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In re Application of S.S. for Permit to Carry Pistol or Revolver

July 29, 1974

IN THE MATTER OF THE APPLICATION OF "S.S." FOR PERMIT TO CARRY PISTOL OR REVOLVER


Yanoff, J.c.c.

Yanoff

Applicant applied for a permit to carry a pistol or revolver so that he might be employed as an armed guard for a payroll service. His application showed that he had been convicted in the United States District Court for the District of New Jersey in 1960 for a crime involving embezzlement, sentenced to a term of incarceration, served the term, and that under date of December 21, 1973 he had been granted "a full and unconditional pardon" by the President of the United States. The local chief of police approved his application. Under the provisions of N.J.S.A. 2A:151-44 a county judge is required to approve the application before a permit may issue. I denied in a letter-opinion, after which applicant requested a hearing pursuant to N.J.S.A. 2A:151-44.1. A brief was filed on applicant's behalf and testimony was taken at which applicant produced persuasive evidence of his good character.

No notice of the hearing was given to the local chief of police, or the municipal attorney, and he was not represented

at the hearing. A discussion of the procedural problem is necessary. There is a distinction between applications to purchase guns and applications to carry guns. The first is controlled by Article 4 of the Gun Control Law, L. 1966, c. 60; N.J.S.A. 2A:151-1 et seq. The second is controlled by Article 5 of the same statute. Section 34 of the statute controls issuance of permits to purchase a weapon. Under its provisions full power to issue the permit resides in the chief of police where there is an organized full-time police department in a municipality. If he denies, the aggrieved applicant may request a hearing in the County Court. Section 44 of the statute controls permits to carry firearms. In this case, the application is made in the first instance to the chief of police in the municipality in which the applicant resides. However, the ultimate issuing authority rests in the county judge. If the chief of police approves, the application is then presented to the county judge for action. Section 44.1 of the statute controls both the case where the chief of police recommends approval and where he disapproves. It makes specific provision for a hearing if the chief of police disapproves. As to the situation in which the chief of police approves, but the County Court denies the application, it provides only: "* * * then the appeal from the denial of such application by the County Court shall be in accordance with law." Weston v. State, 60 N.J. 36 (1972), dealt with the situation in which there was an appeal from a denial of a permit to purchase a gun. Its comprehensive discussion of the statutory scheme (at 43-44) needs no repetition. It made clear that at some point in the permit-issuing process a judicial hearing was necessary to afford the applicant due process. The problem here is that the statute does not specify the procedure by means of which the applicant's constitutional rights are to be protected. Under the circumstances

The judicial task becomes one of resolving, within the framework of the appropriate canons of construction, the probable legislative intention, bearing in mind the admonition of Chief Justice Weintraub

in New Capitol Bar & Grill Corp. v. Div. of Employment Sec. 25 N.J. 155, 160 (1957) that:

"It is frequently difficult for a draftsman of legislation to anticipate all situations and to measure his words against them. Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end 'words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms.' Alexander v. New Jersey Power & Light Co., 21 N.J. 373, 378 (1956); Wright v. Vogt, 7 N.J. 1, 6 (1951); Glick v. Trustees of Free Public Library, 2 N.J. 579, 584 (1949)." [ Dvorkin v. Dover Tp., 29 N.J. 303, at 313 (1959)]

Conceivably, the hearing mandated by Weston could come on appeal to the Appellate Division under R. 2:2-3(a)(2) "to review final decisions or actions of any state administrative agency or officer * * *." In such case, the Appellate Division would be forced to pass on the matter with only the bare statements in the application for gun permit before it, without findings of fact or even a record upon which to find facts. Conceivably, also, a complaint in lieu of prerogative writs might be filed under R. 4:69. In such case, a plenary action would ensue, whereas the Gun Control Law obviously contemplates summary action. Another possibility is that the assignment judge designate another county judge to hear the appeal. In such case there might result a divergence of policy which the designation of a single "gun judge" is intended to preclude. I have, therefore, concluded that it was the legislative intent that the fact-finding procedure in the situation involved here must be the same as that in which the local chief of police refuses in the first instance to grant the permit. However, where, as here, the chief of police has recommended the grant of the permit, he is no longer an adversary party and need not be joined.

The substantive issue which must be determined for the first time in this State is whether by reason of the conviction applicant is barred from obtaining a permit to carry a firearm pursuant to N.J.S.A. 2A:151-44, despite the pardon.

N.J.S.A. 2A:151-44 specifically provides that no permit shall be issued to a person who is precluded by N.J.S.A. ...


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