Opinion filed March 11, 2015 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015

MICHAEL R. O’NEILL, ) Appeal from the Circuit Court ) of the 10th Judicial Circuit, Petitioner-Appellee, ) Marshall County, Illinois. ) v. ) ) DIRECTOR OF THE ILLINOIS ) Appeal No. 3-14-0011 DEPARTMENT OF STATE POLICE, ) Circuit No. 13-MR-10 ) Respondent ) ) (The Department of State Police, ) ) Honorable Scott A. Shore, Intervenor-Appellant). ) Judge, Presiding. _____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Holdridge and O'Brien concurred in the judgment and opinion.

OPINION

¶1 The Illinois Department of State Police (Department) revoked petitioner Michael

O’Neill’s firearm owner’s identification (FOID) card. The Department sent O’Neill a letter

stating that it revoked his FOID card based on his conviction of battery, resulting from an

incident of domestic violence. ¶2 O’Neill petitioned the circuit court, which ordered the Department to reinstate O’Neill’s

FOID card. The Department intervened and filed a motion to vacate the court’s order, which the

court denied.

¶3 The Department appeals, arguing that the circuit court lacked jurisdiction. Alternatively,

the Department argues that O’Neill is not entitled to relief due to the fact that federal law

prohibits him from possessing firearms. O’Neill has not filed an appellee’s brief. For the

following reasons, we reverse.

¶4 BACKGROUND

¶5 In 1999, O’Neill pled guilty to battery (720 ILCS 5/12-3 (West 1998)) and reckless

conduct (720 ILCS 5/12-5 (West 1998)) after being arrested for an incident involving domestic

violence; O’Neill punched his son. The court ordered O’Neill to pay a fine and sentenced him to

24 months’ probation. The State’s Attorney declined to prosecute charges against O’Neill in

1996 for domestic battery and in 1988 for battery.

¶6 The Department sent O’Neill a letter on May 31, 2013, stating that the Department

revoked his FOID card due to his 1999 convictions for battery and reckless conduct resulting

from an incident of domestic violence. The letter stated, “[t]his action is in accordance with the

Federal Gun Control Act of 1968, 18 U.S.C. 922 (g)(9) and the State FOID Act, 430 ILCS

65/8(1). These acts make it unlawful for any person convicted of a ‘misdemeanor crime of

domestic violence’ to ship, transport, possess or receive firearms or ammunition.” The letter

further stated, “the Director of State Police cannot grant relief for denials, based on particular

listed offenses. Since your conviction is one of those identified offenses, the Illinois State Police

is unable to consider an appeal of your FOID card revocation. The FOID Act, 430 ILCS

2 65/10(c)(1), does provide that the aggrieved party may petition in writing, the circuit court in the

county of residence.”

¶7 The Department sent O’Neill a second letter on July 12, 2013, providing the same

information as the first letter. Additionally, the second letter directed O’Neill to return any

FOID cards in his possession to the Department.

¶8 O’Neill filed his petition in the circuit court seeking reinstatement of his FOID card

pursuant to section 10(b) of the Firearm Owners Identification Card Act (Act) (430 ILCS

65/10(b) (West Supp. 2013)). The case was erroneously captioned as “O’Neill v. Director of the

Illinois Department of State Police.” O’Neill never served the Department or the Director with

the summons and petition; he served the Marshall County State’s Attorney pursuant to sections

10(b) and 10(c)(0.05) of the Act. The court ordered the Department to reinstate O’Neill’s FOID

card. The court found that O’Neill had not committed a forcible felony within 20 years and was

not likely to act in a manner dangerous to public safety. Further, the court found that granting

relief was not contrary to the public interest.

¶9 The Department filed motions to intervene and vacate the court’s order. The Department

argued that the circuit court lacked subject matter jurisdiction to consider O’Neill’s petition

under sections 10(a) and 10(c) of the Act. Specifically, the Department alleged that: it revoked

O’Neill’s FOID card based on his battery conviction; the Director held exclusive jurisdiction

under section 10(a) of the Act; O’Neill failed to exhaust his administrative remedies; section

922(g)(9) of the Federal Gun Control Act of 1968 (Gun Control Act) (

(g)(9)

(2006)) prohibits O’Neill from possessing firearms because his conviction amounted to a

misdemeanor crime of domestic violence under section 921(a)(33)(A) of the Gun Control Act;

3 and section 10(c)(4) of the Act prohibits the court from granting relief where doing so is contrary

to federal law.

¶ 10 O’Neill responded, conceding that his battery conviction constituted a misdemeanor

crime of domestic violence under the Gun Control Act. He argued that the Department

surrendered and waived the issue of subject matter jurisdiction. O’Neill also argued that the

Department denied him the ability to directly appeal to it and conferred jurisdiction upon the

circuit court; the Department’s letters stated that he must petition the circuit court, and the

Department adopted a more broad definition of the Gun Control Act in evaluating the nature of

the offense. He further argued that the plurality decision in Coram v. State of Illinois,

, is persuasive where three justices found that a circuit court can remove “the federal

firearm disability” by granting a party’s section 10 petition.

¶ 11 The trial court granted the Department’s motion to intervene and denied its motion to

vacate the court order requiring the Department to issue O’Neill a FOID card.

¶ 12 The Department appeals. We reverse.

¶ 13 ANALYSIS

¶ 14 I. Subject Matter Jurisdiction

¶ 15 The Department argues that the trial court lacked subject matter jurisdiction; the

Department revoked O’Neill’s FOID card based on O’Neill’s conviction for battery, which is not

an enumerated offense providing jurisdiction to the trial court.

¶ 16 The issue of subject matter jurisdiction cannot be waived. Belleville Toyota, Inc. v.

Toyota Motor Sales, U.S.A., Inc.,

(2002). Therefore, a party can raise the

issue at any time.

“We review de novo whether the circuit court properly exercised

4 jurisdiction.” Schlosser v. State,

; Miller v. Department of State

Police,

.

¶ 17 There is no dispute that section 10(a) of the Act governs jurisdiction of appeals for relief

from firearm prohibition. The statute, in relevant part, states:

“(a) Whenever an application for a Firearm Owner’s

Identification Card is denied, *** or whenever such a Card is

revoked or seized as provided for in Section 8 of this Act, the

aggrieved party may appeal to the Director of State Police for a

hearing upon such denial, revocation or seizure, unless the denial,

revocation, or seizure was based upon a forcible felony, stalking,

aggravated stalking, domestic battery, any violation of the Illinois

Controlled Substances Act, the Methamphetamine Control and

Community Protection Act, or the Cannabis Control Act that is

classified as a Class 2 or greater felony, any felony violation of

Article 24 of the Criminal Code of 1961 or the Criminal Code of

2012, or any adjudication as a delinquent minor for the

commission of an offense that if committed by an adult would be a

felony, in which case the aggrieved party may petition the circuit

court in writing in the county of his or her residence for a hearing

upon such denial, revocation, or seizure.” (Emphasis added.) 430

ILCS 65/10(a) (West Supp. 2013).

¶ 18 Judicial review of final administrative decisions is also available under section 11(a),

which states:

5 “(a) All final administrative decisions of the Department under

this Act, except final administrative decisions of the Director of

State Police to deny a person’s application for relief under

subsection (f) of Section 10 of this Act, shall be subject to judicial

review under the provisions of the Administrative Review Law

*** .” 430 ILCS 65/11(a) (West 2012).

¶ 19 Here, the revocation of O’Neill’s FOID card was based on his battery conviction arising

out of a domestic violence incident. Section 10(a) of the Act requires only that the revocation be

based on one of the enumerated defenses; a conviction of an enumerated offense is not required.

Miller,

. Under the plain language of the Act, O’Neill could not

appeal his revocation to the director. Furthermore, the letter constituted a final administrative

decision. The letter explicitly stated that the Director of State Police could not grant relief for

denials based on particular offenses; O’Neill’s conviction constituted one of those offenses.

Further, the letter directed O’Neill to petition the circuit court to appeal the revocation of his

card. “It is one of the oldest and perhaps the wisest maxims of equity that the law will not

require a person to do a useless act.” Rock Island Y.W.C.A. v. Bestor,

(1977). The Department informed O’Neill that it would not grant relief; therefore, it would have

been useless for O’Neill to appeal to the Department. The Department’s jurisdiction argument is

simply disingenuous. The circuit court properly exercised jurisdiction.

¶ 20 II. Federal Law Prohibits Petitioner From Possessing Firearms

¶ 21 Alternatively, the Department argues that the court could not grant relief due to the fact

that federal law prohibits O’Neill from possessing a firearm. The Department is not arguing that

the trial court’s findings are against the manifest weight of the evidence. Instead, the

6 Department argues that federal law prohibits O’Neill from possessing a gun and, therefore, he is

not entitled to reinstatement of his FOID card under state law. We review questions of law de

novo. People v. Belk,

(2003) (citing People v. Richardson,

(2001)).

¶ 22 The Department can revoke a FOID card based on various grounds, including where “[a]

person who is prohibited from acquiring or possessing firearms or firearm ammunition by any

Illinois State statute or by federal law.” 430 ILCS 65/8(n) (West Supp. 2013).

¶ 23 The Gun Control Act makes it unlawful for any person “who has been convicted in any

court of a misdemeanor crime of domestic violence, to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

(g)(9) (2006).

¶ 24 The Gun Control Act defines “ ‘misdemeanor crime of domestic violence’ ” as:

“(i) is a misdemeanor under Federal, State, or Tribal law;

and

(ii) has, as an element, the use or attempted use of physical

force, or the threatened use of a deadly weapon, committed

by a current or former spouse, parent, or guardian of the

victim, by a person with whom the victim shares a child in

common, by a person who is cohabiting with or has

cohabited with the victim as a spouse, parent, or guardian,

or by a person similarly situated to a spouse, parent, or

guardian of the victim.”

(a)(33) (2006).

7 Below, O’Neill conceded that his conviction constituted a misdemeanor crime of domestic

violence under the Gun Control Act. O’Neill was convicted of simple battery after he punched

his son. In United States v. Hayes,

(2009), the United States Supreme Court

addressed the issue of whether the definition of “a misdemeanor crime of domestic violence”

covers situations whenever the battered victim was in a domestic relationship with the offender.

In that case, the offender was convicted of simple battery and the victim was his “then-wife” and

cohabited with the offender as a spouse.

. The court held that although a domestic

relationship must be established, a domestic relationship need not be an element to the predicate

offense.

Instead, section 921(a)(33) requires that the predicate offense have an element of

the use or attempted use of force or the threatened use of a deadly weapon.

The Court

further stated that “[c]onstruing § 922(g)(9) to exclude the domestic abuser convicted under a

generic use-of-force statute (one that does not designate a domestic relationship as an element of

the offense) would frustrate Congress’ manifest purpose.” Id. at 426-27. Based on O’Neill’s

confession and the holding in Hayes, federal law prohibits O’Neill from possessing a gun.

O’Neill punched his son; thus, establishing the domestic relationship. To affirm the circuit

court’s judgment, we would have to find that circuit courts have the ability to remove federal

disability under the relief procedures of the Act.

¶ 25 Section 10(c) of the Act governs relief procedures for whenever an application for a

FOID card is denied or whenever such card is revoked. The provision, in relevant part, states:

“[T]he Director or court [whichever is applicable in accordance

with section 10(a)] may grant such relief if it is established by the

applicant to the court’s or Director’s satisfaction that:

***

8 (1) the applicant has not been convicted of a forcible felony

under the laws of this State or any other jurisdiction within 20

years of the applicant’s application for a Firearm Owner’s

Identification Card, or at least 20 years have passed since the

end of any period of imprisonment imposed in relation to that

conviction;

(2) the circumstances regarding a criminal conviction,

where applicable, the applicant’s criminal history and his

reputation are such that the applicant will not be likely to act in

a manner dangerous to public safety;

(3) granting relief would not be contrary to the public

interest; and

(4) granting relief would not be contrary to federal law.”

430 ILCS 65/10(c) (West Supp. 2013).

The General Assembly added section 10(c)(4) when it revised the Act in 2013. Pub. Act 97-

1150, §545 (eff. Jan. 25, 2013); see Coram v. State of Illinois,

.

¶ 26 It is unclear whether the circuit court has the ability to remove a federal disability. Our

supreme court has not directly addressed the issue — therefore, we are left to read the tea leaves

based on what the supreme court has said on the issue. In Coram, a plurality decision, our

supreme court, in dicta, addressed the issue of whether the circuit court has the ability to remove

a federal firearm disability under the relief procedures enumerated in section 10. Even though in

Coram the current version of the Act was not applicable, the case provides insight as to the

9 circuit court’s ability to remove a federal impediment under the 2013 amendments. Coram,

.

¶ 27 Although purely dicta and not binding, four justices in Coram found that the state court

cannot remove a federal impediment pursuant to the 2013 amendments to the Act. The special

concurrence stated that nothing in the amendments rebuts that presumption and such

amendments “make clear that a circuit court no longer has the authority to make findings or grant

relief under section 10 if the court concludes that the applicant would be in violation of federal

law if he or she were to possess a firearm.” Coram,

(Burke, J. specially

concurring, joined by Freeman, J.). The dissent stated that the 2013 amendments make it

“abundantly clear the legislative intent to incorporate by reference the federal prohibitions under

section 922(g)(9).” Id. ¶ 123 (Theis, J., dissenting, joined by Garman, J.). “[U]nder the

amended statute, the relief procedures under section 10 cannot remove a federal firearms

disability.” Id. ¶ 124 (Theis, J., dissenting, joined by Garman, J.).

¶ 28 Three justices in the main opinion found that the new amendments did not prohibit circuit

courts from removing the federal firearm disability. Id. ¶ 75. While we may agree with the main

opinion and there are certainly arguments to be made in support of affirming the trial court,

O’Neill did not participate in this appeal, and we are not in a position to make such arguments

for him.

¶ 29 In light of recent second amendment decisions, we see a serious constitutional issue with

the perpetual ban on the possession of firearms based upon a misdemeanor crime of domestic

violence. Coram,

; Schrader v. Holder,

(D.C. Cir. 2013). Here,

O’Neill punched his son in the mouth. Had he acted in the same manner toward a stranger, he

would have faced a five-year prohibition from possessing a firearm.

10 ¶ 30 Those prohibited from possessing a gun under federal law can seek relief pursuant to

section 925(c) of the Gun Control Act, which provides relief procedures from federal disabilities

and which states:

“A person who is prohibited from possessing, shipping,

transporting, or receiving firearms or ammunition may make

application to the Attorney General for relief from the disabilities

imposed by Federal laws with respect to the acquisition, receipt,

transfer, shipment, transportation, or possession of firearms, and

the Attorney General may grant such relief if it is established to his

satisfaction that the circumstances regarding the disability, and the

applicant’s record and reputation, are such that the applicant will

not be likely to act in a manner dangerous to public safety and that

the granting of the relief would not be contrary to the public

interest. Any person whose application for relief from disabilities

is denied by the Attorney General may file a petition with the

United States district court for the district in which he resides for a

judicial review of such denial. The court may in its discretion

admit additional evidence where failure to do so would result in a

miscarriage of justice.”

(c) (2006).

¶ 31 O’Neill conceded that his conviction constituted a misdemeanor crime of domestic

violence. The Act prohibits the court from granting relief where doing so would be contrary to

federal law. Coram suggests that four justices would find that the circuit court cannot remove a

federal disability. Given the state of the law and the fact that O’Neill did not participate, we

11 have no choice but to reverse. We make it clear that we are not reversing the court’s findings,

which as stated above are the same findings that the Attorney General is required to make under

section 925(c), that: O’Neill had not committed a forcible felony within 20 years; that he was not

likely to act in a manner dangerous to public safety; and that granting relief was not contrary to

the public interest. We are only reversing the court’s order requiring the Department to reinstate

O’Neill’s FOID card.

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, the judgment of the circuit court of Marshall County is

reversed.

¶ 34 Reversed.

12