                                         2015 IL App (3d) 140011

                                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




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     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) (18 U.S.C. § 922(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;




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       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, 2013 IL

       113867, ¶ 75, 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., 199 Ill. 2d 325, 333-34 (2002). Therefore, a party can raise the

       issue at any time. Id. “We review de novo whether the circuit court properly exercised




                                                         4
       jurisdiction.” Schlosser v. State, 2012 IL App (3d) 110115, ¶ 18; Miller v. Department of State

       Police, 2014 IL App (5th) 130144, ¶ 8.

¶ 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:



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                          “(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, 2014 IL App (5th) 130144, ¶ 19. 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, 48 Ill. App. 3d 761, 765

       (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, 203 Ill. 2d 187, 192 (2003) (citing People v. Richardson, 196 Ill. 2d 225,

       228 (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.”

       18 U.S.C. § 922(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.” 18 U.S.C. § 921(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, 555 U.S. 415, 426 (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. Id. at 418. The court held that although a domestic

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

       offense. Id. 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. Id. 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, 2013 IL 113867, ¶ 75.

¶ 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, 2013

       IL 113867, ¶ 75.

¶ 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, 2013 IL 113867, ¶ 101 (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, 2013 IL 113867; Schrader v. Holder, 704 F.3d 980 (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.” 18 U.S.C. § 925(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.




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