Moran v. Wis. Dep't of Justice

Citation2019 WI App 38,388 Wis.2d 193,932 N.W.2d 430
Decision Date11 June 2019
Docket NumberAppeal No. 2018AP563
Parties James P. MORAN, Petitioner-Appellant, v. WISCONSIN DEPARTMENT OF JUSTICE, Respondent-Respondent.
CourtCourt of Appeals of Wisconsin

388 Wis.2d 193
932 N.W.2d 430
2019 WI App 38

James P. MORAN, Petitioner-Appellant,
v.
WISCONSIN DEPARTMENT OF JUSTICE, Respondent-Respondent.

Appeal No. 2018AP563

Court of Appeals of Wisconsin.

Submitted on Briefs: November 20, 2018
Opinion Filed: June 11, 2019


On behalf of the petitioner-appellant, the cause was submitted on the briefs of Charles W. Giesen and Jessica J. Giesen of Giesen Law Offices, S.C., Madison.

On behalf of the respondent-respondent, the cause was submitted on the brief of Brad D. Schimel, attorney general, and Brian P. Keenan, assistant attorney general.

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

HRUZ, J.

932 N.W.2d 433
388 Wis.2d 197

¶1 James Moran appeals an order affirming a decision of the Wisconsin Department of Justice (DOJ) denying Moran’s application to purchase

388 Wis.2d 198

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

388 Wis.2d 199

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.

932 N.W.2d 434

¶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

388 Wis.2d 200

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

388 Wis.2d 201

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

932 N.W.2d 435

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

388 Wis.2d 202

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,

388 Wis.2d 203

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...

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3 cases
  • State v. Roundtree
    • United States
    • United States State Supreme Court of Wisconsin
    • January 7, 2021
    ...L.Ed.2d 637 (2008). The same is true of the right provided by our State Constitution. 395 Wis.2d 104 Moran v. DOJ, 2019 WI App 38, ¶48, 388 Wis. 2d 193, 932 N.W.2d 430. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and ......
  • In re Schultz
    • United States
    • Court of Appeal of Michigan (US)
    • November 24, 2020
    ...922(g). Preemption does not arise merely because federal and state law do not "perfectly align." Moran v. Wisconsin Dep't of Justice , 388 Wis.2d 193, 211, 2019 WI App 38, 932 N.W.2d 430 (2019) ; see also id. at 211-213, 932 N.W.2d 430 (holding that Wisconsin's law requiring a pardon for re......
  • In re Schultz
    • United States
    • Court of Appeal of Michigan (US)
    • November 24, 2020
    ...922(g). Preemption does not arise merely because federal and state law do not "perfectly align." See Moran v Wisconsin Dep't of Justice, 388 Wis 2d 193; 2019 WI App 38; 932 NW2d 193, 208-213 (2019) (holding that Wisconsin's law requiring a pardon for removal of a felon's firearm disabilitie......

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