Illinois Official Reports 

Appellate Court

Flood v. Richey, 2016 IL App (4th) 150594

Appellate Court 

Caption

MATTHEW V. FLOOD, Plaintiff-Appellee, v. JEREMY RICHEY, 

Moultrie County State’s Attorney, Defendant-Appellee (The 

Department of State Police, Intervenor-Appellant).

District & No. Fourth District

Docket No. 4-15-0594

Filed September 22, 2016

Decision Under 

Review

Appeal from the Circuit Court of Moultrie County, No. 14-MR-18; the 

Hon. Dan L. Flannell, Judge, presiding.

Judgment Reversed; cause remanded with directions.

Counsel on

Appeal

Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro, 

Solicitor General, and Christopher M.R. Turner (argued), Assistant 

Attorney General, of counsel), for appellant.

Bradford A. Rau and Douglas K. Smothers (argued), both of Rau, 

Elder & Associates, of Sullivan, for appellee.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justices Steigmann and Appleton concurred in the judgment and 

opinion.
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 OPINION 

¶ 1 The Illinois Department of State Police (Department) appeals the circuit court’s orders 

denying its petition to intervene as of right and striking its motion to vacate the court’s March 

2015 order directing the Department to issue plaintiff, Matthew V. Flood, a firearm owner’s 

identification (FOID) card. We reverse and remand with directions. 

¶ 2 I. BACKGROUND 

¶ 3 On October 31, 2014, Flood filed a petition in the circuit court of Moultrie County pursuant 

to section 10 of the Firearm Owners Identification Card Act (FOID Act) (430 ILCS 65/10 

(West 2012)) seeking an order directing the Department to issue him a FOID card. Flood 

alleged that, on or about August 5, 2014, the Department denied his application for 

reinstatement of his FOID card on the ground that his 1999 conviction for battery qualified as a 

crime of domestic violence as defined by the federal Gun Control Act of 1968 (18 U.S.C. 

§ 921(a)(33)(A) (2012)), making it unlawful for him to possess a firearm under federal law. 

According to Flood’s petition, his battery conviction resulted from an incident that “involved 

the spanking and leaving a mark on the buttocks of *** a minor child of his then girlfriend.” 

Although originally charged with domestic battery, he later pleaded guilty to an amended 

charge of simple battery. Flood further asserted in his petition that section 10(c) of the FOID 

Act permitted the circuit court to grant him a FOID card because (1) he had not been convicted 

of a forcible felony, (2) the circumstances regarding his battery conviction indicate he was not 

likely to act in a manner dangerous to public safety, and (3) granting relief would not be 

contrary to the public interest. 

¶ 4 On March 2, 2015, the circuit court conducted a hearing on Flood’s petition at which the 

Moultrie County State’s Attorney, Flood, and Flood’s attorney were present. The Department 

was neither named as a party respondent nor given notice of the hearing, and thus, it did not 

appear at the hearing. The court’s docket entry for March 2, 2015, notes, “No objections on 

file. None made in open court. Petition allowed.” On March 10, 2015, the court entered a 

written order directing the Department to issue Flood a FOID card. In its order, the court found 

“the State’s Attorney of Moultrie County deferred to the discretion of the [c]ourt and stipulated 

to the [p]etition on file and Flood’s [e]xhibits.” The court further found (1) Flood had never 

been convicted of a forcible felony, (2) he was not likely to act in a manner dangerous to public 

safety, and (3) ordering the Department to issue Flood a FOID card would not be contrary to 

the public interest. 

¶ 5 On April 9, 2015, the Department filed (1) a petition to intervene as of right pursuant to 

section 2-408 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-408 (West 2014)) 

and (2) a motion to vacate the circuit court’s March 2015 order pursuant to section 2-1203 of 

the Code (735 ILCS 5/2-1203 (West 2014)). In its petition to intervene, the Department 

asserted that intervention was appropriate because it was bound by the circuit court’s March 

2015 order following proceedings in which its interests were not adequately represented. 

Specifically, the Department contended that due to the State’s Attorney’s failure to object to 

Flood’s petition, the court had not considered the Department’s legal argument that the court 

lacked authority to grant Flood relief due to a federal firearm disability. In its 

contemporaneously filed motion to vacate the court’s March 2015 order, the Department 
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maintained that the court lacked the authority to grant Flood’s petition for relief because his 

prior battery conviction prohibited him from possessing a firearm under federal law. 

¶ 6 On April 21, 2015, Flood filed a motion to strike the Department’s petition to intervene and 

a response to the Department’s motion to vacate the circuit court’s March 2015 order. In his 

motion to strike, Flood asserted that the State’s Attorney adequately represented the 

Department’s interests and that the Department’s interests were insufficient to permit 

intervention because its “enforcement of the FOID Act is rote and ministerial: it either grants 

or denies applications with minimal exercise of discretion.” In his response to the motion to 

vacate the March 2015 order, Flood asserted that if the Department were permitted to 

intervene, the court should nonetheless deny the motion to vacate because he did not commit a 

misdemeanor offense of domestic violence and, therefore, was not prohibited from possessing 

a firearm under federal law. In particular, Flood asserted he was not the victim’s parent or 

guardian, nor was he similarly situated to a parent or guardian. 

¶ 7 On June 11, 2015, the circuit court conducted a hearing on the Department’s petition to 

intervene and motion to vacate the court’s March 2015 order. Regarding the petition to 

intervene, Flood argued the Department’s right to intervene was discretionary rather than as of 

right, that the Department failed to establish that the State’s Attorney did not adequately 

protect its interests, and that the court’s March 2015 order directing it to issue Flood a FOID 

card was “a pretty ministerial act.” In contrast, the Department argued its right to intervene was 

“as of right” because it was bound by the court’s March 2015 order and its interests had not 

been adequately represented by the State’s Attorney, who had simply deferred to the court’s 

discretion. 

¶ 8 The circuit court then heard argument on the Department’s motion to vacate the March 

2015 order. The Department argued that the court was precluded from issuing an order 

granting Flood’s requested relief because Flood’s battery conviction qualified as a 

misdemeanor domestic violence offense under federal law and prohibited him from owning a 

firearm. The Department maintained that at the very least, it “ha[d] presented [a] sufficient 

basis under which the [c]ourt should conduct an evidentiary analysis and legal analysis as to 

whether this statute would apply and whether [Flood] is prohibited under federal law [from 

possessing a firearm].” Accordingly, the Department requested that the court vacate its March 

2015 order and, thereafter, hear argument on whether Flood’s relationship with the victim of 

his battery conviction qualified as a domestic relationship such that Flood would be prohibited 

from firearm ownership under federal law. 

¶ 9 In a written order dated June 24, 2015, the circuit court denied the Department’s petition to 

intervene. The court found, “[a]lthough the Moultrie County State’s Attorney did not present 

argument or evidence against [Flood’s] request for an order directing issuance of a FOID card, 

the Court cannot find that the *** State’s Attorney failed to adequately represent the interest of 

the [Department].” The court further found the Department “failed to show how representation 

by the *** State’s Attorney, rather than by the [Department], would be inadequate or 

unrepresentative of its interests.” Finally, the court struck as moot the Department’s motion to 

vacate the March 2015 order directing the Department to issue Flood a FOID card. 

¶ 10 This appeal followed. 
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¶ 11 II. ANALYSIS 

¶ 12 On appeal, the Department argues (1) the circuit court abused its discretion by denying its 

petition to intervene as of right; (2) alternatively, it had nonparty standing to move to vacate 

the March 2015 order; and (3) in any event, the circuit court’s order striking its motion to 

vacate the March 2015 order as moot was error. The Department further contends that this 

court should vacate the March 2015 order because the circuit court failed to find that granting 

Flood’s requested relief would not be contrary to federal law and the Department demonstrated 

Flood’s prior battery conviction qualified as a misdemeanor crime of domestic violence under 

federal law, which would preclude him from possessing a firearm. 

¶ 13 A. Intervention as of Right 

¶ 14 On appeal, the Department first asserts it should have been allowed to intervene as a matter 

of right because it had a substantial interest in the proceedings, in which it was not adequately 

represented by the State’s Attorney, and it is bound by the circuit court’s order requiring it to 

issue Flood a FOID card. 

¶ 15 With respect to intervention as of right, the Code provides, in relevant part, as follows: 

“Upon timely application anyone shall be permitted as of right to intervene in an action *** 

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)(2) (West 2014). The circuit court’s discretion in determining whether a party 

should be allowed to intervene as of right is limited to a consideration of “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, 572 N.E.2d 462, 464 (1991). “[If those] 

threshold requirements have been met, the plain meaning of the statute directs that the petition 

be granted.” City of Chicago v. John Hancock Mutual Life Insurance Co., 127 Ill. App. 3d 140, 

144, 468 N.E.2d 428, 431 (1984). “The decision to allow or deny intervention, whether 

permissively or as of right, is a matter of sound judicial discretion that will not be reversed 

absent an abuse of that discretion.” People ex rel. Birkett v. City of Chicago, 202 Ill. 2d 36, 58, 

779 N.E.2d 875, 888 (2002). 

¶ 16 First, we note that Flood concedes the timeliness of the Department’s petition to intervene. 

Based on our review of the record, we agree the petition was timely filed. The record shows the 

Department was first notified of the circuit court’s order directing it to issue Flood a FOID card 

on March 16, 2015, and it filed its petition on April 9, 2015. 

¶ 17 Second, Flood concedes that the Department is bound by the circuit court’s March 2015 

order. The court’s order binds the Department by requiring it to issue Flood a FOID card, and 

thus, we find the Department has a sufficient interest in the matter. 

¶ 18 We now consider whether the Moultrie County State’s Attorney adequately represented 

the Department’s interest. The Department argues its “legal position [is] directly contrary to 

the position taken by [Flood] and the local State’s Attorney.” Specifically, the Department 

contends, if permitted to intervene, it would demonstrate that Flood’s battery conviction 

qualifies as a misdemeanor crime of domestic violence that prohibits him from possessing a 

firearm under federal law and consequently would make him ineligible for a FOID card. 
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¶ 19 Here, the record shows that the State’s Attorney did not object to Flood’s petition and 

instead “deferred to the discretion of the [circuit] [c]ourt and stipulated to the [p]etition on 

file.” Recently, the Third District considered a similar situation in Winders v. People, 2015 IL 

App (3d) 140798, 45 N.E.3d 289. In that case, Winders sought relief from the Department’s 

denial of his FOID card application based on a prior battery conviction involving his 

then-paramour and household member. Id. ¶ 3. The State did not object to Winders’s petition 

for relief, and the circuit court granted the petition and ordered the Department to issue 

Winders a FOID card. Id. ¶ 6. Thereafter, the Department filed a petition to intervene as of 

right, asserting that Winders’s prior battery conviction prevented him from possessing a 

firearm and, as a result, prevented him from obtaining relief under section 10(c) of the FOID 

Act. Id. ¶ 7. Following a hearing, the court denied the Department’s petition to intervene, and 

the Department appealed. Id. ¶ 10. On review, the appellate court noted that the record failed to 

demonstrate that the State’s Attorney’s office represented the Department’s rights and, “[i]n 

fact, the State’s Attorney’s office took a position opposite to the Department in that it did not 

object to Winders’[s] petition for relief.” Id. ¶ 16. The court concluded that the Department 

established the representation of the State’s Attorney’s office was inadequate and, thus, the 

Department should have been allowed to intervene. Id.

¶ 20 We agree with the court’s analysis in Winders and find the State’s Attorney’s acquiescence 

to Flood’s petition here was inadequate representation relative to the Department’s interests. 

Section 10(c) of the FOID Act allows a person who is prohibited from acquiring a FOID card 

to obtain relief from the prohibition if he can establish that (1) the State’s Attorney has been 

served with notice and afforded an opportunity to present evidence and object to the petition, 

(2) he has not been convicted of a forcible felony within the past 20 years, (3) he is unlikely to 

act in a manner dangerous to public safety, (4) granting relief would not be contrary to the 

public interest, and (5) granting relief would not be contrary to federal law. 430 ILCS 65/10(c) 

(West 2014). In his petition, Flood failed to allege that granting relief “would not be contrary to 

federal law.” Id. Thus, Flood’s petition, brought pursuant to section 10(c), was deficient. The 

State’s Attorney’s stipulation to the petition establishes that its representation in the matter was 

inadequate relative to the Department, which “is tasked with the administration of the FOID 

card program and must ensure compliance with federal and state law.” Winders, 2015 IL App 

(3d) 140798, ¶ 16, 45 N.E.3d 289. Accordingly, we find the State’s Attorney did not 

adequately represent the Department’s interests in this matter. 

¶ 21 Based on the above, we find the Department’s petition to intervene was timely, and it 

demonstrated both a sufficient interest in the matter and an inadequacy of existing parties to 

represent that interest. Accordingly, the circuit court erred in denying the Department’s 

petition to intervene as of right. 

¶ 22 B. Nonparty Standing 

¶ 23 The Department alternatively contends that it has nonparty standing to move to vacate the 

circuit court’s March 2015 order and to appeal the court’s order striking its motion to vacate 

the March 2015 order. Because we find the Department should be permitted to intervene in this 

matter as of right, we decline to address whether it also has nonparty standing in this case. 
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¶ 24 C. The Department’s Motion To Vacate the March 2015 Order

¶ 25 Next, the Department contends the circuit court erred by striking its section 2-1203 motion 

to vacate the March 2015 order. It argues the court’s order striking its motion to vacate was 

erroneous as a matter of law because it was based solely on its improper denial of the 

Department’s petition to intervene. The Department further asserts this court should consider 

its motion to vacate on its merits and order the March 2015 order vacated because (1) the order 

failed to find that granting Flood’s requested relief would not be contrary to federal law and (2) 

it demonstrated Flood’s prior battery conviction qualified as a misdemeanor crime of domestic 

violence that prohibits him from possessing a firearm. 

¶ 26 We agree with the Department that because the circuit court erred in denying the 

Department’s petition to intervene, its subsequent striking as moot the Department’s motion to 

vacate the March 2015 order was also error. However, given that the circuit court did not reach 

the merits of the motion to vacate its March 2015 order, we decline to do so here. 

¶ 27 III. CONCLUSION 

¶ 28 For the reasons stated, we reverse the circuit court’s denial of the Department’s petition to 

intervene, reverse its order striking as moot the Department’s motion to vacate the March 2015 

order, and remand to the circuit court with directions that the Department be allowed to 

intervene in the matter and for a hearing on the Department’s motion to vacate the circuit 

court’s March 2015 order directing it to issue Flood a FOID card.

¶ 29 Reversed; cause remanded with directions.