                                Illinois Official Reports

                                        Appellate Court



                 Miller v. Department of State Police, 2014 IL App (5th) 130144




Appellate Court           HEATH  LEE   MILLER,    Petitioner-Appellee, v.   THE
Caption                   DEPARTMENT OF STATE POLICE, Respondent-Appellant.


District & No.            Fifth District
                          Docket No. 5-13-0144


Filed                     June 17, 2014


Held                       Where the Department of State Police revoked petitioner’s firearm
(Note: This syllabus owner’s identification card based on information that petitioner had
constitutes no part of the been charged with domestic battery and unlawful possession of a
opinion of the court but controlled substance and petitioner sought relief through a petition
has been prepared by the filed under section 10(a) of the Firearm Owners Identification Card
Reporter of Decisions Act, wherein he alleged that although he had been convicted of
for the convenience of domestic battery, a misdemeanor, and unlawful possession of a
the reader.)               controlled substance, a felony, once he successfully served his
                           sentences, including first-offender probation for the possession
                           conviction, he was left with a misdemeanor conviction for domestic
                           battery on his record and he was not under indictment for a felony or
                           have a felony conviction for unlawful possession of a controlled
                           substance at the time the revocation letter was issued and, as a result,
                           was not prohibited from obtaining a FOID card; therefore, the trial
                           court properly ordered the Department to issue a card to petitioner,
                           since section 10(a) of the Act allowed petitioner to seek relief from the
                           trial court if the revocation was “based upon” one of the enumerated
                           offenses, including domestic battery and unlawful possession of a
                           controlled substance.


Decision Under            Appeal from the Circuit Court of Edwards County, No. 11-MR-15; the
Review                    Hon. David K. Frankland, Judge, presiding.
     Judgment                 Affirmed.


     Counsel on               Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
     Appeal                   Solicitor General, and Timothy M. McPike, Assistant Attorney
                              General, of counsel), for appellant.

                              Alan C. Downen, of McLeansboro, for appellee.




     Panel                    PRESIDING JUSTICE WELCH delivered the judgment of the court,
                              with opinion.
                              Justices Cates and Schwarm concurred in the judgment and opinion.




                                               OPINION

¶1         The appellant, the Department of State Police (the Department), by and through its
       attorney, Lisa Madigan, Attorney General of the State of Illinois, appeals the judgment entered
       by the circuit court of Edwards County, which granted relief to the appellee, Heath Lee Miller,
       under section 10 of the Firearm Owners Identification Card Act (the Act) (430 ILCS 65/10
       (West 2012)), by ordering the Department to issue a firearm owners identification card (FOID
       card) to Miller. For the reasons which follow, we affirm the decision of the circuit court.
¶2         On August 27, 2004, the Department notified Miller that it had revoked his FOID card. The
       notice indicated that records maintained by the Department revealed that Miller had been
       charged with unlawful possession of a controlled substance and domestic battery. The notice
       stated that revocation was pursuant to section 8(n) of the Act (430 ILCS 65/8(n) (West 2004)),
       which authorized the revocation of a FOID card that had been issued to an individual who was
       prohibited by federal law from acquiring firearms or firearm ammunition, and 18 U.S.C.
       § 922(n), which made it unlawful for Miller to receive any firearms or firearm ammunition
       because he was charged with a felony.
¶3         On November 4, 2011, Miller filed a petition for relief from firearm possession prohibition
       in the circuit court of Edwards County. The petition was filed pursuant to section 10 of the Act
       (430 ILCS 65/10 (West 2010)), which allows an aggrieved party to appeal directly to the
       circuit court following a denial or revocation of a FOID card where the denial or revocation
       was “based upon,” inter alia, a domestic battery or any violation of the Illinois Controlled
       Substances Act. The petition alleged that on August 4, 2004, Miller was convicted of domestic
       battery, a Class A misdemeanor, and was placed on probation for 12 months. The petition
       further alleged that, on the same date, Miller had pled guilty to unlawful possession of a
       controlled substance, a Class 4 felony, and was placed on first-offender probation for 24
       months. Miller had successfully completed his sentences of probation and was discharged


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     from probation. Therefore, Miller was not under indictment for a felony at the time that the
     revocation letter was issued. Additionally, because charges for offenses under the Illinois
     Controlled Substances Act (720 ILCS 570/100 et seq. (West 2010)) are dismissed upon
     successful completion of first-offender probation under section 410(f) of the Illinois
     Controlled Substances Act (720 ILCS 570/410(f) (West 2010)), Miller did not have a felony
     conviction for unlawful possession of a controlled substance at the time that the revocation
     letter was issued. The petition therefore alleged that federal law did not prohibit Miller from
     acquiring or possessing a firearm or firearm ammunition and requested that the circuit court
     enter an order directing the Department to issue him a FOID card.
¶4        On January 13, 2012, the circuit court ordered the Department to issue a FOID card to
     Miller. The court made the following findings: that Miller’s FOID card had been revoked “[a]s
     a result of his conviction for domestic battery”; that he had not been convicted of a forcible
     felony within 20 years of his application for a FOID card; that he would be unlikely to act in a
     manner dangerous to public safety; that substantial justice had not been done in denying Miller
     a FOID card; that granting the requested relief would not be contrary to the public interest; and
     that because of the nature of “the domestic violence conviction,” federal law did not prohibit
     Miller from acquiring or possessing firearms or firearm ammunition.
¶5        On February 28, 2012, the Department filed a “motion to vacate” the circuit court’s order
     under section 2-1401 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1401 (West
     2012)), arguing that federal and state law prohibited Miller from possessing a firearm because
     of his domestic-battery conviction and that compliance with the court’s January 2012 order
     would contravene federal and state law. Therefore, the Department requested that the court’s
     order be vacated. On March 27, 2012, Miller filed a motion to dismiss the “motion to vacate,”
     which was thereafter granted by the circuit court. The Department appealed, and this court
     dismissed the appeal on the basis that the Department’s motion was in substance a posttrial
     motion to vacate and not a section 2-1401 petition. This court then concluded that the
     Department’s posttrial motion to vacate was untimely because it had been filed more than 30
     days after entry of the final judgment, but noted that the Department still had the opportunity to
     file a section 2-1401 petition.
¶6        On December 17, 2012, the Department filed a petition for relief from judgment pursuant
     to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)) in the circuit court. The
     Department argued as follows: (1) that the circuit court lacked subject matter jurisdiction to
     consider Miller’s petition for relief from firearm possession prohibition because the basis for
     the revocation of Miller’s FOID card, which was that Miller was prohibited from possessing
     firearms under federal law, was not one of the bases listed under section 10(a) of the Act (430
     ILCS 65/10(a) (West 2012)) that give the circuit court jurisdiction; (2) that Miller was required
     to seek relief for the revocation of his FOID card through the Department’s administrative
     process; and (3) that Miller was prohibited from possessing firearms under federal law because
     of his conviction for domestic battery pursuant to 18 U.S.C. § 922(g)(9), which provided that
     any person convicted of a misdemeanor crime of domestic violence may not ship or transport
     in interstate commerce or possess or affect in commerce any firearm or firearm ammunition.
¶7        On January 16, 2013, Miller filed a motion to dismiss the Department’s section 2-1401
     petition, arguing, inter alia, that the circuit court had subject matter jurisdiction over his
     petition for relief from firearm possession prohibition. Miller argued that his domestic-battery
     conviction was the only conviction that would have potentially prohibited him from being

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       issued a FOID card under federal and state law. Miller noted that he had already successfully
       completed his sentence of first-offender probation for the unlawful-possession charge and that
       consequently the charge had been dismissed. Miller argued that the circuit court had subject
       matter jurisdiction over his petition pursuant to section 10(a) of the Act (430 ILCS 65/10(a)
       (West 2012)), which gave the circuit court authority to grant relief where a FOID card had been
       revoked or denied based on a conviction for domestic battery. Miller further argued that his
       conviction for domestic battery did not strictly fall within the federal definition of a
       “misdemeanor crime of domestic violence” and therefore federal law did not prevent him from
       possessing a firearm. On February 20, 2013, the circuit court granted Miller’s motion to
       dismiss the Department’s section 2-1401 petition for relief from judgment. The Department
       appeals.
¶8         We review de novo the circuit court’s dismissal of a section 2-1401 petition. People v.
       Vincent, 226 Ill. 2d 1, 18 (2007). We also review de novo the issue of whether the circuit court
       properly exercised subject matter jurisdiction over a petition for a FOID card under section 10
       of the Act (430 ILCS 65/10 (West 2012)). Schlosser v. State of Illinois, 2012 IL App (3d)
       110115, ¶ 18.
¶9         Generally, to be entitled to relief under section 2-1401 of the Code (735 ILCS 5/2-1401
       (West 2012)), a petitioner must show by a preponderance of the evidence specific factual
       allegations supporting each of the following elements: (1) the existence of a meritorious
       defense or claim; (2) due diligence in discovering this defense or claim; (3) the error of fact or
       valid claim or defense was not presented to the circuit court during the original action through
       no fault of the petitioner; and (4) due diligence in filing the section 2-1401 petition for relief.
       Klose v. Mende, 378 Ill. App. 3d 942, 946-47 (2008); Johnson v. Wal-Mart Stores, Inc., 324 Ill.
       App. 3d 543, 547 (2001). However, a meritorious claim or defense and due diligence need not
       be established where a section 2-1401 petition is attacking a judgment or order as being void.
       In re Haley D., 2011 IL 110886, ¶ 58. “[T]he allegation that the judgment or order is void
       substitutes for and negates the need to allege a meritorious defense and due diligence.”
       Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 104 (2002).
¶ 10       In the present case, the Department’s section 2-1401 petition alleges that the circuit court’s
       judgment was void because it lacked subject matter jurisdiction to consider Miller’s petition
       for relief from firearm possession prohibition filed pursuant to section 10 of the Act (430 ILCS
       65/10 (West 2012)). Accordingly, the Department’s section 2-1401 petition did not need to
       establish the existence of a meritorious claim or defense and due diligence.
¶ 11       The sole issue raised on appeal is whether the circuit court lacked subject matter
       jurisdiction to consider Miller’s petition. The Department argues that the circuit court’s
       January 13, 2012, order is void for lack of subject matter jurisdiction because the Department’s
       stated basis for revoking Miller’s FOID card, i.e., Miller was prohibited under federal law from
       possessing a firearm as a result of being under indictment for a felony, is not one of the bases
       set forth under sections 10(a) and 10(c) of the Act (430 ILCS 65/10(a), (c) (West 2012)) for
       giving the circuit court jurisdiction. In response, Miller contends that he was no longer under
       indictment for a felony at the time that the Department had notified him that it was revoking his
       FOID card. Miller argues that the circuit court properly granted his request for relief because
       our supreme court in Coram v. State of Illinois, 2013 IL 113867, has ruled that a person who
       has been convicted of domestic battery may have his right to a FOID card restored.


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¶ 12       Section 9 of the Act (430 ILCS 65/9 (West 2012)) provides that every person whose
       application for a FOID card is denied and every holder of a FOID card whose card is revoked
       shall receive written notice from the Department stating the specific grounds upon which the
       application has been denied or upon which the FOID card has been revoked. Section 8 of the
       Act (430 ILCS 65/8 (West 2012)) sets forth the grounds for the Department to deny an
       application for or to revoke a previously issued FOID card. The revocation notice issued by the
       Department in this case referenced section 8(n) of the Act (430 ILCS 65/8(n) (West 2012)) as a
       basis for the revocation of Miller’s FOID card. Section 8(n) of the Act (430 ILCS 65/8(n)
       (West 2012)) gives the Department the authority to revoke a previously issued FOID card
       where the person is prohibited from acquiring or possessing firearms or firearm ammunition by
       any Illinois state statute or by federal law. The revocation notice also referenced section 922(n)
       of the federal Gun Control Act of 1968, which makes it “unlawful for any person who is under
       indictment for a crime punishable by imprisonment for a term exceeding one year to ship or
       transport in interstate or foreign commerce any firearm or ammunition or receive any firearm
       or ammunition which has been shipped or transported in interstate or foreign commerce.”
       18 U.S.C. § 922(n) (2012). The notice indicated that Miller had been charged with unlawful
       possession of a controlled substance and domestic battery.
¶ 13       After a FOID card has been revoked, the aggrieved party may seek relief from either the
       Director of State Police or the circuit court pursuant to the limitations set forth in section 10(a)
       of the Act, which is set forth as follows:
               “Whenever *** a [FOID] Card is revoked or seized as provided for in Section 8 of this
               Act, the aggrieved party may appeal to the Director of State Police for a hearing upon
               such *** revocation ***, unless the *** revocation *** was based upon *** domestic
               battery[ ] [or] any violation of the Illinois Controlled Substances Act, *** in which
               case the aggrieved party may petition the circuit court in writing in the county of his or
               her residence for a hearing upon such *** revocation ***.” 430 ILCS 65/10(a) (West
               2012).
       Further, section 10(c) of the Act states as follows:
               “Any person prohibited from possessing a firearm under Sections 24-1.1 or 24-3.1 of
               the Criminal Code of 2012 or acquiring a [FOID] Card under Section 8 of this Act may
               apply to the Director of State Police or petition the circuit court in the county where the
               petitioner resides, whichever is applicable in accordance with subsection (a) of this
               Section ***.” 430 ILCS 65/10(c) (West 2012).
¶ 14       In the present case, the Department appears to acknowledge that the stated basis contained
       in the revocation letter, i.e., being barred from possessing a firearm because Miller was under
       indictment for a felony, was incorrect as Miller had already been convicted of domestic battery
       and had pled guilty to the unlawful-possession offense at the time that the Department issued
       the revocation letter. However, the Department cites Schlosser v. State of Illinois, 2012 IL App
       (3d) 110115, for the proposition that it is the stated basis contained in the revocation letter, not
       the correctness of that basis, that determines whether the Director of State Police or the circuit
       court has subject matter jurisdiction over a petition seeking relief under section 10 of the Act.
¶ 15       In Schlosser, 2012 IL App (3d) 110115, ¶ 1, the Department denied Schlosser’s application
       for a FOID card on the basis that he had been convicted of indecent solicitation of a child.
       Schlosser filed a petition for hearing in the circuit court arguing, inter alia, that the Department
       had wrongfully denied his application for a FOID card because indecent solicitation of a child

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       was not a forcible felony. Id. ¶ 12. The circuit court determined that the offense of indecent
       solicitation of a child fell within the definition of forcible felony and therefore denied
       Schlosser’s petition. Id. ¶ 15. Schlosser appealed, arguing that indecent solicitation of a child
       was not a forcible felony. Id. ¶ 17.
¶ 16       In response, the State argued that if indecent solicitation of a child was not a forcible
       felony, then Schlosser could not appeal the denial of his FOID card application directly to the
       circuit court and that he should have instead appealed to the Director of State Police. Id. The
       State contended that pursuant to section 10(a) of the Act (430 ILCS 65/10(a) (West 2010)), the
       circuit court had subject matter jurisdiction only where the denial was based on, inter alia, a
       forcible felony. Schlosser, 2012 IL App (3d) 110115, ¶¶ 17-19. The Schlosser court
       determined that the denial of Schlosser’s FOID card application was based upon a
       determination that he had a prior forcible-felony conviction and therefore the circuit court had
       subject matter jurisdiction to consider his petition. Id. ¶ 21. The court then determined that
       indecent solicitation of a child was a forcible felony and that the circuit court had properly
       denied Schlosser’s FOID card application. Id. ¶ 28. Justice Wright concurred in part and
       dissented in part, agreeing that the plain language of the Act required Schlosser to seek relief in
       the circuit court and that the circuit court had jurisdiction, but disagreeing that Schlosser’s
       conviction for indecent solicitation of a child constituted a forcible felony. Id. ¶ 33 (Wright, J.,
       concurring in part and dissenting in part).
¶ 17       The Schlosser majority did not address the question of whether the Department’s stated
       basis for denial or revocation of a FOID card controls whether the Director of State Police or
       the circuit court has subject matter jurisdiction, regardless of whether the stated basis is
       correct. Rather, the Schlosser court found that an appeal to the circuit court was proper because
       Schlosser’s application had been denied on the basis that he had committed a forcible felony,
       indecent solicitation of a child. However, we need not determine whether the Department’s
       stated basis for revoking a FOID card controls regardless of whether that stated basis is correct
       because we find that the central issue in this appeal involves the interpretation of section 10(a)
       of the Act (430 ILCS 65/10(a) (West 2012)).
¶ 18       The Department argues that Illinois courts have interpreted section 10(a) of the Act (430
       ILCS 65/10(a) (West 2012)) as vesting subject matter jurisdiction in the circuit court only
       where the revocation of a FOID card is based upon a conviction for one of the enumerated
       offenses. Therefore, the Department argues that because the basis for the revocation of Miller’s
       FOID card was an indictment for one of the enumerated offenses and not a conviction, the
       circuit court lacked subject matter jurisdiction. In contrast, Miller argues that the circuit court
       has subject matter jurisdiction regardless of whether the basis for revocation was for pending
       charges or for a conviction of one of the enumerated offenses because section 10(a) of the Act
       does not require a conviction.
¶ 19       As previously stated, section 10(a) of the Act (430 ILCS 65/10(a) (West 2012)) sets forth
       circumstances under which a petitioner can obtain relief from a firearm prohibition in the
       circuit court. Specifically, section 10(a) of the Act provides that an aggrieved party may appeal
       to the circuit court if the revocation of his FOID card was “based upon” one of the enumerated
       offenses, inter alia, domestic battery and any violation under the Illinois Controlled
       Substances Act. 430 ILCS 65/10(a) (West 2012). Here, the revocation of Miller’s FOID card
       was not “based upon” a conviction for one of the enumerated offenses, but instead upon his
       being charged with a felony and therefore prohibited by federal law from possessing firearms.

                                                    -6-
       The charges referenced in the revocation letter were domestic battery and a violation of the
       Illinois Controlled Substances Act, both of which are listed offenses in section 10(a) of the Act.
¶ 20        To determine the proper interpretation of section 10(a) of the Act, we first look to the plain
       language of the statute. The primary rule of statutory construction is to ascertain and give
       effect to the legislature’s intent. People v. McChriston, 2014 IL 115310, ¶ 15; Williams v.
       Tazewell County State’s Attorney’s Office, 348 Ill. App. 3d 655, 659 (2004). The best evidence
       of legislative intent is the statutory language, given its plain and ordinary meaning.
       McChriston, 2014 IL 115310, ¶ 15; Williams, 348 Ill. App. 3d at 659. Where the statutory
       language is clear and unambiguous, we must apply the statute without resort to further aids of
       statutory construction. McChriston, 2014 IL 115310, ¶ 15.
¶ 21        In this case, the Department cites Schlosser v. State of Illinois, 2012 IL App (3d) 110115,
       ¶¶ 19-21, and Williams, 348 Ill. App. 3d at 659, for the proposition that Illinois courts have
       interpreted section 10(a) of the Act to require a conviction for the circuit court to have subject
       matter jurisdiction over a petition for relief from firearm possession prohibition. In Schlosser,
       2012 IL App (3d) 110115, ¶ 21, the court determined that Schlosser’s FOID card application
       was denied based on his having been convicted of a forcible felony. Similarly, in Williams, 348
       Ill. App. 3d at 656, Williams’ application for a FOID card was denied based upon his having
       been convicted of a domestic battery. Therefore, in both cases, the petitioners’ FOID card
       applications were denied because they had been convicted of one of the enumerated offenses,
       and those courts were not required to determine whether circuit court jurisdiction was limited
       to cases where the denial or revocation of a FOID card was based upon a conviction for one of
       the offenses set forth in section 10(a) of the Act.
¶ 22        The plain language of section 10(a) of the Act provides that an aggrieved party may appeal
       to the circuit court if the revocation of his FOID card was “based upon” one of the enumerated
       offenses. Nowhere in the statute did the legislature impose the limitation that the aggrieved
       party must be convicted of one of the enumerated offenses as opposed to merely being
       charged. See 430 ILCS 65/10(a) (West 2012). “Courts should not, under the guise of statutory
       construction, add requirements or impose limitations that are inconsistent with the plain
       meaning of the statute.” Williams, 348 Ill. App. 3d at 659. Therefore, we conclude that section
       10(a) of the Act (430 ILCS 65/10(a) (West 2012)) encompasses a denial or revocation of a
       FOID card based on the applicant’s being prohibited by federal law from possessing firearms,
       which is based on the applicant’s having been charged with a felony, where that felony is one
       of the enumerated offenses in section 10(a) of the Act. Accordingly, the circuit court had
       subject matter jurisdiction to consider Miller’s petition, and we affirm the circuit court’s
       judgment ordering the Department to issue a FOID card to Miller.
¶ 23        For the foregoing reasons the judgment of the circuit court of Edwards County is hereby
       affirmed.

¶ 24      Affirmed.




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