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                                  Appellate Court                              Date: 2016.01.21
                                                                               14:29:21 -06'00'




                      Winders v. People, 2015 IL App (3d) 140798



Appellate Court       DONALD L. WINDERS, Petitioner-Appellee, v. THE PEOPLE OF
Caption               THE STATE OF ILLINOIS, Respondent-Appellee (The Department
                      of State Police, Intervenor-Appellant).



District & No.        Third District
                      Docket No. 3-14-0798



Rule 23 order filed   November 10, 2015
Motion to
publish allowed       December 23, 2015
Opinion filed         December 23, 2015



Decision Under        Appeal from the Circuit Court of La Salle County, No. 13-MR-338;
Review                the Hon. Eugene P. Daugherity, Judge, presiding.



Judgment              Reversed and remanded with directions.



Counsel on            Lisa Madigan, Attorney General, of Chicago (Frank H. Bieszczat,
Appeal                Assistant Attorney General, of counsel), for appellant.

                      Bradley P. Popurella, of Popurella Law Office, of Granville, for
                      appellee Donald L. Winders.

                      Brian Towne, State’s Attorney, of Ottawa (Terry A. Mertel, of State’s
                      Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
     Panel                     PRESIDING JUSTICE McDADE delivered the judgment of the
                               court, with opinion.
                               Justices Lytton and O’Brien concurred in the judgment and opinion.


                                                 OPINION

¶1         The petitioner, Donald L. Winders, applied to the appellant, the Department of Illinois
       State Police, for a Firearm Owners Identification (FOID) card and was denied based on his
       criminal history. Winders petitioned the circuit court for relief from the Department’s decision,
       which the court granted. The Department, which was not a party to the circuit court case, filed
       a petition to intervene pursuant to section 2-408(a) of the Code of Civil Procedure (Code) (735
       ILCS 5/2-408(a) (West 2012)) and a petition for relief from judgment pursuant to section
       2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)), both of which the court denied. On
       appeal, the Department argues that the circuit court erred when it denied the petitions to
       intervene and for relief from judgment. We reverse and remand with directions.

¶2                                                 FACTS
¶3         On July 3, 1982, a criminal complaint was filed that alleged Winders committed
       aggravated battery with a firearm that caused bodily harm to an individual. Winders entered a
       negotiated plea of guilty and was sentenced to two years of conditional discharge. On April 28,
       1989, a criminal complaint was filed that alleged Winders committed battery in that he
       knowingly and without legal justification caused bodily harm to his paramour and household
       member. Winders was found guilty of the offense.
¶4         In 2013, Winders filed an application for a FOID card with the Department. The
       Department denied the application based on Winders’ felony conviction.
¶5         On November 13, 2013, Winders filed a petition with the circuit court that requested relief
       from the Department’s decision to deny him a FOID card. Winders alleged that he met the
       requirements of section 10(c) of the Firearm Owners Identification Card Act (FOID Act) (430
       ILCS 65/10(c) (West 2012)) such that he was entitled to relief from the Department’s decision.
¶6         On April 7, 2014, the circuit court held a hearing on Winders’ petition. The State did not
       object to granting the petition. The court found that Winders’ criminal history did not prohibit
       him from obtaining a FOID card, and the court accordingly granted the petition and ordered the
       director of the Department to issue a FOID card to Winders.
¶7         On July 11, 2014, the Department filed a petition to intervene, as well as a petition for relief
       from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)). The
       section 2-1401 petition alleged that the Department was not given notice of Winders’ 2013
       petition filed with the circuit court, and that because the federal Gun Control Act of 1968 (18
       U.S.C. § 922 (2006)) prohibited Winders from possessing a firearm due to his 1989 battery
       conviction, he did not meet the requirements of section 10(c) of the FOID Act to obtain relief
       from the Department’s decision. The Department’s section 2-1401 petition was not
       accompanied by an affidavit.
¶8         Winders filed a motion to strike the Department’s petitions, alleging, inter alia, that the
       Department failed to support its section 2-1401 petition with an affidavit.

                                                    -2-
¶9          On September 9, 2014, the circuit court held a hearing on the Department’s petition.
       Counsel for the Department argued that the Department’s interests were not always identical to
       the State’s Attorney’s office on behalf of the people of Illinois. Here, counsel argued, “[t]he
       Illinois State Police, as the agency that is required by law to administer the FOID Act, has a
       sort of unique interest in making sure that it is complying both with federal and state law in
       issuing a firearms identification card.” Counsel also pointed out that it was unclear from the
       court’s order whether it had considered the amendments made to the FOID Act in 2013 that
       added a prohibition to issuing a FOID card if a federal law prohibited the individual from
       possessing a firearm. The Department’s position was that Winders’ two criminal convictions
       prohibited him under federal law from possessing a firearm. Counsel also added that it filed its
       petition to intervene as soon as the Department received notice of the court’s order directing it
       to issue Winders a FOID card. In response, counsel for Winders stated, inter alia, that the
       supreme court’s decision in Coram v. State of Illinois, 2013 IL 113867, allowed for the
       issuance of a FOID card to Winders.
¶ 10        After hearing arguments, the court found that: (1) the Department’s petition to intervene
       was untimely; (2) the petition to intervene was not supported by an affidavit; and (3) the
       Department had not complied with section 2-1401. Further, the court stated that it was “aware
       of dicta in the Coram v. Illinois decision which says that even if there were to have been a
       violation of federal law in the instance involved there, the Court indicated that the FOID card
       should have been issued.” Accordingly, the court denied the Department’s petition to
       intervene. The Department appealed.

¶ 11                                             ANALYSIS
¶ 12        On appeal, the Department argues that the circuit court erred when it denied the petitions to
       intervene and for relief from judgment. Specifically, the Department contends that both of the
       circuit court’s grounds for its ruling–that the petition to intervene was untimely and that the
       petition for relief from judgment did not comply with section 2-1401 of the Code–were
       impermissible legal grounds upon which to base the decision.
¶ 13        In relevant part, section 2-408(a) of the Code provides that a party shall be permitted to
       intervene in a case when the application is timely and “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) (West 2012). This
       paragraph is to be liberally construed. Freesen, Inc. v. County of McLean, 258 Ill. App. 3d 377,
       381 (1994). In determining whether to allow a petition to intervene, the circuit court “must
       consider 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
       (1991). Whether to allow intervention is a discretionary decision for the circuit court that we
       will not disturb absent an abuse of that discretion. In re Estate of Barth, 339 Ill. App. 3d 651,
       661 (2003).
¶ 14        With regard to timeliness, we note that “[w]hile a person may not normally seek
       intervention after the rights of the original parties have been determined and a final decree
       entered [citation], a motion to intervene may be filed even after dismissal of the case and still
       be timely where necessary to protect the interests of the intervenor.” Citicorp Savings of
       Illinois v. First Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 298 (1995). A party that

                                                   -3-
       seeks to intervene after a judgment has been entered must explain its failure to seek
       intervention prior to the judgment being entered, and intervention may be allowed in the
       court’s discretion if the party lacked knowledge of the action prior to the judgment being
       entered. Schwechter v. Schwechter, 138 Ill. App. 3d 602, 604-05 (1985). In addition,
       intervention may be allowed after a judgment has been entered if doing so is the only way to
       protect the rights of the party seeking to intervene. In re Marriage of Kueteman, 273 Ill. App.
       3d 77, 79 (1995).
¶ 15       Our review of the record in this case reveals that the Department’s petition to intervene was
       timely on these facts. Without explanation, the circuit court found that the petition was
       untimely. 1 However, the Department alerted the court both in the petition for relief from
       judgment and in arguments at the hearing that it lacked knowledge of Winders’ action in the
       circuit court and did not learn of the action until it received the court’s order directing it to issue
       Winders a FOID card. While the Department was not a necessary party to that action (Williams
       v. Tazewell County State’s Attorney’s Office, 348 Ill. App. 3d 655, 659 (2004)), the
       above-cited case law indicates that there is nothing per se untimely about a petition to
       intervene that is filed after a judgment has been entered (Citicorp Savings, 269 Ill. App. 3d at
       298; Schwechter, 138 Ill. App. 3d at 604-05; Kueteman, 273 Ill. App. 3d at 79). Under these
       circumstances, and construing the attempt to intervene liberally, we hold that the circuit court
       abused its discretion when it found the Department’s petition to intervene to be untimely.
¶ 16       With regard to the requirements that the party seeking to intervene possesses sufficient
       interest and whether that interest was represented by existing parties, we note that the
       Department alleged that its rights were not adequately represented by either of the parties
       involved. Because the judgment bound the Department, the Department’s rights were clearly
       impacted and there is nothing in the record to suggest that the State’s Attorney’s office did
       represent the Department’s rights. In fact, the State’s Attorney’s office took a position opposite
       to the Department in that it did not object to Winders’ petition for relief, at least in part due to
       interpretations of Coram and section 10(c) that ran contrary to those of the Department. In
       addition, the Department’s interest is beyond that of the general public, as the Department is
       tasked with the administration of the FOID card program and must ensure compliance with
       federal and state law. See People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 57-58 (2002)
       (holding that “[a]lthough a party [seeking to intervene] need not have a direct interest in the
       pending suit, it must have an interest greater than that of the general public, so that the party
       may stand to gain or lose by the direct legal operation and effect of a judgment in the suit”).
       Thus, not only was the Department’s petition timely, the Department also demonstrated a
       sufficient interest and the inadequacy of the existing parties to represent that interest. See
       Soyland Power, 213 Ill. App. 3d at 918. Because section 2-408(a)(2) (735 ILCS 5/2-408(a)(2)
       (West 2012)) provides that intervention shall be permitted as a matter of right when these three
       requirements are met, the circuit court had no discretion to deny the petition to intervene. 735
       ILCS 5/2-408(e) (West 2012).

           1
             We note that the court seemed to indicate that the failure to file an affidavit affected the timeliness
       of the petition to intervene. We believe the court misspoke and was referencing the petition for relief
       from judgment in this regard, as section 2-1401 requires an affidavit, while section 2-408 does not. If
       the court in fact did not misspeak, then the court’s belief that the lack of an affidavit rendered the
       petition to intervene untimely was erroneous.

                                                        -4-
¶ 17       Even though we have held that the circuit court erred when it denied the Department’s
       petition to intervene, we will also address the Department’s second argument that the court
       erred when it denied the petition to intervene on the additional ground that the section 2-1401
       petition was procedurally insufficient.
¶ 18       Section 2-408(e) of the Code provides that “[a] person desiring to intervene shall present a
       petition setting forth the grounds for intervention, accompanied by the initial pleading or
       motion which he or she proposes to file.” Id. In this case, that pleading or motion would be the
       petition for relief from judgment. It is important to note that there is no requirement in section
       2-408 that the accompanying motion be meritorious or even procedurally flawless. In Soyland
       Power, the Fourth District stated:
                    “The purpose of section 2-408(e) of the Code is to give both the trial court and any
                opposing party a clear indication of the relief the potential intervenor will be seeking if
                his petition to intervene is granted. This purpose is achieved by the requirement that the
                potential intervenor’s initial pleading he proposes to file be attached to the petition to
                intervene. Only when the goals of the potential intervenor are revealed in this fashion
                can the trial court and any opposing party assess the appropriateness of the petition to
                intervene.” (Emphasis added.) Soyland Power, 213 Ill. App. 3d at 920.
       Thus, the accompanying motion can serve to clarify the intention of the party seeking to
       intervene, but even if that motion would be denied, the court cannot prohibit a party from
       intervening when the party seeks to intervene as a matter of right and it has met the three
       aforementioned requirements. Accordingly, to the extent that the circuit court premised its
       denial of the Department’s petition to intervene on a determination that the section 2-1401
       petition was deficient, that ruling was erroneous.
¶ 19       Lastly, because the circuit court also apparently premised its denial of the petition to
       intervene in part on its belief that the Coram decision permitted a state court to remove an
       applicant’s federal impediment to possessing a firearm, we will briefly address the
       Department’s claim that the court misinterpreted Coram.
¶ 20       While it was not decided until after the circuit court issued its decision in this case, in
       O’Neill v. Director of the Illinois Department of State Police, 2015 IL App (3d) 140011, a
       different panel of this court addressed the supreme court’s decision in Coram and the 2013
       amendments to section 10(c) of the FOID Act. This court held, inter alia, that in dicta, four
       justices of the supreme court found in Coram that under the 2013 amendments to section 10(c),
       a state court could not remove a federal prohibition on the ability of an individual to possess a
       firearm. Id. ¶ 27. Further, this court held that the applicant was not entitled to a reinstatement
       of his FOID card because the FOID Act “prohibits the court from granting relief where doing
       so would be contrary to federal law.” Id. ¶ 31.
¶ 21       In this case, the circuit court found that Coram allowed a state court to remove an
       applicant’s federal impediment to possessing a firearm. Pursuant to O’Neill, that finding was
       incorrect. Thus, to the extent that the circuit court based its denial of the Department’s petition
       to intervene on the court’s interpretation of Coram, that ruling was erroneous.
¶ 22       For the foregoing reasons, we hold that the circuit court abused its discretion when it
       denied the Department’s petition to intervene. We remand the case for the court to allow the
       Department’s petition to intervene, and to hold further proceedings consistent with our
       decision.


                                                    -5-
¶ 23                                        CONCLUSION
¶ 24      The judgment of the circuit court of La Salle County is reversed and the cause is remanded
       with directions.

¶ 25      Reversed and remanded with directions.




                                                 -6-
