George Gonzales appeals from the judgment entered in the Superior Court (Kennebec County, Mills, J.) granting a summary
Gonzales has prior felony convictions in California for selling narcotics (convicted in 1961) and burglary (convicted in 1970). A felon is prohibited from owning or possessing a firearm. 15 M.R.S.A. § 393(1)(A).
After the Commissioner denied Gonzales's request that his application be reconsidered, Gonzales filed an appeal in the Superior Court pursuant to section 393(5) and M.R.Civ.P. 80C, seeking judicial review of the Commissioner's decision. After securing some discovery, Gonzales moved to clarify the course of proceedings and requested that the court allow him to present evidence. The court denied that request and granted the defendants' motion for a summary judgment. This appeal followed.
In reviewing an appeal from the grant of a summary judgment, we view the evidence in a light most favorable to the party against whom the judgment was entered and review the trial court's decision for errors of law. Creamer v. Sceviour, 652 A.2d 110, 113 (Me.1995). We will affirm a summary judgment when there is no genuine issue of material fact and the moving party is
Gonzales contends that by establishing the right for a person to obtain a permit to carry a firearm, section 393 creates a property interest that must be protected by due process. He argues that the Commissioner's denial of his permit deprived him of due process.
"To avoid summary judgment on a procedural due process claim, [the plaintiff] must show (1) that [he] had a property interest defined by state law; and (2) that defendants, acting under color of state law, deprived [him] of that interest without adequate process." Licari v. Ferruzzi, 22 F.3d 344, 347 (1st Cir.1994); see also Hammond v. Temporary Compensation Review Bd., 473 A.2d 1267, 1271 (Me.1984) ("the due process clauses protect only certain individual interests, such as any life or liberty interest or certain property interests").
An applicant for a permit does not have a property interest in that permit if there is broad discretion to withhold the benefit. When the provider has broad discretion, the applicant cannot have a reasonable claim of expectation or entitlement to the permit. See Greenwood v. Federal Aviation Admin., 28 F.3d 971, 976 (9th Cir.1994) (no property or liberty interest in renewal of pilot examiner designation because the decision is left to the complete discretion of the FAA and there is no right to automatic renewal); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir.1993) ("An interest that state law permits to be terminated at the whim of another person is not a property right that is protected by the Due Process Clause."); Fullman v. Graddick, 739 F.2d 553, 561 (11th Cir.1984) (no property right in pistol permit when sheriff has discretion to deny license); Erdelyi v. O'Brien, 680 F.2d 61, 63 (9th Cir.1982) (because state law gives issuing authority broad discretion in granting and denying licenses for concealed weapons, the applicants do not have property rights in them); Conway v. King, 718 F.Supp. 1059, 1061 (D.N.H.1989) (no property interest in concealed weapon permit because licensing authority has broad discretion to withhold the benefit).
Here, 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. The district attorney in the county where Gonzales resides objected. Accordingly, the Commissioner could not issue the permit. § 393(4).
Gonzales also contends that the refusal to issue him a permit constitutes a violation of the separation of powers clause of Maine's Constitution. Art. III, § 2 of Maine's Constitution provides that "[n]o person or persons, belonging to one of these departments, shall exercise any of the powers properly belonging to either of the others, except in the cases herein expressly directed or permitted." Contrary to Gonzales's contention, 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. Thus, the grant or denial of a permit by a person in the Executive Branch, § 393(4), subject to some judicial review, see § 393(5), does not violate the separation of powers.
We also are unpersuaded that the court impermissibly refused Gonzales's request to
The entry is: