Opinion
DOCKET NO. A-3318-14T2
10-07-2016
STATE OF NEW JERSEY IN THE MATTER OF RICKEY R. DUNCANSON.
Michael G. Brucki, attorney for appellant Rickey R. Duncanson. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from Superior Court of New Jersey, Law Division, Middlesex County. Michael G. Brucki, attorney for appellant Rickey R. Duncanson. Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent State of New Jersey (Brian D. Gillet, Deputy First Assistant Prosecutor, of counsel and on the brief). The opinion of the court was delivered by SUTER, J.S.C. (temporarily assigned).
I.
Rickey R. Duncanson appeals an order that denied the renewal of his permit to carry a handgun. We vacate the order and remand for an evidentiary hearing.
Duncanson was a driver/guard for Guarda CL (Guarda), an armored car service. He was issued a two-year limited permit to carry a handgun, which permit was set to expire on January 28, 2015. The limited permit allowed Duncanson to carry a handgun while in the performance of his duties with Garda and "while proceeding directly to and from work assignments and at no other time or place."
In November 2014, Duncanson applied to renew the permit. His application was approved by the State Police and by the Superior Court.
On January 21, 2015, a Superior Court judge revoked the approval sua sponte after he learned that Duncanson's expired license reportedly had been altered to appear to give Duncanson the unlimited ability to carry a handgun. In an on-the-record proceeding, without witnesses and without prior notice to Duncanson, the police or the prosecutor, the judge explained what he had learned about the alleged alteration and then denied Duncanson's permit application on grounds of "public health, safety and welfare." Duncanson was notified by letter and by order dated February 4, 2015, of the application's denial.
Duncanson appeals, raising these issues:
I. THE TRIAL COURT ERRED BY CONDUCTING A HEARING AND MAKING DETERMINATIONS OF FACT AND RULINGS OF LAW, WITHOUT NOTICE TO THE APPELLANT, BASED [PURELY] ON HEARSAY, IN DIRECT VIOLATION OF THE NEW JERSEY ADMINISTRATIVE CODE.
II. FOR A HEARING, ON REMAND, THIS MATTER SHOULD BE ASSIGNED TO A DIFFERENT SUPERIOR COURT.
II.
A gun permit revocation is a judicial proceeding to which procedural due process applies. In re Preis, 118 N.J. 564, 576 (1990) ("[T]he Legislature has designated the judiciary as the issuing authority for gun permits"); In re Dubov, 410 N.J. Super. 190, 199 (App. Div. 2009) (evaluating whether the hearing conducted conformed with the essential requirements of procedural due process). Duncanson's permit to carry was effectively revoked by an after-the-fact denial of his application, because the permit already had been granted and was then "denied" sua sponte by the court. Duncanson was entitled to a hearing before revoking his handgun permit. The statute provides:
Any permit may be revoked by the Superior Court, after hearing upon notice to the holder, if the court finds that the holder is no longer qualified for the issuance of such a permit.Because the February 4, 2015, order denying the handgun permit was entered without notice and an opportunity to be heard by Duncanson or law enforcement authorities, it did not comport with the statute or due process. We vacate the order and remand this matter to the Superior Court for an evidentiary hearing.
[N.J.S.A. 2C:58-4(f).]
In doing so, we render no decision on the merits of Duncanson's application to renew his permit to carry a handgun. The Legislature conditioned the issuance of a carry permit based its "longstanding 'aware[ness] of the dangers inherent in the carrying of handguns and the urgent necessity for their regulation,' a necessity attributable to the 'serious dangers of misuse and accidental use.'" In re Wheeler, 433 N.J. Super. 560, 610 (App. Div. 2013) (quoting Siccardi v. State, 59 N.J. 545, 553, 558 (1971)). "The permit to carry a gun is the most closely-regulated aspect of gun-control laws." Preis, supra, 118 N.J. at 568. The applicant for a handgun carry permit carries the burden to prove his eligibility for the permit. In re Application for a Firearms Dealer's License Renewal, 445 N.J. Super. 80, 94 (App. Div. 2016). The alteration of a handgun carry permit is a serious matter, especially where the alteration would purport to expand a limited permit to carry into one that is unlimited. This matter must be remanded to permit the development of a factual record to determine who may have committed or been involved with the alteration, and whether Duncanson will be permitted to renew his application.
Our ruling is not meant to imply that the Superior Court is without means to address the issue raised about alteration of Duncanson's handgun permit. The court could have issued its own Order to Show Cause with temporary restraints under Rule 4:52-1, for instance, that would require Duncanson and Guarda to appear and show cause why the carry permit should not have been revoked in light of the alleged alteration. There may be other methods to review this type of issue, as well, that would afford adequate due process protections while expeditiously addressing the issue presented.
We see no reason to disqualify the judge who previously heard this application. We use the authority to direct re-assignment of a case on remand only when needed to "to preserve the appearance of a fair and unprejudiced hearing." Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:12-1 (2016). See Johnson v. Johnson, 390 N.J. Super. 269, 274-75 (App. Div. 2007) (motion judge resolved factual disputes and made credibility determination without a hearing); Carmichael v. Bryan, 310 N.J. Super. 34, 49 (App. Div. 1998) (remanding to a different trial judge because the original judge made findings about a party's intent); P.T. v. M.S., 325 N.J. Super. 193, 221 (App. Div. 1999) (Family Part judge reached conclusions insufficiently supported by the evidence and appeared to have a "commitment to [his] findings").
We do not discern that this judge had a "commitment to his findings." He expressed he did not know how the alteration had come about, did not make any credibility judgments or make findings about any party's intent.
Therefore, we vacate the order of February 4, 2015, and remand the matter to the Superior Court for an evidentiary hearing. The trial court shall conduct a case management conference within twenty days where consideration should be given to updating Duncanson's application to carry a handgun. We also stay Duncanson's carry permit until a case management conference can be conducted.
Vacated and remanded. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION