                                   2019 IL App (1st) 173148


                                                                           FIRST DISTRICT
                                                                           SIXTH DIVISION
                                                                           February 15, 2019



No. 1-17-3148

DAVID K. FULLER,                                    )       Appeal from the
                                                    )       Circuit Court of
        Petitioner-Appellant,                       )       Cook County.
                                                    )
v.                                                  )
                                                    )       No. 2017 CH 006475
THE DEPARTMENT OF STATE POLICE and                  )
THE COOK COUNTY STATE’S ATTORNEY,                   )       Honorable
                                                    )       Celia Gamrath,
       Respondents-Appellees.                       )       Judge Presiding.

       JUSTICE HARRIS delivered the judgment of the court, with opinion.
       Justices Cunningham and Connors concurred in the judgment and opinion.

                                           OPINION

¶1     Petitioner, David K. Fuller, appeals the order of the circuit court dismissing his motion to

restore his firearm rights, where the motion was filed more than 35 days after the Department of

State Police (ISP) denied Fuller’s application for a Firearm Owners Identification (FOID) Card.

On appeal, Fuller contends the court erred in finding it had no jurisdiction over the matter

pursuant to Administrative Review Law (Law) (735 ILCS 5/3-101 et seq. (West 2016)), where

the 35-day period within which to file an appeal from a final administrative order did not apply

in his case. For the following reasons, we reverse and remand for further proceedings.

¶2                                      JURISDICTION

¶3     The trial court dismissed Fuller’s complaint on November 14, 2017. Fuller filed a notice

of appeal on December 13, 2017. Accordingly, this court has jurisdiction pursuant to Illinois
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Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303 (eff. July 1, 2017), governing appeals from

final judgments entered below.

¶4                                      BACKGROUND

¶5     On January 8, 1980, Fuller, who was 19 years old at the time, received a two-year

probation sentence after being convicted of “Burglary in the Third Degree,” a felony. He served

his sentence and has no other convictions.

¶6     On August 29, 2014, Fuller received a gubernatorial pardon from Governor Pat Quinn in

which he was “acquitted and discharged of and from all further imprisonment and restored to all

the rights of citizenship which may have been forfeited by the conviction.” The governor’s order

permitted expungement but excluded “The Right to Ship, Transport, Possess, Or Receive

Firearms, Which May Have Been Forfeited By The Conviction.” In January 2015, the circuit

court entered an “order to expunge and impound criminal records” upon Fuller’s petition.

¶7     In 2016, Fuller filed an application for a FOID card with the ISP. A FOID card is

required for purchasing or possessing a firearm in Illinois. 430 ILCS 65/2(a)(1) (West 2016). On

August 24, 2016, the ISP notified Fuller that it had denied his application because he was

“prohibited from firearms” pursuant to “18 USC 922 (g) (1)—Persons who have been convicted

of a crime punishable by imprisonment for a term exceeding one year” and “430 ILCS 65/8

(c)—A person convicted of a felony.”

¶8     On May 5, 2017, Fuller filed a motion to restore firearm rights in the circuit court. Fuller

cited section 10(c) of the Firearm Owners Identification Card Act (FOID Card Act) (id. § 10(c)),

and alleged that he “has not been imprisoned for a conviction of a forcible felony within the past

20 years” and “leads a clean and sober lifestyle free of crime.” He highlighted his personal and

professional growth since his conviction, including the fact that he has been a firefighter with the

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Chicago Fire Department for the past 10 years. He acknowledged his past “poor

decision-making” and “deeply regrets the mistakes he made in his past and has learned from

them.” The summons named both the Cook County State’s Attorney and the ISP as respondents

in the action.

¶9        On June 8, 2017, the state’s attorney filed a motion to dismiss the matter pursuant to

section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West

2016)). The state’s attorney argued that the circuit court lacked jurisdiction over the matter

because the ISP’s denial of Fuller’s FOID card application was a final administrative decision

that had to be appealed within 35 days under the Law. Per court order, the ISP provided records

to the court relating to Fuller’s FOID card application but did not file an answer. The court

granted ISP’s motion for an extension of time to respond to Fuller’s motion.

¶ 10      On November 14, 2017, the circuit court held a hearing on the motion to dismiss and

thereafter granted the state’s attorney’s motion. The court found that “under section [11(a)] of

the [FOID Card Act], all final administrative decisions of the ISP under [section 10(a)-(e)] are

subject to review under the [Law],” which requires the filing of a complaint for administrative

review within 35 days of the final administrative decision. The order stated that “all parties,

including the Attorney General agree that the August 24, 2016 denial of the [sic] Fuller’s FOID

application is a final administrative order under the” Law. Since Fuller failed to file his motion

within 35 days of the denial, the court lacked jurisdiction over the matter. Fuller filed this timely

appeal.

¶ 11                                        ANALYSIS

¶ 12      Fuller appeals the dismissal of his action pursuant to section 2-619(a)(5) of the Code,

which provides for dismissal when an action was not commenced within the time limited by law.

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Id. A section 2-619 motion to dismiss admits the legal sufficiency of all well-pleaded facts “but

asserts an affirmative defense or other matter that avoids or defeats the plaintiffs’ claim.”

DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). As section 2-619 motions present a question of

law, we review dismissals thereon de novo.

¶ 13   Illinois courts, as courts of general jurisdiction, “enjoy a presumption of subject matter

jurisdiction.” Illinois State Treasurer v. Illinois Workers’ Compensation Comm’n, 2015 IL

117418, ¶ 14. This presumption does not apply to administrative proceedings, however, because

“Illinois courts are empowered to review administrative actions only ‘as provided by law.’ ” Id.

In exercising its “special statutory jurisdiction” when reviewing an administrative decision, a

court is limited by the language of the act conferring jurisdiction. People ex rel. Madigan v.

Illinois Commerce Comm’n, 2014 IL 116642, ¶ 10.

¶ 14   The ISP denied Fuller’s FOID card application pursuant to section 8(c) of the FOID Card

Act. Section 11(a) of the FOID Card Act provides that “[a]ll final administrative decisions of the

[ISP] under this Act *** shall be subject to judicial review under the provisions of the [Law].”

430 ILCS 65/11(a) (West 2016). Section 3-103 of the Law states that “[e]very action to review a

final administrative decision shall be commenced by the filing of a complaint and the issuance of

summons within 35 days from the date that a copy of the decision *** was served upon the party

affected by the decision.” 735 ILCS 5/3-103 (West 2016). The circuit court applied these

statutory provisions and determined that it lacked jurisdiction to review the ISP’s denial of

Fuller’s application because he failed to file his motion within 35 days of the denial.

¶ 15   However, since section 11(a) pertains to judicial review of “final administrative decisions

of the ISP,” the threshold question we must consider is whether the ISP’s initial denial of a FOID

card application is a final administrative decision. Although the circuit court found that “all

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parties, including the Attorney General agree that the August 24, 2016 denial of the [sic] Fuller’s

FOID application is a final administrative order,” the parties cannot waive judicial review of

subject matter jurisdiction by agreement. See In re M.W., 232 Ill. 2d 408, 417 (2009) (“lack of

subject matter jurisdiction is not subject to waiver”).

¶ 16   Not all administrative decisions are final decisions. Pinkerton Security & Investigation

Services v. Department of Human Rights, 309 Ill. App. 3d 48, 53 (1999). Final administrative

decisions “contemplate an adversarial proceeding involving the parties, a hearing on the

controverted facts, and an ultimate disposition rendered by an impartial fact finder.” O’Rourke v.

Access Health, Inc., 282 Ill. App. 3d 394, 401 (1996). In other words, “a final administrative

decision is one ‘which affects the legal rights, duties or privileges of the parties and which

terminates the proceedings before the administrative agency.’ ” (Emphasis omitted.) Searles v.

Board of Education of the City of Chicago, 369 Ill. App. 3d 500, 504 (2006) (quoting 735 ILCS

5/3-101 (West 2004)).

¶ 17   Here, the ISP’s denial of Fuller’s application did not follow an adversarial proceeding in

which contested facts were heard by an impartial fact finder. The ISP simply denied Fuller’s

application, pursuant to section 8(c) of the FOID Card Act, because he was convicted of a

forcible felony on December 26, 1979. Section 10(a) provides that

       “[w]henever an application for a [FOID] Card is denied *** the aggrieved party may

       appeal to the Director of State Police for a hearing upon such denial *** unless the denial

       *** was based upon a forcible felony ***, 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

       denial.” 430 ILCS 65/10(a) (West 2016).




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Section 10’s provision for an adversarial hearing after an application has been denied supports a

determination that the ISP’s initial denial is not a final administrative decision.

¶ 18   Also, the mere fact that section 10 gives certain denied applicants a choice to have their

appeal heard by the circuit court, instead of the director, does not transform the ISP’s initial

denial into a final administrative decision. Prior to 2001, the only method to review the ISP’s

denial of a FOID card application was to appeal to the director of the ISP. Williams v. Tazewell

County State’s Attorney’s Office, 348 Ill. App. 3d 655, 660 (2004). At the time, courts did not

consider the initial denial to be a final administrative decision where proceedings before the

agency had not been terminated. Id. The 2001 amendment did not alter this appeal process, but

provided applicants who had convictions for certain offenses with the choice to have their appeal

heard by the circuit court instead of the director. Id. The appellate court in Williams reasoned that

the legislature could have provided at the time “that such decisions are final and subject to

review under the [Law]” but “[i]t did not.” Id. Although Williams had appealed the rejection of

his FOID card application to the circuit court, the appellate court found that the ISP’s rejection

was not a final administrative decision subject to the Law. Id. at 661. While the court also found

that the ISP’s letter stated only that it would not process Williams’s application, rather than deny

the application, this finding was additional grounds for the court’s determination that Williams’s

petition was not subject to the Law. Id. at 660-61.

¶ 19   It follows that if the ISP’s initial denial of a FOID card application is not a final

administrative decision, the Law’s 35-day limit within which to file a petition for judicial review

does not apply. As further support, we note that since the 2001 amendment, courts have held

hearings on petitions appealing the ISP’s initial denial of a FOID card application where the

petition was filed more than 35 days after the denial. See Schlosser v. State, 2012 IL App (3d)

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110115; Miller v. Department of State Police, 2014 IL App (5th) 130144; Odle v. Department of

State Police, 2015 IL App (5th) 140274; People v. Heitmann, 2017 IL App (3d) 160527.

¶ 20   The state’s attorney argues that without application of the Law, and with no time limit

expressed in section 10 within which an applicant must appeal the ISP’s denial, a person whose

FOID card application is denied “would have no deadline for bringing their challenge to such a

denial,” which is an absurd result. The primary purpose of statutory construction is to ascertain

and give effect to legislative intent as indicated by the clear language of the statute. Brucker v.

Mercola, 227 Ill. 2d 502, 513 (2007). “The language of the statute must be afforded its plain,

ordinary and popularly understood meaning ***.” People ex rel. Sherman v. Cryns, 203 Ill. 2d

264, 279 (2003). The clear terms of section 10 do not provide for a time limit, and courts “will

not depart from the plain language of a statute by reading into it exceptions, limitations or

conditions that conflict with the express legislative intent.” Id. Furthermore, we disagree that this

is “an absurd result” with no finality. As the denial of an application to legally possess a firearm,

left to stand, adversely affects only the applicant, it is in the applicant’s interest to move forward

with the appeal process in a timely manner. Also, as the ISP points out in its brief, other

limitations relevant to civil actions, as well as the equitable doctrine of laches, may apply.

¶ 21   Since Fuller’s motion essentially seeks relief under section 10 from the ISP’s initial

denial of his FOID card application, and we find that the ISP’s denial is not a final administrative

decision subject to the Law, the circuit court had jurisdiction to consider the motion even though

it was filed more than 35 days after notification of the denial. Therefore, the court’s dismissal for

lack of jurisdiction was error.

¶ 22   The state’s attorney argues on appeal that this court should affirm the dismissal of

Fuller’s motion “on an alternative basis in the record.” Specifically, the state’s attorney argues

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that Fuller is also prohibited from possessing a firearm under federal law. This basis for

dismissal, however, was not addressed in the state’s attorney’s motion to dismiss or by the circuit

court. “[G]rounds not specified in the motion to dismiss cannot be urged on appeal” and to

determine otherwise “would be unfair to the complainant and inappropriate.” Taylor v. Trans

Acceptance Corp., 267 Ill. App. 3d 562, 573 (1994). The circuit court below did not have

occasion to consider Fuller’s motion on the merits, and as the ISP argues, there may be an

exception in the federal Gun Control Act of 1968 (18 U.S.C. § 921 et seq. (2012)) that applies to

Fuller. We will not affirm a dismissal on this alternative basis before the circuit court has

considered and ruled on these issues.

¶ 23                                     CONCLUSION

¶ 24   For the foregoing reasons, the judgment of the circuit court is reversed and the cause is

remanded for further proceedings.

¶ 25   Reversed and remanded.




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