In a 4-3 partisan opinion, the Illinois Supreme Court again has refused to directly answer whether the state’s Firearm Owner Identification program passes constitutional muster as a restraint on federal gun ownership rights, leaving a woman who faces criminal charges under the law facing years of legal limbo, strung along by the court's Democratic majority.
The underlying dispute dates to March 2017, when White County Sheriff’s Office deputies responded to a call from Vivian Brown’s estranged husband reporting Brown fired a rifle inside her Carmi home. Two months later, the county — which found no evidence the gun was fired — charged Brown with illegal possession of a firearm, because although Brown met requirements for an FOID card, she hadn’t submitted an application.
Brown’s initial legal challenge made its way to the state's top court in April 2020. In a 4-2 decision, the court declined to rule on the appeal because Brown’s lawyer Alan Downen argued FOID cards are an unreasonable burden for someone who wants to keep a gun in their home. According to Chief Justice Anne Burke, that meant the overall constitutionality of the FOID Act wasn’t at issue. The majority remanded the case to circuit court with an order the complaint be dismissed on a statutory basis, rather than constitutional grounds.
The decision drew a sharp dissent from then-Supreme Court Justice Lloyd Karmeier. He predicted the case would return again, until the court at last ruled on the underlying constitutional question, making any further proceedings and appeals "a meaningless and wasteful act." Karmeier has since retired from the court.
Since Circuit Court Judge Mark Stanley, who originally dismissed the complaint, had retired, the remanded case went to Judge T. Scott Webb, who issued an order per Burke’s directions on June 4, 2020. But five days later, Downen filed a motion asking Webb to reconsider and vacate the order, with reasoning mirroring Karmeier’s dissent.
After White granted the motion to reconsider, Brown filed a new motion challenging a section of the FOID Act as unconstitutional. In April 2021, Webb issued an order agreeing with Brown’s position. And the case found its way back to the Illinois Supreme Court.
Chief Justice Burke again wrote the opinion issued June 16, this time joined by Justices Mary Jane Theis, P. Scott Neville and Robert Carter. Justice Michael Burke wrote the dissent, joined by Justices Rita Garman and David Overstreet. Michael Burke is not related to the chief justice.
The majority found Webb “had no authority” to enter orders outside of what the Supreme Court directed in 2020. It noted Brown didn’t file a petition for rehearing and said Webb “plainly” erred by concluding Karmeier’s dissent was correct. The majority ordered Webb to enter only the original order from June 4, 2020.
Michael Burke took no part in the 2020 decision. At the time, Theis joined Karmeier in dissent, but sided with the majority in the most recent opinion. Michael Burke said the 2022 majority opinion “forces the trial court to take a particular position on the merits and denies that court its inherent power to reconsider its own ruling.”
Michael Burke further said the majority inaccurately characterized both Brown’s motion to reconsider and Webb’s ruling. He said Webb never disagreed with the majority regarding the predominance of constitutional versus statutory authority, only that the nonconstitutional basis used to defeat Brown’s claims was legally erroneous, something the 2020 majority didn’t address.
Webb “did not ‘disobey’ this court’s directions or ‘set aside the directions of this court,’ ” Michael Burke wrote. “And, while the circuit court did cite Justice Karmeier’s dissent, it did so for the proposition that the alleged statutory basis for the trial court’s decision was meritless and doomed to fail on appeal.”
Michael Burke said the majority “simply takes isolated phrases out of context” to defend its position, when the reality is the Supreme Court still hasn’t addressed the constitutional question at issue, and therefore cannot dictate to a lower court.
“In the previous appeal in this case, this court did not reverse and remand on the merits,” Michael Burke wrote. “This court vacated the trial court’s order on procedural grounds, while specifically stating that we were expressing no opinion on the merits. Further, our opinion specifically recognized that the trial court’s order was subject to appellate review on the merits. Thus, the cases the majority relies upon provide no support whatsoever for its holding. Because this court had not expressed any opinion on the merits and had specifically left the merits of the statutory analysis open for appellate review, there was nothing precluding the trial court from reconsidering its ruling on the merits.”
Furthermore, Michael Burke said, the majority said the same order it seeks to force Judge Webb to enter is also is subject to appellate court review. He suggested this creates a scenario under which an appellate panel could reverse the order on the same grounds Webb used to reconsider that the majority is trying to say are improper.
“If the order is subject to review on the merits by the appellate court, then it is subject to reconsideration on the merits by the trial court,” Burke wrote. “The majority never explains why it is perfectly fine with the appellate court reversing the order but considers it an affront to this court’s authority for the circuit court to reconsider it.”
Michael Burke also pointed out Brown was never acquitted of the criminal charge. Rather, she only “obtained a dismissal on what she considered dubious legal grounds that she had never argued,” and asserted the majority’s opinion could essentially force her to, on appeal, defend a position she never asserted and with which she doesn’t agree, resulting in possible years of legal limbo.