The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


 

STATE OF MICHIGAN

MIKE COX, ATTORNEY GENERAL

LICENSES AND PERMITS:

CONCEALED WEAPONS:

MENTAL HEALTH:

 Authority of concealed weapon licensing boards to diagnose mental illness

The Concealed Pistol Licensing Act, MCL 28.421 et seq, does not confer on a county concealed weapon licensing board the power to make its own medical diagnosis of mental illness in the course of determining an applicant's eligibility for licensure under that act. However, a county concealed weapon licensing board has the authority to review records and other evidence in the course of fulfilling its responsibility to determine whether an applicant for a concealed pistol license has been diagnosed with a mental illness at the time the application is made.

Opinion No. 7189

March 15, 2006

Honorable Fred Miller
State Representative
The Capitol
Lansing, MI

You ask whether a county concealed weapon licensing board (Board) has the power to interpret medical and other records in order to make a diagnosis of mental illness when reviewing an application for a license to carry a concealed pistol.

The Concealed Pistol Licensing Act (Act), 1927 PA 372, MCL 28.421 et seq, regulates the carrying of concealed pistols. The Act prohibits a person from carrying a concealed pistol unless the person has been licensed in accordance with the requirements of the Act. Among these is the requirement that the applicant "does not have a diagnosed mental illness at the time the application is made regardless of whether he or she is receiving treatment for that illness." MCL 28.425b(7)(l).

The Board is required by the Act to determine applicant eligibility. MCL 28.425b(7). The Board is an administrative agency created by statute, and as such, it has "no inherent powers and possess[es] only those limited powers which are expressly conferred upon [it] by the state constitution or state statute[ ] or which are necessarily implied therefrom." Hanselman v Killeen, 419 Mich 168, 187; 351 NW2d 544 (1984). The principles that govern the interpretation of an agency's powers are expressed in Pharmaceutical Research & Manufacturers of America v Dep't of Community Health, 254 Mich App 397, 403-404; 657 NW2d 162 (2002). The Court of Appeals stated that, in addition to their express powers, administrative agencies may exercise powers that are granted by necessary or fair implication to fully effectuate the express powers:

Statutes are the primary source of administrative power; thus, whether an administrative agency has a particular power is typically a matter of statutory construction. Consistent with the goal of effectuating legislative intent, the power conferred includes that which is expressly granted and that which is granted by necessary or fair implication, i.e., "powers necessary to a full effectuation of authority expressly granted." [Citations omitted.]

Similar statements of this principle have been adopted in other cases, including Dep't of Public Health v Rivergate Manor, 452 Mich 495, 503; 550 NW2d 515 (1996), Soap & Detergent Ass'n v Natural Resources Comm, 415 Mich 728, 736 n 4; 330 NW2d 346 (1982), and Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951).

The powers vested in the Board are described in the Act. Among these is the power to investigate an applicant to determine eligibility under the Act. MCL 28.425a(7). The Board is further authorized to access an applicant's medical and mental health records to aid in the eligibility determination.1  The Board is to determine whether the applicant has a "diagnosed mental illness at the time the application is made." Nowhere in the Act is the Board granted the power to make its own diagnosis of mental illness, nor can any such power be reasonably inferred from those expressly granted.

While your question does not present a specific factual situation, three possible factual scenarios nevertheless emerge from the context of your question. Those include a case where a diagnosis of mental illness has been made by a health professional, a case where such a diagnosis has not been made, and a case where the existence of a diagnosis at the time the application is made is subject to a good faith factual dispute. If the evidence before the Board clearly establishes that the applicant has "a diagnosed mental illness at the time the application is made," the Board is bound by that determination. Likewise, if the evidence before the Board establishes that the applicant does not have a diagnosed mental illness at the time the application is made, the Board is bound by that circumstance.

Where the existence of an actual diagnosis is debatable, however, the Board has the responsibility under section 425b(7) to resolve that question.2  For example, if medical records indicate that an applicant suffers from symptoms consistent with a mental disorder but those records do not definitively resolve whether a diagnosis has been made, a question arises whether the Board may properly reach the requisite determination that the applicant "does not have a diagnosed mental illness." In this instance, while the Board members would be without authority to formulate their own diagnosis, the Board has the authority to further investigate the matter to resolve that question. MCL 28.425a(7).

It is also worth noting that the Board must deny a license to an applicant where, although the person has not been diagnosed with a mental illness at the time the concealed pistol license application is made, the Board has determined, based on clear and convincing evidence, that issuing the license is detrimental to the safety of the applicant or any other individual. MCL 28.425b(7)(n). In addition, even if an applicant does not have a diagnosed mental illness at the time the application is made, if that person has ever been found to be guilty but mentally ill of any crime, has offered a plea of not guilty of, or been acquitted of, any crime by reason of insanity, or has been the subject of an order of involuntary commitment due to mental illness, the application must be denied. MCL 28.425b(7)(j) and (k). Moreover, before issuing a license, the Board must determine that the applicant is not the subject of an order or disposition under section 464a of the Mental Health Code, MCL 330.1464a. MCL 28.425b(7)(d)(i). Further, if the applicant "has been adjudicated as a mental defective" or been committed to a mental institution, federal law prohibits that person from possessing a firearm, 18 USC 922 (g)(4), and the application should be denied.

It is my opinion, therefore, that the Concealed Pistol Licensing Act, MCL 28.421 et seq, does not confer on a county concealed weapon licensing board the power to make its own medical diagnosis of mental illness in the course of determining an applicant's eligibility for licensure under that act. However, a county licensing board has the authority to review records and other evidence in the course of fulfilling its responsibility to determine whether an applicant for a concealed pistol license has been diagnosed with a mental illness at the time the application is made.

MIKE COX
Attorney General

 1 Under MCL 28.425b(1)(c) and (d), an application for a license to carry a concealed pistol must contain a statement by the applicant authorizing the Board to access any medical record pertaining to the applicant's qualifications for a license and to access the applicant's mental health records relating to his or her mental health history.

2 Section 425b(7) states that the concealed weapon licensing board "shall issue a license to an applicant to carry a concealed pistol . . . after the applicant properly submits an application . . . and the concealed weapon licensing board determines that all of the [listed] circumstances exist."  MCL 28.425b(7).  Among these circumstances is that the applicant "does not have a diagnosed mental illness at the time the application is made."  MCL 28.425b(7)(l).