JOSEPH ZARRELLI v. STUART RABNER, Attorney General of New Jersey

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5511-05T2

JOSEPH ZARRELLI,

Plaintiff-Appellant,

v.

STUART RABNER, Attorney
General of New Jersey,

Defendant-Respondent.
___________________________________

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May 3, 2007

Submitted March 7, 2007 - Decided

Before Judges Wefing, Parker and Messano.

On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, No. C-199-05.

Fahy Choi, attorneys for appellant (Emad G.
Iskaros, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for
respondent (Patrick DeAlmeida, Assistant Attorney
General, of counsel; Larry R. Etzweiler, Senior
Deputy Attorney General, on the brief).

Peter D. Keisler, Assistant United States
Attorney General, attorney for amicus curiae
United States of America (Mark B. Stern and
Alisa B. Klein, attorneys, Department of Justice, Civil Division, Appellate Staff, on the brief).

PER CURIAM

The trial court dismissed plaintiff's complaint for failure to state a claim. R. 4:6-2. Plaintiff has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In this appeal, we are called upon to consider what affirmative responsibilities, if any, are imposed upon New Jersey as a result of Congress having passed the Law Enforcement Officers Safety Act of 2004, P.L. 108-277 (codified at 18 U.S.C. 926B-926C) ("the Act"). 18 U.S.C. 926C(a) provides in pertinent part:
Notwithstanding any other provision of the law of any State or any political subdivision thereof, an individual who is a qualified retired law enforcement officer and who is carrying the identification required by subsection (d) may carry a concealed firearm that has been shipped or transported in interstate or foreign commerce.
 
Subsection (d) describes the identification referred to in subsection (a) in the following manner:
The identification required by this subsection is
 
(1) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the agency to meet the standards established by the agency for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm; or

(2) (A) a photographic identification issued by the agency from which the individual retired from service as a law enforcement officer; and

(B) a certification issued by the State in which the individual resides that indicates that the individual has, not less recently than one year before the date the individual is carrying the concealed firearm, been tested or otherwise found by the State to meet the standards established by the State for training and qualification for active law enforcement officers to carry a firearm of the same type as the concealed firearm.

[ 18 U.S.C. 926C(d)].
 
Plaintiff is a resident of New Jersey who was employed as a New York State court officer. His duties as a court officer required him to carry a weapon, and in 1987 he successfully completed firearms and deadly physical force training and qualified as an expert in firearms proficiency. In 1990 plaintiff received a disability retirement as a result of injuries to his right knee and left shoulder.
After passage of the Act, Zarrelli sought to have New Jersey issue to him the identification referred to in subparagraph (B) of subsection (d), set forth above. In connection with that, Zarrelli underwent firearms training from a qualified firearms instructor and passed the Attorney General's firearms requalification program. Plaintiff was advised, however, that he was unable to carry a weapon under the Act because New Jersey has not implemented a program to issue the certification required under subparagraph (B) of subsection (d). Plaintiff thus commenced this action, in which he sought an order directing New Jersey to certify him to carry a concealed weapon under the Act.
We note at the outset the standard governing a trial court in its consideration of a motion to dismiss.
In deciding whether to dismiss a complaint for failure to state a cause of action, courts should search the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. . . . Plaintiffs are entitled to every reasonable inference of fact. The examination of a complaint's allegation of fact required by the aforestated principles should be one that is at once painstaking and undertaken with a generous and hospitable approach.

[Lieberman v. Port Authority, 132 N.J. 76, 79 (1993) (quoting Printing Mart v. Sharp Elecs., 116 N.J. 739, 746 (1989)).]
 
Even in the face of such an indulgent standard, a court must nonetheless dismiss a complaint if it fails to articulate a legal basis entitling plaintiff to relief. Camden County Energy Recovery Assocs. v. New Jersey Dep't of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999). These same principles guide our review of a trial court's determination of such a motion. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005).
The United States Supreme Court has held that "[i]f Congress intends to alter the 'usual constitutional balance between the States and the Federal Government,' it must make its intention to do so 'unmistakably clear in the language of the statute.'" Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S. Ct. 2395, 2401, 115 L. Ed. 2d 410, 424 (1991) (quoting Atascadero State Hospital v. Scanlon, 473 U.S. 234, 105 S. Ct. 3142, 87 L. Ed. 2d 171 (1985)) (holding that the Age Discrimination in Employment Act, 29 U.S.C. 621-634, did not bar a state from enforcing its own law calling for mandatory retirement of judge at age 70). The Court explained that the "plain statement rule is . . . an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere." Id. at 461, 111 S. Ct. at 2401, 115 L. Ed. 2d at 424.
The statute in question is bereft of any indication that Congress, on passing the Act, intended to mandate that the various States implement a procedure for issuing certifications in accordance with 18 U.S.C. 926(d). The statute may bar one State from preventing an individual who meets the criteria of the statute and has received a certification from his or her home state from carrying a weapon into that State. It does not, however, require a State to issue a certification in order to permit an individual to qualify under the statute.
It is settled that Congress cannot compel officers of one State to implement federal programs. Printz v. United States, 521 U.S. 898, 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), is illustrative. In Printz, the Supreme Court struck down certain portions of the Brady Act which required local law enforcement officials to investigate prospective handgun purchasers. The Court ruled that Congress could not "force[] participation of the States' executive in the actual administration of a federal program." Id. at 918, 117 S. Ct. at 2376, 138 L. Ed 2d at 933.
Plaintiff argues that in light of the fact that New Jersey already has its own certification program for retired law enforcement officers under N.J.S.A. 2C:39-6, it would not be at all burdensome for New Jersey to create a certification program under the Act. It is immaterial, however, that a federal enactment "places a minimal and only temporary burden upon state officers." Printz, supra, 521 U.S. at 932, 117 S. Ct. at 2383, 138 L. Ed. 2d at 942. Rather, "[i]t is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect." Id. at 932, 117 S. Ct. at 2383, 138 L. Ed. 2d at 943. That New Jersey may have the authority under the Act to issue such a certification does not mean that it has the obligation to do so.
The trial court correctly concluded that plaintiff's complaint did not articulate a legal claim against the State of New Jersey. In such a posture, the court's duty was to dismiss plaintiff's complaint. Camden County, supra.

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Affirmed.

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