assignment (NY Const art VI, § 7). Instead, in this context, a judge acts as a licensing officer. The legislature, in its wisdom, divided the licensing function between the judicial branch (judges) and the executive branch (police chiefs). Certainly, in deciding a licensing question, a judge determines facts, applies the law to those facts, and arrives at a decision. This makes the licensing process quasi-judicial, but not fully judicial (Sibley v Watches, 194 A.D.3d 1385, 1389 [2d Dept 2021]).
Thus, the gun licensing process exists in an uneasy and constitutionally murky boundary between the judicial and executive functions. To navigate through these waters, the best course may be to morph judicial principals to fit this executive proceeding. The analogical application of judicial concepts in an executive setting is a somewhat screwy endeavor. Nevertheless, given the mixing of roles, importing judicial terms appears to be the best path towards resolution.
Of course, this raises an altogether perplexing puzzle-how can a government predicated upon the separation of powers have two branches performing the identical function. Leaving aside the constitutional paradox for the moment, as noted the licensing function is quasi-judicial, and the long-standing practice provides enough cover to avoid an unpresented separation of powers question. Indeed, perhaps, "upon this point a page of history is worth a volume of logic" (New York Tr. Co. v Eisner, 256 U.S. 345, 349 [1921]; see also People v Black (156 Misc. 516 [Otsego County Ct 1935]).
Returning to Penal Law § 400.00 (3) (a), its geographic restriction may be considered either a venue or jurisdictional constraint. Starting the analysis with venue, venue merely represents the place where the law presumes that the matter should be heard; because that place, in theory, represents the most convenient and efficient place to conduct the proceedings. But a venue requirement is not sternly enforced. It can be waived or modified by agreement (CPLR 509). Moreover, venue is not self-enforcing. For a court to act on improper venue, it must be moved by a party (Siegel & Connors, NY Prac § 116, p 246 [6th ed 2018]). Finally, a matter improperly venued does not inhibit the court's ability to issue enforceable orders (see Lucchese v Rotella, 97 A.D.2d 645, 646-47 [3d Dept 1983] (the court "cannot be divested of... jurisdiction even when a proceeding is commenced in the wrong county... ").
Section 400.00 (3) (a) as a venue provision merits strong consideration. The statutory language itself reads like a venue text. It talks about residency and workplace as the location to bring the application, implying its purpose is ease of adjudication. Moreover, legislatures enact venue statutes, in part, to curb forum shopping. And so is the case with § 400.00 (3) (a), according to the Court of Appeals. The Court has interpreted § 400.00 (3) (a), albeit in a different context, and found it "evident that the law was originally designed to ensure that licenses were obtained where applicants resided, and to discourage forum-shopping..." (Osterweil v Bartlett, 21 N.Y.3d 580, 586 [2013]).
Normally, a litigant who seeks an advantage by siting a matter in an improper forum can be stopped by his adversary. That is, in an adversarial proceeding, the opposing side has the ability to object to an improper forum. But here, no adversary exists. Significantly, the court may not on its own accord transfer a matter because of improper venue (Travelers Indem. Co. of Illinois v Nnamani, 286 A.D.2d 769, 770 [2d Dept 2001]). Therefore, if § 400.00 (3) (a) constitutes a venue statute, then the applicant's choice of forum for a gun license, though out of compliance with geographic restrictions, may not be disturbed by the court.
This conclusion however would result in forum shopping going unchecked. Forum shopping is considered undesirable because it raises the fear that a litigant will be able to determine the outcome of a matter simply by choosing a favorable venue (Sheldon v PHH Corp., 135 F.3d 848, 855 [2d Cir 1998]).
This is a problem. Section 400.00 (3) (a)'s geographic limitations were enacted "to prevent New York City residents from obtaining handgun permits in counties" where the process for getting a license was more lax than New York City (Osterweil, 21 N.Y.3d at 586 [2013]). Thus, if § 400.00 (3) (a) is seen as a pure venue provision, the applicant would be empowered to pick the county of his choice to seek a permit. In essence, a permit applicant would have a unilateral veto over the statutory restriction. Indeed, this would "enable [a license applicant] to elude [the statute's geographic] provisions in the most easy manner" thereby subverting the purpose of § 400.00 (3) (a) (The Emily, 22 U.S. 381, 389 [1824]). This is unacceptable. Therefore, the court concludes that the venue analogy fails.
Penal Law § 400.00 (3) (a) therefore must be jurisdictional in nature. Jurisdiction, unlike venue, cannot be waived. In particular, since this proceeding, like a special proceeding, is "governed entirely by statute[,]... there must be strict compliance with the statutory requirements to give the court jurisdiction" (Cat Hollow Ests., Inc. v Savoia, 46 A.D.3d 1293, 1294 [3d Dept 2007]). Thus, the geographic limits go directly to the court's ability to exercise its judicial power.
At the licensing hearing, the applicant told the court that he lives in Erie County and carries out his work assignment principally (and seemingly exclusively) there. Now, it could be argued that § 400.00 (3) (a)'s requirements were fulfilled because the applicant is principally employed by an entity (Department of Taxation and Finance) which has its principal place of business in Albany County. Indeed, the applicant was instructed to bring the permit application in Albany County for this very reason.
Fulling the geographic requirement by virtue of an employer's principal place of business may be an altogether appropriate construction. But for that to be true and to satisfy the geographic requirement imposed by the legislature, the applicant's place of principal employment must mean the same thing as the employer's principal place of business. There are no reported cases which define principally employed, so the issue is resolved by straight statutory interpretation.
Statutory interpretation begins with the statute's language (Yatauro v Mangano, 17 N.Y.3d 420, 426, [2011]). Principal place of business is an ancient term (Bowen v Argall, 24 Wend 496 [Sup Ct Jud 1840]), with which the legislature is quite familiar. In fact, § 400.00 (3) (a) employs the term. The statute provides that shop keepers and merchants may bring an application in the county where their principal place of business is located. This language choice signifies that the legislature considered the term principal place of business to mean something different than the term principally employed. This seems in accord with what little authority exists on the subject (see Owens v Owens, 1993 WL 307477, at *2 [Ohio Ct App 3d, Union County 1993] [rejecting the argument that place of employment is synonymous with principal place of business]).
Moreover, and more importantly, the phrase principally employed has a different focus than principal place of business. The latter refers to the location where corporate officers direct, control, and coordinate the corporation's activities (Hertz Corp. v Friend, 559 U.S. 77, 92-93 [2010]). In contrast, principally employed, in the court's estimation, focuses on where the employee conducts his activities. That is, the place where the employee carries out his employment tasks, rather than the location from where his orders come. Thus, the court concludes that the concept of where the applicant is principally employed is different from the concept of where the applicant's employer's principal place of business is located.
Consequently, under § 400.00 (3) (a), a licensing officer has the ability to grant a license to an applicant only if the applicant lives or performs his work in the county where the officer is venued. Unfortunately, the applicant neither lives nor works in Albany County. Therefore, since the court lacks jurisdiction to entertain the application, it must sua sponte dismiss the matter for lack of jurisdiction (Weg & Myers, P.C. v Sec. Sys. by Hammond, Inc., 167 Misc.2d 1042, 1045 [Civ Ct, New York County 1996]). Therefore, it is
ORDERED, that the Albany County Clerk return the application to the applicant with a copy of this decision and order.