June 27, 2007
IN RE THE APPLICATION OF FRANK DEPASQUALE FOR A PERMIT TO CARRY A HANDGUN, APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 23, 2007
Before Judges A. A. Rodríguez and Lyons.
Appellant, Frank DePasquale, appeals from an order denying his application for a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4. We affirm.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. Appellant is self-employed. He replaces broken automobile glass out of his van. He travels primarily to urban locations at various hours fixing broken automobile glass on site, as he does not have a shop.
On July 22, 2004, appellant was issued a permit to carry a handgun. At that time, he was a resident of Belleville and his application, therefore, was first approved by the Belleville Chief of Police and then a Superior Court judge. His permit was restricted to those business hours when appellant was actually engaged in his business as owner of "Frank's Auto Glass," or when he was transporting business receipts to the bank for deposit. Appellant moved from Belleville to West Caldwell sometime before his permit was due to expire on July 21, 2006. He, therefore, applied for and received an amended permit approved by another Superior Court judge.
On or about May 25, 2006, appellant applied to the West Caldwell Police Department to renew his expiring permit to carry a handgun.*fn1 After a review, the West Caldwell Chief of Police disapproved appellant's application on July 7, 2006 "on the basis that [he had] not sufficiently illustrated an 'urgent necessity for self-protection.'" Pursuant to N.J.S.A. 2C:58-4e, appellant appealed the denial of his application to the Superior Court and a hearing was held on August 17, 2006.
At the hearing, appellant testified that he repairs broken auto glass out of his van, primarily in urban areas. He explained that he conducts business at all hours of the day and night, conducts a cash business, and carries large amounts of cash with him while on the road. Appellant also testified that he was attacked one time in the past by two assailants with a knife when he was stopped at a red light in Irvington while on his way to Newark. Appellant testified that he did not report the incident to the Irvington police and that the incident occurred a little over two years before the hearing. He further testified that there were no other incidents in which he was threatened or assaulted in the course of his business, and that during the time he possessed his weapon, he never had to display it to any potential assailants.
The judge hearing the matter expressed that, while he understood appellant's business was conducted often times at night in urban areas, he did not find an "urgent necessity" for appellant to carry a handgun and denied the application. Specifically, the judge did not find appellant's testimony concerning the incident in Irvington two years before to be credible. This appeal followed.
On appeal, appellant presents the following arguments for our consideration:
THE COURT BELOW ERRED BY HOLDING THAT THE PRIOR JUDICIAL ORDER ISSUED BY THE SAME COUNTY COURT DOES NOT CARRY THE WEIGHT OF RES JUDICATA.
THE COURT BELOW VIOLATED NEW JERSEY'S CONSTITUTION, ART. I.
N.J.S.A. 2C:58-4D UNCONSTITUTIONALLY VIOLATES SEPARATION OF POWERS AND DUE PROCESS BY PLACING JUDGES IN EXECUTIVE POSITIONS.
Appellant argues that the judge who heard the renewal application in 2006 was bound under the doctrine of res judicata to the findings made by the judge who initially granted the permit to carry a handgun in 2004. Appellant cites the Restatement (Second) of Judgments §§ 17, 24 (1982) as support that he has met the three essential elements of res judicata:
(1) an earlier decision on the issue; (2) a final judgment on the merits; and (3) the involvement of the same party or parties in privity with the original parties. We have explained that:
[r]es judicata as a principle of law bars a party from relitigating a second time that which was previously fairly litigated and finally determined. The general requirements for the invocation of the principle are a final judgment by a court or tribunal of competent jurisdiction, identity of issues, parties, cause of action, and thing sued for.
[Charlie Brown's of Chatham, Inc. v. Bd. of Adj. for Chatham Twp., 202 N.J. Super. 312, 327 (App. Div. 1985).]
In this case, the doctrine does not apply. While there was an earlier final order which permitted appellant to carry a handgun in 2004, that was limited to the two years following the date of issuance. N.J.S.A. 2C:58-4a specifically requires a new application to be made when a handgun permit expires after two years and provides that upon expiration, a permit "may thereafter be renewed every [two] years in the same manner and subject to the same conditions as in the case of original applications" (emphasis added). N.J.S.A. 2C:58-4c requires, as a condition for a permit, that the police chief of the municipality in which the applicant resides undertake an investigation and determine if the applicant is qualified and approved. In this case, because the applicant relocated, a different police chief processed the renewal application.*fn2
Following the denial of appellant's application by the West Caldwell Police Chief, the Superior Court held a hearing at which time testimony was taken.*fn3 The only issue in dispute at the renewal hearing was whether the applicant possessed an "urgent necessity" to carry a gun for self-protection as provided by N.J.S.A. 2C:58-4c and In re Preis, 118 N.J. 564, 571 (1971).
Appellant's assertion that the doctrine of res judicata binds a trial court on a handgun permit renewal application flies in the face of the statutory scheme outlined in N.J.S.A. 2C:58-4. It fails to recognize that there was no adversary hearing in connection with the first application which involved different police departments. Further, we note that the Supreme Court has long held that a person may be denied a permit to carry a weapon even though he may have received such a permit earlier. See Siccardi v. State, 59 N.J. 545, 557-58 (1971). Accordingly, we do not find that a trial court, on a handgun permit renewal application, is bound by the earlier actions of a court in initially approving the permit. Further, we hold that the trial judge's findings of fact in this case are supported by adequate, substantial, credible evidence and we therefore defer to the trial judge's findings regarding the credibility of appellant. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
Appellant argues that the judge, by denying the handgun permit, violated the New Jersey Constitution, Article I, Paragraph 1 which provides that "[a]ll persons . . . have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty . . . and obtaining safety . . . ." Appellant argues that his constitutional rights are being abridged by the denial of his renewal permit to carry a handgun. This argument is without merit. In State v. Schmid, the Court stated that, "private property may be subjected by the state, within constitutional bounds, to reasonable restrictions upon its use in order to serve the public welfare." 84 N.J. 535, 561 (1980), appeal dismissed, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed. 2d 855 (1982). New Jersey courts have long held that "the right of a citizen to bear arms is not unrestricted." See State v. Angelo, 3 N.J. Misc. 1014, 1015 (Sup. Ct. 1925); see also Burton v. Sills, 53 N.J. 86, 100 (1968), appeal dismissed, 394 U.S. 812, 89 S.Ct. 1486, 22 L.Ed. 2d 748 (1969). The Angelo Court stated, "[t]he state government, in the exercise of its police power, may provide such conditions precedent to the right to carry concealed weapons as the safety and welfare of the people of the state in its judgment require." Ibid. Our courts have also held, "[a] permit to carry a revolver does not create a vested right which may not be revoked by the
[L]egislature" as an exercise of its police powers. State v. Cortese, 104 N.J.L. 312, 314 (E. & A. 1927). The constitutionality of gun control legislation in this state has also been recognized for many years. See Burton, supra, 53 N.J. at 95. Petitioner's constitutional rights are not abridged by the Legislature's reasonable exercise of its police powers as embodied in the requirements of N.J.S.A. 2C:58-4.
Lastly, appellant argues that N.J.S.A. 2C:58-4d unconstitutionally violates the separation of powers and due process clauses of the Constitution by placing judges in executive positions. The doctrine of separation of powers "requires not an absolute division of power but a cooperative accommodation among three branches of government." Commc'n Workers of Am. v. Florio, 130 N.J. 439, 449 (1992). "The separation of powers clause is not designed 'to prevent cooperative action among the three branches of government, but to guarantee a system of checks and balances.'" Mt. Laurel Twp. v. Pub. Adv. of New Jersey, 83 N.J. 522, 530 (1980) (quoting State v. Leonardis, 73 N.J. 360, 370 (1977)). The doctrine was not intended to be an absolute and inviolable division of powers among the three branches of government. Ibid.
N.J.S.A. 2C:58-4 provides that if an application has been approved by the appropriate police official, it is then presented to the court. The court reviews the application against statutory defined standards, and then, in its discretion, may issue a permit with certain limitations. In addition, if a person is denied a permit by the appropriate police official, the court may entertain a hearing with respect to that denial. This statutory scheme is a reasonable, legislatively designed plan requiring cooperation between the executive and judicial branches of government.
In determining whether the separation of powers clause is violated, a court does not focus on whether the two branches of government are involved in an endeavor, but whether the Legislature was exercising powers and assigning roles to branches which were inherently the domain of another branch. See, e.g., Enourato v. New Jersey Bldg. Auth., 182 N.J. Super. 58, 74 (App. Div. 1981), aff'd, 90 N.J. 396 (1982). N.J.S.A. 2C:58-4 does not impair "the essential integrity" of another branch and, hence, is not violative of the constitutional boundaries of the separation of powers doctrine. See Bullet Hole, Inc. v. Dunbar, 335 N.J. Super. 562, 574 (App. Div. 2000).
Appellant argues that N.J.S.A. 2C:58-4 violates his due process rights. Due process is a flexible concept and calls for procedural protections as the situation demands so as to afford a meaningful opportunity to be heard at a meaningful time. Van de Zilver v. Rutgers Univ. 971 F. Supp. 925, 932 (D.N.J. 1997). N.J.S.A. 2C:58-4 provides procedural protections for applicants by affording them an opportunity to be heard at a hearing in Superior Court and the additional right to appeal if dissatisfied. In this case, appellant testified and had the right to cross-examine and call witnesses. All of the hallmarks of due process were present and available to appellant.
Consequently, the trial court's order is affirmed.