Koshinski v. Trame

Rule 23 Order filed 2017 IL App (5th) 150398
April 21, 2017;
Motion to publish granted NO. 5-15-0398
May 31, 2017.
IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

DAVID KOSHINSKI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 15-CH-362
)
JESSICA TRAME, in Her Official Capacity )
as Chief of the Firearms Services Bureau of )
the Department of State Police, ) Honorable
) John B. Barberis, Jr.,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________

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

1
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)).
2
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.”

¶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
3
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
4
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 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
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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).
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¶ 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 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
7
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
8
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.

¶ 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
9
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 caselaw, 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,
10
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).

¶ 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
11
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
12
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 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.

13
¶ 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.

14
 2017 IL App (5th) 150398

NO. 5-15-0398

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
______________________________________________________________________________

DAVID KOSHINSKI, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 15-CH-362
)
JESSICA TRAME, in Her Official Capacity )
as Chief of the Firearms Services Bureau of )
the Department of State Police, ) Honorable
) John B. Barberis, Jr.,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________

Rule 23 Order Filed: April 21, 2017
Motion to Publish Granted: May 31, 2017
Opinion Filed: May 31, 2017
______________________________________________________________________________

Justices: Honorable David K. Overstreet, J.

Honorable Thomas M. Welch, J., and
Honorable Judy L. Cates, J.,
Concur
______________________________________________________________________________

Attorney Thomas G. Maag, Maag Law Firm, LLC, 22 West Lorena Avenue,
for Wood River, IL 62095
Appellant
______________________________________________________________________________

Attorneys Lisa Madigan, Attorney General, State of Illinois, Carolyn E. Shapiro,
for Solicitor General, Laura Wunder, Assistant Attorney General, 100 West
Appellee Randolph Street, 12th Floor, Chicago, IL 60601
______________________________________________________________________________