May 2013 • Volume 101 • Number 5 • Page 222
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Illinois high court affirms criminal contempt convictions of E2 nightclub owners
The Illinois Supreme Court reversed a ruling that vacated criminal contempt convictions against the owners of a Chicago nightclub where 21 people were killed in a stampede.
The Illinois Supreme Court has reversed an appellate court decision that vacated criminal contempt convictions against the owners of a Chicago nightclub where 21 people were killed in a stampede to flee the building in February of 2003.
A jury found the owners of Epitome 2 nightclub guilty of indirect criminal contempt by ignoring a court order entered in July of 2002 that prohibited any and all occupancy of the second floor of the building located at 2347 South Michigan Avenue.
The appellate court vacated the convictions after finding that the underlying court order, which stated that it was a "Mandatory order not to occupy 2nd floor," was ambiguous and could not be the basis for a jury to convict "beyond a reasonable doubt."
But in People v. Le Mirage Inc., 2013 IL 113482, a unanimous supreme court reversed on the issue of ambiguity in the court order, and remanded the case to the appellate court for consideration of other claims raised by the defendants on appeal.
Chicago-area liquor law and commercial litigation attorney Majdi Y. Hijazin, who runs his own practice in Oak Brook, said this case is a prime example of why lawyers must carefully choose their words when preparing draft orders for a judge to sign. Or, when a judge drafts his or her own orders, lawyers for the parties should not hesitate to request clarification if they have any concerns that ambiguities or inaccuracies may exist.
"This case is really about the need for civil litigators to understand that they have to draft their orders carefully and precisely, or they're going to have a situation like this where the appellate court finds ambiguities," Hijazin said. "What if this case had not gone up to the supreme court? The appellate court order would stand with an opposite result from what now appears to be the correct resolution of the case."
No occupancy of '2nd floor'
According to the supreme court's opinion, Calvin Hollins Jr. and Dwain J. Kyles owned and operated a restaurant and nightclub in the two-story building on Chicago's South Side. The restaurant, Epitome, was located on the first floor, and Epitome 2, otherwise known as the "E2 nightclub," was on the second floor.
Along three of the walls above the second floor was a mezzanine level suspended by trusses connected to the ceiling. The mezzanine contained "VIP rooms" and "skyboxes" that overlooked the dance floor and main bar area some 15 feet below.
In 2002, the City of Chicago filed a building code enforcement action in circuit court, alleging that dangerous and hazardous conditions existed in the nightclub in violation of the code, and that the mezzanine was constructed without any building permits.
The circuit court agreed and, without objection from the parties, entered its "mandatory" order stating that no one was permitted to occupy the "2nd floor" of the building. The parties revisited the judge several times in the months leading up to the nightclub disaster, and every time the court continued the case with orders stating that all previous orders remained in full force and effect.
"Respondents nevertheless continued to operate the nightclub on the second floor until February 17, 2003, when there was a fight on the dance floor, and security guards released pepper spray to break up the fight," Justice Karmeier wrote for the unanimous court. "Panic ensued, and patrons rushed to exit the nightclub, crowding into a narrow staircase to reach the first-floor exit. Tragically, 21 people were crushed to death, and 50 others were injured."
The next day, the city filed a petition for adjudication of indirect criminal contempt against the building owner and E2 owner Kyles. The petition was subsequently amended to add Hollins, the other E2 owner, and to remove the building owner, since Epitome's lease stated that it - and not the landlord - was responsible for all "structural and nonstructural repairs and maintenance of the building."
After the jury heard evidence including testimony from Kyles and his various lawyers, statements from the building court judge's written notes, and testimony from city inspectors and others who participated in the underlying building code enforcement action, it convicted the E2 owners of contempt and the judge sentenced them each to two years in prison.
The respondents appealed, arguing errors in jury instructions, improperly barred evidence and improperly considered factors in the sentencing process. However, according to the supreme court, the appellate court reversed and vacated on different grounds.
"Instead of addressing the issues respondents raised on appeal, the court reversed their indirect criminal contempt adjudications and vacated their sentences, finding they were not proved guilty beyond a reasonable doubt because the building court's orders were ambiguous and did not provide in reasonable detail the acts prohibited," the high court found.
The importance of clarifying orders
The supreme court held that under Illinois law, "an injunction order cannot support a finding of contempt unless it sets forth with certainty, clarity and conciseness precisely what actions are enjoined.…The most fundamental postulates of our legal order forbid the imposition of a penalty for disobeying a command that defies comprehension."
However, in reviewing the facts and testimony in the record of the case, the supreme court found that all parties had repeatedly discussed in open court precisely what the city meant when it requested an injunction to prohibit occupancy of the second floor and mezzanine areas of the nightclub.
For example, E2 owner Kyles appeared in court in October of 2002 and he agreed on the record when the city's attorney told the court that it should "continue the previous orders not to occupy the mezzanine, the second floor, and the VIP rooms."
The jury found, and the supreme court agreed, that Kyles "did not express any concern to the court that closing the second floor was not his understanding of what the order meant; nor did he ask his attorney to show him the prior orders to clarify any ambiguities his attorney believed were there. As an attorney himself, Kyles should have understood perfectly well what the orders said, the importance of obeying court orders, and the proper procedures for seeking revision of those orders in the event of disagreement with their scope or clarity."
Hijazin, the liquor-law attorney, said this case could be about dram shop laws, or building code violations, or administrative review procedures coming from the state or local liquor commissions, but it's not.
"This is a case about lawyers on both sides not insuring that the orders they got from the judge were worded in a way that fully and accurately reflected the result of the hearings, and the judge's intent," Hijazin said. "Many times, and I hate to say it, but the clerk or that state judge is simply rubberstamping the language that attorneys put into those orders without taking the time to look for ambiguities. Or the lawyers don't take the time to look for ambiguities in orders that are drafted by the judge before they leave the courthouse. This case could have been much different if both sides had worked a little harder to clarify those orders."
Nonetheless, the jury and the supreme court believed the orders were clear enough to find beyond a reasonable doubt that the nightclub owners were guilty of allowing occupancy of the club's second floor in contempt of the court's order.
"[T]he building court's orders were 'so specific and clear as to be susceptible of only one interpretation,' " the court wrote. "The '2nd floor' of the 'subject premises' means the '2nd floor' of the building… [and] we conclude that a rational jury could have found beyond a reasonable doubt that respondents were fully aware that the orders closed not just the mezzanine, but the entire second floor of the building and that they willfully violated the orders."