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City to ask state’s top court to reinstate convictions of E2 nightclub owners

Updated: January 23, 2013 3:37AM

The city of Chicago on Wednesday will make its case before the state’s highest court that the convictions of and jail sentences for the owners of the South Side’s E2 nightclub — where 21 people were crushed as they rushed to leave in 2003 — should be reinstated.

In 2009, a jury found Calvin Hollins and Dwain Kyles guilty of indirect criminal contempt for allegedly ignoring a city housing court order to close the club — because of structural problems — in the months leading up to the tragedy.

But in 2011, the state appellate court tossed the guilty verdict in the case along with a judge’s order for the pair to each serve two-year prison sentences, arguing the housing court order was ambiguous.

“Simply, under the facts of this case, we disagree that the formal order was as clear and unambiguous as the city maintains the law requires,” Justice Michael J. Murphy wrote in a unanimous opinion of the three-justice appellate panel.

“At first blush the language appears clear, however, a review of the record before this court reveals the city’s law clerk should have included three words following ‘Mandatory order not to occupy 2nd floor’ in the formal order — either ‘of the building’ or ‘of the nightclub .’”

Equally unclear, according to the appellate court, was the link between the violations and the deadly stampede. Indeed, a security guard using pepper spray in the crowded club triggered the rush from the upstairs nightclub, authorities have said.

“The city asserted that if respondents had been acting in compliance with that order, there would not have been 21 dead and 50 injured patrons,” the appellate court opinion stated. “There was no explanation as to how the building code violations related to the actual incident and tragic deaths and injuries.”

The city has said its asked the Supreme Court to review the appellate court decision because “[t]he court’s decision is in conflict with numerous other cases addressing the standard of review of criminal contempt judgments, and thus injects confusion and uncertainty into a previously settled area of law,” the city law department said in an emailed statement.

The city is also concerned the appellate court’s decision “creates a serious risk that all building owners will ignore complying with building court orders or interpret the orders as they see fit,” the law department’s statement said.

So the city is asking the Illinois Supreme Court to “review” the case and uphold the trial court’s original decision.

Christopher Carmichael, an attorney for Kyles, told the Sun-Times Tuesday: “When there’s an order of that type, it calls for the language to be specific and clear so the party can follow the order.”

He’s asking the state Supreme Court to “affirm the appellate court” decision to vacate the conviction and sentence.

Both the city along with attorneys for the former owners of the now-shuttered club will make their case in an hour-long hearing scheduled to start at 9 a.m. in Springfield.

While the Supreme Court justices may ask questions, it could be months before they make a decision in the case.

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