Koshinski v. Trame
2017 IL App (5th) 150398
| Ill. App. Ct. | 2017Background
- Plaintiff David Koshinski held an Illinois FOID card and concealed carry license; an ex parte emergency order of protection was entered against him on May 4, 2015, without prior notice to him.
- Following entry of the ex parte order, Illinois State Police notified Koshinski that his FOID card and concealed carry license were suspended and he surrendered/transferred firearms under statutory procedures.
- The emergency order was modified to a mutual stay-away order after a noticed hearing (May 21, 2015), and later vacated (August 6, 2015); the State Police thereafter restored Koshinski’s licenses.
- On June 15, 2015 Koshinski sued under 42 U.S.C. § 1983, challenging the constitutionality of: (1) 430 ILCS 65/8.2 (FOID Act revocation upon an order of protection) and (2) 430 ILCS 66/70(b) (concealed-carry suspension upon order of protection), alleging deprivation of Second and Fourteenth Amendment rights without prior notice or hearing. He sought declaratory and injunctive relief and attorneys’ fees.
- The defendant (Jessica Trame, Firearms Services Bureau chief) moved to dismiss as moot after licenses were reinstated; the circuit court granted dismissal. Koshinski appealed.
- The appellate court took judicial notice of the circuit-court protective-order records, held the case fit under the public-interest exception to mootness, reversed dismissal, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the challenge to statutes suspending firearms rights on the basis of an ex parte order of protection is moot after reinstatement of licenses | Koshinski: not moot because he seeks declaratory/injunctive relief, attorneys’ fees, and faces risk of future prosecution; public-interest and capable-of-repetition exceptions apply | Trame: licenses restored, so no live controversy; dismissal as moot is proper | Reversed circuit court: reinstatement renders the specific personal claim moot but case qualifies for public-interest exception; remanded |
| Whether the public-interest exception to mootness applies | Koshinski: issue is of public nature, needs authoritative guidance for public officers, and likely to recur | Trame: no conflict in law requiring resolution; absence of precedent disfavors exception | Court: public-interest exception applies—issue is public, authoritative guidance is desirable, and issue is likely to recur; therefore appeal is not barred by mootness |
| Whether appellate court may consider court records not in trial-court record | Koshinski sought to strike certain appendix pages as not filed below | Trame relied on records showing modification and vacatur of orders | Court: took judicial notice of the circuit-court orders as public records and denied motion to strike |
Key Cases Cited
- McDonald v. City of Chicago, 561 U.S. 742 (incorporation of Second Amendment to the states)
- District of Columbia v. Heller, 554 U.S. 570 (individual right to possess firearms for self-defense in the home)
- In re Andrea F., 208 Ill. 2d 148 (mootness requires a live controversy)
- Messenger v. Edgar, 157 Ill. 2d 162 (declaratory relief requires actual controversy)
- In re Shelby R., 2013 IL 114994 (public-interest exception to mootness may apply to issues of first impression)