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Bouchard v. Commissioner, Maine Department of Public Safety

Superior Court of Maine, Kennebec

July 22, 2014

JASON BOUCHARD, petitioner


Robert E. Mullen, Justice Maine Superior Court.

This matter came before the undersigned on June 27th, 2014 with respect to petitioner's request, pursuant to M.R.Civ.P. SOC, for judicial review of respondent's denial of petitioner's application for a " Black Powder Permit" that requires that petitioner obtain a " Permit to Carry a Non-Concealed Firearm by a Prohibited Person" under Title 15 M.R.S. Section 393. After reviewing the record and listening to and reading the arguments of counsel, the undersigned enters the following Decision and Order for the reasons set forth below:

Factual and Procedural Background

1. In 2003, Petitioner was convicted of Theft by Deception (Class C), Misuse of Entrusted Property (Class D), and Theft by Unauthorized Taking (Class B). As a result, pursuant to 15 M.R.S.A. § 393(1)(A-1)[1] he was prohibited from possessing a firearm. The Superior Court imposed a sentence of nine months on each of Petitioner's felony charges and five days on the misdemeanor charge, all concurrent, with all but twelve days suspended on the felony charges, all suspended on the misdemeanor charges, with four years of probation. Petitioner was also ordered to pay restitution. The sentence was stayed pending appeal. The judgment was affirmed by the Maine Supreme Judicial Court on September 8, 2005. Petitioner completed confinement on October 1, 2005. Pursuant to 15 M.R.S.A. § 393(2), on April 26, 2013, Petitioner submitted an application to the Commissioner for a permit to carry a non-concealed firearm. Section 2 of 15 M.R.S.A. § 393 allows a person who is prohibited from possessing firearms under 15 M.R.S.A. § 393(1)(A-1) to apply for a permit to carry a firearm after the expiration of 5 years from the date the person is finally discharged from the sentence imposed as a result of the convictions.

2. Upon receipt of an application and determination that the application is in proper form, the Commissioner is required to notify within 30 days 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. 15 M.R.S.A § 393(4).

3. In accordance with the requirements of 15 M.R.S.A § 393(4), the Maine State Police, on behalf of the Commissioner, notified the named law enforcement and prosecutorial officials and the Superior Court of Bouchard's application, requested additional information " relevant to the issuance of this permit, " and requested that the noticed persons respond in writing within 30 days of receipt of the notice if there were any objections to the issuance of the permit to Petitioner. Recipients were asked to respond with " underlying reasons" for any objections.

4. The Department of Public Safety received one objection: the Aroostook County District Attorney for the county where Petitioner resides responded on August 26, 2013 as follows:

Please be advised that pursuant to 15 M.R.S.A. § 393, subparagraph 4, I do object to the issuance of any such permit to Mr. Bouchard. 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. If you require anything further from me, please let me know. (R. 53.)

5. Section 4(A) of 15 M.R.S.A. § 393 requires the Commissioner to deny an application 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.[2] Thus, in accordance with 15 M.R.S.A. § 393(4)(A), on October 7, 2013, the Commissioner denied Petitioner's application because of the objection by the Aroostook County District Attorney, the District Attorney for the county where petitioner resides.

6. On November 6, 2013, Petitioner filed a timely Petition for Review of Final Agency Action pursuant to 5 M.R.S.A. § § 11002-11008, where he asserted that 1) the Commissioner's decision was an abuse of discretion and erroneous as a matter of law because it was based on an objection that is arbitrary, capricious and unsupported by substantial evidence; and 2) the delegation of executive power by 15 M.R.S.A. § 393(4)(A) is invalid and unconstitutional.

Standard of Review

7. This appeal is governed by the provisions of 15 M.R.S. Section 393(5) and 5 M.R.S. Sections 11001-11008 and M.R.Civ.P. 80C. Petitioner bears the burden of demonstrating that there is no competent evidence in the record to support the Commissioner's findings and decision. Seider v. Bd. of Examiners of Psychologists, 762 A.2d 551, 555 (Me. 2000).

8. Questions of law, such as the constitutionality of a statute, are subject to de novo review. Roberts v. Roberts, 2007 ME 109. A strong presumption of constitutionality attaches to all statutes, which will be construed, where possible, to preserve their constitutionality. Maine Milk producers, Inc. v. Comm'r of Agric., Food & Rural Res. 483 A.2d 1213 (Me. 1984). Before legislation may be declared in violation of the Constitution, that fact must be established to such a degree of ...

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