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                              Appellate Court                          Date: 2016.11.08
                                                                       09:29:43 -06'00'




                   Flood v. Richey, 2016 IL App (4th) 150594



Appellate Court   MATTHEW V. FLOOD, Plaintiff-Appellee, v. JEREMY RICHEY,
Caption           Moultrie County State’s Attorney, Defendant-Appellee (The
                  Department of State Police, Intervenor-Appellant).



District & No.    Fourth District
                  Docket No. 4-15-0594



Filed             September 22, 2016



Decision Under    Appeal from the Circuit Court of Moultrie County, No. 14-MR-18; the
Review            Hon. Dan L. Flannell, Judge, presiding.



Judgment          Reversed; cause remanded with directions.



Counsel on        Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Appeal            Solicitor General, and Christopher M.R. Turner (argued), Assistant
                  Attorney General, of counsel), for appellant.

                  Bradford A. Rau and Douglas K. Smothers (argued), both of Rau,
                  Elder & Associates, of Sullivan, for appellee.



Panel             JUSTICE HARRIS delivered the judgment of the court, with opinion.
                  Justices Steigmann and Appleton concurred in the judgment and
                  opinion.
                                             OPINION

¶1       The Illinois Department of State Police (Department) appeals the circuit court’s orders
     denying its petition to intervene as of right and striking its motion to vacate the court’s March
     2015 order directing the Department to issue plaintiff, Matthew V. Flood, a firearm owner’s
     identification (FOID) card. We reverse and remand with directions.

¶2                                        I. BACKGROUND
¶3        On October 31, 2014, Flood filed a petition in the circuit court of Moultrie County pursuant
     to section 10 of the Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/10
     (West 2012)) seeking an order directing the Department to issue him a FOID card. Flood
     alleged that, on or about August 5, 2014, the Department denied his application for
     reinstatement of his FOID card on the ground that his 1999 conviction for battery qualified as a
     crime of domestic violence as defined by the federal Gun Control Act of 1968 (18 U.S.C.
     § 921(a)(33)(A) (2012)), making it unlawful for him to possess a firearm under federal law.
     According to Flood’s petition, his battery conviction resulted from an incident that “involved
     the spanking and leaving a mark on the buttocks of *** a minor child of his then girlfriend.”
     Although originally charged with domestic battery, he later pleaded guilty to an amended
     charge of simple battery. Flood further asserted in his petition that section 10(c) of the FOID
     Act permitted the circuit court to grant him a FOID card because (1) he had not been convicted
     of a forcible felony, (2) the circumstances regarding his battery conviction indicate he was not
     likely to act in a manner dangerous to public safety, and (3) granting relief would not be
     contrary to the public interest.
¶4        On March 2, 2015, the circuit court conducted a hearing on Flood’s petition at which the
     Moultrie County State’s Attorney, Flood, and Flood’s attorney were present. The Department
     was neither named as a party respondent nor given notice of the hearing, and thus, it did not
     appear at the hearing. The court’s docket entry for March 2, 2015, notes, “No objections on
     file. None made in open court. Petition allowed.” On March 10, 2015, the court entered a
     written order directing the Department to issue Flood a FOID card. In its order, the court found
     “the State’s Attorney of Moultrie County deferred to the discretion of the [c]ourt and stipulated
     to the [p]etition on file and Flood’s [e]xhibits.” The court further found (1) Flood had never
     been convicted of a forcible felony, (2) he was not likely to act in a manner dangerous to public
     safety, and (3) ordering the Department to issue Flood a FOID card would not be contrary to
     the public interest.
¶5        On April 9, 2015, the Department filed (1) a petition to intervene as of right pursuant to
     section 2-408 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-408 (West 2014))
     and (2) a motion to vacate the circuit court’s March 2015 order pursuant to section 2-1203 of
     the Code (735 ILCS 5/2-1203 (West 2014)). In its petition to intervene, the Department
     asserted that intervention was appropriate because it was bound by the circuit court’s March
     2015 order following proceedings in which its interests were not adequately represented.
     Specifically, the Department contended that due to the State’s Attorney’s failure to object to
     Flood’s petition, the court had not considered the Department’s legal argument that the court
     lacked authority to grant Flood relief due to a federal firearm disability. In its
     contemporaneously filed motion to vacate the court’s March 2015 order, the Department


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       maintained that the court lacked the authority to grant Flood’s petition for relief because his
       prior battery conviction prohibited him from possessing a firearm under federal law.
¶6         On April 21, 2015, Flood filed a motion to strike the Department’s petition to intervene and
       a response to the Department’s motion to vacate the circuit court’s March 2015 order. In his
       motion to strike, Flood asserted that the State’s Attorney adequately represented the
       Department’s interests and that the Department’s interests were insufficient to permit
       intervention because its “enforcement of the FOID Act is rote and ministerial: it either grants
       or denies applications with minimal exercise of discretion.” In his response to the motion to
       vacate the March 2015 order, Flood asserted that if the Department were permitted to
       intervene, the court should nonetheless deny the motion to vacate because he did not commit a
       misdemeanor offense of domestic violence and, therefore, was not prohibited from possessing
       a firearm under federal law. In particular, Flood asserted he was not the victim’s parent or
       guardian, nor was he similarly situated to a parent or guardian.
¶7         On June 11, 2015, the circuit court conducted a hearing on the Department’s petition to
       intervene and motion to vacate the court’s March 2015 order. Regarding the petition to
       intervene, Flood argued the Department’s right to intervene was discretionary rather than as of
       right, that the Department failed to establish that the State’s Attorney did not adequately
       protect its interests, and that the court’s March 2015 order directing it to issue Flood a FOID
       card was “a pretty ministerial act.” In contrast, the Department argued its right to intervene was
       “as of right” because it was bound by the court’s March 2015 order and its interests had not
       been adequately represented by the State’s Attorney, who had simply deferred to the court’s
       discretion.
¶8         The circuit court then heard argument on the Department’s motion to vacate the March
       2015 order. The Department argued that the court was precluded from issuing an order
       granting Flood’s requested relief because Flood’s battery conviction qualified as a
       misdemeanor domestic violence offense under federal law and prohibited him from owning a
       firearm. The Department maintained that at the very least, it “ha[d] presented [a] sufficient
       basis under which the [c]ourt should conduct an evidentiary analysis and legal analysis as to
       whether this statute would apply and whether [Flood] is prohibited under federal law [from
       possessing a firearm].” Accordingly, the Department requested that the court vacate its March
       2015 order and, thereafter, hear argument on whether Flood’s relationship with the victim of
       his battery conviction qualified as a domestic relationship such that Flood would be prohibited
       from firearm ownership under federal law.
¶9         In a written order dated June 24, 2015, the circuit court denied the Department’s petition to
       intervene. The court found, “[a]lthough the Moultrie County State’s Attorney did not present
       argument or evidence against [Flood’s] request for an order directing issuance of a FOID card,
       the Court cannot find that the *** State’s Attorney failed to adequately represent the interest of
       the [Department].” The court further found the Department “failed to show how representation
       by the *** State’s Attorney, rather than by the [Department], would be inadequate or
       unrepresentative of its interests.” Finally, the court struck as moot the Department’s motion to
       vacate the March 2015 order directing the Department to issue Flood a FOID card.
¶ 10       This appeal followed.




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¶ 11                                           II. ANALYSIS
¶ 12       On appeal, the Department argues (1) the circuit court abused its discretion by denying its
       petition to intervene as of right; (2) alternatively, it had nonparty standing to move to vacate
       the March 2015 order; and (3) in any event, the circuit court’s order striking its motion to
       vacate the March 2015 order as moot was error. The Department further contends that this
       court should vacate the March 2015 order because the circuit court failed to find that granting
       Flood’s requested relief would not be contrary to federal law and the Department demonstrated
       Flood’s prior battery conviction qualified as a misdemeanor crime of domestic violence under
       federal law, which would preclude him from possessing a firearm.

¶ 13                                    A. Intervention as of Right
¶ 14       On appeal, the Department first asserts it should have been allowed to intervene as a matter
       of right because it had a substantial interest in the proceedings, in which it was not adequately
       represented by the State’s Attorney, and it is bound by the circuit court’s order requiring it to
       issue Flood a FOID card.
¶ 15       With respect to intervention as of right, the Code provides, in relevant part, as follows:
       “Upon timely application anyone shall be permitted as of right to intervene in an action ***
       when the representation of the applicant’s interest by existing parties is or may be inadequate
       and the applicant will or may be bound by an order or judgment in the action.” 735 ILCS
       5/2-408(a)(2) (West 2014). The circuit court’s discretion in determining whether a party
       should be allowed to intervene as of right is limited to a consideration of “whether the petition
       to intervene is timely, whether the petitioner’s interest is sufficient, and whether that interest is
       being adequately represented by someone else in the lawsuit.” Soyland Power Cooperative,
       Inc. v. Illinois Power Co., 213 Ill. App. 3d 916, 918, 572 N.E.2d 462, 464 (1991). “[If those]
       threshold requirements have been met, the plain meaning of the statute directs that the petition
       be granted.” City of Chicago v. John Hancock Mutual Life Insurance Co., 127 Ill. App. 3d 140,
       144, 468 N.E.2d 428, 431 (1984). “The decision to allow or deny intervention, whether
       permissively or as of right, is a matter of sound judicial discretion that will not be reversed
       absent an abuse of that discretion.” People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 58,
       779 N.E.2d 875, 888 (2002).
¶ 16       First, we note that Flood concedes the timeliness of the Department’s petition to intervene.
       Based on our review of the record, we agree the petition was timely filed. The record shows the
       Department was first notified of the circuit court’s order directing it to issue Flood a FOID card
       on March 16, 2015, and it filed its petition on April 9, 2015.
¶ 17       Second, Flood concedes that the Department is bound by the circuit court’s March 2015
       order. The court’s order binds the Department by requiring it to issue Flood a FOID card, and
       thus, we find the Department has a sufficient interest in the matter.
¶ 18       We now consider whether the Moultrie County State’s Attorney adequately represented
       the Department’s interest. The Department argues its “legal position [is] directly contrary to
       the position taken by [Flood] and the local State’s Attorney.” Specifically, the Department
       contends, if permitted to intervene, it would demonstrate that Flood’s battery conviction
       qualifies as a misdemeanor crime of domestic violence that prohibits him from possessing a
       firearm under federal law and consequently would make him ineligible for a FOID card.



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¶ 19        Here, the record shows that the State’s Attorney did not object to Flood’s petition and
       instead “deferred to the discretion of the [circuit] [c]ourt and stipulated to the [p]etition on
       file.” Recently, the Third District considered a similar situation in Winders v. People, 2015 IL
       App (3d) 140798, 45 N.E.3d 289. In that case, Winders sought relief from the Department’s
       denial of his FOID card application based on a prior battery conviction involving his
       then-paramour and household member. Id. ¶ 3. The State did not object to Winders’s petition
       for relief, and the circuit court granted the petition and ordered the Department to issue
       Winders a FOID card. Id. ¶ 6. Thereafter, the Department filed a petition to intervene as of
       right, asserting that Winders’s prior battery conviction prevented him from possessing a
       firearm and, as a result, prevented him from obtaining relief under section 10(c) of the FOID
       Act. Id. ¶ 7. Following a hearing, the court denied the Department’s petition to intervene, and
       the Department appealed. Id. ¶ 10. On review, the appellate court noted that the record failed to
       demonstrate that the State’s Attorney’s office represented the Department’s rights and, “[i]n
       fact, the State’s Attorney’s office took a position opposite to the Department in that it did not
       object to Winders’[s] petition for relief.” Id. ¶ 16. The court concluded that the Department
       established the representation of the State’s Attorney’s office was inadequate and, thus, the
       Department should have been allowed to intervene. Id.
¶ 20        We agree with the court’s analysis in Winders and find the State’s Attorney’s acquiescence
       to Flood’s petition here was inadequate representation relative to the Department’s interests.
       Section 10(c) of the FOID Act allows a person who is prohibited from acquiring a FOID card
       to obtain relief from the prohibition if he can establish that (1) the State’s Attorney has been
       served with notice and afforded an opportunity to present evidence and object to the petition,
       (2) he has not been convicted of a forcible felony within the past 20 years, (3) he is unlikely to
       act in a manner dangerous to public safety, (4) granting relief would not be contrary to the
       public interest, and (5) granting relief would not be contrary to federal law. 430 ILCS 65/10(c)
       (West 2014). In his petition, Flood failed to allege that granting relief “would not be contrary to
       federal law.” Id. Thus, Flood’s petition, brought pursuant to section 10(c), was deficient. The
       State’s Attorney’s stipulation to the petition establishes that its representation in the matter was
       inadequate relative to the Department, which “is tasked with the administration of the FOID
       card program and must ensure compliance with federal and state law.” Winders, 2015 IL App
       (3d) 140798, ¶ 16, 45 N.E.3d 289. Accordingly, we find the State’s Attorney did not
       adequately represent the Department’s interests in this matter.
¶ 21        Based on the above, we find the Department’s petition to intervene was timely, and it
       demonstrated both a sufficient interest in the matter and an inadequacy of existing parties to
       represent that interest. Accordingly, the circuit court erred in denying the Department’s
       petition to intervene as of right.

¶ 22                                       B. Nonparty Standing
¶ 23       The Department alternatively contends that it has nonparty standing to move to vacate the
       circuit court’s March 2015 order and to appeal the court’s order striking its motion to vacate
       the March 2015 order. Because we find the Department should be permitted to intervene in this
       matter as of right, we decline to address whether it also has nonparty standing in this case.




                                                    -5-
¶ 24                   C. The Department’s Motion To Vacate the March 2015 Order
¶ 25        Next, the Department contends the circuit court erred by striking its section 2-1203 motion
       to vacate the March 2015 order. It argues the court’s order striking its motion to vacate was
       erroneous as a matter of law because it was based solely on its improper denial of the
       Department’s petition to intervene. The Department further asserts this court should consider
       its motion to vacate on its merits and order the March 2015 order vacated because (1) the order
       failed to find that granting Flood’s requested relief would not be contrary to federal law and (2)
       it demonstrated Flood’s prior battery conviction qualified as a misdemeanor crime of domestic
       violence that prohibits him from possessing a firearm.
¶ 26        We agree with the Department that because the circuit court erred in denying the
       Department’s petition to intervene, its subsequent striking as moot the Department’s motion to
       vacate the March 2015 order was also error. However, given that the circuit court did not reach
       the merits of the motion to vacate its March 2015 order, we decline to do so here.

¶ 27                                         III. CONCLUSION
¶ 28       For the reasons stated, we reverse the circuit court’s denial of the Department’s petition to
       intervene, reverse its order striking as moot the Department’s motion to vacate the March 2015
       order, and remand to the circuit court with directions that the Department be allowed to
       intervene in the matter and for a hearing on the Department’s motion to vacate the circuit
       court’s March 2015 order directing it to issue Flood a FOID card.

¶ 29      Reversed; cause remanded with directions.




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