Illinois Official Reports 

Appellate Court

Winders v. People, 2015 IL App (3d) 140798

Appellate Court 

Caption

DONALD L. WINDERS, Petitioner-Appellee, v. THE PEOPLE OF 

THE STATE OF ILLINOIS, Respondent-Appellee (The Department 

of State Police, Intervenor-Appellant).

District & No. Third District

Docket No. 3-14-0798

Rule 23 order filed

Motion to

publish allowed

Opinion filed

November 10, 2015

December 23, 2015

December 23, 2015

Decision Under 

Review

Appeal from the Circuit Court of La Salle County, No. 13-MR-338; 

the Hon. Eugene P. Daugherity, Judge, presiding.

Judgment Reversed and remanded with directions.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Chicago (Frank H. Bieszczat, 

Assistant Attorney General, of counsel), for appellant.

Bradley P. Popurella, of Popurella Law Office, of Granville, for 

appellee Donald L. Winders.

Brian Towne, State’s Attorney, of Ottawa (Terry A. Mertel, of State’s 

Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
- 2 - 

Panel PRESIDING JUSTICE McDADE delivered the judgment of the 

court, with opinion.

Justices Lytton and O’Brien concurred in the judgment and opinion.

 OPINION 

¶ 1 The petitioner, Donald L. Winders, applied to the appellant, the Department of Illinois 

State Police, for a Firearm Owners Identification (FOID) card and was denied based on his 

criminal history. Winders petitioned the circuit court for relief from the Department’s decision, 

which the court granted. The Department, which was not a party to the circuit court case, filed 

a petition to intervene pursuant to section 2-408(a) of the Code of Civil Procedure (Code) (735 

ILCS 5/2-408(a) (West 2012)) and a petition for relief from judgment pursuant to section 

2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)), both of which the court denied. On 

appeal, the Department argues that the circuit court erred when it denied the petitions to 

intervene and for relief from judgment. We reverse and remand with directions.

¶ 2 FACTS 

¶ 3 On July 3, 1982, a criminal complaint was filed that alleged Winders committed 

aggravated battery with a firearm that caused bodily harm to an individual. Winders entered a 

negotiated plea of guilty and was sentenced to two years of conditional discharge. On April 28, 

1989, a criminal complaint was filed that alleged Winders committed battery in that he 

knowingly and without legal justification caused bodily harm to his paramour and household 

member. Winders was found guilty of the offense. 

¶ 4 In 2013, Winders filed an application for a FOID card with the Department. The 

Department denied the application based on Winders’ felony conviction.

¶ 5 On November 13, 2013, Winders filed a petition with the circuit court that requested relief 

from the Department’s decision to deny him a FOID card. Winders alleged that he met the 

requirements of section 10(c) of the Firearm Owners Identification Card Act (FOID Act) (430 

ILCS 65/10(c) (West 2012)) such that he was entitled to relief from the Department’s decision. 

¶ 6 On April 7, 2014, the circuit court held a hearing on Winders’ petition. The State did not 

object to granting the petition. The court found that Winders’ criminal history did not prohibit 

him from obtaining a FOID card, and the court accordingly granted the petition and ordered the 

director of the Department to issue a FOID card to Winders. 

¶ 7 On July 11, 2014, the Department filed a petition to intervene, as well as a petition for relief 

from judgment pursuant to section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2012)). The 

section 2-1401 petition alleged that the Department was not given notice of Winders’ 2013 

petition filed with the circuit court, and that because the federal Gun Control Act of 1968 (18 

U.S.C. § 922 (2006)) prohibited Winders from possessing a firearm due to his 1989 battery 

conviction, he did not meet the requirements of section 10(c) of the FOID Act to obtain relief 

from the Department’s decision. The Department’s section 2-1401 petition was not 

accompanied by an affidavit. 

¶ 8 Winders filed a motion to strike the Department’s petitions, alleging, inter alia, that the 

Department failed to support its section 2-1401 petition with an affidavit. 
- 3 - 

¶ 9 On September 9, 2014, the circuit court held a hearing on the Department’s petition. 

Counsel for the Department argued that the Department’s interests were not always identical to 

the State’s Attorney’s office on behalf of the people of Illinois. Here, counsel argued, “[t]he 

Illinois State Police, as the agency that is required by law to administer the FOID Act, has a 

sort of unique interest in making sure that it is complying both with federal and state law in 

issuing a firearms identification card.” Counsel also pointed out that it was unclear from the 

court’s order whether it had considered the amendments made to the FOID Act in 2013 that 

added a prohibition to issuing a FOID card if a federal law prohibited the individual from 

possessing a firearm. The Department’s position was that Winders’ two criminal convictions 

prohibited him under federal law from possessing a firearm. Counsel also added that it filed its 

petition to intervene as soon as the Department received notice of the court’s order directing it 

to issue Winders a FOID card. In response, counsel for Winders stated, inter alia, that the 

supreme court’s decision in Coram v. State of Illinois, 2013 IL 113867, allowed for the 

issuance of a FOID card to Winders. 

¶ 10 After hearing arguments, the court found that: (1) the Department’s petition to intervene 

was untimely; (2) the petition to intervene was not supported by an affidavit; and (3) the 

Department had not complied with section 2-1401. Further, the court stated that it was “aware 

of dicta in the Coram v. Illinois decision which says that even if there were to have been a 

violation of federal law in the instance involved there, the Court indicated that the FOID card 

should have been issued.” Accordingly, the court denied the Department’s petition to 

intervene. The Department appealed. 

¶ 11 ANALYSIS 

¶ 12 On appeal, the Department argues that the circuit court erred when it denied the petitions to 

intervene and for relief from judgment. Specifically, the Department contends that both of the 

circuit court’s grounds for its ruling–that the petition to intervene was untimely and that the 

petition for relief from judgment did not comply with section 2-1401 of the Code–were 

impermissible legal grounds upon which to base the decision. 

¶ 13 In relevant part, section 2-408(a) of the Code provides that a party shall be permitted to 

intervene in a case when the application is timely and “when the representation of the 

applicant’s interest by existing parties is or may be inadequate and the applicant will or may be 

bound by an order or judgment in the action.” 735 ILCS 5/2-408(a) (West 2012). This 

paragraph is to be liberally construed. Freesen, Inc. v. County of McLean, 258 Ill. App. 3d 377, 

381 (1994). In determining whether to allow a petition to intervene, the circuit court “must 

consider whether the petition to intervene is timely, whether the petitioner’s interest is 

sufficient, and whether that interest is being adequately represented by someone else in the 

lawsuit.” Soyland Power Cooperative, Inc. v. Illinois Power Co., 213 Ill. App. 3d 916, 918 

(1991). Whether to allow intervention is a discretionary decision for the circuit court that we 

will not disturb absent an abuse of that discretion. In re Estate of Barth, 339 Ill. App. 3d 651, 

661 (2003). 

¶ 14 With regard to timeliness, we note that “[w]hile a person may not normally seek 

intervention after the rights of the original parties have been determined and a final decree 

entered [citation], a motion to intervene may be filed even after dismissal of the case and still 

be timely where necessary to protect the interests of the intervenor.” Citicorp Savings of 

Illinois v. First Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 298 (1995). A party that 
- 4 - 

seeks to intervene after a judgment has been entered must explain its failure to seek 

intervention prior to the judgment being entered, and intervention may be allowed in the 

court’s discretion if the party lacked knowledge of the action prior to the judgment being 

entered. Schwechter v. Schwechter, 138 Ill. App. 3d 602, 604-05 (1985). In addition, 

intervention may be allowed after a judgment has been entered if doing so is the only way to 

protect the rights of the party seeking to intervene. In re Marriage of Kueteman, 273 Ill. App. 

3d 77, 79 (1995). 

¶ 15 Our review of the record in this case reveals that the Department’s petition to intervene was 

timely on these facts. Without explanation, the circuit court found that the petition was 

untimely.1 However, the Department alerted the court both in the petition for relief from 

judgment and in arguments at the hearing that it lacked knowledge of Winders’ action in the 

circuit court and did not learn of the action until it received the court’s order directing it to issue 

Winders a FOID card. While the Department was not a necessary party to that action (Williams 

v. Tazewell County State’s Attorney’s Office, 348 Ill. App. 3d 655, 659 (2004)), the 

above-cited case law indicates that there is nothing per se untimely about a petition to 

intervene that is filed after a judgment has been entered (Citicorp Savings, 269 Ill. App. 3d at 

298; Schwechter, 138 Ill. App. 3d at 604-05; Kueteman, 273 Ill. App. 3d at 79). Under these 

circumstances, and construing the attempt to intervene liberally, we hold that the circuit court 

abused its discretion when it found the Department’s petition to intervene to be untimely.

¶ 16 With regard to the requirements that the party seeking to intervene possesses sufficient 

interest and whether that interest was represented by existing parties, we note that the 

Department alleged that its rights were not adequately represented by either of the parties 

involved. Because the judgment bound the Department, the Department’s rights were clearly 

impacted and there is nothing in the record to suggest that the State’s Attorney’s office did 

represent the Department’s rights. In fact, the State’s Attorney’s office took a position opposite 

to the Department in that it did not object to Winders’ petition for relief, at least in part due to 

interpretations of Coram and section 10(c) that ran contrary to those of the Department. In 

addition, the Department’s interest is beyond that of the general public, as the Department is 

tasked with the administration of the FOID card program and must ensure compliance with 

federal and state law. See People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 57-58 (2002) 

(holding that “[a]lthough a party [seeking to intervene] need not have a direct interest in the 

pending suit, it must have an interest greater than that of the general public, so that the party 

may stand to gain or lose by the direct legal operation and effect of a judgment in the suit”). 

Thus, not only was the Department’s petition timely, the Department also demonstrated a 

sufficient interest and the inadequacy of the existing parties to represent that interest. See 

Soyland Power, 213 Ill. App. 3d at 918. Because section 2-408(a)(2) (735 ILCS 5/2-408(a)(2) 

(West 2012)) provides that intervention shall be permitted as a matter of right when these three 

requirements are met, the circuit court had no discretion to deny the petition to intervene. 735 

ILCS 5/2-408(e) (West 2012). 

 

1We note that the court seemed to indicate that the failure to file an affidavit affected the timeliness 

of the petition to intervene. We believe the court misspoke and was referencing the petition for relief 

from judgment in this regard, as section 2-1401 requires an affidavit, while section 2-408 does not. If 

the court in fact did not misspeak, then the court’s belief that the lack of an affidavit rendered the 

petition to intervene untimely was erroneous. 
- 5 - 

¶ 17 Even though we have held that the circuit court erred when it denied the Department’s 

petition to intervene, we will also address the Department’s second argument that the court 

erred when it denied the petition to intervene on the additional ground that the section 2-1401 

petition was procedurally insufficient. 

¶ 18 Section 2-408(e) of the Code provides that “[a] person desiring to intervene shall present a 

petition setting forth the grounds for intervention, accompanied by the initial pleading or 

motion which he or she proposes to file.” Id. In this case, that pleading or motion would be the 

petition for relief from judgment. It is important to note that there is no requirement in section 

2-408 that the accompanying motion be meritorious or even procedurally flawless. In Soyland 

Power, the Fourth District stated: 

“The purpose of section 2-408(e) of the Code is to give both the trial court and any 

opposing party a clear indication of the relief the potential intervenor will be seeking if 

his petition to intervene is granted. This purpose is achieved by the requirement that the 

potential intervenor’s initial pleading he proposes to file be attached to the petition to 

intervene. Only when the goals of the potential intervenor are revealed in this fashion 

can the trial court and any opposing party assess the appropriateness of the petition to 

intervene.” (Emphasis added.) Soyland Power, 213 Ill. App. 3d at 920. 

Thus, the accompanying motion can serve to clarify the intention of the party seeking to 

intervene, but even if that motion would be denied, the court cannot prohibit a party from 

intervening when the party seeks to intervene as a matter of right and it has met the three 

aforementioned requirements. Accordingly, to the extent that the circuit court premised its 

denial of the Department’s petition to intervene on a determination that the section 2-1401 

petition was deficient, that ruling was erroneous. 

¶ 19 Lastly, because the circuit court also apparently premised its denial of the petition to 

intervene in part on its belief that the Coram decision permitted a state court to remove an 

applicant’s federal impediment to possessing a firearm, we will briefly address the 

Department’s claim that the court misinterpreted Coram.

¶ 20 While it was not decided until after the circuit court issued its decision in this case, in 

O’Neill v. Director of the Illinois Department of State Police, 2015 IL App (3d) 140011, a 

different panel of this court addressed the supreme court’s decision in Coram and the 2013 

amendments to section 10(c) of the FOID Act. This court held, inter alia, that in dicta, four 

justices of the supreme court found in Coram that under the 2013 amendments to section 10(c), 

a state court could not remove a federal prohibition on the ability of an individual to possess a 

firearm. Id. ¶ 27. Further, this court held that the applicant was not entitled to a reinstatement 

of his FOID card because the FOID Act “prohibits the court from granting relief where doing 

so would be contrary to federal law.” Id. ¶ 31. 

¶ 21 In this case, the circuit court found that Coram allowed a state court to remove an 

applicant’s federal impediment to possessing a firearm. Pursuant to O’Neill, that finding was 

incorrect. Thus, to the extent that the circuit court based its denial of the Department’s petition 

to intervene on the court’s interpretation of Coram, that ruling was erroneous. 

¶ 22 For the foregoing reasons, we hold that the circuit court abused its discretion when it 

denied the Department’s petition to intervene. We remand the case for the court to allow the 

Department’s petition to intervene, and to hold further proceedings consistent with our 

decision. 
- 6 - 

¶ 23 CONCLUSION 

¶ 24 The judgment of the circuit court of La Salle County is reversed and the cause is remanded 

with directions. 

¶ 25 Reversed and remanded with directions.