People ex rel. City of Chicago v. Hollins

• Decision Date: 22 November 2006
• Docket Number: No. 1-05-0655.,No. 1-05-0656.,1-05-0655.,1-05-0656.
• Citation: 307 Ill.Dec. 253,859 N.E.2d 253
• Parties: The PEOPLE ex rel. The CITY OF CHICAGO, a Municipal Corporation, Petitioner-Appellee, v. Calvin HOLLINS, Jr., and Dwain Johann Kyles, Respondents-Appellants.
• Court: United States Appellate Court of Illinois

859 N.E.2d 253

307 Ill.Dec. 253

The PEOPLE ex rel. The CITY OF CHICAGO, a Municipal Corporation, Petitioner-Appellee, v. Calvin HOLLINS, Jr., and Dwain Johann Kyles, Respondents-Appellants.

No. 1-05-0655.

No. 1-05-0656.

Appellate Court of Illinois, First District, Fourth Division.

November 22, 2006.

COPYRIGHT MATERIAL OMITTED

Hooks Law Offices, P.C. (William H. Hooks, of counsel); and Allan A. Ackerman, of counsel, Chicago, for Appellant Calvin Hollins, Jr.

Monico, Pavich & Spevack, Chicago (Michael D. Monico, Barry A. Spevack and Theodore R. Eppel, of counsel), for Appellant Dwain J. Kyles.

Mara S. Georges, Corporation Counsel of the City of Chicago (Benna Ruth Solomon, Deputy Corporation Counsel; Myriam Zreczny Kasper, Chief Assistant Corporation Counsel; and Kerrie Maloney Laytin, Assistant Corporation Counsel, of counsel), for Appellee.

Justice CAMPBELL delivered the opinion of the court:

This is a consolidated, interlocutory appeal. Respondents, Dwain J. Kyles and Calvin Hollins, Jr., appeal from orders of the circuit court of Cook County denying their separate motions to dismiss an indirect criminal contempt proceeding brought by petitioner, The City of Chicago (City), on the grounds of double jeopardy, pursuant to Illinois Supreme Court Rule 604(f). 188 Ill.2d R. 604(f). On appeal, respondents contend that double jeopardy bars the City's action for violations of the City of Chicago municipal building code where the City deliberately caused a mistrial. Hollins argues separately that his retrial is barred by judicial misconduct. Kyles raises the additional contention the case should be transferred to a different trial judge pursuant to Supreme Court Rule 63(C)(1)(a) on the grounds that the trial judge possessed personal knowledge of disputed evidentiary facts. For the following reasons, we affirm the judgment of the trial court and remand this matter to the circuit court for reassignment to another circuit court judge.

The record reveals the following relevant facts. In 2002, respondents conducted a restaurant and nightclub business in a two-story building located at 2347 South Michigan Avenue, Chicago. The first floor housed Epitome restaurant and, on the second floor, respondents operated a nightclub called Epitome 2 or "E2." E2 consisted of a main dance floor, two bar areas and a mezzanine level with several "VIP" rooms. The mezzanine level and VIP rooms were suspended by trusses¹ connected to the ceiling of the building.

On June 18, 2002, the City filed a building code enforcement action in housing court against the owner of the building. The operator of the restaurant and nightclub, Le Mirage, Inc., voluntarily allowed itself to be impleaded into the action. Respondent Kyles was named as Le Mirage's sole shareholder, and respondent Hollins was named as Kyles' "silent partner." The City sought an injunction requiring respondents to correct 11 code violations, alleging that the VIP area had been built without proper permits and that the partitions could not support its weight, creating dangerous conditions on the second floor.

On July 19, 2002, the parties entered their first appearance before the court, Judge Daniel Lynch presiding. Edward J. Morris appeared on behalf of the owner of the property, Lesly Motors. Le Mirage's regular attorney, Thomas Royce, was on trial in another courtroom and could not appear; Bradley Prendergast appeared in his stead and waived service of summons on behalf of Le Mirage. Assistant corporation counsel Demetris Kare presented what he described as an agreed order that Le Mirage would not occupy the second-floor VIP rooms.

Judge Lynch then heard testimony from the City's building inspector, Margarite Shahi. Shahi testified that the entire second floor was dangerous due to, inter alia, the weight of the VIP rooms suspended from the bow truss roof and that substandard partitions were used to build the VIP rooms. At the conclusion of the testimony, the trial court stated: "Your agreement is no occupancy of the second floor. You have to keep it vacant."

Judge Lynch then wrote the following note on the half sheet, the cover of the trial court's case folder: "BA Mirage will not occupy 2d Floor VIP rooms."

After the hearing, Prendergast sent a letter to Royce, advising him as to the court proceedings as follows:

"The city inspector testified that the sky-boxes on the second floor overlooking the dance floor are dangerous and hazardous because they are suspended from the trust-roof² [sic] * * *. The judge entered an Order that the second floor mezzanine not be used, the VIP room, until there is a hearing. As a result, they are now `vacant' important persons rooms. That order will remain in effect until August 9th."

Prendergast received a written order, signed by Judge Lynch, several days after the hearing that provided as follows: "Mandatory order not to occupy 2d floor." Prendergast forwarded this order to Royce.

The order described above was renewed on subsequent court dates. On August 9, 2002, Kare appeared in court on behalf of the City and Royce appeared on behalf of respondents as well as for the owner of the building, Lesly Motors. The City asked that the order not to occupy be continued to September 6, 2002, and requested an order of interior inspection. Royce stated that respondents had "taken steps" to rectify the conditions on the second floor, including drafting plans and applying for construction permits. The court entered an order stating: "Mandatory order not to occupy 2nd floor of subject premises."

On September 6, 2002, the court entered an order stating: "All previous orders remain in full force and effect."

At a hearing on October 25, 2002, Kyles agreed to continue the prior order not to occupy the second floor, mezzanine and VIP rooms. The trial court's order of that date provided: "[A]ll prior orders to remain in full force and effect."

According to the record, respondents continued to operate the E2 nightclub on the second floor of the building despite entry of the above-described court orders.

Subsequently, during E2 club hours in the early morning of February 17, 2003, a fight ensued on the dance floor. Security guards utilized pepper spay to break up the altercation and the remaining patrons of the club panicked and fled for the doors. Tragically, in the rush to escape the smog of pepper spray, the patrons manifested into a stampede and crowded into a narrow staircase to reach the first-floor exit. Twenty-one patrons were crushed and killed in the charge and fifty other patrons were injured.

The following day, February 18, 2003, the City filed a petition for adjudication of indirect criminal contempt against Le Mirage and Kyles. The City twice amended the petition; first to add Hollins, then to omit Le Mirage. Respondents requested a jury trial.

On January 23, 2004, Kyles and Hollins each filed the first of multiple motions requesting that Judge Lynch recuse himself and allow another judge to preside over the trial. Respondents contended, inter alia, that recusal was required because the scope of the trial court's order was in dispute and the trial judge was a potential witness for the defense regarding the intended meaning of the order. Respondents argued that Judge Lynch had "personal knowledge" regarding what happened in court on the day the original order was entered. Respondents argued that the content of the court file's half sheet suggested that the trial court intended to close only the VIP rooms and mezzanine, not the entire second floor, even though the order itself did not make this distinction. The trial court denied respondents' requests to recuse itself.

On December 8, 2004, Kyles filed a motion in limine to preclude the City from introducing a transcript dated September 6, 2002, and an order entered that day striking a motion Le Mirage filed to vacate the order of July 19. Neither the actual motion nor any copy of the stricken motion could be located. Kyles noted that Judge Lynch once again wrote on the half sheet an entry that supported his theory that Judge Lynch intended to close only the second-floor VIP area and not the entire nightclub: "D Mirage's motion to vacate 2d fl. VIP vacate order stricken."

Judge Lynch stated that Kyles could not use the half sheet as proof of anything, but stated that he would entertain the idea that the half sheet might be admissible for the limited purpose of its effect on the respondents. In response to the City's protests that the half sheet was not the order, Judge Lynch confirmed: "That's not the law. No one will say that. Half sheet is not an order." Judge Lynch then denied respondents' last motion requesting his recusal.

The parties selected a jury over the course of three days. During jury selection, Kyles and Hollins charged that the City's use of a peremptory challenge to strike an African-American male from the jury violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The trial court accepted the City's race-neutral explanation and denied respondents' charge. Thereafter, the City brought a Batson challenge to Hollins' use of his third peremptory to strike a sixth white male from the jury. The trial court accepted Hollins' race-neutral explanation and denied the City's challenge.

Prior to opening statements, the trial court reiterated its earlier ruling that the half sheet could be discussed during the testimony of respondents' witness, Thomas Royce, the attorney for Le Mirage, but that use of the half sheet would be relevant only for the limited purpose of its effect on Royce's mental state and ultimately the respondents' mental states. The trial court cautioned that any proceedings held prior to entry of the court's orders were irrelevant: respondents were obligated to follow the court's orders, even if issued erroneously. Counsel for both parties discussed which exhibits they intended to use during opening statements and Kyles' counsel...