No. 2--02--0517

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

SHARON CREASER,	)	Appeal from the Circuit Court

	)	of Du Page County.

	Petitioner-Appellee,	)

	)	

v.	)	No. 02--DV--288

	)	

DAVID CREASER,	)	Honorable

	)	Terence M. Sheen

	Respondent-Appellant.							)	and Jane Hird Mitton,

		)	Judges, Presiding.

_________________________________________________________________

	JUSTICE CALLUM delivered the opinion of the court:  

	Respondent, David Creaser, appeals the denial of his motion to

vacate nunc pro tunc an emergency order of protection granting  exclusive possession of the parties' residence to petitioner,

Sharon Creaser.  We reverse.

	On February 19, 2002, petitioner, assisted by the Du Page

County State's Attorney, appeared before Judge Jane Hird Mitton. 

Petitioner sought an emergency order of protection granting her

exclusive possession of the family residence pursuant to the

Illinois Domestic Violence Act of 1986 (the Act) (750 ILCS 60/101 et seq. (West 2002)).  The petition itself was a preprinted form with check boxes for standard allegations and blanks for hand-

written information.  Where the form asked for a description of the

alleged abuse, petitioner wrote:

	"On 2-15-02 at approx[imately] 1:00 PM [respondent] made

accusations that I was stealing money from him--I tried to encourage 3rd party mediation--He got off the sofa to leave.  I stood in front of him to ask that we get help.  I had [the

parties' ten-month-old daughter] in my right arm.  He grabbed

my left arm to push me out of the way.  He still had hold of

my left arm as he went thru the front door--pulling my right

shoulder (and the baby) into the doorframe." 

Where the form asked for the effects of the abuse, petitioner wrote

that: "[b]ruises on my left bicep[s] were noticed the next day." 

Petitioner checked boxes on the form so as to aver:

	"Both parties have the right to occupancy; and, considering

the risk of further abuse by Respondent interfering with the

Petitioner's safe and peaceful occupancy, the balance of the

hardships favors the Petitioner because of the following

relevant factors:  Availability, accessibility, cost, safety,

adequacy, location and other characteristics of alternative

housing for each party and any minors or other dependents."  

	At the hearing, the court inquired where respondent would live

if the order were entered.  Petitioner suggested that he would stay

with his parents, and then interjected that "[t]he reason for the

petition is to retrieve my belongings out of the house.  He has

changed the locks so I don't have access to the house right now." 

She stated that he had also closed their checking and credit card

accounts.  The court asked petitioner if respondent had been

arrested on a domestic violence charge, and petitioner stated that

he would be that day.  Neither the court nor the State asked

petitioner whether respondent had ever abused her in the past or

whether she feared that he would abuse her in the future.

	The court found that there would likely be irreparable injury

if respondent were given notice of the proceedings.  It entered an

emergency order of protection giving petitioner exclusive

possession of the residence and set the matter for a hearing on a

plenary order of protection on March 8, 2002.  

	Respondent filed a motion to vacate the emergency order of

protection nunc pro tunc.  Judge Terence M. Sheen heard this motion and held the hearing on issuance of a plenary order of protection

simultaneously on March 8, 2002.  The court seems to have found

that respondent had not abused petitioner, although its ruling is

possibly ambiguous: 

		"[T]he issue is whether or not there is physical abuse. 

I think there was a physical touching that was inappropriate. 

However, I think it appears that she was also interfering with

his ability to leave.  It seems it's both parties.

		So, therefore, I'm going to enter an order that prevents

both parties from having any physical contact with each

other." 

The court stated that the order of protection was "removed" and

entered a mutual restraining order which, inter alia, prohibited physical contact between the parties and ordered petitioner to give

keys to the house to respondent.  The court denied respondent's

motion to vacate the emergency order on the basis that respondent's

testimony that he had grabbed petitioner's wrist, given at the

hearing on the plenary order, supported the granting of the

emergency order.  

	On March 15, 2002, respondent filed a motion to reconsider the

denial of the motion to vacate.  After some confusion as to whether

this motion should have been heard by Judge Mitton or Judge Sheen,

Judge Sheen denied the motion on April 22, 2002.  Respondent filed

his notice of appeal on May 17, 2002.  He argues that the granting

of the emergency order of protection was error because (1)

petitioner did not make the showing necessary for the ex parte issuance of an emergency order, and (2) petitioner did not show by

the preponderance of evidence that there was abusive behavior by

respondent.  He argues that we should hear this case, although the

emergency order expired by its own terms no more than 21 days after

it was entered, either because there are residual effects on

respondent from the entry of the order, or because the public

importance of the issues involved in this matter warrants our

review of it despite its mootness. 

	Because the emergency order of protection has expired, there

is a question as to whether this appeal is moot.  Respondent

suggests two bases on which we can hear his appeal despite the

expiration of the order.  First, he claims that "a record showing

the existence of an order of protection against an individual has

long term effects."  We are aware of no such effects, and respondent has not brought any to our attention.   Although common sense may so indicate, respondent has failed to refer us to any case or statutory law so

holding.  Without specifying further, respondent states that

"[s]olely as an example, roadblocks to the Respondent's assertion

of his Second Amendment rights exist where searches show an order

of protection was held against him."  Our review of Illinois law

does not disclose any provisions that would restrict firearm ownership or use on the basis of an expired order of protection.  Further, federal provisions that have come to our attention

restrict firearm ownership or use only on the basis of current

orders of protection or the equivalent.  The Public Safety and

Recreational Firearms Use Protection Act restricts possession of

firearms by a person subject to a court order that restrains

certain behavior toward an intimate partner or the child of the

person or the partner (18 U.S.C. §922(g)(8) (2000)), but once the

order is expired, the person cannot reasonably be deemed to be

"subject to a court order."  See Skillett v. Sierra, ___ Kan. App. 2d ___, ___, 53 P.3d 1234, 1239 (2002).  Thus, any decision we

render will provide no relief to either party and will be

essentially advisory.

	We generally do not review moot cases or render advisory

opinions.  See In re Mary Ann P., 202 Ill. 2d 393, 401 (2002).  However, the first issue that respondent raises--whether petitioner

made the necessary showing for an emergency order--falls within the

public interest exception to the mootness doctrine.  That exception

allows review of a formally moot question when (1) the moot

question is one of public interest, (2) an authoritative

determination of the issue is desirable for the guidance of public

officers, and (3) the question will likely recur.  See Mary Ann P., 202 Ill. 2d at 402.  Because the use of emergency orders under the

Act is a widespread and important method of providing legal

protection to the victims of domestic violence, we find that

respondent's first issue meets the first and third criteria to fall

within the public interest exception to the mootness doctrine.  Because the use of ex parte proceedings under the Act makes it particularly critical that the courts be informed of the standards

for the granting of emergency orders, and because the courts have

not had an opportunity to examine the specific standards for the

granting of emergency orders for the exclusive possession of the

residence, we find that the second criterion is met for this issue

as well.

	Respondent's first claim of error (that the petitioner did not

make the showing necessary for issuance of an emergency order)

raises issues specific to emergency orders.  Since an emergency order of protection cannot last for more than 21 days (750 ILCS

60/220 (West 2002)), insufficient time for an ordinary appeal to

this court, there is no opportunity to review the standards for

issuance of an emergency order, except under an exception to the

mootness doctrine.  In contrast, respondent's second claim (that

petitioner did not show by the preponderance of evidence that

respondent abused her) is not couched in terms of the specific

application of this standard to the issuance of emergency orders. 

Although there are clearly issues of burden of proof specific to

emergency proceedings, respondent has framed the issue in terms

that are equally applicable to plenary orders, and the issue is

therefore potentially reviewable in a case with a live controversy. 

Thus, we review only respondent's first contention of error.

	Turning to the merits, we find that petitioner failed to

establish the grounds for the issuance of an emergency order. 

Section 217(a)(1)(ii) of the Act requires that, for a court to issue an order for exclusive possession of a residence on an

emergency basis, the petitioner must establish:

		"[T]he immediate danger of further abuse of petitioner by

respondent, if petitioner chooses or had chosen to remain in

the residence or household while respondent was given any

prior notice or greater notice than was actually given of

petitioner's efforts to obtain judicial relief, outweighs the

hardships to respondent of an emergency order granting

petitioner exclusive possession of the residence."  750 ILCS

60/217(a)(1)(ii) (West 2002). 

This requires the court to weigh the danger of further abuse

against hardship to the respondent.  This requirement is separate

from and prior to that of section 214(b)(2)(B) of the Act (750 ILCS

60/214(b)(2)(B) (West 2002)), the general standard for granting

exclusive possession of the residence, which requires the court to

consider the balance of hardships between the petitioner and tjehe

respondent.  Because the court is required to engage in a balancing

test, its decision must be reviewed under an abuse-of-discretion

standard.  See People v. Jennings, 279 Ill. App. 3d 406, 410 (1996).

	Although a balancing test affords a great deal of discretion

to the trial court, that discretion cannot be unlimited.  At a

minimum, such a test requires that the court actually consider the

factors that must be balanced.  Absent such consideration, the

court has abused its discretion.  See Jennings, 279 Ill. App. 3d at 410.  Thus, the court must consider both the hardship to the respondent and the danger of further abuse.  This is not to say that a petitioner must meet some specific burden of showing that

further abuse is likely.  For instance, it would not necessarily be

error for a court to issue an emergency order for exclusive

possession of the residence solely on the basis of the petitioner's

subjective impression that the respondent's state of mind made

further abuse likely.  The court is merely required to consider

both the factors to be balanced, and therefore must have

information relevant to both factors before it.  In this case, the

court made some inquiry into the potential hardship to respondent,

but elicited no information relevant to the likelihood of further

abuse.  The petition itself was likewise devoid of such information

except for the conclusory statement:

	"Both parties have the right to occupancy; and, considering

the risk of further abuse by Respondent interfering with the

Petitioner's safe and peaceful occupancy, the balance of the

hardships favors the Petitioner because of the following

relevant factors: Availability, accessibility, cost, safety,

adequacy, location and other characteristics of alternative

housing for each party and any minors or other dependents." 

This is a conclusion for the court, not petitioner.

	The trial court may have applied a presumption that any time

there has been physical abuse of the petitioner, the risk of further abuse outweighs any hardship to the respondent. (Nonphysical harassment can also constitute abuse under the Act. 

750 ILCS 60/103(1), (7) (West 2002).)   However, if the legislature

meant that an emergency order for exclusive possession could be ordered in any case where there was physical abuse, it could have

said so. 

	The State argues that the exigency that justified the

emergency issuance of the order was that petitioner and the child

were cut off from their possessions and sources of money.  For the

emergency grant of an order for possession of personal property,

this would be critical; such an order is authorized when the

"petitioner has an immediate and pressing need for possession of

that property" (750 ILCS 60/217(a)(3)(iii) (West 2002)), but this

is not the order that petitioner sought. 

	Because petitioner did not show that the conditions were met

for issuance of an emergency order of protection for exclusive

possession of the residence, the court should not have issued such

an order, and respondent's motion to vacate the order nunc pro tunc should have been granted.

	For the reasons stated, the judgment of the circuit court of

Du Page County is reversed.

	Reversed.

	BOWMAN and O'MALLEY, JJ., concur.