ladies jerry hall an amy attorney representing linda howard the defendant in this case you know i got up early this morning and i reviewed the trial court pleadings and the motions that we had filed there in the trial court the transcripts of some of the testimony and looked at the court briefs and in the supreme court briefs trying to better develop my argument and then it kind of dawned on me this is all stupid you've all read everything that we've put before you and i don't need to bore you with  of what griever and phil now are and all those other cases say or where the significance of section five slash three dash one of the criminal code and how it applies here they may have helped to get us here but and i think they certainly are supportive but i think the real problem and the reason we have cases interpreted in this official misconduct statute is it's just not entirely clear if it were we wouldn't be here because it would be you know black and white when you look at beaver and fell in our and those other cases and section five slash three one really this is a case about interpretation of a somewhat vague statute and policy and as a matter of policy i pose the question to you do you want to make a violation of our constitution as we have here and it could be federal or state as the case may be and in the big picture by a public official potentially a criminal matter think about that consider the possibilities the statute just requires that you have a public official acting in his official capacity exceeding is lawful authority and acquiring some sort of personal gain or advantage now as an example let's say governor bush is only a bitch and that's the policy in the executive office and that policy is later found to be unconstitutional it doesn't take much for a prosecutor to find the four elements of official misconduct because clearly he's a public official clearly he was acting in his official capacity clearly he does lawful authority because whatever he did was found to be unconstitutional and it doesn't take much of a stretch to imagine how they could prove that there's personal gain when a politician does something and has the opportunity to stand in front of the t v cameras and and tout what a job he's done for the citizens of the state of illinois or whatever so there's certainly it wouldn't be difficult friends and personal game and zealous prosecutors and what i suggest to you and i know you've read everything so i'm not going to even go into my argument in the brief but i suggest you as you modify or even overturn lever and fell an hour and all those cases before them  so that it's clear that in order for a public official to violate the official misconduct statute he must violate some criminal law preferably preferably a felony criminal law because if you're allow  for a minute because really what came before us is whether a violation of the constitution could support a fish for misconduct and then i understand your argument as for as it stands reverse that at a minimum alleged facts that would show the defendant violated an identifiable statute rule regulation or tenet of professional code and demonstrate how defendant exceeded his lawful authority yes or right and  you're saying that even greenberg doesn't say it has to be and it can be in the constitution but my question is since we're talking about different cases of this court we had a case leoni versus the city of chicago one thousand nine hundred ninety three case were we said the the illinois constitution is not only a law it is the supreme on this state so it's hard for me and i understand again now that you're going want broader than this you'd like to say forget what grievers let's make it a felony it has to be a felony for official misconduct to apply but grief or even it's not a tenet of a professional code would apply so if but the supreme law was violated i have two responses for you justice number one i think you have to look at five slash speed dash one where it states that you know the applicability of the common law and it says that in order to to have a criminal statute it has to be included within your criminal code or it has to be something is made criminal by some other statute and it doesn't say it has to be included in the constitution anything like that no i don't dispute that the constitution is our supreme law tenet of a professional well i don't dispute that and the reason i bring up the bridge in my in my brief is that when the second district decided beaver they included the word a cut the words a constitution and when you decided that you did not  and to me that was an indication by inference that perhaps you didn't want to go that far in your analysis and expand that statute so large that it is included a violation of the constitution yes of those other provisions in would be that they're just entirely too broad when you say that we can violate it and i think the tenet of the professional responsibility code would probably be the least obnoxious thing here possibly but imagine if we as lawyers were to violate some well perhaps it should but we're here and i think that is something that you have to look at because you know i'm asking you i'm not saying that this statute is unconstitutionally vague but i am saying it is sufficiently vague that we have cases trying to interpret it and we're here to date and that that's an indication to me that there is a problem with this statute but if the legislature didn't like the way we were interpreted statute it certainly would be free to and it would i would think so yes in favor the accused than he had to have a little better guidance as to what what he can do or cannot do to fall within this statute i mean look at this very case there were nothing counts six of them got dismissed and it was only when they came up with this constitutional theory that the case went to trial and so i think that's a pretty good argument for the fact that this is a he based at you he used his official record for like poker machine issue of whether whether or not violating the constitution was was a predicate act to get us into the statute but i give you that you know there's a lot of evidence here that's not before you now that we didn't come to this court on that i thought was pretty relevant in the third district but they found against this and i asked come here just on the sole issue arguments that defendant has often is grief support a reversal of the conviction and then secondly this issue wasn't raised in his brief but i'd like to discuss briefly the arguments that he's presented today about why this court should overrule griefer because in his brief he was relying on cleaver in a negative implication from it targeted the constitution should be not included but it appears today he's somewhat changing his position they grieve it was incorrect and that that the predicate on lawful act for the official misconduct must independently be a criminal act preferably a felony so i'd like to address that in some detail as to the first i think in his brief  he offered three reasons why the constitution a violation of the constitution either federal or state should not be a predicate unlawful act for the official misconduct statute he relied on another provision in the criminal  code called the pluck ability to come along he discussed the negative inference engraver and they also presented a policy argument based on an overzealous prosecutor you know taking a minor constitutional violation and turning it into a felony and i don't address each of those in turn i think the simplest issue to resolve is is the question about whether or not the official misconduct provision conflicts with se three which says that you know hala fences must meet a fine by the code i think this was addressed in the case people be sammul in a public court case in which they clearly held that as long as they are offenses of which the defendant is convicted as defined by the code the code doesn't have to find all the predicate acts for that offense so here the offense of official misconduct is defined by the code that's the offense that defendant was convicted of he you know public on whatever reads public funds property or credit courage will be used only for public purpose it would be technically in violation as much as it was for the fourteen hundred dollars in cash advances that he took well i would agree that that act would finally clear in my constitution however i think that on the facts so you've presented on the does the people would have difficulty proving the third element which is acted with intent to obtain course or advantage so that it's true that the official misconduct says she does not require that they knowingly or intentionally if i laid the law but it does require that they intentionally act to obtain a personal advantage so in a situation such as that where there's an unintentional credit card usage i think that that the people would have difficulty establishing the third element of the offense and i think i just  was so clear i'm not familiar about the you know what sort of financial advantages are sufficient to crossfire's it vanished so it's a if you thought that qualified as advance as a personal advantage then yes that would be of stature and i understand that that makes the statute quite broad but i think there are a couple of of rejoinders to that point the first being that raised by just describing which is that the legislature is aware of the breath of this provision in and in essence unless there's an independent constitutional problem posed by its breath which there is not that i'm aware of  that that's a job for the legislature to fix and the second point i'd say that is that the criminal code in general tends to be broad and the decisions about whether or not the facts of a particular case support prosecution those are typically left to the states attorney to make those decisions i mean almost all criminal systems i'm aware of in the us and specially the illinois system they entrust the state's  rod hypotheticals the prosecutor commits a brady every error in the trial court and wins the case as a result of it gets a promotion would that be process something that we subject to prosecution under this level well let us say i guess i think to a couple things here i would say first that the concerns that are being expressed here go to the definition of personal advantage in the official misconduct statute the problem here is not that someone could be prosecuted on the predicate act of violating the constitution the problem that you know several of your questions have addressed is you know how should we define personal advantage such that you know you can't be prosecuted on kind of the tenuous theory that you know it would advance your career or make a quota so to the extent that this here is here are the advantages the defend had the parent use of the money much as the defendant did that's a substantial personal advantage the second advantage is what i'll call and what the state's attorney called the flow which is in a sense an interest free loan from the state from the period at which he obtained the cash advance to the period at which the bill came due and then the third personal advantage was the you know the counts the player award points that were exchanged for both i think that are in the record they said it was mostly for cigarettes and for food but they could also be redeemed directly for this is the last one i'm going to get yes and i'm going to go back to justice freeman's i can follow up with the fellow at the gas pump but this time he does it intentionally because he likes to drive and he pays off his credit card bill and other than that there is no loss to the government i mean if i think that that would satisfy are the elements of the offense because article eight section one says use of credit not just use the money so the fact that you paid it back later doesn't mean that you didn't file late on the provision and without knowing i would agree and if this court is concerned that personal advantage has been defined too broadly here or need some tightening up in the words of my opponent  i would say that it that that would be the job for a different case because i don't think in this instance that there's any question on the record that the defendant i'm told substantial personal advantage from his his misuse of of the public credit so you know to the extent there are concerns about that i don't think that they would justify reversing the conviction because you know the factual basis for personal advantage was established at trial and i don't see anything in my opponent's argument that that would lead us to believe that the defendant didn't actually obtain a personal advantage here and i think there's a pretty broad gap is the issue that the constitution is used as the site of the rule that the violation of which subject subjects you to criminal penalty is that you think that's fairly states in any way the argument of  second i think in recognition of some of the issues that justice thomas recognize some of the questions of justice thomas i was he's now saying that the predicate act has to be a criminal offen i i don't know for sure why why they chose to identify the only constitution there was and i don't know if this is right here there was some discussion at trial about whether or not the resolution even authorized the card to the mayor in the first instance i don't know if if that is the concern that you're addressing but i don't know  factual matter why why the state's attorney you know chose the particular predicate acts that he did mack and say that i think that there were no constitutional provision it's clearly a political book to these facts but that's not to the exclusion of some other you know identifiable source of law is already truth to that what i'm about to say generally when you see a constitutional provisions much as this one it results in results i wanting legislation that defines a crime and that's what you might expect to happen with a provision like that rather than for the provision itself to become the predicate i see what you're saying and that that actually highlights our weakness in the claim that we should exclude the constitution if the concern is that we allow the constitution to be you know the source of the filling of the and taking tax violation you know that test would be for the intent of personal advantage in excess of its lawful authority and i think that leads us back to justice garman's point that you know if there's just a policy concern about the breath of the statute you know that's a legislative function clearly if if constitutional considerations such as going to process are implicated that you know the court can and can read a statute in order to avoid constitutional problem but there is no constitutional problem that defendant is identified with having a broad criminal statute it's a pure policy concern and that's something for the you know for the  legislature to address if it sees that so i think this discussion has has adequately addressed the first point which is that if you don't want to over will know the basis for affirming the conviction is strong and there's nothing unique about a constitutional provision to distinguish it from a low regulation tenet of professional quote any of that there is no reason why you would treat it differently   this this theory of negative implication and then find me on the question of the results prosecutor the solution that he's offering really doesn't fix the problem you exclude the constitution and you still have the problem  to minna miss violations of rules regulations statutes tenets of a professional code so really it seems like what he's getting there should be some sort of threshold or we should define personal advantage in a way that it excludes the career minded prosecutor or the quote of minded police officer but again the facts of this case wouldn't support reversal because on under any threshold or any tightened definition of personal advantage the facts so it's hard to see what the official misconduct offense would you know would be adding if he committed an underlying felony and the third is that again these are the types of decisions that are  typically left to prosecutorial discretion and for better or for worse that's what the criminal code does there's a number of criminal statutes that are broadly written and our system trusts the prosecutor to make wise decisions about charging you know who back to a book i read about the kennedy assassination and how that prosecutor down in new orleans indicted one of those people with just nearly nothing and i think if you leave it to the prosecutors then there's no certainty  where we stand on these things at about the same time that this hard case was going on there was a case up north where american something very similar and i had occasion to speak with the attorney who was representing him and you know if you know he was wondering well how did you guys end up where you were at and why are we we're at and now we're trying to figure out exactly what the statute requires and what's what's going to fit what's not and i think is just too uncertain if you if you don't tweak especially when you start making that a felony and i think you know consuls concessions to you in his argument support that position that he gets a classic case of a police officer making an arrest and pushing the envelope on the fourth amendment well he might be enhancing his career but he also may be committing official misconduct i just i don't think you want to go there and it may not be an intentional violation maybe he didn't know better maybe he thought he was supposed to search the interior this guy when he wasn't but he did so he he violated the constitution and and if if all that comes together is an official misconduct charge he potentially could be found guilty of that and to me that's just not w constitutional violation by a public official that garners the other elements of official misconduct of acquiring an advantage and and  crime because you say you violated the constitution and you're a public official and some overzealous prosecutor says i can figure out how i got a personal gain it to me is just way too broad and you have some of the same problems with rules regulations stances and that's why you're saying the river has to be at the very least i know i think so yes at some some of your same argument we're dealing with a constitutional predicate here but you would have the same arguments as it related to rule regulation tenet in one fashion or another yes i would i mean i one time was called before the attorney registration displayer commission because i didn't return a phone call now imagine that would fit the first lady of the test and you go from there and find reasons why i did it and maybe i exceeded some authority and could i get charged with a crime for doing that i mean to me it's just ridiculous that it is so broad that number one we don't know a brief discussion about this this credit card when counsel was up here this credit card came about as a result of an application of a signed only by mr howard it was not signed by anybody from the city this a records i'm not telling you something that's outside the record the bill came in his name he paid the bill direct t v set the state called a lady i believe a name was marilyn  felts from her bank with a credit card originated and she testified that this was part of their corporate program and if if one card wasn't paid then the entire program's cards would be shut down and we got it in there that we produced the records from one particular month where one of the city credit cards was actually shut off because it didn't get paid on time but none of the other ones did and so i think it's certainly questionable whether or not it was even a city credit card when you look at it the other elements to get an advantage the appellate court said well he got to gamble and he any he had the use of the money well that's true but you know again i think that's a pretty de minimus argument because he always put the bill when it came to one time one of his checks bounce we took care of it right away and so there was no no harm and then you look at the comps issue you know they they explained  trial court that he got one comp point for every eight dollars that he put into a machine where you figure that out and the way it all worked and i explained in my pellet brief his counsel mounted to one dollar and seventy five cents and they made a big deal about that that that was something really special so i think when you look at the factual evidence here you know i didn't ask for your review that because i was hoping you'd take the case and you could hear this constitutional argument but when you look at the facts i don't think they were very good in the first place thank you second kluger rebuttal yes it does