### 1 2023 IL App (5th) 220658-U

NO. 5 -22-0658

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

______________________________________________________________________________ JEFFREY S. VOGELPOHL , ) Appe al from the ) Circuit Court of Plaintiff -Appell ant , ) Madison County. ) v. ) No. 21- CH -204 ) GREGORY HACKER , ) Honorable ) A. Ryan Jumper , Defendant -Appell ee . ) Jud ge, presiding.

______________________________________________________________________________ JUSTICE McHANEY delivered the judgment of the court. Presiding Justice Boie and Justice Cates concurred in the judgment.

ORDER ¶ 1 Held : Where the plaintiff, Jeffrey S. Vogelpohl, was not required to exhaust state administrative remedies before bringing his United States and Illinois constitutional claims, the trial court did not lack subject matter jurisdiction and the trial court’s dismissal of the complaint with prejudice was improper. We reverse and remand fo r further proceedings. ¶ 2 The plaintiff, Jeffrey S. Vogelpohl (Vogelpohl), appeals from the trial court’s dismissal of his complaint for lack of subject matter jurisdiction. Vogelpohl sued the Captain Bureau Chief of the Firearms Services Bureau, Gregory Hacker, in his official capacity, seeking injunctive relief

from the revocation of his f irearm o wners i dentification (FOID) card. The trial court dismissed Vogelpohl’s complaint with prejudice on the basis that the court lacked subject matter jurisdiction.

We reverse and remand. NOTICE This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). NOTICE Decision filed 10/26/23. The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

### 2 ¶ 3 I. Background ¶ 4 The core issue on appeal in this case is whether Vogelpohl was required to exhaust his Illinois administrative remedies before he could file this suit in chancery co urt. We include only the relevant facts to the narrow issue before this court on appeal. ¶ 5 In his amended complaint, Vogelpohl alleged that in 2021 he applied for and received a FOID card. In October 2021, Vogelpohl unsuccessfully attempted to complete a transfer of two firearms from a licensed firearm dealer. The transaction was disapproved because his FOID card had been revoked due to an alleged felony cannabis possession conviction in 1980. He was officially notified of the FOID card revocation one week later. ¶ 6 In August 1980, the State charged Vogelpohl with possession of more than 500 grams of a substance containing cannabis in Pike County, Illinois. In September 1980, Vogelpohl entered a guilty plea for which he was sentenced to two years of probation. Vogelpohl was successfully discharged from probation in September 1982. The probation to which Vogelpohl was sentenced qualified as a “second chance” form of probation pursuant to section 10 of the Cannabis Control Act (720 ILCS 550/10 (West 2020)). The candidates for this type of probation are first

- time felony

offenders. Id. § 10(a). Upon fulfillment of the term of probation, the court must discharge the person and dismiss the proceedings against him. Id. § 10(f). “[D]ischarge and dismissal under this Section is not a conviction for purposes of disqualification or disabilities imposed by law upon

conviction of a crime ***.” Id. § 10(g). ¶ 7 Vogelpohl specifically alleged that he had a constitutional right to keep and bear arms pursuant to the second a mendment of the United States C onstitution applicable to the states pursuant to the fourteenth a mendment. U.S. Const., amend s. II, XIV.

### 3 ¶ 8 The St ate asked the trial court to dismiss Vogelpohl’s f irst amended c omplaint because he only sought relief pursuant to the United States and Illinois C onstitutions, and not under the Illinois

Firearm Owner s Identification Act (FOID Act). Although Vogelpohl fra med his claims in constitutional terms, the State argued that the FOID Act was the appropriate vehicle for Vogelpohl’s relief as what he ultimately sought was the return of his FOID card. Pursuant to the FOID Act, the State argued that his claim or appeal should not have been filed in state court but should have been filed directly with the Illinois State Police Director. Thus, the State contended that Vogelpohl must exhaust administrative remedies before he seeks constitutional relief. ¶ 9 The trial court agr eed with the State’s analysis and dismissed Vogelpohl’s complaint on the basis that he had yet to exhaust administrative remedies, and thus, the court lacked subject matter jurisdiction to reach the constitutional claims. Vogelpohl timely appealed this ord er. ¶ 10 II. Analysis ¶ 11 We review the question of the trial court’s subject matter jurisdiction on a de novo basis. Miller v. Department of State Police , 2014 IL App ( 5th ) 130144, ¶ 8; Harper Square Housing Corp. v. Hayes , 305 Ill. App. 3d 955, 959 (1999). ¶ 12 The Illinois State Police maintains the authority to revoke a previously issued FOID card if it determines that the person to whom the card was issued no longer meets the eligibility criteria or did not meet the eligibility criteria when the card was issued. 430 ILCS 65/8(c) (West 2020). In Illinois, a party may not seek judicial review of a FOID card revocation if administrative remedies

are available. Sedlock v. Board of Trustees of the Police Pension Fund of the City of Ottawa , 367 Ill. App. 3d 526, 527

- 28 (2006). Stated another way, a dministrative remedies must be exhausted before a party may seek judicial review. Id. The exhaustion doctrine allows full development of the facts before the administrative agency which has expertise on the subject matter.

### 4 ¶ 13 The version of section 10(a) of the FOID Act in effect at the time the defendant’s FOID card was revoked plainly set forth two procedural paths for challenging the denial or revocation of a FOID card. 430 ILCS 65/10(a) (West 202 0 ). The first path require d the rejected or revoked applicant to appeal within the agency to the Director of the Illinois State Police. Id. However, if the revocation was based upon specific crimes, including violations of the Illinois Cannabis

Control Act classified as a Class 2 fel ony or greater, then “the aggrieved party may petition the circuit court in writing in the county of his or her residence for a hearing.” Id. ¶ 14 While we understand the foundation of the trial court’s order concluding that Vogelpohl

must first exhaust his adm inistrative remedies, we conclude that the trial court’s order was in error. Having reviewed Vogelpohl’s amended complaint, there is no question that his claim factually began with his s tate efforts to administratively obtain his FOID card. However, after his FOID card was revoked, Vogelpohl legally raised constitutional claims, stating: “At all times relevant, Plaintiff has a constitutional right to keep and bear arms, including handguns, at least, in his private home, for private self defense, under the Second Amendment, said Amendment being incorporated against the states under the 1 4th Amendment.” As Vogelpohl correctly stated, the government “bears the burden of establishing that laws that infringe on Second Amendment rights are

constitutional.” ¶ 15 The United States Supreme Court has held that an individual need not exhaust state

administrative remed ies before seeking relief pursuant to the Civil Rights Act. Patsy v. Board of Regents of the State of Florida , 457 U.S. 496, 501 -12 (1982) (citing 42 U.S.C. § 1983 (1976 ed., Supp. IV)). The Supreme Court found that the United States government was establi shed “as a guarantor of the basic federal rights of individuals against incursions by state power.” Id. at 503. The Court quoted its own decision in Mitchum v. Foster stating that the purpose of § 1983 of the

### 5 Civil Rights Act was “to interpose the federal courts between the States and the people, as guardians of the people’s federal rights

— to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ” Mitchum v. Foster , 407 U.S. 225, 242 (1972) (quoting Ex parte Virginia , 100 U.S. 339, 346 (1880)). The Supreme Court also found that congressional intent provided strong evidence that exhaustion of state administrative remedies is not a prerequisite to a civil rights action. Patsy , 45 7 U.S. at 507 -12. ¶ 16 In accordance with United States Supreme Court precedent, we conclude that given the structure of Vogelpohl’s constitutional claims, he was not required to exhaust administrative

remedies

— to the extent that any existed in this case

— befo re raising his constitutional claims in

court. ¶ 17 III. Conclusion ¶ 18 For the foregoing reasons, the judgment of the circuit court of Madison County is hereby

reversed and the cause is remanded.

¶ 19 Reversed and remanded.