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O'Neill v. Director of Illinois Dep't of State Police

Court of Appeals of Illinois, Third District

March 11, 2015

MICHAEL R. O'NEILL, Petitioner-Appellee,
v.
DIRECTOR OF THE ILLINOIS DEPARTMENT OF STATE POLICE, Respondent (The Department of State Police, Intervenor-Appellant)

Appeal from the Circuit Court of the 10th Judicial Circuit, Marshall County, Illinois. Circuit No. 13-MR-10. Honorable Scott A. Shore, Judge, Presiding.

Lisa Madigan, Attorney General, of Chicago (Timothy K. McPike, Assistant Attorney General, of counsel), for appellant.

No brief filed for appellee.

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

OPINION

SCHMIDT, JUSTICE.

Page 1021

[¶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 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

Page 1022

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; 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, 996 N.E.2d 1057, 375 ...


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