understood them basically and elements of the offense approach what what the state categorized under federal principles as a categorical approach and i also looked at it under the charging instrument approach and i think that's more referred to under federal law as the modified categorical approach i think it's two ways of saying the same thing neither charging instrument on the facts alleged there nor the elements of the bends me the criterion for a misdemeanor crime of domestic violence is that terms define your federal law i think there's no issue to that illinois state police made in romania's terminations of law in analyzing this conviction for reckless conduct by my client the court at the circuit court level apparently gave deference to that determination by the only state police and that's why we're here today addressing the issue of subject matter jurisdiction which i think is the primary issue in this case the question becomes was the petitioner required to make a direct appeal to the administrator of the illinois state police or the director of the illinois state police prior to proceeding in the circuit for our position is that he did not specifically for two reasons number one the revocation of his fourth part i believe was a final administrative decision that was not subject to further review and the second reason is i believe that section ten  state cited the williams case that has what county in the third district in two thousand and four as saying that this was not a final industry order this case is clearly distinguishable from the williams case in the williams case the williams court was dealing with an application for a fourth card as distinguished from a revocation now in that application is my understanding of the facts that the applicant put on the application and he had been convicted of the offense of domestic battery as a result the case seems to read in i'm referring to williams seems to read that d i s p did not even process the application because of that answer on the defendant's application but would i'm sorry on the forty applicants application the williams court in the this is the third district said that this wasn't really a denial that was a failure to process by the state police or state police and they didn't see how it could be a final administrative determination in their in that court's opinion when no actual decision  determination had been made in the first place they just didn't process the application of that was the language of the williams court in two thousand and four the third district addressed the same issue on sale of years later in battery and in that case the court concluded that the administrative letter revoking his fourth application was a final administrative decision and was therefore immediately appealable circuit court the issue of subject matter jurisdiction and the claim that the o'neil applicant had failed to exhaust the administrative remedies was before the court directly in that in the o'neill case and the third district in o'neill ten years later reached the opposite conclusion of the williams court so i believe coming from the same the same judicial district the more recent opinion should control the specially in light of the fact that we are dealing with a revocation in o'neill whereas williams was dealing with an initial application where the williams course said he didn't even make a decision in the first place he just didn't process the ad and we have a statute that's been amended since the the the williams case so i think all three of those factors suggest that if we're going by the third district as authority for whether this is a finally ministry decision or not the o'neil case should carry more weight in the you know in the o'neill case directly says that that letter that the four holder received revoking his fourth card from the state leave wasn't back to final administrative decision and that th supplement to the record to include the instructions on peel he received a notice that his fourth card had been revoked based on a federal disqualifier for a misdemeanor crime  yvette domestic violence on section one hundred twenty two g i believe is the relevant federal provision it's cited specifically the reckless conduct provision in four counties on the front page of the letter  the day of the conviction and on the backend instructions for appeal again citing section one twenty two of the federal gun control act and saying that if your don't challenge the accuracy of your conviction you can't appeal to the director of the i a spear only remedy is an appeal within the circuit court within thirty five days so yes that is has absolutely consistent with the information that my client receive i think that the that the petitioner in this case was entitled to reasonably rely on that letter ted asked your question do i think an administrative agency can override a statute or supreme court case or something for  subject matter jurisdiction exists no i mean generally as i understand the law of illinois supports have jurisdiction over all of this discipline matters unless daschle says they don't have jurisdiction over a matter i believe in this particular case section ten a the foid act does not deprive the circuit court of subject matter jurisdiction over this type of appeal i don't think there's anything in the white act that says the supreme court can't hear the case it says that the someone or a vote of a forty card may appeal to the director of the state police unless there is a basis for the revocation is one of several enumerated offens and the courts in illinois that have been interpreted that statute have interpreted it fairly broadly if not required conviction for the offenses or strict strict on identity with the name defense but it said in the context of domestic battery has gone into in detail in brief that if the revocation is based on a domestic battery that triggered the right to appeal to the supreme court and the revocation letter to give back that in this case you're barred by federal law under the misdemeanor crime of domestic violence provision domestic so i don't know what could be inferred from that letter other than so i think that the letter does shed light on number one was what the appellant was thinking when he filed the petition in the first place and what i and representing him was thinking and i think it also should be  context of a simple battery claim the odal case out of the fifth district the o'neill case already mentioned the frederick case of the second district all involved fairly identical facts simple battery was the basis for the revocation in those cases the same thing a direct appeal straight to the circuit court relief was alternately denied on the merits because the individuals petitioning in those cases had in fact committed a misdemeanor crime of domestic violence under federal law the fourth district cases that i found have not directly said something's a fine this is a final administrative order or dealt with that hysterectomy as the other three districts have however i'd note in the walton case and in the bum gardner case i'm pronouncing that correctly baumgardner case the court did hear on the merits claims similar type of claims without the matter of subject assume you're reviewing court read all of the case and read the subject matter jurisdiction issue was raised by the state in those cases and what have raised it on its own motion if so if the fourth district thought if those particular panelists thought that subject matter jurisdiction was a bar to a call to a petition in the circuit court so i believe implicitly not expressly i can't go that far implicitly the fourth district has looked at this issue in light of its fourth appeals and not found a part of subject matter jurisdiction based on based on the absence of a prior to straighten you your honor the concept of taking this type of problem directly to the supreme court i believe makes sense from a public policy standpoint and i believe is also in line with the relevant statute and the letter that was sent by the eyes  are asking here for a pure legal determination this is not the typical kind of of administrative issue we deal with where we have some kind of employment discrimination complaint under state law and there's a fact finding investigation and evidence taken and things go on in a factual determination is made or when i'm more familiar with the d c fs indicated appeal finding where you go before an administrative law judge and and have a trial under relaxed rules of evidence factual findings are made in this part that's not what happened here in this particular case the state police obviously got word of the conviction of reckless conduct and made a legal determination that that revocation was required i understand that sometimes in the context of enforcing the rules administrative agencies have to make some kind of legal determination the legal determination for alternately best decided by the courts they're the experts they are the people trained to interpret law and given the absolute duty to interpret the legal effect of a given set of facts and it does not make sense to go back to the state police and say did you really mean this yeah like mr denny in this case was convicted of reckless conduct under this trudging instrument and the statute reads this way didn't really mean that that's kind of like filing this that's not an appeal it's almost a motion to reconsider with no change in the facts given to the agency that made the initial legal determination so that makes no sense and it's consistent with the statutory interpretation that mr denny had a right to take this right to the  o'neal case it was stated that the law is one of the maxims of the law of the law does not require a person to do a useless act again that type of appeal to the state police would have been would have been useless for the reasons i just explain and i think this is consistent with the statutory scheme that allows a circuit court of appeal when when the disqualifying conviction is based on a domestic battery incident and i think it's consistent with the letter sent by the state police that said the only method of relief is to the circuit court i think all of these things when you realize that this is a pure legal determination that the court needs to look at these elements and see if we've got and it's qualifying conception under federal law based on the elements of the offense based on the charging instruments based on legal principles not factual ones when you put all this together the court had subject matter jurisdiction there was no requirement to go to be the only state police and ask them to read decide what they've already decided on the legal base on your legal basis and what of the charge they see the word minor they know that the individual co habits and they add that the nasty language to their assessment and are they doing that because that's their idea or are they doing that because they're trying to fit into the spirit of the federal law and you will be conceding anything because the state has conceded on this issue still i just want to hot half your honor i speculating to say when i when you see a domestic battery conviction i mean that's obvious when when you see a battery conviction ok maybe there would be a little bit more inquiry from the state police when they get that record into the circuit court file to see what was in the charging instrument and those kind of things whether they did this with this offense and came to the wrong conclusion anyway i don't know or whether they just put in reckless conduct i don't know personally i've i've had other forty donors that have pled to reckless conduct and i've never had a boy card suspended under these facts now granted in fairness to the other there are elements the domestic element is an element of this and and that wasn't present in some of the other cases of dealt with but i'm speculating as to how it happened should happen issue and to briefly recap the illinois state police for both defendants foid card following his conviction for misdemeanor reckless conduct according to this revocation letter the revocation was i as was due to time revoked however defendant was required to go through the appropriate administrative channels prior to seeking relief from the judiciary section ten of the foid act sets forth the procedure for contesting the revocation of a ten but domestic battery doesn't apply in this case and pray to addressing the merits of this argument i first want to know for clarity that the question of whether the reckless conduct constitutes of battery with respect to determining jurisdiction is an entirely separate question of whether or not the reckless conduct actually constituted a misdemeanor crime of domestic violence that latter question is the question that would be considered stiction whether it be the judiciary or i it's no defendant a stated was never convicted of domestic battery he was never charged with domestic battery and his conviction for reckless conduct can in ogle and miller and o'neill to support the argument that the court had jurisdiction in this case and he notes the critical difference between those cases in the case of bar which is the fact that the pendants in those cases were charged and convicted with battery whereas the defendant here was charged with reckless conduct and that reckless conduct had no element of force whatsoever and because there was there is because we can interpret this conviction for reckless conduct as any way of being battery defendant revocation was not based on domestic battery meaning that he was not entitled to director view by the circuit court and fall within that domestic battery exception however that this regard state courts holdings and nodal and miller and down the neal because i stated those convictions each involve administrative remember he's do we have to consider how worthwhile it would have been his seek review with the eye of the when they send you a notice record they could have considered relevant law they could have just even taken a more close look at these at this conviction and compared it to the federal definition and i think it should have become clear that this case is not telling you if you admit you were convicted of reckless conduct don't bother us here you have a circuit court and your honor in the phrase domestic leaves out the other term domestic battery which section ten is clear that the i guess the new rig exception to administrative review is a conviction for domestic battery i ask you to not tell him that he was convicted of domestic battery and getting to the n p l instructions on the back it does state that if if you agree that you were convicted of this crime then you may see seek rel circuit court but the first part of the instructions say that if you challenge the accuracy of the record used to revoke your point card you may have built the director bias p in so you can interpret those instructions to also require defendant to have first of all to the director of bias he because he challenge the accuracy of the decision he's in a sense arguing that i has made this erroneous decision is not accurate and therefore the provocation should never occurred  o that language to mean if you're challenging your conviction not challenging the excuse me the decision of the agents if this court interprets that language in that manner the appeal instructions are then inconsistent with the statutory language of section ten and it's a well established principle of administrative law that where an agency's interpretation of a statue contradicts the expressed language of the governing statute in the think but we don't have that in this case the not also gets to part of the issue that this case simply does not fall within the domestic battery scenario because section one twelve a conviction that he is facing is one in which his foid card may be revoked due to a domestic violence issue than it occurred here and his plea to reckless conduct obviously there was a problem in the process somewhere or someone interpreted something wrong but when you get down to the crux of what they used he's not really  constitutes a misdemeanor crime and that's it islands and or stand your honors point that he's not just he's not challenging the fact that he is convicted of reckless conduct however even if those appeal actions do indicate that defendant was entitled to director view by the circuit court those appeal instructions i use his interpretation of the law are inconsistent with section ten which is the governing statute giving and we keep coming back to the point that the finn it was only entitled the director of view by the circuit court if this conviction was based on one of those the numerated offenses which is simply not the case here are no further questions from i don't see any of this time thank you thank unless you can challenge the accuracy of your conviction or the fence and what is listed on page one of this revocation notice is absolutely accurate as to date county for your appeal of the situation in the circuit court which is meritorious and you've already seen the iowa supreme misinterpret the law once so as to handling the situation what do you do the obvious thing to do was go to the supreme court based on the the language in the notice or revocation and i disagree with counsel respectfully that section ten is a requires administrative review i don't see the term must in section ten a i see the term may when i when i read section term a view aggrieved party may appeal to the director of the state police for a hearing upon a revocation unless the denial is based on one of the enumerated offens so its a may have appealed to the state police unless you can't appeal to the state police and there's case law that suggests in this and the letter suggests that you can't appeal to the state police when it's based on a option limits that it doesn't limits the way to appeal to the state police it doesn't require appeal to the state police your peers my times finished if there's no further i don't sling it in question