[¶ 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).
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
[¶ 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:
[¶ 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
[¶ 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 (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). However, the doctrine is limited to delegations 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 application. The availability of judicial review, however, is not determinative of whether
[¶ 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 District of Columbia v. Heller, 554 U.S. 570, 626, 128 S.Ct. 2783, 171 L.Ed.2d 637 (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: