MAINE SUPREME JUDICIAL COURT                                                      Reporter of Decisions
Decision: 2015 ME 50
Docket:   Ken-14-344
Argued:   April 9, 2015
Decided:  May 5, 2015

Panel:        SAUFLEY, C.J., and ALEXANDER, GORMAN, JABAR, and HJELM, JJ.



                                    JASON E. BOUCHARD

                                                  v.

                          DEPARTMENT OF PUBLIC SAFETY


ALEXANDER, J.

         [¶1] Jason E. Bouchard appeals from a judgment of the Superior Court

(Kennebec County, Mullen, J.) affirming the Department of Public Safety’s

decision to deny his application for a permit to carry a non-concealed firearm by a

prohibited person, also known as a “black powder permit,” pursuant to 15 M.R.S.

§ 393 (2014).1 Bouchard argues that the statute’s procedure for consideration of

black powder permit applications violates the separation of powers provision of

article III of the Maine Constitution. Specifically, Bouchard contends that the


   1
       Title 15 M.R.S. § 393 (2014) provides, in relevant part, that individuals are prohibited from
possessing firearms when they have been convicted of crimes punishable by imprisonment for a term of
one year or more under Maine law, or a term exceeding one year under federal law or another state’s law.
15 M.R.S. § 393(1)(A-1)(1)-(3); see also 18 U.S.C. § 922(g)(1) (2012) (prohibiting certain convicted
individuals and others from possessing a firearm under federal law). Because the State of Maine cannot
allow possession of firearms in violation of federal law, any permit granted pursuant to sections 393(2)
and 393(4) authorizes a permit holder to possess only weapons that do not fall within the definition of
“firearm” under federal statute. See 15 M.R.S. § 393(2). Such exempt weapons include muzzle-loading
or black powder firearms. See 18 U.S.C. § 921(a)(3), (16)(C) (2012).
2

statute (1) improperly delegates authority to certain persons to object to issuance of

the permit without sufficient guidelines or restrictions, and (2) while authorizing an

appeal, leaves no avenue for meaningful judicial review of the Department’s denial

of a permit once an objection has been made.           We discern no constitutional

infirmity in the statute, either facially or as applied, and we affirm the judgment.

                                I. CASE HISTORY

      [¶2] The essential facts are not in dispute. Jason E. Bouchard is a convicted

felon. In 2003, following a jury trial, he was convicted of theft by deception

(Class C), 17-A M.R.S. § 354 (2014); theft by unauthorized taking or transfer

(Class B), 17-A M.R.S. § 353 (2014); and misuse of entrusted property (Class D),

17-A M.R.S. § 903 (2014). The convictions stemmed from Bouchard’s misuse of

a state-issued fuel credit card while serving as a warden pilot for the Maine

Warden Service. See State v. Bouchard, 2005 ME 106, 881 A.2d 1130. Bouchard

completed serving his sentences with termination of his probation in 2007.

      [¶3] Pursuant to 15 M.R.S. § 393(2), a convicted felon may apply for such a

permit five years after final discharge from his or her sentence. In April 2013,

Bouchard submitted to the Department of Public Safety an application for a black

powder permit. The Maine State Police, a division of the Department, sent notice

of Bouchard’s application to the law enforcement and prosecution officials

(“notified persons”) enumerated in 15 M.R.S. § 393(4). These notices requested
                                                                                                       3

that the notified persons check their records for “any additional information

relevant to the issuance of this permit” and that they advise the Department of any

objections they had to the issuance of the permit and the reasons underlying such

objections. See id. § 393(4)(A). 2

        [¶4] The Department received an objection from the District Attorney for

Aroostook County, which is “the county where [Bouchard] resides,” pursuant to

section 393(4). The District Attorney’s correspondence stated, in relevant part:

        Please be advised that pursuant to [15 M.R.S. § 393(4)], I do object to
        the issuance of any such permit to Mr. Bouchard.


  2
      Title 15 M.R.S. § 393(4) provides:

        4. Notification, objection and decision. Upon receipt of an application, the
        commissioner shall determine if the application is in proper form. If the application is
        proper, the commissioner shall within 30 days notify in writing the sentencing or
        presiding judge, the Attorney General, the district attorney for the county where the
        applicant resides, the district attorney for the county where the conviction occurred, the
        law enforcement agency that investigated the crime, the chief of police and sheriff in the
        municipality and county where the crime occurred and the chief of police and sheriff in
        the municipality where the applicant resides as of the filing of the application. The
        commissioner may direct any appropriate investigation to be carried out.

                A. If, within 30 days of the sending of notice, a person notified objects in writing
                to the commissioner regarding the initial issuance of a permit and provides the
                reason for the objection, the commissioner may not issue a permit. The reason for
                the objection must be communicated in writing to the commissioner in order for
                it to be the sole basis for denial.

                B. If, within 30 days of the sending of notice, a person notified objects in
                writing, including the reason for the objection, to the commissioner regarding a
                2nd or subsequent issuance of a permit, the commissioner shall take the objection
                and its reason into consideration when determining whether to issue a 2nd or
                subsequent permit to the applicant, but need not deny the issuance of a permit
                based on an objection alone.

        The commissioner may deny any application for a permit even if no objection is filed.
4

        My view is that firearms and a criminal history such as the one earned
        by Mr. Bouchard should never mix. Please examine the case of
        Albenie LaFerriere.3

        [¶5] The Department subsequently denied Bouchard’s permit application in

accordance with section 393(4)(A), which provides that “[i]f, within 30 days of the

sending of notice, a person notified objects in writing to the commissioner

regarding the initial issuance of a permit and provides the reason for the objection,

the commissioner may not issue a permit.” The Department indicated in a letter to

Bouchard that his application was denied due to the District Attorney’s objection.

        [¶6] As authorized by 15 M.R.S. § 393(5), Bouchard filed in the Superior

Court a petition for review of the Department’s decision pursuant to the Maine

Administrative Procedure Act, 5 M.R.S. § 11001 (2014), and M.R. Civ. P. 80C.

He argued to the Superior Court, in part, that section 393(4)(A) authorizes an

improper delegation of authority in violation of the doctrine of separation of

powers, Me. Const. art. III, §§ 1, 2.

        [¶7] After a hearing, the court affirmed the Department’s decision, holding

that 15 M.R.S. § 393(4)(A) does not violate the separation of powers clause. The

court noted that Bouchard’s case was “virtually indistinguishable” from

Gonzales v. Commissioner, Department of Public Safety, 665 A.2d 681

    3
       The case to which the District Attorney was apparently referring is Laferriere v. State,
1997 ME 169, ¶ 2, 697 A.2d 1301, a murder case that involved use of a firearm. Our Laferriere opinion
did not address whether Laferriere had any prior record that might have implicated 15 M.R.S. § 393.
                                                                                     5

(Me. 1995), in which we upheld the statute in the face of a similar separation of

powers challenge. See id. at 683. Bouchard filed this timely appeal pursuant to

5 M.R.S. § 11008 (2014) and M.R. Civ. P. 80C(m).

                               II. LEGAL ANALYSIS

      [¶8] We review issues of constitutional interpretation de novo. Ford Motor

Co. v. Darling’s, 2014 ME 7, ¶ 15, 86 A.3d 35. A person “challenging the

constitutionality of a statute bears a heavy burden of proving unconstitutionality[,]

since all acts of the Legislature are presumed constitutional.” State v. Gilman,

2010 ME 35, ¶ 13, 993 A.2d 14. “To prevail against the presumption that [a]

statute is constitutional, . . . the part[y] challenging the statute[] must demonstrate

convincingly that the statute and the Constitution conflict.” Godbout v. WLB

Holding, Inc., 2010 ME 46, ¶ 5, 997 A.2d 92. “Further, all reasonable doubts must

be resolved in favor of the constitutionality of the statute.” Id.

      [¶9]    Bouchard’s principal constitutional argument appears to be an

articulation of the nondelegation doctrine. Flowing from the separation of powers

principles found in article III of the Maine Constitution, the purpose underlying the

nondelegation doctrine “is to protect the citizen against arbitrary or discriminatory

action by public officials.” State v. Boynton, 379 A.2d 994, 995 (Me. 1977).
6

However, the doctrine is limited to delegations of legislative authority.4 See id.

Here, the authority delegated to the Department and notified persons pursuant to

section 393(4) is better characterized as administrative or ministerial in nature.

See Kovack v. Licensing Bd., City of Waterville, 157 Me. 411, 414-16,

173 A.2d 554, 556-57 (1961) (upholding the authority delegated to a licensing

board to make fitness determinations for the licensing of innkeepers and clarifying

that “administrative officials may be given authority to ascertain the existence of

facts to which a legislative policy is applicable, and generally have absolute

discretion to grant or refuse licenses for businesses which are inherently illegal”).

Thus, in Gonzalez, we upheld a previous version of section 393(4), stating that “the

Constitution does not explicitly grant to one department of state government the

power to grant or deny firearms permits to the exclusion of the others.”

665 A.2d at 683.          We remain unpersuaded that section 393(4) creates an

unconstitutional delegation of legislative authority.

        [¶10]     Bouchard also argues that section 393(4) improperly precludes

meaningful judicial review of the Department’s denial of a first-time permit


    4
       The cases cited by Bouchard each involved more clearly legislative or “proscriptive” functions.
See State v. Dube, 409 A.2d 1102, 1108 (Me. 1979) (upholding a delegation of rule-making authority to
the Public Utilities Commission); State v. Boyajian, 344 A.2d 410, 412-13 (Me. 1975) (upholding a
statute authorizing the Board of Commissioners of the Profession of Pharmacy to establish a list of
“potent medicinal substances” and prohibit their sale); Fitanides v. Crowley, 467 A.2d 168, 172
(Me. 1983) (striking down, for lack of adequate standards, a delegation of legislative power to a zoning
board to issue exceptions for uses that promote public health or welfare).
                                                                                                           7

application. The availability of judicial review, however, is not determinative of

whether the statute violates separation of powers principles. Indeed, judicial power

has its own limits, and the extent of the judiciary’s authority to review executive

actions pursuant to the Administrative Procedure Act “must be read in light of the

constitutional doctrine of separation of powers.”5                       Brown v. State, Dep’t of

Manpower Affairs, 426 A.2d 880, 884 (Me. 1981).

        [¶11] Even apart from any separation-of-powers issue, the unavailability of

judicial review in certain circumstances does not present a facial or as-applied

constitutional defect because Bouchard has no constitutional right or interest at

stake. We have held, and Bouchard concedes, that although article I, section 16 of

the Maine Constitution provides that “[e]very citizen has a right to keep and bear

arms and this right shall never be questioned[,]” this right does not extend to

convicted felons. See State v. Brown, 571 A.2d 816, 820-21 (Me. 1990) (holding

that section 393’s prohibition on the possession of a firearm by persons convicted

of nonviolent felonies is not in excess of the State’s police power); see also



   5
       Because the facts at issue here demonstrate compliance with the terms of section 393, we have no
occasion to speculate as to whether an effective appeal might be available if, for example, facts suggest an
ultra vires act, such as considering an objection from a source other than those listed in section 393(4), or
an act of illegal discrimination, such as an objection based on race or gender. Beyond this, the notice of
Bouchard’s application sent by the Maine State Police requested “any additional information relevant to
the issuance of the permit.” Here, we cannot say that the District Attorney’s response was not “relevant.”
This opinion therefore does not implicate the question of how the Commissioner might treat an objection
that is not relevant to the processing of an application filed under section 393.
8

District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (recognizing the validity

of “longstanding prohibitions on the possession of firearms by felons”).

      [¶12] Nor does the permitting process allowed by section 393(4) create, as

Bouchard suggests, a right or expectation entitled to constitutional protection.

Rather, the statute carves out from the general prohibition of felons’ possession of

firearms a narrow exception for applicants to be granted a license by an executive

agency. It is particularly narrow because, as we have noted, “the Legislature has

given to certain named persons the absolute right to object to the issuance of the

permit. Each of those persons has some personal knowledge of the applicant or

some special concern about the granting of a permit.” Gonzales, 665 A.2d at 683.

      [¶13]   Because there is no constitutional right or interest at stake that

requires judicial protection, the potential for judicial review to be unavailable in

certain circumstances presents no facial constitutional defect. As applied to this

case, a properly notified person provided a relevant objection that was consistent

with the underlying purpose of the statute, and the permit was properly denied.

      The entry is:

                      Judgment affirmed.
                                                                      9


On the briefs:

        Steven T. Blackwell, Esq., Lanham Blackwell & Baber, P.A.,
        Bangor, for appellant Jason Bouchard

        Janet T. Mills, Attorney General, and Laura Yustak Smith,
        Asst. Atty. Gen., for appellee State of Maine


At oral argument:

        Steven T. Blackwell, Esq., for appellant Jason Bouchard

        Laura Yustak Smith, Asst. Atty. Gen., for appellee State of
        Maine



Kennebec County Superior Court docket number AP-2013-44
FOR CLERK REFERENCE ONLY
