LAURA JUTTE v. CHIEF OF POLICE OF AGAWAM & Another (And a Companion Case).

• Court: Massachusetts Appeals Court
• Decided: October 8, 2024
• Docket: 23-P-1269
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

23-P-1269 23-P-1270

LAURA JUTTE

vs.

CHIEF OF POLICE OF AGAWAM & another1 (and a companion case2).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Laura Jutte and Michael Hutchison, each

submitted applications for licenses to carry firearms to the

Agawam chief of police. The chief denied both applications

concluding that the plaintiffs were unsuitable to be issued

licenses to carry. The plaintiffs appealed. At a joint

evidentiary hearing in the District Court, the chief submitted

documentary evidence, without objection, including the denial

letters issued to both plaintiffs. Regarding Jutte, the chief

submitted police reports from the Agawam and Hubbardston police

1 Westfield District Court.

2 Michael Hutchison vs. Chief of Police of Agawam & another. departments, and a copy of her criminal history report. As to

Hutchison, the chief submitted police reports from the Agawam,

Holden, Hubbardston, Athol, Westfield, and Orange police

departments, and a copy of a G. L. c. 209A abuse prevention

order issued against Hutchison, with supporting affidavit.

Jutte and Hutchison testified. The judge denied the plaintiffs'

petitions. Thereafter the plaintiffs filed complaints for

certiorari (complaints) in the Superior Court pursuant to G. L.

c. 249, § 4, and motions for judgment on the pleadings. Two

different Superior Court judges denied the motions, affirmed the

judgment of the District Court, and dismissed the complaints.

The plaintiffs' motions for relief from judgment were also

denied. This appeal followed. We affirm.

Timeliness of complaints. On appeal, the plaintiffs

contend that the Superior Court judges abused their discretion

in dismissing the complaints as untimely. We are not persuaded.

Under G. L. c. 249, § 4, an action for certiorari review must

"be commenced within sixty days next after the proceeding

complained of." Here, the proceeding complained of was the

District Court hearing that lead to the judge's denials of the

petitions by a judgment docketed in each case on December 9,

2021. Thus, the statute of limitations began to run the first

day after the conclusion of the underlying cases, here, December

2 10, 2021. See Committee for Pub. Counsel Servs. v. Lookner, 47

Mass. App. Ct. 833, 835 (1999). Accordingly, the complaints had

to be filed on or before February 7, 2022, but they were filed

one day late, on February 8, 2022.

The plaintiffs argue that their complaints were timely in

the Superior Court, and any error was "clerical." While it

appears uncontested that the plaintiffs mailed the complaints on

February 2, 2022, they did so by regular first-class mail.

However, under Mass. R. Civ. P. 3, as appearing in 488 Mass.

1401 (2021), to commence a civil action by mail, the plaintiffs

were required to send the complaints "by certified or registered

mail." See Finkel v. Natale Rota, Inc., 19 Mass. App. Ct. 55,

56 n.2 (1984). This they did not do, and as a result, the

complaints were not timely.

The merits. Notwithstanding the late filing of the

complaints, we briefly address the merits of the plaintiffs'

appeals. "The standard of review in an action in the nature of

certiorari is 'to correct substantial errors of law apparent on

the record adversely affecting material rights.'" MacHenry v.

Civil Serv. Comm'n, 40 Mass. App. Ct. 632, 634 (1996), quoting

Commissioners of Civ. Serv. v. Municipal Court of Boston, 369

Mass. 84, 90 (1975). In a certiorari case, the court is not

authorized to weigh evidence, find facts, exercise discretion,

3 or substitute its judgment for that of the decision-making body,

but is limited to correcting errors of law. See Police Comm'r

of Boston v. Robinson, 47 Mass. App. Ct. 767, 770 (1999).

The "suitable person" standard that applied when the chief,

the District Court judge, and the Superior Court judges were

making their decisions vested in the chief broad discretion or

"considerable latitude." Ruggiero v. Police Comm'r of Boston,

18 Mass. App. Ct. 256, 259 (1984). See G. L. c. 140, § 131 (d)

and (f), as amended by St. 2018, c. 123, §§ 11, 12, and St.

2022, c. 175, §§ 4-17A.3 To direct that a license to carry

firearms be issued over the chief's denial, a judge must have

"f[ound] that there was no reasonable ground for denying . . .

the license." G. L. c. 140, § 131 (f). See Godfrey v. Chief of

Police of Wellesley, 35 Mass. App. Ct. 42, 46 (1993). To

warrant such a finding, "it must be shown that the refusal [to

grant the license] was arbitrary, capricious, or an abuse of

discretion." Chief of Police of Shelburne v. Moyer, 16 Mass.

App. Ct. 543, 546 (1983). The burden of making the showing was

on the applicant. Id.

3 A law rewriting many statutes that comprise our firearm licensing scheme went into effect after oral argument in this case. The suitable person standard is now found in G. L. c. 140, § 121F (k), inserted by St. 2024, c. 135, § 32, and G. L. c. 140, § 131 (d), as amended by St. 2024, c. 135, § 49. Nothing about the restructuring impacts our decision.

4 Jutte's case. In denying Jutte's application, the chief

cited a criminal charge that was filed against her for assault

and battery on a family or household member (and ultimately

dismissed), a welfare check for a report of self-harm resulting

in the police transporting Jutte to a hospital for evaluation,

and two police calls for "report[s] of two parties arguing" that

did not result in arrests. Jutte has not met her burden. She

had four separate encounters with police between 2012 and 2019,

one of which included a threat of self-harm. Given this,

coupled with Jutte's documented history of conduct that resulted

in police responding to domestic disturbances, we cannot

conclude that the chief's decision to deny her application to

carry firearms was arbitrary, capricious, or an abuse of

discretion. That the criminal charge did not result in

conviction and not every police encounter resulted in arrest is

of no moment as the chief could consider the basis for the

police responses in the context of the entirety of Jutte's

application. See Chief of Police of Worcester v. Holden, 470

Mass. 845, 856 (2015); Nichols v. Chief of Police of Natick, 94

Mass. App. Ct. 739, 745 (2019).

Hutchison's case. In denying Hutchison's application, the

chief cited Hutchison's criminal history that included two G. L.

c. 209A abuse prevention orders issued to two different women,

5 criminal charges for breaking and entering, assault and battery

(four cases), assault and battery in violation of an abuse

prevention order, and disorderly conduct involving a violent

road rage incident.4 Hutchison has not met his burden. He has a

demonstrated pattern of conduct over a sixteen-year period, the

most recent incidents occurring in 2018 and 2019. Given his

history of arrests for violent crimes, many against women,

coupled with a troubling road rage incident, we cannot conclude

that the chief's decision to deny Hutchison's application to

discretion. That the charges did not result in convictions is

of no moment as the chief could consider the basis for these

charges in the context of the entirety of Hutchison's

application. See Nichols, 94 Mass. App. Ct. at 745.

We therefore conclude that the District Court judge did not

err in affirming the chief's decisions, and the Superior Court

4 The disposition of the criminal cases included continuations without a finding, dismissals, a not guilty verdict, and nolle prosequis.

6 judges did not err in dismissing the complaints for certiorari.

In each appeal, the judgment is affirmed.

So ordered.

By the Court (Blake, Walsh & Hodgens, JJ.5),

Clerk

Entered: October 8, 2024.

5 The panelists are listed in order of seniority.