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
-2-
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
-3-
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.
-4-
¶ 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
-5-
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.
-7-