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
No. 1-17-3148
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
-2-
No. 1-17-3148
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.
-3-
No. 1-17-3148
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
-4-
No. 1-17-3148
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).
-5-
No. 1-17-3148
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)
-6-
No. 1-17-3148
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
-7-
No. 1-17-3148
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.
-8-