good morning and welcome to first case on the call the doctor today warns the january twenty three two thousand and thirteen is agenda number nine case number one one three four eight two people x roll the city of the morning your honors my name is carrie maloney leighton and i represent the city of chicago may it please the court your honour's a jury of respondents peers found them guilty beyond a reasonable doubt of indirect criminal contempt for willfully violating building court orders not to occupy the second floor of the building at twenty three forty seven michigan avenue  assessed whether the court believed the evidence showed guilt beyond a reasonable doubt and not merely whether a rational jury could so find that usurp the jury's role of fact finder in disregard of uniform eleanore a precedent which applies deferential review to all factual determination including in contempt cases this morning we urge the court to hold that the correct standard of review requires deference to the jury's verdict and to reject respondents call for de novo review i will explain now that whether respondents committed contempt was a factual issue for the jury and that under the correct deferential standard burden of proof for the proceeding itself requires a different degree of proof that to be satisfied with the criminal contempt matter the burden of proof after trial is whether you know whether the proof is sufficient beyond a reasonable doubt in a civil matter it's simply the preponderance of the evidence standard however on review the standard still must show deference to whatever the fact finder determine and simply assess whether the fact finder there was sufficient evidence from which the fact finder could conclude that the burden of proof whichever burden of proof applies was satisfied so although there is a difference between civil and criminal contempt in that respect that is not so it's not relevant for purposes of appellate review for determining whether the fact finders whether via the evidence show that any particular unclear any particular ambiguity of the order was relevant to the extent that the order was unclear to the response themselves the order is clarity as a stand alone issue is not relevant in a fact and a contempt for seating this court has established the elements are whether there was a willful violation of a valid order in order to make that determination it is necessary for the fact finder to decide whether the respondents who subject to the court order understood it so therefore if there isn't something that's unclear about the particular order that goes to respondent state of mind if they believed it was unclear so no there is no element of contempt for the charge itself the jury was instructed to decide whether the order set forth in reasonable with reasonable detail what acts were prohibited but that was in order to determine whether the particular respondent subject to the court under court order understood it not as a matter of not as a standalone matter whether the court thought the order was clear was not the important question the important question is whether the responde were subject to the order understood it such that when they took particular actions those actions could be deemed to have willfully violated the court's order this very sorry with regard to be no your honor it doesn't because this cities whether the city issues a license for the business to operate is separate from whether the building in which the build business is ho requirement to obtain a business license the liquor license that the building passed any particular inspection at that time the building of course the business of course could not operate in a business that was subject i mean it sorry in a building that was subject to a court order not to open because of dangerous conditions on the premises but that didn't mean that the business itself could not be laced friends could not have satisfied everything necessary to license it for purposes of serving liquor it was simply those those were separate matters at the time and they are still separate matters there are different departments to that one the one hand the liquor commission determines whether the business can receive a liquor license and on the other it's the building department that is that is whether the the structure in which the business is housed is sufficiently safe so the departments don't notify each other when they do not communicate at that time there  not communication between them at this time the communication is there has been an effort to improve communication but it's two separate departments that are determining different things isn't your  was a version of the evidence that from which a rational jury not the appellate court not every jury but a rational jury could conclude that respondents violated the court orders in a will from a well full manner precedent is clear that if it's a factual determination that particular determination is reviewed with deference to the fact finding performed below and that's for good reason this court has explained in numerous cases that factual determinations are better suited for decision after trial level because the fact finders are the ones to hear the evidence to observe the witnesses and therefore best assess the credibility and w evidence in the light most favorable to the prosecution determine whether any rational prior fact could have found the almost beyond reasonable doubt a spy basically the same thing this court said in smith in one nine hundred ninety nine but then the court went on left missed misrepresented or mis applied the the standard itself because those statements from smith do you explain the jackson standard that well that the part about the correct test is whether a particular jury assess the evidence in the same way as the fact finder did the appellate court in this case did it say those statements that your honor read but it did not actually perform that function instead what the court did was treat that last sentence which is if we conclude that the evidence is insufficient to convict beyond a reasonable doubt we should reverse as license to weigh the evidence itself instead of simply as a can after analyzing under the quest standard which gives deference to the fact finder if the appellate court in that case concludes that no rational jury could find the evidence sufficient in that case then yes the full court should reverse the verdict but in this case the appellate court misread or misapplied that particular sentence and treated it as license for the court to weigh along three sides of the second floor supported by the building's roof trusses it was a boat truss roof and built onto those particular structural  boxes skyboxes and they say extended out about fifteen feet and they were along the redefined sides so they were overlooking below the dance floor and patrons could go up and see what's happening below there were some court hearings before the very first hearing the two attorneys mad and said they did agree that they would close the v a p boxes but then at the hearing that july nineteenth hearing they didn't have sufficient time to finish conferring according to the city's witnesses so the city's hold on the building inspector who testified that the entire second floor would be dangerous and hazardous because those boxes that were around the edges of the nightclub were not supposed to go on structural members and cannot she wasn't clear whether they could support the weight you know those particular boxes could support weight and there was a risk if they were to collapse that they onto the second floor because they were built on structural members that shouldn't have supported weight and so from that at that hearing then the the judge said would an order today not to occupy that second floor satisfy your mandatory order not to occupy second floor of subject lambesis on both these orders it was captioned with the building's address in the subject line so plainly the orders referred to the building the second floor of premises that was referred to was building so that second floor was ordered closed if the litigants truly had believed that only the mezzanine had been ordered close they had an obligation to go before the court to say that's not what we thought was going to be closed we thought it was just going to be the mezzanine but this order says second well let's let's go back to it if we find that there was an ambiguity and we're back tracked into one of the earlier questions but i think it's important i think your position which i think you're stating in a little different way again that the if there is an ambiguity the jury has to look at what the respondents understood the order then you say that your honor what i tried to say and  not sure if i did what i tried to say is that any that unclear any ambiguity in the order is relevant only to the extent that respondents themselves found it to be unclear because there is precedent f understanding of the well there is also whether respondents violation was willful and in order to determine whether their violation was willful that necessarily required an assessment of whether respondents understood what they were prohibited from doing so there's two pieces to it whether the order with described in a clear enough language what should have been prohibited what was prohibited and whether respondants conduct was willful meaning that they knew what was prohibited and yet their actions violated the court's order anyway so those two pieces together instructed the jury to decide the factual question about would it be difficult if a jury f order was bigger was unclear to find a willful violation of an order that's unclear i'm sorry your honor well you're saying there's the will you know that they would have to find that the violation was is it difficult to find a willful violation for something that isn't clear if if the order is not clear to the responding then yes it would not it would be difficult to finance much worse and worse the jury or instruct the jury was instructed to find whether there was a willful violation of an order that described in reasonable detail what was prohibited and the evidence showed that respondents understood not only that the second floor of the building itself but they even admit that they understood that the mezzanine level of the building was to be closed and that particular mezzanine was  operation according to the evidence presented at the trial so they understood what the court had commanded which was at the very least do not occupy the mezzanine yet they acted to willfully violate that order by operating the mezzanine and simply asked to decide what these respondents whether they understood what was ordered of them and whether they nevertheless disobeyed the court's command and it is that is the issue for the jury to determine those who pose a memorable for  are just from yes your honor that is an issue of law a fact for the jury to determine respondents even requested that a jury decide their case the jury of respondents peers are the ones who decide the facts about a particular order again this court's precedent it's clear if it's a factual matter the jury or the fact finder should decide and that is because there is no relevance to the second floor of subject lambesis for any future case it's simply a question of whether these respondents in this particular building that was subject to these particular orders understood what was asked of them by the court and yet nevertheless did not comply with what the court had ordered so it was a question of fact it wasn't relevant for any future case it's not a question of law and respondents have never identified what potential issue of law exists from word second floor not to are not to occupy second floor that could concern a court that would warrant de novo review but even if they know who review is appropriate for a piece of this contempt of terminations which we submit it doesn't even make sense because it's the judge's own order that the judge would have to decide was clear as a separate element even if it were open to de novo review because of a legal issue we submit that the orders in this case were very clear and that respond the evidence showed respondents understood them including understanding that the mezzanine was not to be occupied and that was sufficient to convict respondents i see my time has expired and i will sit down  court today is whether the appellate court applied the correct standard to review and we submit that the appellate court did not create a new standard review and that the appellate court of flied the rational trier of fact beyond a reasonable clarity in other appellate opinions applying civil standards in a criminal contempt context but the appellate court came back and made clear that it was applying the rational trier of fact standard which is exactly what this court did in o'leary the issue that the city has with that is the application of that standard in this case and the result is not with the actual standard that the appellate court applied and the second question and the court has to confront is did the appellate court correctly have by this standard due process requires clarity in orders prohibiting conduct you can't have a contempt proceedings if in order he's unclear or ambiguous as this court ruled in o'leary in order cannot support contempt unless it sets forth with certainty clarity and concise what actions are and joined the mandate of the court must be clear before disobedience can subject a person to contempt was it a jury question whether that whether the court's order was clear and the name be the question should not have reached the jury in our view if if the order is ambiguous there should be no contempt prosecution it should stop and was that reason along the or was this in any objection to that jury instruction raised in the appellate court i don't believe to bad instruction and that you're correct the jury was instructed to assess whether the order described the a prohibited so your request this court that we determine that in a contempt was sitting the issue of the clarity of the order be determined by the judge and that it be reviewed the argument that the order was an ambiguous was always made exactly who made that argument i'm not sure if it's clear who should have decided that issue as opposed to the judge or jury and i believe that the court should review the issue anyway even if it were forfeited because the court does have the discretion to take a look at that issue and can affirm on any basis in the record but we don't believe you need to actually reach that issue and decide if it should be doing overall review or not because the this court can affirm based on the what the  appellate court because there is insufficient evidence to find beyond a reasonable doubt that the order was unambiguous and we would submit that you can affirm on that basis in the in the context of this building the order was ambiguous the order was unclear as to what second floor meant as the appellate court found the during the hearing the second floor is described as the mezzanine in v i p that's how the second floor is described during the hearing the second floor is the second floor of the nightclub in that description during the hearing the whether it's the building or that second floor mezzanine v i p area it seems that the orders made may be considered clear when it refers to a location on soft michigan and it says the second floor of the  building seems further susan even in the arguments being made that the ambiguity may have arisen out of the negotiations beforehand the discussion the evidence that was presented as to the mezzanine of the v i p room a fair characterization i would say the ambiguity arose after the events in february where there was an incident at the at the premises i i would submit that th ambiguity did not arise until after that point in which city took the position that it was meant as an order to not occupy the entire building prior to that i think the admin shows that the parties believed the order meant the v i p s areas and the mezzanine bob so to be evidence that goes to the jury or the fact finders that include more than just the order in a prosecution for in the record criminal  it's not a rubber stamp the evidence does have to be reviewed and the appellate court does have to conduct some sort of review to look at the overall sufficiency of the evidence otherwise the court would just simply affirm any jury verdict we would submit that the appellate court was correct in that conclusion that the evidence was insufficient in this case and that therefore the court doesn't need to reach some of those other issues about the standard of review because through counsel for the city has argued that minimum the evidence showed that the respondents understood this order to be in order to vacate the mezzanine and that there was evidence that in fact the mezzanine was being used the argument is could not a rational trier of fact determine therefore that the respondents will believe violated the order as they understood why is th well there's there's two issues with that the first issue is that that permits an ambiguous order to be prosecuted in contempt to be found on and they do a sword or so we're suggesting that one of the ambiguity in the order if we can read one of the ambiguities is finding a violation therefore will convict and that is not the authority and it's not the weight of authority nationwide on the issue if there is an ambiguity we're not going to track it down and figure out if one interpretation of that may have been violated and find contempt the second issue would be that involves it a jury instruction which was not it which was objected to and there was an issue in the appellate court which they didn't reach but there was a jury instruction on whether or not knowledge of the respondents as to that particular evidence so there was an issue as to whether their findings were aware after taking steps to try and close that area that it was being used anyway and there was that instruction that was objected to a corporate instruction that the response could be found to have violated the order based on the acts of agents of the corporation and that was objected to and i was a very large issue both in the trial court and in the appellate court as to being able to make that finding on that issue so even if that issue were to be considered in you found that  the one interpretation could find a violation there's a secondary issue of the jury instruction with that we'd ask that you affirm the appellate court in this manner and thank you thank you good morning he king rogers on behalf of calvin hollins from the office of the cook county public defender to avoid repetition we adopt the position of mr kyl's regarding the standard review i would like to focus on the fact that the public court did correctly apply the standard of review and determined that no rational trier of fact as a matter of law could find beyond a reasonable doubt that the order was clear the order wasn't begin with the pillock or correctly found that the first element that an order must be clear be proven beyond a reasonable doubt was not established at the trial  order was and bigger just because it was unclear if you would if they were not to occupy the second floor of the building or the second mezzanine level of the club the building at twenty three forty thousand and two is when the city inspected the building and said oh there's something wrong with the sky boxes there supported by the roof we think there's a problem a complaint is filed in july la mirage being the leases of the building they go in and day represent the building the lawyer used there at that time speaks to the city lawyer and says ok what do you want this to tom and that would be  the trial judge affirmed that this is what we're going to hear at the end of the hearing but long behold when the clerk writes the order it says not to occupy the second floor the city never said this was a problem until after the tragic accident and two thousand and three we have firm or court date the tourney who represents the club came back and wrote a memorandum to the regular club baton saying ok you can occupy to the ip rooms there now are very important vacant rooms the regular club attorney gets the letter gives the order that says only to not occupy the second floor and then he's right ha so he goes and look at the half sheet which says not occupy the v i p rooms that at that point after the order of its minute you or not i second floor and then confusion that arose later in the minds of the board that there was some obligation that on the respondents to ask for clarification we see for example in the o'leary case and say here that in fact that's what happened the respondents there were confused by the orders they said and so they asked the court for clarification was there a on the part of the respondents here to see clarification from the court i don't believe there was an obligation i think he did what was necessary he went and looked at the hashi which when he saw the order not to occupy the second floor he went to look at the half sheet and then there were other court dates in august september and october and each time with those court date they say it the city attorney say you are not with the lawyers who are not to occupy the second floor of yappy rooms the testimony from the inspectors was the danger and probability of the second floor v i p rooms the napkin that was place was placed on the second floor v f p rooms there was never any issue on any of the court dates and any discussion by anyone at the trial hour regarding anyone saying in two thousand and two if any of those hearings that they are the club was to be close everyone knew the club was open no one's talked about closing that closer they get a license in november to have laid ours and to get lit have liquor the city knew the club was open the building inspectors knew the club was open everyone knew the club was open so all of you know your club is open and the court knows your club is open then you believe that you can occupy the front that that club that were had and a child testimony from everyone that testified at the hearing they stated nothing about closing the club it was all about closing the v i p room so buys only talking about any damage to our jurisprudence if we say that a court order doesn't mean what it says on its face we have to look at what happened prior to it is not the court order the final say and that's when that's what it's trying to be enforced here when the court is not clear there's a constitutional right of due process right to have an order that is clear concise and what is not clear about sectional one or twenty three forty seven or whatever the address was  close on its face what's unclear about that on its face it is not clear it is not and it is and there's not an issue of what that means but when you put it in with the  little question following up on justice tice's in this case you're saying everyone understood that it was the mezzanine level that was close and if there was evidence in the record to show that people were occupying it it's not  sufficient to find in direct no you're on and the reason being is that that actually supports when you say that the juror when you tell a jury we don't care what the order meant we were saying that second floor  second floor the building second floor the clerk that shows us two interpretations so when you have two interpretations that what is not clear you can't tell the jury to decide a legal question that is a legal question and only the the trial court or on the reviewing court has a distant time of that dunno will mix question of law in fact first element you look to see whether or not the order was clear and if it's not you don't get to the second no currently in illinois law no standalone element of whether the order was clear as a separate matter to an independent observer the question is whether the order was understood by the particular parties to whom it  addressed all the evidence and in order to make that determination that the jury heard all the evidence that counsel for respondents described they heard they have the transcripts in front of them they had all the evidence from the respondents attorneys about what they experienced during the court hearings all that was before the jury to weigh as to whether respondents in fact understood what was a very clear in fact counsel conceded on its face very clear order not to occupy second floor of twenty three forty seven south michigan any ambiguity only comes in as a question of fact because of outside not believe respondents did not understand the court's commands the issue for this court is who decides this particular issue and we submit that the correct decision maker is the jury  respondents one of the jury to decide their case they requested the jury and it's a question of fact response counsel has still not identify what possible legal issue is presented by an order that says not to occupy second floor of a building that's simply not a legal issue it's only relevant if in the context of whether the respondents understood what they were not to do respond and seem to believe that if there is an ambiguity in the language of an order which in this case there is not but if there were that that would entitle them to just get off because the language wasn't clear enough but there are cases that they cite including a leery or cases in which if there are two possible readings of an order and the party to whom that order is a directed takes a course of action that doesn't violate one of those then that particular party is conduct have willfully violated the order because it's consistent with a reading of the order we don't have that in this case in this case under full first ins of you order including respondents own version they understood that the order was not to occupy the mezzanine at the very least if nothing else they had met so that was clear and they violated that too so under their own reading of the order they violated the court's order there's well we would describe the stand the correct standard as whether a rational jury could find beyond a reasonable doubt that there was sufficient evidence to convict responde but that the first part of what i said was important because it's not whether the appellate court is convinced beyond a reasonable doubt that's settled from jackson on down it is whether any rational jury could have reached that version we submit there is a version of the evidence appellate court statement of the standard of review indeed said that particular statement but it was simply lip service to which this court owes no deference in any event given  outsider to the case is not relevant how an outsider to the case would interpret the order it's only relevant to how these particular respondents understood the order and if a rational jury could have convicted them based on the evidence presented which we submit is ample evidence then their convictions should be of firm you've never actually received the building code approval because that was what the hearing was being continued for the first hearing was on the dangerous and conditions found during the inspection that was continued several more times while respondents said they were going to get an architect come in and they were going to provide the court with a satisfactory evidence that there was no danger to the public that never happened because the tragedy occurred first your honor that is simply not relevant because if there is no evidence and they cites and nothing in the record from which everybody knew the club was open they the city did not know the club was open the city did not know the second floor was being occupied and the relevant question is whether the respondents violated the court order not whether they should have been shutdowns we should have caught them sooner than they were caught the court itself had no idea that the second floor was not being occupied mr kyle stood in open court on october twenty fifth two thousand and two and the court said is it agreeable to continue the order not to occupy the second floor the mezzanine in the v i p room and he answered yes according to the court the second floor was not being occupied there was simply and first responders counseled simply does not say to anything in the record to show that anyone was aware besides respondents that the club was being  d just quickly your honor asked a question before about whether it would be possible to convict if the jury thought that the order was so unclear that a reasonable person could not possibly understand it and also thought that respondents didn't understand it then it wouldn't be difficult to convict they would actually be impossible to convict because the important question for the jury  was whether the respondents violation was well fall but in this case again respondents understood that the order prohibited occupying at the very least the mezzanine and a reasonable jury would understand also of sorry a reasonable person subject to that order would also understand that the second floor of the twenty three forty seven south michigan meant the second floor of the building so the jury's finding of a willful violation of a clear order should have been u held and unless there are other questions we would just urge the court to hold that the appellate court may not overturn a jury verdict in indirect criminal contempt unless no rational jury could have reached it and in this case there was ample evidence before the jury to say and there is ample evidence from which an appellate court could conclude that the that the judge found that particular evidence that respondents willfully there precedent on ambiguous orders only supports that when there is two readings of an order one of those readings the cop parties conduct is consistent and does not violate the order then that party should not the found and willful violation the court order because their conduct was ok under one reading of the order they cite no case and it should not be as a matter that's a ball that where the order even if it were subject to two different readings which we submit from it's plain language it's not even if this order were subject to two readings there is no precedent for holding that where a party's conduct violates both versions they should be able to get off just because the order says could be read in two different ways in this case respondents knew that the very least the order meant don't occupy the mezzanine they acted to violate that order any confusion about the language there may have been which was before the jury again any confusion though should not excuse their noncompliance with that order that they understood unless there are further questions thank you your hon layton mr carmichael this rudders or court thank you for your arguments presented this morning case number one one three four e two people ex pro the city of chicago versus lay mirage inc is taken under advisement and judge in number nine you are excuse