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Moran v. Wisconsin Department of Justice

Court of Appeals of Wisconsin, District III

June 11, 2019

James P. Moran, Petitioner-Appellant,
v.
Wisconsin Department of Justice, Respondent-Respondent.

          APPEAL from an order of the circuit court for Chippewa County: No. 2016CV378 JAMES M. ISAACSON, Judge.

          Before Stark, P.J., Hruz and Seidl, JJ.

          HRUZ, J.

         ¶1 James Moran appeals an order affirming a decision of the Wisconsin Department of Justice (DOJ) denying Moran's application to purchase a handgun in Wisconsin. Moran was convicted of a felony in Virginia and, upon the completion of his sentence, he petitioned to have his right to possess a firearm restored in that state. The Virginia courts granted Moran's petition, and Moran eventually moved to Wisconsin, where he attempted to purchase a firearm. The purchase was blocked by the DOJ based upon its conclusion that, as a felon who had not received a pardon for his crime, Moran was not permitted to possess a firearm in this state.

         ¶2 Moran raises numerous arguments challenging the DOJ's determination. He contends the DOJ improperly interpreted Wis.Stat. § 941.29(5) (2017-18), [1] which identifies two circumstances under which a felon can lawfully possess a firearm in this state. We agree with the DOJ that, under the plain language of subsec. (5), a felon must either have received a pardon with respect to his or her crime, see subsec. (5)(a), or have obtained relief from his or her disabilities under an identified federal statute, see subsec. (5)(b). Moran has satisfied neither of these conditions. We reject Moran's assertions that § 941.29(5) has been preempted by federal legislation, and that the restoration of his right to possess a firearm in Virginia is the equivalent of a pardon for purposes of Wisconsin law.

         ¶3 We also reject various constitutional arguments Moran advances. Contrary to Moran's assertions, the interpretation of Wis.Stat. § 941.29(5) adopted by the DOJ does not violate the Full Faith and Credit Clause of the United States Constitution. That clause does not require the State of Wisconsin to defer to Virginia law with respect to the circumstances under which a felon residing in this state may possess firearms within this state's borders. Furthermore, we conclude that the DOJ's determination with respect to Moran's ability to possess a firearm in Wisconsin does not deprive Moran of his right to bear arms under either the federal constitution or state constitution. Because the DOJ properly denied Moran's application to purchase a firearm, we affirm the circuit court's order upholding that determination.

         BACKGROUND

         ¶4 The relevant facts are undisputed. Moran is a current resident of Chippewa County, Wisconsin, and was previously a resident of Virginia. In 1995, Moran was adjudicated guilty in Virginia of felony embezzlement in an amount greater than $200. A three-year sentence was imposed and stayed pending Moran's completion of a five-year probation term, along with his payment of restitution in the amount of $30, 700. Moran successfully completed the term of probation and paid all outstanding fines and costs.

         ¶5 The Virginia felony conviction resulted in Moran losing several civil rights in Virginia, including his rights to vote, to hold public office, and to possess firearms. Following the completion of his probation term, Moran petitioned the governor of Virginia to restore his civil rights. The governor in 2006 granted Moran's petition, removing "all political disabilities imposed as a result of [his] felony conviction except the right to ship, transport, possess or receive firearms." (Emphasis added.)

         ¶6 To restore his right to possess a firearm in Virginia, Moran was required to petition the Virginia circuit court in the jurisdiction in which he resided. See Va. Code Ann. § 18.2-308.2(C) (2018).[2] On November 6, 2013, the Circuit Court of Loudoun County, Virginia, entered a final order granting Moran a permit to carry a firearm. Thereafter, Moran obtained a permit to carry a concealed handgun in Virginia, and he purchased at least one firearm in Virginia after receiving approval from the National Instant Criminal Background Check System (NICS).

         ¶7 On October 5, 2016, Moran attempted to purchase a handgun in Wisconsin, where he now permanently resides.[3] Moran's purchase was denied by Wisconsin's background check system based upon his Virginia felony conviction. Moran appealed the denial, which the DOJ's Crime Information Bureau upheld. The Crime Information Bureau advised Moran that under Wisconsin law- specifically, Wis.Stat. § 941.29(5)-his firearm rights could be restored only by his being granted a pardon or by the federal government's restoration of his firearm rights under 18 U.S.C. § 925(c) (2012).[4]

         ¶8 Moran appealed the Crime Information Bureau's determination to the administrator of the DOJ's Division of Law Enforcement Services, pursuant to Wis. Admin. Code § JUS 10.09 (Aug. 2012). Moran asserted that Wis.Stat. § 941.29(5) had been "invalidated by congressional action," in that the statutory prerequisites for relief under that section depended on federal rights restoration programs that had been either repealed or defunded. Moran also asserted that he was entitled to purchase a firearm based upon amendments to federal law enacted as part of the Firearm Owners' Protection Act of 1986. Finally, Moran claimed that refusing to allow his gun purchase denied him his right to bear arms under the United States and Wisconsin constitutions.

         ¶9 The administrator denied Moran's appeal.[5] He concluded the documentation Moran had supplied did not establish that Moran's felony conviction in Virginia should be excluded under Wis.Stat. § 941.29(5). Consequently, Moran was disqualified from purchasing or possessing a firearm in Wisconsin. The administrator remarked that the DOJ was without statutory authority to grant an exception to such disqualification except to the extent provided in § 941.29(5), which exceptions were not applicable in Moran's case.

         ¶10 Moran sought judicial review of the administrator's decision, pursuant to Wis.Stat. ch. 227. The circuit court also identified Wis.Stat. § 941.29(5) as the only mechanism by which a convicted felon can have his or her right to possess a firearm in Wisconsin restored. The court concluded the proper interpretation of that statute, given the existing state of federal law, required that a felon first receive a pardon before being eligible to purchase or possess firearms in Wisconsin. The court then observed it was undisputed that Moran had not received a pardon under Virginia law, and it concluded the process Moran had navigated to have his firearm rights restored in that state was not the equivalent of a pardon in Wisconsin. Finally, the court rejected Moran's constitutional arguments-namely, his assertions that the denial violated his constitutional rights to bear arms and that the United States Constitution's Full Faith and Credit Clause required Wisconsin to recognize his restoration of rights under Virginia law. Moran now appeals.

         DISCUSSION

         ¶11 This is an appeal under Wis.Stat. § 227.58 involving an agency decision. In such an appeal, we review the decision of the agency, not the decision of the circuit court. Myers v. DNR, 2019 WI 5, ¶17, 385 Wis.2d 176, 922 N.W.2d 47. Our supreme court recently ended the practice of deferring to an administrative agency's conclusions of law. Id. (citing Tetra Tech EC, Inc. v. DOR, 2018 WI 75, ¶3, 382 Wis.2d 496, 914 N.W.2d 21). However, when we evaluate the persuasiveness of an administrative agency's arguments, we give "due weight" to the agency's experience, technical competence, and specialized knowledge. Id.

         ¶12 The facts of this case are undisputed, so we address only questions of law-primarily, questions of statutory interpretation and constitutional law. We decide questions of statutory interpretation de novo. Id., ¶18. When we engage in statutory interpretation, we begin with the statute's language, which is generally given its common, ordinary and accepted meaning. Id. If the language yields a plain, clear statutory meaning, the statute is unambiguous, and we apply the language as written without resorting to extrinsic sources. Id. Moreover, whether a statute is constitutional and whether an individual has been denied a constitutional right are questions of law that we review de novo. State v. Culver, 2018 WI App 55, ¶37, 384 Wis.2d 222, 918 N.W.2d 103, review denied, 2019WI 8, 385 Wis.2d 206, 923 N.W.2d 165.

         I. Wisconsin Stat. § 941.29(5) prohibits Moran from purchasing a firearm in Wisconsin.

         ¶13 The purchase of handguns in Wisconsin is regulated by Wis.Stat. § 175.35, which provides the DOJ with authority to promulgate rules regarding the transfer of such firearms. The statute specifically requires that the DOJ perform a record search for firearm restrictions concerning a prospective handgun purchaser. See § 175.35(2g)(c)1. After receiving a completed notification form from a dealer regarding a prospective purchaser, the DOJ must determine whether the purchaser is prohibited under state or federal law from possessing a firearm. Sec. 175.35(2g)(c)4. The DOJ then ultimately either approves the purchase or issues a nonapproval to the dealer, thereby prohibiting the transfer. Id.

         ¶14 Approval or nonapproval of a handgun purchase under Wis.Stat. § 175.35(2g)(c)4. turns upon whether the prospective purchaser is prohibited from possessing a firearm under Wis.Stat. § 941.29. Section 941.29(1m)(b), in turn, makes it a felony for a person to possess a firearm if he or she "has been convicted of a crime elsewhere that would be a felony if committed in this state." Moran does not dispute that the crime for which he was convicted in Virginia is also a felony under Wisconsin law.

         ¶15 There are certain circumstances, however, under which our legislature has determined that a felon may lawfully possess a firearm. Two such circumstances are set forth in subsec. (5) of Wis.Stat. § 941.29. First, subsec. (5) lifts the prohibition on firearm possession for any person who has received a pardon for the felony that would disqualify him or her and has been expressly authorized to possess a firearm under 18 U.S.C. app. § 1203 (1982).[6]Sec. 941.29(5)(a). Second, subsec. (5) makes it lawful to possess a firearm for any person who has obtained "relief from disabilities" under 18 U.S.C. § 925(c). Sec. 941.29(5)(b). Thus, the exceptions under subsecs. (5)(a) and (5)(b) collectively depend, at least in part, upon two provisions of federal law, both of which have changed since the time § 941.29 was enacted. To properly frame Moran's argument on appeal, it is necessary that we examine the history of the Wisconsin statute and its interrelated federal provisions.

         ¶16 Wisconsin Stat. § 941.29 was created in 1981. See 1981 Wis. Laws, ch. 141, § 1. As originally enacted, it contained largely the same exception under subsec. (5)(a) that exists today. Again, subsec. (5)(a) contains two prerequisites to the lawful possession of a firearm by a felon: the person must have received a pardon, and he or she must have been expressly authorized to possess a firearm under 18 U.S.C. app. § 1203. Section 1203, which was located in an appendix to Title 18 of the United States Code, exempted from the reach of the federal felon-in-possession statute "any person who has been pardoned by the President of the United States or the chief executive of a State and has expressly been authorized by the President or such chief executive, as the case may be, to receive, possess, or transport in commerce a firearm." 18 U.S.C. app. § 1203(2). By invoking that particular provision of federal law, the Wisconsin legislature appeared to require that, to receive the benefit of § 941.29(5)(a), a convicted felon must obtain a pardon from a state or federal executive authority that explicitly permitted him or her to receive, possess or transport firearms. See 78 Wis. Op. Att'y Gen. 22 (1989).

         ¶17 Subsequent changes in federal law generated uncertainty regarding the applicability of Wis.Stat. § 941.29(5)(a). In 1986, Congress repealed both the federal statute making it a crime for a felon to possess a firearm and the statute permitting such possession with explicit authorization following a pardon. See Firearm Owners' Protection Act, Pub. L. No. 99-308, § 104(b), 100 Stat. 449, 459 (1986). Although Congress subsequently reenacted the prohibition on felons possessing firearms, see 18 U.S.C. ยง 922(g)(1), it did not reenact the executive clemency ...


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