Francis v. Maine Warden Service

STATE OF MAINE SUPERIOR COURT
KENNEBEC, SS. CIVIL ACTION
DOCKET NO. AP-2022-11

SCOTT FRANCIS,
Petitioner
DECISION AND ORDER
v.

MAINE WARDEN SERVICE,
MAINE DEPARTMENT OF
INLAND FISHERIES AND
WILDLIFE,
Respondent

INTRODUCTION
Before the court is the appeal by Scott Francis (Francis) from the decision of
the Commissioner of the Department of Inland Fisheries and Wildlife denying his
application for a non-concealed fireaim permit (also referred to as a "black powder"
permit) pursuant to 15 M.R.S. § 393(2). This appeal is brought pursuant to 15 M.R.S.
§ 393(5) and in accordance with 5 M.R.S. §§ 11001-11008 (Maine Administrative
Procedure Act - MAPA) and M.R.Civ.P. SOC.
For the reasons explained below, the appeal is denied, and the decision of the
Commissioner is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On February 16, 2016, Francis entered pleas of guilty to and was convicted of
the following criminal offenses: Theft by Deception (Class B); Perjury (Class C);
Theft by Deception (Class C) (3 Counts); Intentional Evasion of Income Taxes (Class
C) (2 Counts), and; Unemployment Fraud (Class D). See State of Maine v. Scott
Francis, KENCR-2015-688 (Murphy J.). He was sentenced to 120 days straight on
Counts 2-8, to be served concurrently with each other. He was also sentenced to 4
years, all suspended, with 3 years ofprobation, to be served consecutively to the other
counts. See Administrative Record, "AR" at 7-11 and 13-14. Francis was also
ordered to pay restitution of over $16,000 to the Town of Clinton and over $2,000 to
the Maine Department of Labor. The circumstances surrounding the criminal
conduct committed by Francis involved allegations of workers' compensation fraud,
including giving perjured testimony before the Worker's Compensation Board. AR
at 8.
Francis was released from the Kennebec County Correctional Facility on June
4, 2016. AR at 16. On July 8, 2016, Francis moved to terminate his probation, which
was granted the same day, according to the docket record. AR at 29.
In September 2021, Francis filed an application with the Maine Warden
Service for a "Black Powder Permit." AR at 3-6. Upon receipt of the application,
the Warden Service sent copies to the Attorney General's Office, which had
prosecuted the case against Francis, and the Chief of the Clinton Police Department.
AR at 30-35. Shortly after receiving a copy of the application, an Assistant Attorney
General responded to the Warden Service as follows:
This applicant may be a former police officer. You may wish to
check with the Criminal Justice Academy for any available
records.

There is media coverage of an individual named Scott Francis
with convictions similar to those listed in your notice. I have not
verified that the person identified in the article and your applicant
are the same person, and have not independently verified the other
allegations regarding Mr. Francis, but am forwarding the link in
the event you wish to follow up.

I will be objecting to this application, and will submit a more
formal objection on behalf of the Attorney General.
AR at 35.

2
In a letter dated October 1, 2021, the Attorney General's Office wrote to the
Department of Inland Fisheries and Wildlife that it was objecting to the Francis
application for a permit under 15 M.R.S. § 393, "[b]ased on the seven disqualifying
convictions, which demonstrate dishonesty and a disregard for the law by an
individual whose duty it was to enforce and uphold the law, ...." (Emphasis is
original). AR at 37. The Police Chief of Clinton did not lodge an objection to the
application.
In a memorandum dated February 28, 2022, Major Chris Cloutier
recommended to Commissioner Judith Camuso that she deny the Francis application
because of the objection filed by the Attorney General's Office and "considering the
multiple convictions." AR at 38-39. On the same day, the Commissioner wrote to
Mr. Francis and denied his application for a "nonconcealed firearm permit," also
known as a "black powder permit." The Commissioner wrote:
Pursuant to 15 MRSA § 393, I am denying your application for
the following reasons:
1. The department 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 in
general, I do not think the issuance of a pe1mit is appropriate.
AR at 1.

Francis filed his petition for judicial review of the Commissioner's decision on
April 5, 2022.
DISCUSSION
The Law Court has frequently reaffirmed the principle that judicial review of
administrative agency decisions is "deferential and limited." Passadumkeag
Mountain Friends v. Bd. ofEnvtl. Prof., 2014 ME 116, ,r 12, 102 A.3d 1181 ( quoting
Friends ofLincoln Lakes v. Bd. ofEnvtl. Prof., 2010 ME 18, ,r 12, 989 A.2d 1128).

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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 ofEnvtl.
Prot., 2005 ME 50, ,r 7, 870 A.2d 566. The court may not suhstitute its judgment for
that of the agency's on questions of fact. 5 M.R.S. § 11007(3). The party seeking to
vacate a state agency decision has the burden of persuasion on appeal. Anderson v.
Me. Pub. Emp. Ret. Sys., 2009 ME 134, ,I 3,985 A.2d 501.
As smneone who has been convicted of a felony, Mr. Francis is prohibited
from owning, possessing, or having under his control a firearm. 15 M.R.S. § 393(1)
(A-1 )(1 ). As a general matter, this is a lifetime prohibition. A limited exception
exists under section 393(2), however, which allows a prohibited person, "after the
expiration of 5 years from the date that the person is finally discharged from the
sentence imposed," to apply to the. Governor's Office "for a pennit to carry a firearm
subject to subsection 4." 1 15 M.R.S. § 393(2). Among other information, the
application must include the "make, model and serial number of the firearm sought
to be possessed," which cannot be a "firearm" as defined in 18 U.S.C. § 921 (a)(3). 2
The statutory scheme requires the Governor's Office, within 30 days of
determining that the application is in proper form, to send notice of the application to
various officials, including the Attorney General. 15 M.R.S. § 393(4). The law then
states:

1
It is the court's understanding that the Governor has delegated her authority under this statute
to the Maine Warden Service within the Department of Inland Fisheries and Wildlife.
2
It is also the court's understanding that federal law provides that a "firearm" does not include
an "antique firearm," which in tum includes a muzzle loading rife or pistol designed to use black
powder and cannot use "fixed ammunition." 18 U.S.C. §§ 92l(a)(3) & (16)(C). It is for this reason
that the permit to possess a firearm under section 393(2) is commonly referred to as a "black powder
permit."

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If, within 30 days of the sending of notice, a person notified
objects in writing to the Governor regarding the initial issuance
of a permit and provides the reason for the objection, the
Governor may not issue the permit. The reason for the objection
must be communicated in writing to the Governor in order for it
to be the sole basis for denial.
15 M.R.S. § 393(4)(A) 3

The Governor is authorized to deny a permit "even ifno objection is filed." 15
M.R.S. § 393(4).
The Law Court has made it clear that the statutory process for applying for a
"black powder permit" and the process that gives to certain named persons or officials
"the absolute right to object to the issuance of the permit," does not raise any due
process concerns because "a previously-convicted felon, has only a unilateral
expectation and not a property interest in that permit " Gonzales v.
Commissioner, Dep 't of Pub. Safety, 665 A.2d 681, 683 (Me. 1995). See also
Bouchard v. Commissioner, Dep't of Pub. Safety, 2015 ME 50, ,r,r 12-13, 115 A.3d
92. Mr. Francis has not argued otherwise.
Rather, Francis contends that the Commissioner's denial of his application was
affected by bias and was arbitrary and capricious. The court rejects both arguments.
Mr. Francis suggests that the real reason the Attorney Generals' Office
objected was not because of his convictions, "but because the Petitioner's underlying
matters had received 'media coverage.'" Petitioner's Briefat 5. The record evidence
does not support that suggestion. In her email to the Warden Service after receiving
notice of the Francis application, the Assistant Attorney General noted that Francis
"may be a former police officer." She also observed that there had been media

3
If the application is for a 2nd or subsequent issuance of a permit, the Governor is required to
take any objection by the notified officials into consideration, "but need not deny the issuance of a
permit based on an objection alone." 15 M.R.S. § 393(4)(B).

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coverage of someone named Scott Francis, but she had not verified that the person
named in the article and the applicant were one and the same. She forwarded a link
to the article to the investigator with the Warden Service if he wanted to follow up
on it.
There is no support in the administrative record for the notion that the Attorney
Generals' objection was based on bias towards Mr. Francis because of any media
coverage surrounding his cases. On the contrary, the reference to that media coverage
was for the purpose of alerting the staff person investigating the Francis permit
application to the existence of potential information about Francis and his cases that
might be relevant to that application. The administrative record fully supports the
conclusion that the Attorney General's objection was "[b]ased on the seven
disqualifying convictions, which demonstrate dishonesty and a disregard for the law
by an individual whose duty it was to enforce and upheld the law ...." AR at 37.
The Attorney General's objection met the requirements of 15 M.R.S. §
393( 4)(A). As a result, the Commissioner was not authorized to issue the permit. 4
Francis also asserts that the Commissioner's denial of his application was
arbitrary and capricious because it was "[b ]ased on the very serious nature of the
disqualifying crimes of which you were convicted, and your criminal history record
in general." AR at 1. Francis contends that "[t]he nature of the crimes that [he] was
convicted of were not very serious." Petitioner's Brief at 7 (italicized in original).
The court disagrees. The fact that a sworn police officer engaged in fraud, including
perjury before the Worker's Compensation Board, is highly serious by its very nature
notwithstanding the fact that it did not involve crimes of violence or the threat of
violence.

4
Considering the Attorney General's objection under section 393(4), the Commissioner could
not issue the permit for that reason alone. Nevertheless, the court will address the Petitioner's
remaining arguments.

6
Finally, Francis maintains that the Commissioner's denial was factually
wrong, and therefore arbitrary and capricious, because it was based on his "criminal
history in general," which he states only includes the eight (8) crimes of which he
was convicted in KENCR-2015-688. In the comi's view, Francis has misinterpreted
the Commissioner's deni::il letter ofFehnrnry 28, 2022. AR 8t l. The Commissioner
was not referring to some non-existent "criminal history record in general." She was
referring to the 7 disqualifying felonies when viewed individually and to the entire
course of conduct engaged in by Mr. Francis, which included an gth conviction for
the Class D offense of Employment Fraud.

CONCLUSION
The entry is:
The Petition for Judicial Review is DENIED, and the Commissioner's decision
denying the application for a permit under 15 M.R.S. § 393(2) is AFFIRMED.

DATED: NOVEMBER 4, 2022

/ ~_.___________..~~­
' illiam R. Stokes
Justice, Maine Superior Court

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