concluding that no abuse of discretion occurred where statute limited the decision-making body’s authority to grant the relief requested such that “no discretion existed”
How later courts described this case
- concluding that no abuse of discretion occurred where statute limited the decision-making body’s authority to grant the relief requested such that “no discretion existed”
- noting that the Commissioner “could not” issue a black powder permit upon receiving an objection from the district attorney in the county where petitioner resided
- 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
Written by the judges who cited it.
The opinion
STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. AP-23-6
STEVEN SWAN,
Petitioner,
v. DECISION AND ORDER
(M.R. CIV. P. 80C)
JUDITH CAMUSO, Commissioner,
Department of Inland Fisheries and
Wildlife,
Respondent.
Pursuant to Maine Rule of Civil Procedure 80C, Petitioner Steven Swan
appeals a final decision of the Commissioner of the Department of Inland Fisheries
and Wildlife (the “Department”) 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 (2023). See Bouchard v. Dep’t of Pub. Safety, 2015 ME
50, { 1, 115 A.3d 92. For the following reasons, the Department’s decision is
affirmed.
BACKGROUND
Petitioner has been convicted of multiple felony offenses. In 1983, he entered
a guilty plea in federal court in New Hampshire to one count of possession with
intent to distribute cocaine, 21 U.S.C. § 841(a)(1), and was sentenced to two years in
prison with 1 % years suspended. (R. 41.) In 2004, following a trial, he was
convicted in New Hampshire federal court of obstructing and impeding the
administration of the tax laws, 26 U.S.C. § 7212(a); two counts of filing a false tax
return, 26 U.S.C. § 7206(1); and 15 counts of aiding and assisting in the preparation
of a false tax return, 26 U.S.C. § 7206(2). (R. 29-30.) He was sentenced to serve 72
months in federal prison (R. 32) and completed his term of federal supervised
release in 2010. (R. 7.)
By virtue of these convictions, Petitioner is prohibited from owning,
possessing, or being in control of a firearm. 15 M.R.S. § 393(1)(A-1)(2); 18 U.S.C.
§ 922(g)(1). However, a prohibited person may apply to the Department for a permit
to carry a non-concealed firearm five years after final discharge from his or her
sentence. 15 M.R.S. § 393(2).1 In October 2022, Petitioner submitted to the
Department an application for a black powder permit. (R. 5-6.) As required, the
Maine Warden Service (on behalf of the Department) sent notice of Petitioner’s
application to the officials enumerated in 15 M.R.S. § 393(4).2 (R. 60-71.) These
notices set forth Petitioner’s criminal history, although erroneously listed the arrest
date for his federal tax case as 2008 rather than 2003. Compare (R. 60), with (R. 29.)
The notices also asked the recipients to check their records “for any additional
information relevant to the issuance of this permit” and to advise the Warden
1 The Governor has apparently delegated the task of reviewing and issuing
permit requests under 15 M.R.S. § 393(2) to the Department.
2 That provision requires notice to be sent to “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 or police and sheriff
in the municipality where the applicant resides as of the filing of the application.”
15 M.R.S. § 393(4).
Service in writing if the recipient objected to issuance of the permit. See, e.g., (R.
61.)
The Department received an objection from the Attorney General’s Office,
which stated, in relevant part:
I have reviewed your notice, which lists multiple disqualifying federal
convictions, including possession with intent to distribute cocaine (1983), and
several federal tax crimes (2010)....
In light of the multiple qualifying convictions, with the second set of
convictions coming years after prior engagement with the criminal justice
system and involving misrepresentation to the federal government, this
Office objects to the permit.
(R. 75.)
Major Chris Cloutier with the Warden Service thereafter sent a
memorandum to the Commissioner recommending that she deny Petitioner's
application for a permit. (R. 76.) The memorandum repeated the incorrect arrest
date of 2008 for the tax offense and attached an Executive Summary incorrectly
listing 2010, rather than 2004, as the date of Petitioner’s most recent conviction.
(R. 76, 78.) The memorandum cited the correct discharge date for the tax offense—
October 2010—and otherwise accurately recounted Petitioner’s criminal history.
(R. 76.) Cloutier recommended denial of the permit on the basis that the Attorney
General’s Office had objected (R. 77.) By statute, upon receiving such a written
objection, the Department “may not issue a permit.” 15 M.R.S. § 398(4)(A).
The Commissioner subsequently denied Petitioner’s application for two
stated reasons:
1. The [DJepartment received an objection from the Office of the Attorney
General;
2. Based on the very serious nature of the disqualifying crimes of which you
were convicted, and your criminal history record in general, I do not think
the issuance of a permit is appropriate.
(R. 1.)
PROCEDURAL HISTORY
On February 1, 2023, Petitioner filed a petition for review of the
Department’s decision pursuant to M.R. Civ. P. 80C. See 15 M.R.S. § 398(5);
5 M.R.S. § 11001; M.R. Civ. P. 80C. The court thereafter denied Petitioner’s “Motion
for New Determination by Commissioner after Record Correction” on the basis that
the issues cited therein were properly addressed after briefing on the merits. The
court subsequently received briefs from the parties and held a hearing.
LEGAL STANDARD
Judicial review of administrative agency decisions is “deferential and
limited.” Friends of Lincoln Lakes v. Bd. of Env’t Prot., 2010 ME 18, § 12, 989 A.2d
1128. The court is not permitted to overturn an agency’s decision “unless it: violates
the Constitution or statutes; exceeds the agency’s authority; is procedurally
unlawful; is arbitrary or capricious; constitutes an abuse of discretion; is affected by
bias or error of law; or is unsupported by the evidence in the record.” Kroger v. Dep’t
of Env’t Prot., 2005 ME 50, § 7, 870 A.2d 566; 5 M.R.S. § 11007(4)(C). In conducting
its review of an agency decision, the court “do[es] not substitute [its] judgment for
that of the agency and will affirm findings of fact if they are supported by
substantial evidence in the record.” Anglez Behavioral Health Servs. v. Dep’t of
Health & Human Servs., 2020 ME 26, § 12, 226 A.3d 762 (quotation marks
omitted). The party seeking to vacate an agency decision bears the burden of
persuasion on appeal. Anderson v. Me. Pub. Emp. Ret. Sys., 2009 ME 134, § 3, 985
A.2d 501.
DISCUSSION
Petitioner raises seven separate grounds for relief that can be characterized
as falling into three categories of argument: (1) the Department’s denial was based
on erroneous factual information; (2) the Department abused its discretion in
denying the permit; and (3) the statutory scheme is unconstitutional.
I.
Petitioner contends that the Department’s decision should be vacated
because it may have been based in part on erroneous information, namely, that
Petitioner was last arrested in 2008 rather than in 2003 and sustained his most
recent felony conviction in 2010 instead of 2004. While it is the case that the record
presented to the Commissioner did contain certain inaccurate dates, this is an
insufficient basis on which to vacate the Department’s decision.
First, as the Department notes, by statute the Commissioner has no
authority to issue a permit upon receiving an objection from one of the officials
designated in 15 M.R.S. § 393(4); see Bouchard, 2015 ME 50, § 12, 115 A.3d 92
(explaining that “the Legislature has given to certain named persons the absolute
right to object to issuance of the permit” (quotation marks omitted)). Because the
Attorney General’s Office timely objected in writing to Petitioner’s application, the
Commissioner could not issue the permit. See Gonzales v. Comm’r, Dep’t of Pub.
Safety, 665 A.2d 681, 683 (Me. 1995) (noting that the Commissioner “could not”
issue a black powder permit upon receiving an objection from the district attorney
in the county where petitioner resided).
The Law Court has left open the question of whether “an effective appeal
might be available if’ the Commissioner committed 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.”
Bouchard, 2015 ME 50, { 10 n.5, 115 A.3d 92. The court need not explore this issue,
because here the Commissioner complied with the terms of section 393. Id. Reliance
on an objection letter that incorporated minor factual inaccuracies does not rise to
the level of an ultra vires act. Instead, the Attorney General’s objection provided
“relevant” information to the Department, in the form of concerns about allowing
firearm possession by a person who committed multiple felonies, years apart,
including by making false statements to the federal government. Jd. § 13. The
Commissioner thus properly relied on the Attorney General’s objection to deny the
permit application. Jd. (affirming agency decision to deny a black powder permit
upon receiving an objection that was “relevant” to the issuance of the permit).
Second, Petitioner has not demonstrated that the incorrect information
regarding his date of arrest and conviction were material to the Department’s
decision. See Minot Sch. Comm. v. Minot Educ. Ass’n, 1998 ME 211, § 12, 717 A.2d
372. The Commissioner’s rationale for the denial was two-fold: (1) the Attorney
General had objected and (2) Petitioner had a record of serious criminal offenses. As
noted, the Commissioner had no authority to disregard the first basis for denial,
and even if she had, there is nothing in the record to suggest that the precise date of
Petitioner’s arrest and conviction impacted the Commissioner’s finding that he had
a serious criminal history, which formed an independent basis on which to deny the
application. See 15 M.R.S. § 393(4) (‘The [Department] may deny any application
for a permit even if no objection is filed.”). Thus, Petitioner has failed to meet his
burden to demonstrate that no competent record evidence supports the
Department’s decision. See AngleZ, 2020 ME 26, { 12, 226 A.3d 762.
II.
Petitioner also argues that the Department abused its discretion and acted in
an arbitrary and capricious manner because it did not give due consideration to
certain aspects of his criminal history, namely, that his most recent sentence was
discharged more than a decade before his application, his first conviction occurred
over 40 years ago, and his offenses were nonviolent. Pet’r’s Br. 5, 10-11.3 As
discussed, a relevant objection lodged by a properly notified person divests the
Commissioner of discretion to grant the application. 15 M.R.S. § 393(4); Bouchard,
2015 ME 50, { 13, 115 A.3d 92 (holding that where “a properly notified person
3 Petitioner attached to his brief an affidavit containing information about his
criminal history. Because this evidence was not part of the administrative record,
the court cannot consider it now. See M.R. Civ. P. 80C(e) (providing that the “failure
of a party to file” a motion to introduce additional evidence within ten days of the
filing of the record “shall constitute a waiver of any right to the taking of additional
evidence”).
provide a relevant objection that was consistent with the underlying purpose of the
statute, [] the permit was properly denied”). In the circumstances presented here,
the denial was neither an abuse of discretion nor arbitrary and capricious.‘ See
Gilbert v. State, 549 A.2d 737, 739 (Me. 1988) (concluding that no abuse of
discretion occurred where statute limited the decision-making body’s authority to
grant the relief requested such that “no discretion existed”).
III.
Finally, Petitioner raises two constitutional challenges to the permitting
statute: (1) the statute is “deficient or unconstitutional” because it does not allow an
applicant to provide supplemental information (Pet’r’s Br. 6) and (2) the statute
violates Article I, Section 16 of the Maine Constitution because it infringes on the
right of people who have been convicted of nonviolent crimes to possess firearms
(Pet’r’s Br. 10-11). Both claims fail.
Petitioner’s first argument is based on a misreading of the permitting
statute. While section 393(3) delineates certain information that must be included
in a permit application, the statute in no way prohibits an applicant from providing
supplemental information. See 15 M.R.S. § 393(3).5
4 To support his claim that the Department’s denial was arbitrary and
capricious, Petitioner seeks information from the Department regarding the number
of black powder permits issued in the past decade. Pet’r’s Br. 11-12. In the absence
of an evidentiary hearing or independent claim, the court may order discovery in a
Rule 80C proceeding only upon a showing of “good cause.” M.R. Civ. P. 80C().
Petitioner has not demonstrated good cause for his request.
5 This argument fails for the additional reason that Petitioner has not
articulated what constitutional right he believes is implicated by his alleged
Regarding Petitioner’s second constitutional claim, the Law Court has made .
clear that when it comes to seeking a black powder permit, those convicted of
felonies have “no constitutional right or interest at stake.” Bouchard, 2015 ME 50,
11, 115 A.3d 92. This is because the right to “keep and bear arms” in the Maine
Constitution “does not extend to convicted felons.” Id.; 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). Petitioner does not grapple with the Law Court’s holding in Bouchard
or otherwise explain why it does not apply to him. Given the prevailing law,
Petitioner has not established a constitutional violation warranting reversal of the
Department’s decision.
The entry is:
The Department’s decision is affirmed.
The clerk is directed to incorporate this order on the docket by reference
pursuant to M.R. Civ. P. 79(a).
DATED: February 6, 2024 am YZ _f
Julia M./Lipez
Justice,’'Superior Co
inability to provide supplemental information to the Department. See Bayview Loan
Servicing, LLC v. Bartlett, 2014 ME 87, § 15 n.5, 87 A.38d 741 (concluding that
Petitioner waived argument “by failing to adequately develop [the] argument in
[the] briefing’).