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Guns Save Life, Inc. v. Raoul

Court of Appeals of Illinois, Fourth District

December 3, 2019

GUNS SAVE LIFE, INC., Plaintiff-Appellant,
KWAME RAOUL, in His Official Capacity as Attorney General of the State of Illinois; and BRENDAN KELLY, in His Official Capacity as Acting Director of the Illinois State Police, Defendants-Appellees.

          Appeal from the Circuit Court of Sangamon County No. 19CH180 Honorable Matthew Maurer, Judge Presiding.

          Attorneys for Appellant: Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, and David H. Thompson and Peter A. Patterson, of Cooper & Kirk, PLLC, of Washington, D.C., for appellant.

          Attorneys for Appellee: Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Sarah A. Hunger, Assistant Attorney General, of counsel), for appellees.

          JUSTICE DeARMOND delivered the judgment of the court, with opinion. Presiding Justice Holder White and Justice Harris concurred in the judgment and opinion.



         ¶ 1 In May 2019, plaintiff, Guns Save Life, Inc. (hereinafter "GSL"), filed a complaint for declaratory and injunctive relief, on behalf of its members, against defendants, Kwame Raoul and Brendan Kelly, in their official capacities, alleging the Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/0.01 et seq. (West 2018)) is unconstitutional as a violation of the federal and state constitutional right to bear arms. Plaintiff claims the FOID Act charges a tax on the rights of Illinois's citizens provided by the second and fourteenth amendments of the United States Constitution (U.S. Const., amends. II, XIV) and article I, sections 2 and 22, of the Illinois Constitution (Ill. Const. 1970, art. I, §§ 2, 22) and violates the equal protection clause of the fourteenth amendment by improperly requiring one to pay for a license to own a firearm. Additionally, plaintiff filed a motion for a temporary restraining order and a preliminary injunction seeking to restrain enforcement of the FOID Act as a clear violation of the right to keep and bear arms. In a hearing on the motion, the trial court found plaintiff had not met its burden, and plaintiff filed an interlocutory appeal.

         ¶ 2 On appeal, plaintiff argues the trial court erred by denying plaintiffs motion for a preliminary injunction. We affirm.

         ¶ 3 I. BACKGROUND

         ¶ 4 In May 2019, plaintiff, GSL, an organization which describes itself as "an independent not-for-profit organization dedicated to defending the Second Amendment rights of Illinois residents," filed a four-count complaint for declaratory and injunctive relief against defendants on behalf of its members, identifying two members in particular-Harold Meyer and an unnamed 84-year-old United States Marine Corps (Marine) veteran. In the complaint, plaintiff alleged Meyer, a Cook County resident and member of its organization, was denied the ability to renew his Firearm Owners Identification (FOID) card because the Illinois State Police erroneously determined he had been convicted of battery in 1983. His license was revoked, and he was forced to turn his guns over to his wife. The complaint further alleged the unnamed veteran lost his license when he forgot to renew his FOID card; as a result, the police confiscated his guns and expired FOID card. In count I, plaintiff contends the FOID Act is unconstitutional on its face as directly violative of the second amendment to the Constitution of the United States. Plaintiff further alleges the FOID Act's licensing fee places a tax upon the free exercise of a constitutional right and is violative of the second amendment as well as the fourteenth amendment (see U.S. Const., amends. II, XIV). Count II repeats the same claims, alleging they are also violative of Illinois's version of the second amendment found in article I, section 22, of the Illinois Constitution (Ill. Const. 1970, art. I, § 22). Count III alleges a violation of the equal protection clause of the United States Constitution (U.S. Const., amend. XIV), claiming the FOID Act, in effect, creates different classes of people, who may or may not exercise their second amendment right to possess a firearm based solely on paying a fee, which is unrelated to the statute's expressed purpose, i.e., the promotion of public safety. Count IV is a similar allegation under the Illinois Constitution's version of the equal protection clause (Ill. Const. 1970, art. I, § 2).

         ¶ 5 In conjunction with its complaint, plaintiff filed a motion for a temporary restraining order and preliminary injunction, claiming the FOID Act violated the second amendment and Illinois's version thereof and it was entitled to injunctive relief. In May 2019, defendants filed an objection to the motion, alleging plaintiff failed to establish the elements for a preliminary injunction and that plaintiff lacked associational standing. Later that month, the trial court held a hearing on the motion and denied the motion for a temporary restraining order and preliminary injunction, finding plaintiff failed to meet its burden.

         ¶ 6 This appeal followed.

         ¶ 7 II. ANALYSIS

         ¶ 8 A. Sufficiency of Complaint

         ¶ 9 We first address defendants' contention plaintiffs complaint failed to assert a claim that would entitle it to a preliminary injunction. Defendants argue the complaint addressed only the unconstitutional nature of the FOID card fees but its motion for injunctive relief raised for the first time a claim the act itself was unconstitutional. As a result, defendants contend the motion "depart[ed] significantly from the allegations in [the] complaint" and did not support enjoining enforcement of the entire FOID Act. We disagree.

         ¶ 10 "The right to injunctive relief necessarily brings into question the sufficiency of the complaint ***." Olympic Federal v. Witney Development Co., 113 Ill.App.3d 981, 984, 447 N.E.2d 1371, 1373 (1983). "Where a statute is attacked as unconstitutional in its entirety ***, equitable relief may be sought." Ron Smith Trucking, Inc. v. Jackson, 196 Ill.App.3d 59, 64, 552 N.E.2d 1271, 1275 (1990). Even so, "[a] complaint for injunctive relief must contain on its face a clear right to relief and state facts which establish the right to such relief in a positive, certain and precise manner." Heerey v. Berke, 179 Ill.App.3d 927, 939, 534 N.E.2d 1277, 1284 (1989). While the complaint must show "the relief sought is warranted" (McErlean v. Harvey Area Community Organization, 9 Ill.App.3d 527, 529, 292 N.E.2d 479, 481 (1972)), the complaint does "not have to make out a case which would entitle the plaintiff to a final judgment (H.K.H. Development Corp. v. Metropolitan Sanitary District of Greater Chicago, 47 Ill.App.2d 46, 51, 196 N.E.2d 494, 497 (1964)). The plaintiff must only "raise[ ] a fair question as to the existence of the right claimed." H.K.H. Development Corp., 47 Ill.App.2d at 51. The purpose of these requirements is to ensure the defendant" 'be informed of the injunction proposed against him so that he may be present, if he wishes, to defend himself" Miollis v. Schneider, 77 Ill.App.2d 420, 427, 222 N.E.2d 715, 719 (1966) (quoting Streamwood Home Builders, Inc. v. Brolin, 25 Ill.App.2d 39, 44, 165 N.E.2d 531, 534 (1960)). "Where the defendant answers or responds to the plaintiffs complaint, the trial court must hold a hearing to determine the legal sufficiency of that complaint and to resolve any questions of material fact." Russell v. Howe, 293 Ill.App.3d 293, 296, 688 N.E.2d 375, 378 (1997).

         ¶ 11 In viewing the complaint in its entirety, plaintiff raised its claims against the FOID Act as well as the fees attached thereto. Plaintiff began its factual allegations by outlining the FOID Act's requirements, including the various restrictions on possession and ownership of firearms and/or ammunition without a FOID card, as well as the requirements for obtaining or renewing a FOID card. It noted how the FOID Act requires all residents to obtain a FOID card in order to "keep or bear firearms anywhere, including their own homes," or to possess ammunition. In bold type, on the fifth page of a 12-page complaint, plaintiffs asserted, "The FOID Act Infringes on the Rights of Guns Save Life Members." Plaintiff noted further how, but for the FOID Act's requirements, GSL members "would not be subject to these restrictions on their right to possess firearms." The restrictions to which it referred were not merely the payment of the fee, but the acquisition, maintenance, and renewal of the card. Repeatedly throughout the allegations of the complaint, plaintiff references how the FOID Act infringes on its members' right to possess firearms for their personal defense. As defendants correctly note, plaintiffs complaint unquestionably references the unconstitutional nature of the FOID card fees, frequently referring to them as an unconstitutional tax. However, the complaint also states in each count "[t]he FOID act is unconstitutional on its face because it directly burdens the exercise of Second Amendment rights" and provides a factual basis for the conclusion by describing how the act has been interpreted. All four counts of the complaint reference the unconstitutionality of the FOID Act "on its face," and in each prayer for relief, plaintiff seeks a declaratory judgment finding the FOID Act "violates the Second and Fourteenth Amendments to the United States Constitution," as well as injunctive relief from enforcement of the FOID Act. Nowhere in the complaint does plaintiff request only the removal of an unconstitutional fee.

         ¶ 12 Counts I and II include allegations of fact regarding Meyer and the 84-year-old Marine veteran-who are ostensibly prevented from exercising their second amendment rights because the FOID Act-and defendants' enforcement of the FOID Act, which required them to surrender their firearms for failing to possess a valid FOID card. In both counts, the plaintiff also unmistakably requested a preliminary injunction against enforcement of the FOID Act. In light of all the above, we find it puzzling defendants began their objection to plaintiffs motion for a temporary restraining order and preliminary injunction before the trial court with the statement, "Plaintiff does not seem to argue that the FOID Card Act's requirement for a license for Illinois residents to possess a firearm is, in and of itself, unconstitutional," and they continue to make this claim on appeal. Defendants should have been aware from a plain reading of the complaint, plaintiff was claiming the FOID Act itself was unconstitutional and its unconstitutionality formed the basis of the proposed injunction against them. Thus, we will consider in this appeal whether plaintiff established a clear right to injunctive relief on the claimed unconstitutionality of the FOID Act or, in the alternative, the FOID Act's licensing fee.

         ¶ 13 B. Associational Standing

         ¶ 14 Defendants argue plaintiff lacked associational standing to bring its claim before the trial court. We disagree.

         ¶ 15 Associational standing is a doctrine "through which an organization may assert the legal rights of its members in certain circumstances." Winnebago County Citizens for Controlled Growth v. County of Winnebago, 383 Ill.App.3d 735, 740, 891 N.E.2d 448, 454 (2008). Having first developed in federal law, associational standing was recognized by the Illinois Supreme Court in International Union of Operating Engineers, Local 148, AFL-CIO v. Illinois Department of Employment Security, 215 Ill.2d 37, 828 N.E.2d 1104 (2005). The court discussed the concept of associational standing as enunciated by the United States Supreme Court in Warth v. Seldin, 422 U.S. 490 (1975):

" 'There is no question that an association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy. Moreover, in attempting to secure relief from injury to itself the association may assert the rights of its members, at least so long as the challenged infractions adversely affect its members' associational ties.'" International Union of Operating Engineers, 215 Ill.2d at 46 (quoting Warth, 422 U.S. at 511).

         Our supreme court concluded associational standing served an important function in recognition of one of the primary reasons people join an organization-the creation of an effective tool for vindicating interests they share in common. The pooling of resources, expertise, and capital under a name identifying their collective interests was seen as an effective way for individuals who may not otherwise have the resources to pursue their own causes of action to do so as part of an association. International Union of Operating Engineers, 215 Ill.2d at 50.

         ¶ 16 However, the issue of associational standing, which follows the same basic principles as individual standing, may "be forfeited if not raised in a timely manner in the trial court." See Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 253, 930 N.E.2d 895, 916 (2010) (identifying basic principles of standing). As a result, under Illinois law, a plaintiff initially has no burden to plead and prove standing. Senese v. Climatemp, Inc., 222 Ill.App.3d 302, 317, 582 N.E.2d 1180, 1190 (1991). It is the defendant who must plead and prove lack of standing as a defense to a plaintiffs claim. Climatemp, 222 Ill.App.3d at 317. "The issue of standing presents a question of law that this court reviews de novo" Powell v. Dean Foods Co., 2012 IL 111714, ¶ 35, 965 N.E.2d 404.

         ¶ 17 We are unable to ascertain whether the ruling of the trial court was meant to imply the court found standing or not. By stating only that plaintiff failed to meet its burden, the trial court arguably could have determined plaintiff did, in fact, have standing, but that plaintiff failed to meet its burden to show it was entitled to injunctive relief. Trial courts are presumed to know the law, and therefore, the trial court would have known the burden to prove standing remained with defendants. People v. Jordan, 218 Ill.2d 255, 269, 843 N.E.2d 870, 878 (2006). It is just as possible the trial court did not, for whatever reason, address standing and instead ruled on the merits of the motion for injunctive relief. Regardless, we must address the issue de novo.

         ¶ 18 An association has standing to bring a suit when it meets three requirements:" '(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" International Union of Operating Engineers, 215 Ill.2d at 47 (quoting Hunt v. Washington State Apple Advertising Comm 'n, 432 U.S. 333, 343 (1977)). "The issue of plaintiffs standing is determined from the allegations contained in the complaint." Illinois Ass'n of Realtors v. Stermer, 2014 IL App (4th) 130079, ¶ 26, 5 N.E.3d 267 (citing Barber v. City of Springfield, 406 Ill.App.3d 1099, 1101, 943 N.E.2d 1157, 1161 (2011))." 'One has standing to challenge the validity of a statute if he has sustained or if he is in immediate danger of sustaining some direct injury as a result of enforcement of the statute.'" People v. Aguilar, 2013 IL 112116, ¶ 12, 2 N.E.3d 321 (quoting People v. Mayberry, 63 Ill.2d 1, 8, 345 N.E.2d 97, 101 (1976)). Further, payment of a tax establishes standing to challenge the constitutionality of the statute under which the tax is imposed. DeWoskin v. Loew's Chicago Cinema, Inc., 306 Ill.App.3d 504, 513, 714 N.E.2d 1047, 1056 (1999).

         ¶ 19 Under the first requirement for associational standing, the association's members must have standing to sue under their own right. See International Union of Operating Engineers, 215 Ill.2d at 47. This means "an organization suing as representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association." United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996). A member has such standing when the claimed injury is "(1) 'distinct and palpable' [citation]; (2) 'fairly traceable' to the defendant's actions [citation]; and (3) substantially likely to be prevented or redressed by the grant of the requested relief [citation]." Greer v. Illinois Housing Development Authority, 122 Ill.2d 462, 492-93, 524 N.E.2d 561, 575 (1988); see also Illinois Ass'n of Realtors, 2014 IL App (4th) 130079, ¶ 33 (stating, to establish standing, a "plaintiffs allegations must demonstrate a direct injury to a legally cognizable interest, of it or its members, traceable to defendants' actions").

         ¶ 20 Here, with regard to the first element, whether plaintiffs injury is distinct and palpable, plaintiff alleges the FOID Act is unconstitutional and the fees associated with obtaining a FOID card equate to an unconstitutional tax. While plaintiff does not allege the organization itself paid the fee or that its constitutional right to bear arms has been violated, plaintiff does allege many GSL members reside in Illinois who have acquired and maintained their FOID cards as required by the FOID Act in order to exercise their constitutional right to possess firearms, including within their own homes. In addition, in order to continue to lawfully possess their firearms in Illinois, they will be forced to renew and continue renewing their FOID card, a requirement they would not otherwise do, or have to do, in 48 out of 50 states, in the exercise of their second amendment rights. In order to obtain a FOID card, they are subjected to the $10 fee imposed by the FOID Act and the renewal fee of $10 every 10 years. 430 ILCS 65/5 (West 2018). In addition, if they change addresses or names-or the card is lost, destroyed, or stolen-they must notify the Illinois State Police and pay $5 for a new card. 430 ILCS 65/13.2 (West 2018). Plaintiff alleges these fees impose an unconstitutional burden on the right to keep and bear arms, directly affecting its members. Similarly, even upon paying the required fee, its members are still ...

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