*1 Illinois Official Reports
Appellate Court
Guns Save Life, Inc. v. Ali
,
Appellate Court GUNS SAVE LIFE, INC.; DPE SERVICES, INC., d/b/a Maxon Caption Shooter’s Supplies and Indoor Range; and MARILYN SMOLENSKI,
Plaintiffs-Appellants, v. ZAHRA ALI, in Her Official Capacity as Director of the Department of Revenue of Cook County; THOMAS J. DART, in His Official Capacity as Cook County Sheriff; and THE COUNTY OF COOK, a County in the State of Illinois, Defendants- Appellees.
District & No. First District, Fifth Division
No. 1-18-1846 Filed March 13, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 15-CH-18217; the Hon. David Atkins, Judge, presiding. Review
Judgment Affirmed in part and reversed in part.
Counsel on Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, and David H. Thompson, Peter A. Patterson, and John D. Ohlendorf, of Appeal
Cooper & Kirk, PLLC, of Washington, D.C., for appellants. Kimberly M. Foxx, State’s Attorney, of Chicago (Cathy McNeil Stein, Cristin Duffy, and Paul A. Castiglione, Assistant State’s Attorneys, of counsel), for appellees.
Panel JUSTICE HALL delivered the judgment of the court, with opinion.
Justices Rochford and Delort concurred in the judgment and opinion. OPINION Plaintiffs Guns Save Life, Inc. (GSL); DPE Services, Inc., d/b/a Maxon Shooter’s Supplies
and Indoor Range (Maxon); and Marilyn Smolenski (Smolenski) appeal the circuit court’s grant of summary judgment in favor of defendants, Zahra Ali (Ali), Thomas J. Dart (Dart), and the County of Cook (County) [1] on their second amended complaint for declaratory judgment and injunctive relief. Plaintiffs sought to challenge the County’s ordinance that imposed a tax on firearm sales and two types of ammunition sales (centerfire and rimfire) within the County. Plaintiffs have raised the following issues on appeal: (1) whether the circuit court erred in partially granting defendants’ section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2016)) motion to dismiss because plaintiffs Maxon and Smolenski did not have standing to bring suit to challenge the firearms tax; and (2) whether the circuit court erred in granting summary judgment in favor of defendants on the remaining claims, namely (a) whether the challenged firearms tax and ammunition tax violate the second amendment to the United States Constitution (U.S. Const., amend. II) and section 22 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, § 22), (b) whether the classifications in the ammunition tax violate the uniformity clause in section 2 of article IX of the Illinois Constitution (Ill. Const. 1970, art. IX, § 2), and (c) whether the challenged firearms tax and ammunition tax are preempted by the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/1 et seq. (West 2016)) and the Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/1 et seq. (West 2016)). For the reasons that follow, we affirm the judgment of the circuit court. BACKGROUND Plaintiffs filed their initial four-count complaint for declaratory judgment and injunctive
relief, challenging the firearms and ammunition taxes on December 17, 2015, alleging that defendants (1) violated the second amendment (U.S. Const., amend. II) and section 22 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, § 22), (2) violated the uniformity clause of the Illinois Constitution (Ill. Const. 1970, art. IX, § 2), and (3) were preempted by section 13.1(b) of the FOID Card Act (430 ILCS 65/13.1(b) (West 2016)) and section 90 of the Concealed Carry Act (430 ILCS 66/90 (West 2016)) as it applies to handguns and handgun ammunition. Defendants moved to dismiss the complaint on January 29, 2016, alleging that plaintiffs
lacked standing and that the complaint failed to state any claim on which relief could be granted.
*3 Plaintiffs filed their first amended complaint on February 22, 2016, and a response to
defendants’ motion to dismiss on April 6, 2016 (pursuant to the circuit court’s March 16, 2016, order). According to the second amended complaint, on November 9, 2012, the County’s Board
of Commissioners (Board) passed a tax titled the Cook County Firearm Tax Ordinance (firearms tax), which imposed a $25 fee for each firearm purchased by a citizen at a firearms retail business located in the County. Cook County Code of Ordinances art. XX, §§ 74-665 through 74-675 (adopted Nov. 9, 2012) (County Code). The revenue from this tax was not directed to any specific fund. On November 18, 2015, the Board amended the County Code to impose a tax on the retail purchase of firearm ammunition at the rate of $0.01 per cartridge of rimfire ammunition and $0.05 per cartridge of centerfire ammunition (ammunition tax). Cook County Code of Ordinances art. XX, § 74-668 (adopted Nov. 18, 2015). The revenue from the ammunition tax was directed to the Public Safety Fund to fund operations related to public safety. Plaintiffs alleged that GSL was a nonprofit corporation dedicated to protecting the second
amendment rights of Illinois citizens to defend themselves. Some GSL members reside in the County and have paid both the firearm and ammunition taxes. GSL alleged, however, that its members purchased firearms and ammunition less frequently in the County because of the taxes and that some members avoid purchasing firearms and ammunition in the County because of the taxes. Plaintiffs alleged that Maxon was a registered retailer of firearms and ammunition in the
County. It operates a retail gun shop and indoor shooting range in Des Plaines, Illinois. Maxon sells rifles and handguns and their corresponding ammunition, including centerfire and rimfire. Maxon is owned and operated by DPE Services, Inc. Plaintiffs alleged that Smolenski was a resident of the County and member of GSL who
possessed a valid FOID card and a valid concealed carry license. Smolenski “frequently” engaged in firearms transactions and decided not to purchase a firearm in the County because of the tax. Specifically, on June 7, 2016, Smolenski bought 100 rounds of 9mm (centerfire) ammunition from Maxon and paid the $5 ammunition tax under protest. On June 8, 2016, her counsel submitted her protest of payment to the Department of Revenue of Cook County (Department of Revenue). While Smolenski intends to continue purchasing ammunition in the County, the second amended complaint alleged that she did not intend to purchase as much as she otherwise would have. Further, Smolenski did not purchase a new firearm at Maxon because of the firearms tax. On October 17, 2016, the circuit court issued a memorandum opinion and order granting
in part and denying in part defendants’ motion to dismiss. The order dismissed Smolenski’s and Maxon’s challenges to the firearms tax for lack of standing. The court found that Smolenski had no standing to challenge the firearms tax because she had not paid the tax and thus had not been injured by the tax. The court found that Maxon had no standing to challenge the firearms tax on behalf of its customers because there was no ban on the sale of the items at issue, nor was this a situation where the retailer passed a tax on to its customers. Rather, the tax was borne by the customers. The circuit court found that GSL had associational standing to challenge both taxes because it alleged that its members paid both taxes; Smolenski had standing to challenge the ammunition tax because she paid it under protest; and Maxon had standing to challenge the ammunition tax because the second amended complaint pleaded facts *4 alleging that compliance with the reporting requirements associated with the ammunition tax would cost it thousands of dollars per year, which gave Maxon a real interest in challenging the ammunition tax.
¶ 13 The circuit court denied defendants’ motion to dismiss for failure to state any claim on
which relief could be granted because (1) plaintiffs were not seeking a refund of taxes paid such as to implicate the voluntary payment doctrine and (2) whether the taxes were valid as a matter of law was the ultimate issue in the litigation and determination of those issues on a motion to dismiss would be premature.
¶ 14 The parties subsequently filed cross-motions for summary judgment on the remaining
claims. On August 17, 2018, the circuit court denied plaintiffs’ motion and granted summary
judgment in favor of defendants. In its memorandum opinion and order, the court concluded that the taxes did not infringe on plaintiffs’ federal and state constitutional rights to bear arms because they were proper exercises of the County’s home rule taxing powers and did not, in any meaningful way, impede plaintiffs’ ability to exercise their right to bear arms. The court found that plaintiffs had no evidence that the taxes would have the effect of preventing ownership or possession of firearms or that they affected the ability of law-abiding citizens to retain sufficient means of self-defense. The circuit court further found that even if the taxes burdened constitutionally protected conduct, they were substantially related to the important government interest of public safety because they provided funds to implement specific policies and programs designed to combat violence. Moreover, the taxes were outside the scope of preemption of the state laws because they were a valid exercise of the County’s home rule power to tax. Finally, the court concluded that plaintiffs failed to carry their burden of demonstrating that the different rates of ammunition classification violated the uniformity clause. This timely appeal followed, and oral argument was held on January 14, 2020. ANALYSIS Plaintiffs have raised the following issues on appeal: (1) whether the circuit court erred in
partially granting defendants’ section 2-619(a)(9) (735 ILCS 5/2-619(a)(9) (West 2016)) motion to dismiss because plaintiffs Maxon and Smolenski did not have standing to bring suit to challenge the firearms tax and (2) whether the circuit court erred in granting summary judgment in favor of defendants on the remaining claims, namely (a) whether the challenged firearms tax and ammunition tax violate the second amendment to the United States Constitution and section 22 of article I of the Illinois Constitution, (b) whether the classifications in the ammunition tax violate the uniformity clause in section 2 of article IX of the Illinois Constitution, and (c) whether the challenged firearms tax and ammunition tax are preempted by the FOID Card Act and the Concealed Carry Act. A. Section 2-619(a)(9) Motion to Dismiss for Lack of Standing Plaintiffs first contend that all three plaintiffs had standing to challenge both the firearms
tax and the ammunition tax. They first contend that the circuit court correctly determined that GSL had standing to bring suit to challenge both taxes because an association may bring suit on behalf of its members. Plaintiffs further contend that Smolenski had standing to challenge *5 both taxes because she suffered distinct and palpable injuries as a result of both taxes, even though she has not yet paid the firearms tax. Additionally, plaintiffs contend that Maxon had standing to challenge both taxes as a vendor because it is injured by the fact that it must collect the taxes and remit them and because it is independently injured by the taxes in that they impose burdensome compliance costs and reduce Maxon’s revenue. Thus, plaintiffs contend that the circuit court erred in determining that Smolenski and Maxon did not have standing to challenge the firearms tax and by granting defendants’ section 2-619(a)(9) (735 ILCS 5/2- 619(a)(9) (West 2016)) motion on that basis. Here, defendants challenged plaintiffs’ standing through a motion for involuntary dismissal
under section 2-619(a)(9). Lack of standing is an affirmative defense (
Chicago Teachers
Union, Local 1 v. Board of Education of the City of Chicago
,
standing. However, at oral argument, defendants conceded that GSL had associational
standing, but continued in their assertion that Maxon has no standing whatsoever and that
Smolenski has no standing to challenge the firearms tax because she has not paid that tax. As
to Maxon, defendants contend that it has no standing to contest the firearms tax because it has
no real interest in the tax because it has no burden of paying it and further that there was no
additional expense for Maxon to compute and report in compliance with the ammunition tax.
A motion to dismiss under section 2-619(a)(9) admits the legal sufficiency of the plaintiff’s
complaint but asserts that the claim against the defendant is barred by an affirmative matter
that avoids the legal effect of the claim or defeats the claim. 735 ILCS 5/2-619(a)(9) (West
2016);
Kuykendall v. Schneidewind
,
as true all well-pleaded facts in the plaintiff’s complaint and all reasonable inferences that may be drawn, and it must construe the pleadings and supporting documents in a light most favorable to the nonmoving party. Id. ¶ 33. The motion should be granted only if the plaintiff can prove no set of facts that would support his cause of action. A motion to dismiss under section 2-619(a)(9) presents a question of law that is reviewed de novo . The doctrines of standing, mootness, ripeness, and justiciability are the methods by which
courts preserve for consideration only those disputes that are truly adversarial and capable of
resolution by judicial decision.
Martini v. Netsch
,
defendant’s burden to plead and prove lack of standing. ¶ 27 The pivotal factor in determining whether a plaintiff has standing is whether the party is
entitled to have the court decide the merits of the dispute or particular issue. Id. Thus, the court must decide if the party asserting standing will benefit from the relief sought. Id.
¶ 28 In Illinois, to have standing to challenge the constitutionality of a statute, one must have
sustained or be in immediate danger of sustaining a direct injury as a result of enforcement of
the challenged statute.
Chicago Teachers Union, Local 1
,
¶ 29 1. Smolenski’s Standing Plaintiffs contend that Smolenski also has standing to challenge the constitutionality of
both taxes because she has suffered distinct and palpable injuries as a result of them. They allege that Smolenski frequently engages in firearms transactions and had sought to purchase a Glock 42 gun in Cook County but did not do so because of the firearm tax. Additionally, Smolenski alleges she has both (1) purchased ammunition in Cook County and paid the challenged ammunition tax under protest as part of her purchase and (2) will purchase ammunition in Cook County in the future in reduced amounts because of the ammunition tax. While the circuit court correctly determined that Smolenski had standing to challenge the ammunition tax, plaintiffs contend that the court incorrectly determined that she did not have standing to challenge the firearm tax because she had not yet paid it. Defendants contend that the circuit court’s ruling that Smolenski lacked standing to
challenge the firearm tax was correct. A court will consider a constitutional challenge to a statute by a party who is affected by
the statute or aggrieved by its operation.
Terra-Nova Investments v. Rosewell
, 235 Ill. App. 3d
330, 337 (1992). A plaintiff that pays certain fees mandated by an act has standing to challenge
the constitutionality of the fees paid. (citing
Mlade v. Finley
, 112 Ill. App. 3d 914, 917
(1983));
DeWoskin
,
hypothetical firearm purchase in the future. We conclude that Smolenski has not satisfied the requirement for standing to challenge the firearm tax and that the circuit court properly found that she did not have such standing. 2. Maxon’s Standing Plaintiffs further contend that Maxon had standing to challenge both taxes at issue in this
case, on behalf of its customers under the doctrine of vendor standing, and that it is injured by the taxes in multiple ways. First, plaintiffs contend that Maxon is injured because it must collect the taxes and remit them to the County. They also argue that Maxon’s costs for complying with the firearm and ammunition taxes are substantial. Plaintiffs further contend *7 that Maxon has standing to challenge both taxes because they cause an adverse economic impact to Maxon’s business.
¶ 36 Defendants contend that Maxon has no standing to challenge either tax. First, defendants
assert that Maxon has no real interest in the firearm tax because the burden of paying the tax falls on its customers, not Maxon as a retailer. Similarly, defendants argue that Maxon has no standing to challenge the ammunition tax because Maxon did not incur any additional expense computing and reporting in compliance with the tax. Defendants note that in her deposition, Sarah Natalie, Maxon’s general manager, testified that as a seller of firearms, Maxon is required to register with the Department of Revenue and keep books and records of sales. She further testified that Maxon owns a module program that automatically tracked sales data based on the type of firearm and ammunition sold, which provided efficient and cost-effective assistance to employees because it kept sales records, could generate reports of the store’s inventory, and could provide the dates of purchases. The program could also generate a report of all firearms and ammunition sold in a one-month period and it automatically separated the type of ammunition based on four categories, two of which are included in the tax. Because Maxon suffered no concrete injury, defendants contend that its claim of standing to challenge the ammunition tax “collapses.” Here, the taxes in question are not paid by the retailer, Maxon, but are paid by the
consumer. Maxon’s only responsibility is to track the sales and remit the tax, similar to what
it is already required to do as a retailer of firearms and ammunition. Maxon could in no way
be considered the payer of the challenged taxes because it is the consumer alone who has that
responsibility. See
Wexler v. Wirtz Corp.
,
challenge the ammunition tax because of the adverse economic consequences. Maxon’s general manager testified in her deposition that the retailer already had a system in place that could do the required reporting and that it was already required to track such sales and remit reports to the Department of Revenue. Thus, Maxon failed to establish any real injury by the ammunition tax’s requirement that it collect and remit the tax to the Department of Revenue. In conclusion, the circuit court properly determined that GSL had standing to challenge both taxes, that Smolenski had standing to challenge the ammunition tax, and that neither Smolenski nor Maxon had standing to challenge the firearm tax. The circuit court erred in finding that Maxon had standing to challenge the ammunition tax based on evidence in the record.| B. Summary Judgment Plaintiffs next contend that the circuit court erred in granting defendants’ motion for
summary judgment on all counts. The purpose of summary judgment is not to try a question of fact, but rather to determine whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co. , 211 Ill. 2d 32, 42-43 (2004). A motion for summary judgment should only be granted if the pleadings, depositions, and affidavits on file demonstrate that no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Barnard v. City of Chicago Heights , 295 Ill. App. 3d 514, 519 (1998). In determining whether a genuine issue as to any material fact *8 exists, a reviewing court must view the evidence in the light most favorable to the nonmoving party. Id. at 519. A genuine issue of material fact precluding summary judgment exists where the material facts are disputed or, if the material facts are undisputed, where reasonable persons might draw different inferences from the undisputed facts. Hilgart v. 210 Mittel Drive Partnership , 2012 IL App (2d) 110943, ¶ 19. On a summary judgment motion, once the moving party has demonstrated the right to judgment, the burden shifts to the nonmoving party to present evidence showing a genuine issue of material fact or that the moving party was not entitled to judgment as a matter of law. Mere argument is not enough to raise an issue of material fact. Triple R Development, LLC v. Golfview Apartments I, L.P. , 2012 IL App (4th) 100956, ¶ 16. Because the parties filed cross-motions for summary judgment, they conceded that no
material questions of fact existed and that only a question of law was involved that the court
could decide on the record.
Pielet v. Pielet
,
conduct protected by the second amendment (U.S. Const., amend. II) and article I, section 22
of the Illinois Constitution (Ill. Const.1970, art. I, § 22), namely, the right to acquire firearms
and ammunition by increasing the cost of both types of purchases. Plaintiffs maintain that the
United States Supreme Court’s decision in
District of Columbia v. Heller
,
challenge to raise successfully [citation], because an enactment is facially invalid only if no set
of circumstances exist under which it would be valid.”
Napleton v. Village of Hinsdale
, 229
Ill. 2d 296, 305-06 (2008). The fact that the enactment could be found unconstitutional under
some set of circumstances does not establish its facial invalidity. at 306. Once standing is
established, the plaintiff’s personal situation becomes irrelevant.
Guns Save Life, Inc. v. Raoul
,
govern the construction of statutes.
Napleton
, 229 Il. 2d at 306. Like statutes, municipal
ordinances are presumed constitutional.
City of Chicago v. Alexander
, 2015 IL App (1st)
*9
122858-B, ¶ 18. Courts have a duty to construe legislative enactments so as to uphold their
validity if reasonably possible.
Hayashi v. Illinois Department of Financial & Professional
Regulation
,
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II. The United States Supreme Court has determined that the second amendment guarantees a
personal right to keep and bear arms for lawful purposes.
McDonald
,
the police power, the right of the individual citizen to keep and bear arms shall not be infringed.” Ill. Const. 1970, art. I, § 22. Our supreme court has held that the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is subject to substantial infringement in the exercise of the police power. Kalodimos v. Village of Morton Grove , 103 Ill. 2d 483, 509 (1984). The question in determining whether a regulation is lawful is whether the law
impermissibly encroaches on conduct at the core of the second amendment.
Chairez
, 2018 IL
121417, ¶ 26. Since
Heller
and
McDonald
, courts have begun to develop a general framework
for analyzing the newly enunciated second amendment right.
Wilson v. County of Cook
, 2012
IL 112026, ¶ 40. These courts have endeavored to (1) outline the appropriate scope of the
individual second amendment guarantees as defined in
Heller
and (2) determine the
appropriate standard of scrutiny for laws that burden these rights. The Supreme Court has
not definitively resolved the standard for evaluating second amendment claims. See
Heller
,
implicating the second amendment are constitutional. The first inquiry is whether the
challenged law imposes a burden on conduct falling within the scope of the second amendment
guarantee, which involves a textual and historical inquiry to determine whether the conduct
was understood to be within the scope of the right at the time of ratification. at 634-35;
Wilson
,
statute against the relevant constitutional doctrine, independent of the statute’s application to
particular cases.
Guns Save Life
,
clear that the challenged taxes on the purchases of firearms and certain types of ammunition within the County do not restrict the ownership of firearms or ammunition. It is the right of ownership of firearms and, correspondingly, ammunition, that is at the core of the second amendment, which, as noted by Heller , is not itself unlimited. The taxes could reasonably be considered a condition on the commercial sale of arms. The taxes at issue are more akin to various other types of sales taxes imposed on the
purchase of goods and services—the responsibility of paying such taxes falls on the consumer
and are collected by the retailer because of the impracticality of the County collecting such tax
from the consumer. See
Brown’s Furniture, Inc. v. Wagner
, 171 Ill. 2d 410, 418 (1996).
Plaintiffs have not cited, nor have we found, any case law which supports the position that
imposing a sales tax on the purchase of firearms or ammunition violated the second
amendment. The taxes at issue are nothing more than a tax on the sale of tangible personal
property. See
American Beverage Ass’n v. City of Chicago
,
taxes, $25 and $.05 per round respectively, are anything more than a “marginal, incremental
or even appreciable restraint” on one’s second amendment rights. (Internal quotation marks
omitted.)
Kwong v. Bloomberg
,
¶ 60 2. Invalid Exercise of the County’s Taxing Power ¶ 61 Nevertheless, plaintiffs contend that the circuit court’s erroneous conclusion that the
firearms and ammunition taxes were valid exercises of the County’s taxing power was in
violation of the federal and state constitutions. This argument goes to the second prong of the
analysis, namely, the strength of the government’s justification for restricting or regulating the
exercise of second amendment rights.
Heller
,
ordinances do not violate the second amendment under Heller and its progeny but are instead permissible conditions on the exercise of one’s second amendment rights. at 626-27 (majority opinion). 3. Violation of the Uniformity Clause Next, plaintiffs contend that the firearms and ammunition taxes are unconstitutional under
article IX, section 2, of the Illinois Constitution (the uniformity clause) (Ill. Const. 1970, art. IX, § 2) because they only fall on the law-abiding citizens of Illinois who possess valid FOID cards and are legally entitled to purchase firearms and ammunition; they draw an irrational distinction between firearms and ammunition purchased within the County and those purchased elsewhere but transported into the County for use there; and there is no rational distinction related to the purpose of the taxes between those citizens subjected to them and the federal and state personnel, veterans organizations, and law enforcement personnel who are exempted from them. Plaintiffs conclude that the circuit court erred in granting summary judgment in favor of defendants on this issue. In response to plaintiffs’ argument, defendants acknowledge that the ammunition tax
classifies between centerfire and rimfire ammunition but argue that the classification is based on lethality. Because centerfire ammunition is more lethal than rimfire ammunition, the County had a reasonable basis for taxing it at a higher rate and raising more revenue to finance the medical services that the County provides for victims of gun violence. Defendants further contend that there is a real and substantial difference between purchasers and nonpurchasers of firearms and ammunition. They argue that the County has applied the taxes uniformly within the limits of its territorial jurisdiction and that our supreme court has found a tax to be valid under the uniformity clause, regardless of whether the individuals taxed are purportedly not the cause of the problem that the tax seeks to remedy, citing Marks v. Vanderventer , 2015 IL 116226, ¶ 21, in support. Defendants conclude that a rational relationship exists between the purchase of firearms and ammunition and the need to ameliorate the harms that gun violence causes in the County. Further, defendants contend that there is a rational distinction between those subjected to the taxes and those exempted—namely, that the exempted parties’ primary purpose in using firearms is to serve the community. We note that the scope of a court’s inquiry when a tax has been challenged on uniformity
grounds is relatively narrow.
Moran Transportation Corp. v. Stroger
,
“In any law classifying the subjects or objects of non-property taxes or fees, the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly. Exemptions, deductions, credits, refunds and other allowances shall be reasonable.” Ill. Const. 1970, art. IX, § 2.
¶ 68 “ ‘To survive scrutiny under the uniformity clause, a nonproperty tax classification must
be based on a real and substantial difference between the people taxed and those not taxed, and
the classification must bear some reasonable relationship to the object of the legislation or to
public policy.’ ”
Moran Transportation Corp.
, 303 Ill. App. 3d at 473 (quoting
Allegro
Services, Ltd. v. Metropolitan Pier & Exposition Authority
,
unreasonable. at 473-74. Statutes are presumed constitutional, and broad latitude is afforded
to legislative classifications for taxing purposes.
Geja’s Café v. Metropolitan Pier &
Exposition Authority
,
The County’s proffered reasons for the classifications are reasonably related to the objectives of the ordinances. We conclude that plaintiffs’ claims fail. C. Preemption by FOID Card Act and Concealed Carry Act Finally, plaintiffs next contend that the challenged taxes are preempted by the FOID Card
Act (430 ILCS 65/13.1(e) (West 2018)) and the Concealed Carry Act (430 ILCS 66/90 (West 2018)) if they are construed as regulatory measures. Specifically, plaintiffs contend that the FOID Card Act expressly preempts local laws regulating the possession of handguns and handgun ammunition by FOID card holders and that the Concealed Carry Act contains similarly preemptive language regarding any ordinance that purports to impose regulations or restrictions on licensees or handguns and ammunition. Defendants contend that plaintiffs’ arguments are without merit because home rule entities
have a broad authority to enact taxes subject to narrow limitations not at issue here. Additionally, defendants contend that even under the narrowest home rule analysis (application to non-tax ordinances), the plain language of the FOID Card Act and Concealed Carry Act only prohibit enactments that are inconsistent with those statutes. The doctrine of preemption is applied where enactments of two unequal legislative bodies
are inconsistent.
Lily Lake Road Defenders v. County of McHenry
, 156 Ill. 2d 1, 8 (1993).
Home rule is based on the assumption that municipalities should be allowed to address
problems with solutions tailored to their local needs.
Palm v. 2800 Lake Shore Drive
Condominium Ass’n
,
Mulligan v. Dunne
,
“[A] home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for protection of the public health, safety, morals and welfare; to license, to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).
Section 6(a) was written with the intention to give home rule units the broadest powers possible. Palm , 2013 IL 110505, ¶ 30. The General Assembly may, however, preempt the exercise of a unit’s home rule powers by expressly limiting that authority. ¶ 31. To restrict the concurrent exercise of home rule power, the General Assembly must enact a law specifically stating that home rule authority is limited. ¶ 32. The interpretation of state statutes and determining whether state law preempts a local
ordinance is a question of law subject to
de novo
review.
Village of Northfield v. BP America,
Inc.
,
“Except as otherwise provided in the Firearm Concealed Carry Act and subsections (b) and (c) of this Section, the provisions of any ordinance enacted by any municipality which requires registration or imposes greater restrictions or limitations on the acquisition, possession and transfer of firearms than are imposed by this Act, are not invalidated or affected by this Act.” 430 ILCS 65/13.1(a) (West 2018). Section 13.1(b) of the FOID Card Act provides that:
“Notwithstanding subsection (a) of this Section, the regulation, licensing, possession, and registration of handguns and ammunition for a handgun, and the transportation of any firearm and any ammunition by a holder of a valid Firearm Owner’s Identification Card issued by the Department of State Police under this Act are exclusive powers and functions of this State. Any ordinance or regulation, or portion of that ordinance or regulation, enacted on or before the effective date of this amendatory Act of the 98th General Assembly that purports to impose regulations or restrictions on a holder of a valid [FOID] Card issued by the Department of State Police under this Act in a manner that is inconsistent with this Act *** shall be invalid in its application to a holder of a valid [FOID] Card issued by the Department of State Police under this Act.” 430 ILCS 65/13.1(b) (West 2018).
Section 13.1(e) of the FOID Card Act provides that “[t]his Section is a denial and limitation of home rule powers and functions under subsection (h) of Section 6 of Article VII of the Illinois Constitution.” 430 ILCS 65/13.1(e) (West 2018). Similarly, section 90 of the Concealed Carry Act states:
“The regulation, licensing, possession, registration, and transportation of handguns and ammunition for handguns by licensees are exclusive powers and functions of the State. *** This Section is a denial and limitation of home rule powers and functions under subsection (h) of Article VII of the Illinois Constitution.” 430 ILCS 66/90 (West 2018). Section 6 of article VII of the Illinois Constitution provides that: “(h) The General
Assembly may provide specifically by law for the exclusive exercise by the State of any power
or function of a home rule unit other than a taxing power.” Ill. Const. 1970, art. VII, § 6(h).
Section 6 of article VII specifically states that the General Assembly may limit any power
or function of a home rule unit other than a taxing power. The power to regulate and the power
to tax are separate and distinct powers.
Town of Cicero v. Fox Valley Trotting Club, Inc.
, 65
Ill. 2d 10, 16-17 (1976);
City of Chicago v. StubHub, Inc.
, 2011 IL 111127, ¶ 62;
Midwest
Gaming Entertainment, LLC v. County of Cook
,
(2) Maxon lacks standing to challenge the ammunition tax, (3) Smolenski had standing to challenge the ammunition tax, and (4) GSL had associational standing to challenge both taxes. Accordingly, the circuit court erred in finding that Maxon had standing to challenge the ammunition tax, and we reverse that finding. See Matthews v. Chicago Transit Authority , 2016 IL 117638, ¶ 103. Further, we find that the circuit court properly granted summary judgment in favor of defendants. Affirmed in part and reversed in part.
Notes
[1] Zahra Ali is the Director of the Cook County Department of Revenue, and Thomas J. Dart is the Sheriff of Cook County. They were named as defendants in their official capacities.