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Appellate Court Date: 2017.07.24
14:58:11 -05'00'
Koshinski v. Trame, 2017 IL App (5th) 150398
Appellate Court DAVID KOSHINSKI, Plaintiff-Appellant, v. JESSICA TRAME, in
Caption Her Official Capacity as Chief of the Firearms Services Bureau of the
Department of State Police, Defendant-Appellee.
District & No. Fifth District
Docket No. 5-15-0398
Rule 23 order filed April 21, 2017
Motion to publish
granted May 31, 2017
Opinion filed May 31, 2017
Decision Under Appeal from the Circuit Court of Madison County, No. 15-CH-362;
Review the Hon. John B. Barberis, Jr., Judge, presiding.
Judgment Reversed; cause remanded.
Counsel on Thomas G. Maag, of Maag Law Firm, LLC, of Wood River, for
Appeal appellant.
Lisa Madigan, Attorney General, of Chicago (Carolyn E. Shapiro,
Solicitor General, and Laura Wunder, Assistant Attorney General, of
counsel), for appellee.
Panel JUSTICE OVERSTREET delivered the judgment of the court, with
opinion.
Justices Welch and Cates concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, David Koshinski, filed an action challenging the constitutionality of two
firearm licensing statutes, section 8.2 of the Firearm Owners Identification Card Act (FOID
Card Act) (430 ILCS 65/8.2 (West 2014)), and section 70(b) of the Firearm Concealed Carry
Act (430 ILCS 66/70(b) (West 2014)), which temporarily revoked, without giving him notice
or an opportunity to be heard, his right to possess firearms as a result of an emergency order
of protection entered against him. Because the defendant, Jessica Trame, in her official
capacity as chief of the Firearms Services Bureau of the Department of State Police, had
restored the plaintiff’s right to possess firearms prior to the hearing on his action, the circuit
court dismissed the plaintiff’s action as moot. For the following reasons, we reverse the
circuit court’s dismissal order, and we remand the cause for further proceedings.
¶2 BACKGROUND
¶3 The plaintiff owns an Illinois FOID card and an Illinois firearm concealed carry license.
On May 4, 2015, the circuit court entered an ex parte emergency protective order against the
plaintiff. According to the plaintiff, his stepfather-in-law had petitioned for and obtained an
ex parte protective order, without notice to the plaintiff, after the two men argued on the
telephone. Thereafter, the Illinois State Police notified the plaintiff that his firearm licenses
were temporarily revoked based on entry of the protective order. The plaintiff alleged that he
was forced to surrender his gun licenses and transfer his firearms.
¶4 On May 21, 2015, the circuit court modified the emergency protective order to a mutual
stay away order, requiring the plaintiff and his stepfather-in-law to stay away from each
other. The circuit court’s order was entered following notice and a hearing at which the
plaintiff participated. On August 6, 2015, the circuit court vacated its May 21, 2015,
modified order, and therefore, the plaintiff was no longer subject to an order of protection.
Thereafter, the defendant restored the plaintiff’s gun licenses.
¶5 On June 15, 2015, the plaintiff filed a complaint in the circuit court challenging the
constitutionality of section 8.2 of the FOID Card Act (430 ILCS 65/8.2 (West 2014)) and
section 70(b) of the Firearm Concealed Carry Act (430 ILCS 66/70(b) (West 2014)). The
plaintiff alleged that he was improperly denied his constitutionally protected right to bear
arms, without notice or an opportunity to be heard, based on entry of the ex parte emergency
protective order. Alleging violations of the second and fourteenth amendments to the United
States Constitution (U.S. Const., amends. II, XIV), the plaintiff sought a declaration that the
firearm licensing statutes were unconstitutional. He further sought an injunction restraining
the defendant from suspending or revoking his gun licenses “in the event of an [e]mergency
or other [o]rder of [p]rotection being issued against [him], unless said order was issued after
a hearing of which [he] received actual notice[ ] and *** opportunity to participate.” He also
sought an award of “costs and attorney fees, pursuant to 42 U.S.C. [§] 1988.”
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¶6 On August 26, 2015, the defendant filed a motion to dismiss the plaintiff’s complaint as
moot because his gun licenses had been reinstated. The plaintiff contended that his claims
were not moot because he sought attorney fees and because he remained at risk of
prosecution. He further asserted that his claims should be heard under the public interest and
capable-of-repetition-but-avoiding-review exceptions to mootness. On September 18, 2015,
after a hearing, the circuit court entered an order granting the defendant’s motion to dismiss
and denying as moot all other pending motions. On September 22, 2015, the plaintiff filed a
notice of appeal.
¶7 ANALYSIS
¶8 Initially, we note that on May 31, 2016, while this case was pending appeal, the plaintiff
filed a motion to strike pages of the defendant’s appendix on the basis that the documents
were not filed in the circuit court. These documents include the emergency order of
protection entered on May 4, 2015, the May 21, 2015, mutual stay away order that vacated
the May 4, 2015, order, and the August 6, 2015, order vacating the mutual stay away order
and advising the defendant that nothing further supported the revocation of the plaintiff’s gun
licenses. We ordered that this motion be taken with the case.
¶9 The record on appeal may be supplemented pursuant to Illinois Supreme Court Rule 329
(eff. Jan. 1, 2006) only with evidence that was before the trial court. See Jones v. Ford Motor
Co., 347 Ill. App. 3d 176, 180 (2004). Generally “[a]ttachments to briefs not included in the
record are not properly before the reviewing court and cannot be used to supplement the
record.” Zimmer v. Melendez, 222 Ill. App. 3d 390, 394-95 (1991).
¶ 10 Pursuant to Illinois Rule of Evidence 201(b), however, we may take judicial notice of
facts that are “either (1) generally known within the territorial jurisdiction of the trial court or
(2) capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” Ill. R. Evid. 201(b) (eff. Jan. 1, 2011). See also Curtis v. Lofy, 394
Ill. App. 3d 170, 172 (2009) (public documents, including court records, are subject to
judicial notice); In re Marriage of Wojcik, 362 Ill. App. 3d 144, 169 (2005) (same). A
reviewing court may take judicial notice of readily verifiable facts if doing so will aid in
efficiently disposing of the case, even if the parties did not seek judicial notice in the trial
court. Aurora Loan Services, LLC v. Kmiecik, 2013 IL App (1st) 121700, ¶ 37. Accordingly,
the circuit court’s orders are proper materials for judicial notice. We therefore deny the
plaintiff’s motion to strike these documents.
¶ 11 The plaintiff describes his action as a civil action for deprivation of rights (42 U.S.C.
§ 1983 (2012)), seeking to hold that portions of the Illinois gun licensing statutes violate the
second and fourteenth amendments to the United States Constitution (U.S. Const., amends.
II, XIV). The plaintiff takes issue with the statutes’ requirements to suspend, without prior
notice or opportunity to be heard, his right to keep and bear arms on the basis of an ex parte
order of protection.
¶ 12 The second amendment states, “A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
Const., amend. II. The fourteenth amendment makes the second amendment right to keep and
bear arms fully applicable to the states. U.S. Const., amend. XIV; McDonald v. City of
Chicago, 561 U.S. 742, 790 (2010) (opinion of Alito, J., joined by Roberts, C.J., and Scalia
and Kennedy, JJ.). The second amendment confers an individual the right to keep and bear
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arms in the home, for example, for purposes of self-defense. McDonald, 561 U.S. at 767
(individual self-defense is central component of second amendment right); District of
Columbia v. Heller, 554 U.S. 570, 635 (2008) (under any standards of scrutiny, banning from
the home the handgun, which is the most preferred firearm to keep and use to protect home
and family, would fail constitutional muster).
¶ 13 Emergency orders of protection may be entered ex parte if, upon examining the petitioner
and the petition, the court determines that “the harm which that remedy is intended to prevent
would be likely to occur if the respondent were given any prior notice, or greater notice than
was actually given, of the petitioner’s efforts to obtain judicial relief.” 750 ILCS
60/217(a)(3)(i) (West 2014). Emergency orders (unless reopened or extended) are “effective
for not less than 14 nor more than 21 days.” 750 ILCS 60/220(a)(1) (West 2014). For
emergency and interim orders of protection, the respondent may petition the court to reopen
the order upon two days’ notice to the petitioner. 750 ILCS 60/224(d), 221(b)(6) (West
2014).
¶ 14 In his complaint, the plaintiff raised constitutional challenges to section 8.2 of the FOID
Card Act (430 ILCS 65/8.2 (West 2014)) and section 70(b) of the Firearm Concealed Carry
Act (430 ILCS 66/70(b) (West 2014)). The FOID Card Act regulates firearm possession in
Illinois. 430 ILCS 65/0.01 et seq. (West 2014). Section 8.2 of the FOID Card Act provides as
follows:
“The Department of State Police *** shall revoke and seize a [FOID] Card previously
issued under this Act if the Department finds that the applicant or person to whom
such card was issued is or was at the time of issuance subject to an existing order of
protection.” 430 ILCS 65/8.2 (West 2014).
When a FOID card is revoked, the Illinois State Police notifies the holder in writing, states
the reasons for taking this action, and advises him of his rights and obligations. 430 ILCS
65/9 (West 2014). After receiving a revocation notice from the Illinois State Police, the
firearm owner has 48 hours within which to surrender his FOID card to local law
enforcement authorities, complete a firearm disposition record (identifying the firearms
owned and where they will be kept during the prohibited term), and transfer his firearms as
reflected in the record. 430 ILCS 65/9.5(a) (West 2014). After expiration of the 48-hour
period following notice of revocation, law enforcement authorities may obtain a warrant to
search for firearms. 430 ILCS 65/9.5(c) (West 2014). Misdemeanor penalties for
noncompliance apply. 430 ILCS 65/9.5(d) (West 2014).
¶ 15 In addition to acquiring a FOID card, those who wish to carry a concealed handgun about
their persons in public or in a vehicle must also acquire from the Illinois State Police a
concealed carry license. 430 ILCS 66/1 et seq. (West 2014). Section 70(b) of the Firearm
Concealed Carry Act provides as follows:
“A license shall be suspended if an order of protection, including an emergency order
of protection, plenary order of protection, or interim order of protection *** is issued
against a licensee for the duration of the order ***. If an order of protection is issued
against a licensee, the licensee shall surrender the license, as applicable, to the court
at the time the order is entered or to the law enforcement agency or entity serving
process at the time the licensee is served the order. The court, law enforcement
agency, or entity responsible for serving the order of protection shall notify the
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Department within 7 days and transmit the license to the Department.” 430 ILCS
66/70(b) (West 2014).
In any event, if a concealed carry license is suspended because a protective order has been
issued, the holder must surrender his license within 48 hours of receiving notice of
suspension. 430 ILCS 66/70(g) (West 2014). If the licensee fails to comply with the
requirements, the law enforcement agency may petition the circuit court to issue a warrant to
search for and seize the concealed carry license. Id. Misdemeanor penalties for
noncompliance apply. Id.
¶ 16 Mootness
¶ 17 The defendant argues that the plaintiff’s claim that the firearm licensing statutes revoking
his firearm licenses are unconstitutional is moot because the plaintiff’s licenses have been
reinstated. The plaintiff counters that his claims are not moot because he seeks declaratory
and injunctive relief, in addition to attorney fees and costs.
¶ 18 “The existence of an actual controversy is an essential requisite to appellate jurisdiction,
and courts of review will generally not decide abstract, hypothetical, or moot questions.”
In re Andrea F., 208 Ill. 2d 148, 156 (2003). “An appeal is considered moot where it presents
no actual controversy or where the issues have ceased to exist.” Id. “The test for mootness is
whether the issues involved in the trial court no longer exist because intervening events have
rendered it impossible for the reviewing court to grant effectual relief to the complaining
party.” Id. “A reviewing court can take judicial notice of events which, while not appearing
in the record, disclose that an actual controversy no longer exists, rendering the issue before
the court moot.” Id.
¶ 19 In this case, because the plaintiff’s firearm licenses have been reinstated, he is no longer
subject to the licensing statutes he seeks to be declared as unconstitutional. The temporary
revocation provisions in the firearm licensing statutes no longer apply to the plaintiff. As a
result, this court cannot grant any meaningful relief to him by ruling on the constitutionality
of the statutes, declaring them unconstitutional, or enjoining their enforcement. See
Messenger v. Edgar, 157 Ill. 2d 162, 171 (1993) (even in context of action for declaratory
judgment, there must be an actual controversy between adverse parties). Accordingly, the
question of the statutory provisions’ constitutionality is now moot. See In re Marriage of
Donald B., 2014 IL 115463, ¶ 30 (because complainant complied with requirements of
statute, the statutory restriction on his rights no longer applied to him, and the question of the
statute’s constitutionality was moot). “Where the issues involved in the trial court no longer
exist, an appellate court will not review the cause merely to decide moot or abstract
questions, to determine costs, or to establish a precedent.” In re Estate of Wellman, 174 Ill. 2d
335, 353 (1996).
¶ 20 Generally, a party resisting dismissal for mootness has the burden to show an exception
to the mootness doctrine on at least one of three grounds: that the case involves an issue of
great public importance, that the case falls into the category of one that is capable of
repetition but evading review, or that there are collateral consequences of the order appealed
from such that it could return to plague the complainant in some future proceedings or could
affect other aspects of the complainant’s life. People v. Madison, 2014 IL App (1st) 131950,
¶ 12.
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¶ 21 Public Importance Exception
¶ 22 The plaintiff argues that, if the issue is held to be moot, the court should consider the
constitutionality of the firearm suspension statutes under the public importance exception to
the mootness doctrine. He argues that the public importance exception applies because the
defendant is a public employee sued in her official capacity, the question involves the
constitutionality of an Illinois statute, and the question will recur as each ex parte order of
protection is entered against a firearm licensee.
¶ 23 “The public interest exception to the mootness doctrine permits review of an otherwise
moot question when the magnitude or immediacy of the interests involved warrants action by
the court.” Commonweath Edison Co. v. Illinois Commerce Comm’n, 2016 IL 118129, ¶ 12.
“The public interest exception to the mootness doctrine applies only when ‘(1) the question
presented is of a public nature; (2) an authoritative determination of the question is desirable
for the future guidance of public officers; and (3) the question is likely to recur.’ ” Id.
(quoting In re Shelby R., 2013 IL 114994, ¶ 16). “The public interest exception is narrowly
construed and requires a clear showing of each of its criteria.” Id. ¶ 13. “If any one of the
criteria is not established, the exception may not be invoked.” Id.
¶ 24 Here, the question presented is of a public nature. The issue of whether the legislature
enacted legislation violating our constitution is a matter of public importance. See Johnson v.
Edgar, 176 Ill. 2d 499, 513 (1997) (issue of whether legislature enacted broad-sweeping
legislation in a manner that violates our constitution is a matter of public importance).
Though arguably less represented in Illinois case law, the right to bear arms found in the
second amendment to the Constitution is no less fundamental. See People v. Aguilar, 2013 IL
112116, ¶ 20 (second amendment protects right to keep and bear arms). Further, as noted by
the plaintiff, the defendant is a public official sued in her official capacity acting under her
interpretation of the law. The issue is not case-specific but will broadly determine the rights
of firearm licensees who are subject to ex parte orders of protection and the firearm
suspension statutes. See In re Rita P., 2014 IL 115798, ¶ 36. This issue is of sufficient
breadth and has a significant effect on the public as a whole so as to satisfy the public nature
criterion. See In re Alfred H.H., 233 Ill. 2d 345, 357 (2009). Accordingly, the first criterion
for review under the public interest exception is satisfied.
¶ 25 The defendant argues that the plaintiff cannot establish the second criterion under the
public interest exception because he fails to demonstrate that the law is in disarray or that
conflicting precedents require resolution. In In re Shelby R., 2013 IL 114994, ¶ 18, the
Illinois Supreme Court noted that since its formal adoption of the public interest exception, it
had reviewed a variety of otherwise moot issues under this exception. See, e.g., In re E.G.,
133 Ill. 2d 98 (1989) (whether a minor has the right to refuse medical treatment); Bonaguro
v. County Officers Electoral Board, 158 Ill. 2d 391 (1994) (whether a political party may fill
a vacancy in nomination for judicial office by party resolution); People v. Roberson, 212 Ill.
2d 430 (2004) (whether a defendant is entitled to a credit on a violation-of-bail-bond
sentence for time spent in custody awaiting trial on the underlying charge that was
dismissed); In re Christopher K., 217 Ill. 2d 348 (2005) (whether the law-of-the-case doctrine
bars consideration of an extended juvenile jurisdiction motion after the denial of a
discretionary transfer motion is affirmed on appeal); Wirtz v. Quinn, 2011 IL 111903
(whether an appropriations bill impermissibly contained substantive law).
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¶ 26 The supreme court in Shelby R. noted that although it generally declined to apply the
public interest exception when there were no conflicting precedents requiring an authoritative
resolution, the absence of a conflict did not necessarily bar review. In re Shelby R., 2013 IL
114994, ¶ 20. The court held that “even issues of first impression may be appropriate for
review under this exception.” Id. (citing People ex rel. Wallace v. Labrenz, 411 Ill. 618, 623
(1952) (public interest exception applicable where issue involved whether a trial court’s
order requiring infant to undergo a blood transfusion violated the constitutional rights of the
infant’s parents who had objected to the transfusions on religious grounds));
Wisnasky-Bettorf v. Pierce, 2012 IL 111253 (public interest exception applicable where issue
involved the filling of vacancies in nomination of a public office); Sandholm v. Kuecker,
2012 IL 111443 (public interest exception applicable where issue involved recovery of
attorney fees); Goodman v. Ward, 241 Ill. 2d 398 (2011) (public interest exception applicable
where issue involved residency requirements of election law); Cinkus v. Village of Stickney
Municipal Officers Electoral Board, 228 Ill. 2d 200 (2008) (public interest exception
applicable where appeal raised question of election law). The court in Shelby R. concluded
that the issue of first impression before it—whether a juvenile may be committed to the
Department of Juvenile Justice for underage drinking—was in need of an authoritative
determination because it involved the liberty interests of minors. In re Shelby R., 2012 IL
114994, ¶ 22. The court held that the need for an authoritative determination of the issue was
at least as great as the need relative to the attorney fee issue in Sandholm, the candidate
eligibility issue in Goodman, and the medical care issue in Labrenz. Id. The court held that
“[p]roviding a definitive decision as to the statutory limits of a judge’s sentencing authority
for underage drinking, a common occurrence, w[ould] provide guidance not only to juvenile
court judges and prosecutors, but also defense attorneys who must advise their young clients
in a competent and accurate manner.” Id. Thus, the court concluded that the public interest
exception to the mootness doctrine was applicable and reviewed the sentencing issue on the
merits. Id. ¶ 23.
¶ 27 Likewise, in this case, the absence of a conflict in law does not necessarily bar our
review. See id. Providing a definitive decision as to the statutory limits of a state’s authority
to limit a citizen’s firearm ownership as a result of a trial court entering an ex parte order of
protection, a common occurrence, will provide guidance to judges and prosecutors and
firearm owners, in addition to public officers, including the defendant, faced with questions
regarding the statutes’ validity. See id. Accordingly, we find that the second requirement for
the public interest exception to the mootness doctrine is met because “ ‘an authoritative
determination of the question is desirable for the future guidance of public officers.’ ”
Commonwealth Edison Co., 2016 IL 118129, ¶ 15 (quoting In re Shelby R., 2013 IL 114994,
¶ 16); see also In re Rita P., 2014 IL 115798, ¶ 37 (in appeal from involuntary treatment of
psychotropic medication, court found public interest exception applicable because issue of
first impression—whether fact-finding requirement of Mental Health Code was mandatory or
directory—was in need of authoritative determination).
¶ 28 Further, the role of the defendant, as chief of the Firearms Services Bureau, in executing
the provisions of the firearm suspension statutes is a recurring question. See People ex rel.
Department of Corrections v. Fort, 352 Ill. App. 3d 309, 314 (2004) (issue regarding
propriety of force to monitor and/or force feed inmate on hunger strike was properly
reviewed under public interest exception to mootness doctrine because whether an inmate
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may starve to death while under the care of the Department of Corrections was a matter of
public importance and the role of the Department in these situations was a recurring
question); see also People ex rel. Department of Corrections v. Millard, 335 Ill. App. 3d
1066, 1070 (2003) (same). Thus, this question is likely to recur. Because this case meets the
requirements of the public interest exception to the mootness doctrine, we find that the circuit
court improperly dismissed it as moot.
¶ 29 CONCLUSION
¶ 30 For the reasons stated, we reverse the judgment of the circuit court of Madison County,
and we remand the cause for further proceedings.
¶ 31 Reversed; cause remanded.
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