# Oral argument — People v. Kilkelly > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A101875 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** December 17, 2025 ## Text Here he is, the Honorable Appellate Court for the 2nd Judicial District. He is now back in session. The Honorable Robert E. McLaren presiding. Pleased to be seated. Call the case, please. Yes, Your Honor, the second case we will adopt this morning is 2-24-0776, the people of the State of Illinois v. Janet E. Kilkelly. The people of the Illinois Appellate, Janet E. Kilkelly, and Ms. Natalie, arguing on behalf of the Appellants, please step in and point to me. Arguing on behalf of Natalie, Mr. Joshua E. Vinson. Thank you. Ms. Lee, you may proceed. Good morning, Your Honors, and may it please the Court. Stephanie Lee on behalf of the people of the State of Illinois. There are actually two very narrow substantive issues here before the Court. Unfortunately, what happened with the trial court's order is the whole dish ran away with the spoon. We have the misapplication of funds, there was one narrow issue, and that is because everything else was waived. That issue is a statutory interpretation of whether this conduct would fall as stating a charge, whether the elements were all there to state a charge. Not whether we've proved it, obviously, at this point. Can you be more specific about what you mean by misapplication? Misapplication was taking credits, because it's misapplication of any credits, of the government. These were credits given to businesses for relief when they were on the face of this not in good standing, which the resolution required. Now, we're talking about Section 33E16, correct? Yes, now doesn't that apply to public contracts? No, and the reason why not is I understand that the purpose section says that that was what the corruption, they were most interested in policy. But once you get to Section 16E, or E16, it says an officer of any unit of local government, it's undisputed that this is the city clerk, knowingly misapplies any credits of the unit of local government. And that's what these were, they were credits against licensing fees that were supposed to go to the city, and they didn't because a discount was given at 25%. But all the other 17 sections of the statute relate to preventing fraud and corruption in public contracting, correct? Correct. And so if you, you know, if this is ambiguous, if there's any ambiguity, whether it applies to public contracts, shouldn't that ambiguity be in favor of Ms. Kilkelly, the rule in Lennon? Under Hoffman, only if there's a grievous ambiguity left after any other statutory interpretation aids were used. The title of a statute is not dispositive. What's dispositive is the very plain language, which again says you misapply any credits, monies, funds of the government. Or, you know, also could be a school district or something like that. But sure, but couldn't you, I mean, isn't it kind of clear that public contracts were being referred to in that section? I mean, they're going to have 17 sections all talking about public contract, and then all of a sudden they're going to divert and say, oh, if you take credits, it doesn't have to be in a public contract. Why is it in this section? I mean, why couldn't legislature put this somewhere else if it didn't relate to public contracts? Well, there's the statutory principle of interpretation that if it's put in one or two sections and it's left out of this section, then you would actually presume that they intended to leave it out. There are other statutory sections. The title of the section does not indicate the plain language, and the plain language could not be clear. So that- Counsel, if I told you you should write this opinion and you wrote it, would you be guilty of a crime? Would you be impersonating a judge? If you told me to write it as a law clerk or- Where I'm coming from is who is responsible for making the determination and enforcing the credits? Who is the person who is responsible for determining what in good standing means? Who is responsible for auditing the various departments and agencies of the municipality to determine whether or not the accuracy of the determination of good standing is valid or invalid? Right. Well, now- Minimus or not, how are we supposed to determine that this individual committed wrongs when it's questioned, at least I have questions, about who's responsible and if that person is responsible, does that person have the authority to delegate the authority to the defendant? Right. If the defendant doesn't have the authority. And now you're really talking about official misconduct. Sure, sure. And now you're into the Vaseal issue. And for that, we're not talking about the quality of the evidence or how many people he interviewed or all of that. What we're talking about is if he had a good faith basis in front of the grand jury to establish probable cause. Right. So the issue is he went in front of the grand jury and he said that she committed the acts of official misconduct in her capacity as deputy commissioner. And what? Both. Now, he didn't say that she committed the offense in her role as city clerk. He said she committed the offense in her role as deputy commissioner. Right. The indictments that were signed said both, but here's the thing. So if you look at the exhibits here that were presented, now these were at the factual hearing, so they go obviously beyond the grand jury. Right. Which we're really supposed to just be looking at the grand jury. But what you have is you have in December of 2020, you have the finance director saying that in order to qualify for the credit, the establishment must be in good standing with the city at the time the invoice is generated, i.e. no debts owed to the city relative to license fees. Her name was Tina Smigelski, I believe you pronounce it. But didn't the Jurgensen indicate that he never knew what it meant to say in good standing? He never saw, apparently, that memo. And I think that memo was the only memo or the only writing that ever described what in good standing was. Well, the defendant wrote back. My recollection is he did see that memo. But he testified at the grand jury and also in front of the trial court that he never knew what good standing was, what it meant to be in good standing. No, but he'd seen this. He talked about this memo. At that point. She wrote back and said as long as they are in good standing, yes. So then you have the next thing is her saying this. This will allow my office to provide these credits to businesses in good standing. That was her own words. Then then you have the next in January of 2021. Her saying that the key here is qualifying. We'll do the info on the checks. And then you have. I understand. Say, I understand. The final call will be with defendant. And that is an E-134. I appreciate that. But the Mr. Jurgensen never ever came across. He said he never came across anything that provided a definition of what would have made Kilkelly aware that noncompliance could lead to an indictment, imprisonment, or the loss of her pension. He never actually defined anything about what the definition of was for Kilkelly. Here's where this is crossing the line. Because all that was raised in that in that aspect is an as applied. Oh, I didn't know. I couldn't possibly have known. Well, what are the what are the facts here show? If she proposed an ordinance and said this is going to allow my office and me to decide who gets these credits. If they're in good standing, please pass this. And then to say, I didn't know what it meant. So then it's definitely actually not that they're supposed to be considering sufficiency of the evidence at this point. But now it's proven the case. Because now you've misapplied the credits to all of these people because there's no standard and you know it. But when she is, that's how if she gave if she gave the credits, she had given this memo to a slew of people. I can't remember who it was across the city to give input on whether or not those individuals were in good standing. Correct? Yes. And there were eight different categories. And several of them, actually all of these, they predate COVID. So this was not intended ever to be an amnesty resolution. This was supposed to be people who were otherwise compliant. You have people dating back to 2019 not complying with the city. Some of them were fire and water compliance. But the fact of the matter is E-134, it says that the final decision is with the defendant. Now, you talked about the as-applied challenge. So isn't the resolution unconstitutional as-applied because the good standing was never defined by Jerry Winston when he testified? During the investigation, he said he never came across anything that would provide a definition. She had, Kilkelly, or again, he says Kilkelly could not have been aware of whether or not that compliance would lead to an indictment. So isn't it, so in other words, she never had a fair warning of this prohibitive law. Well, and ignorance of the law in general is no excuse, but the fact of the matter is, then why was she fraudulently giving, what she did then is gave these credits, credits, asked for permission to give these credits based on what she said was going to be a set standard so that she could then stamp her name on the approval on all of these credits to, you know, get favor with the electors. They'll be voting for her. What's the difference between fraudulently and erroneously or negligently? Well, I mean, that's going to be, honestly, that will be a question for the trier of fact at a trial. That's what that's for. We have cases all over the place that, you know, what is reckless conduct? What is being alarmed and disturbed? What is a reasonable person? What is a violation of an order of protection indirectly? Those are things that, that's for the jury. So did the nine of the people who voted to indict have probable cause here? One hundred percent if you look at the jury transcripts. So if you look at the jury transcripts, the grand jury transcripts, that's where you look on the seal. If you're going to say into the next step that you think there was some falsity here, then you have to, under the seal, which becomes dispositive for that, because it's not about the quality of the evidence. It's not about the sufficiency of the evidence. It's whether there was any probable cause. We don't think, you know, that the title is false. Everybody testified there was no specific way to get that title. There was no, we know that Martin Walker was no longer as of November of that year. And very importantly, you had, sorry, Mayor Taylor come in, and she said she took office May 4th, which is before the dates of these events. She absolutely testified she had no involvement in the decision making, that the defendant handled all of the responsibilities with respect to liquor licensing, and the defendant made all of the decisions as to who received and did not receive the credit. So if the defendant was in conjunction with all of the people in the city that she had asked to weigh in, that was not the testimony. That was not the testimony. Well, what, was she supposed to go out and talk with each of the parties that were supposed to, or that she gave the credits to, to get their definition of good standing? No, she reviewed, she asked to be submitted from the eight departments, and they came back. And they said, good standing, good standing, good standing. Not in good standing, not in good standing. It's plain as day. Right, right. And when you write off an email and you tell somebody it's going to be confidential, yikes, this is an alderman. Guess what? We're giving the credit anyway. Don't tell me that we couldn't prove, Now a jury would have to decide that she did it knowingly, that they were not entitled. Because you can't, this isn't a case where a legislator passed some ordinance that you had not even any involvement in. Even then, we have cases where issues of fact for the jury, like I said, what does it mean to be alarmed and disturbed? What does it mean to, all of those things. What benefit did she get from this? Political problems, for one. I'm in charge. I'm in charge of Whitaker. I get to decide, oh, please vote for me. And, you know, the city lost a lot of money. But if you look at these offenses, financial gain is absolutely not an element. I think with corruption, you used the word corruption a couple of times in your presentation. Sure. You're saying that this action, notwithstanding what she received, what she didn't receive, is just pure corruption. It's pure misapplication of funds and pure failure to follow the duties of your office. That's what the language of the statute, that's the elements. Even though she has gone, she's made the final decision. We get that because that's what this regulation or whatever it's called says. But she's doing it based upon information that she has otherwise received and she has considered as part of her responsibility. We have no idea until we have that jury trial to assess that issue. That's an issue of proof. That is not what is supposed to be decided at a motion to dismiss for failure to state an offense. And that's what this motion was. Real quickly, because if you don't mind, Justice, you had also issued, you were talking about with prejudice or without prejudice. She went to the trial court and you said, is this with or without prejudice? And she said, I did a 10-page order, go ahead and read it. Which, you know, that response made a lot of work for you and it's made a lot of work for us shortly at the appellate court. So an answer would be appreciated from trial judges in the future. In any event, why didn't you make a written motion, follow up with a written motion on that issue? Because before we even were offered any of that opportunity, the trial court said, it's clear. I'm not going to clarify. I'm not going to clarify a 10-page order. Then offer the date. The dates were going to be pending. We had to make decisions about whether or not to appeal, whether to file motions. But the court had already made it abundantly clear that somehow her order was clear, which I think everybody acknowledges is not. I think that time is up. Couldn't her response then to that be interpreted as it was dismissed with prejudice? It absolutely could have been. And if it was, that's error. And that's what we're asking to be reversed. You're asking us to determine whether it was with or without prejudice? No, no. We're asking is that you reinstate them actually completely, which would make that issue a low point because they'd be reinstated. If they're not reinstated, then yes, absolutely. Because even the judge said she wasn't deciding if this was reckless or not. And the CO leaves it open whether that has to be like misconduct. Defense repeatedly said nobody was accusing him of misconduct, their officer. And the other thing is this officer was not a local officer. He was an agent of the whole state assigned to root out the corruption in the casino bidding process, the liquor licensing, and that's what led to this. St. Alderman receiving a benefit that he should not have received. So it wasn't just her power that she was seeking. She was trying to give somebody else power. Sure, because if you're running and you're an elected official and you're stamping your name of look at me, look at me, look at me, I'm giving these great credits to you, you don't think that carries favor with the people voting for you? Especially if you know you're not supposed to be giving them. Why else would you be doing it? This was pretty much a political quagmire, was it not? And you just said the reason that they found out about this is because they were investigating some alderman about the gambling. Right, because defendant was in charge of liquor and gaming. Correct. I'm in charge of liquor and gaming, I'm in charge of liquor and gaming. Suddenly I had no idea. But they didn't come to come at Ms. Kilkelly. They discovered that when they were investigating. Well, I think that was true. We heard about this alderman who was the same alderman who was the owner of record of CYOC, who was the same alderman who got this credit and was referred to in the Yanks memo. Okay, thank you. Thank you. I have a few questions. Uh-huh. You said that this is misapplication of funds. Did I not hear you correctly? Yes, so those are the first, those are those five counts which the only issue that's preserved, and waiver is binding on this court as well, the only issue that's preserved is whether that would have to be under the public contracts bidding language. I used to be an assistant state's attorney representing the county officials who were burdened with tax collection. This was the final job, wasn't it? It was a very interesting job. And most of the tax objections that were filed related to the misapplication, the misidentification, the misallocation, the improper expenditure of funds. To my knowledge, I don't remember, and I was there for seven to ten years and beyond, because I basically kept my finger in the pot, so to speak, I don't ever remember anybody ever being charged with a crime for the misapplication of what was alleged to have been done or perpetrated or not done that should have been done by either an assessor or the board of review or the supervisor of assessments or the county clerk or the circuit clerk insofar as the prosecution and the application for judgment on delinquent taxes and personal property, et cetera. So my question to you is, and it's in part because of the question I was asking, I thought before, regarding the mixed question of law and fact. You said that this was an issue for the jury. And most of this case was decided on what the judge's interpretation was of the pleadings. And as such, I don't think that that is a question of fact. That's a question of law. If the judge decides that the pleadings state a cause of action, and then it goes to the jury to determine whether or not, assuming that the instructions are correct, that the facts that are required to establish the wreaths of the crime has in fact been proven by the proponent. In this particular case, I haven't been convinced that the issues of fact, which you've been alluding to, are actually issues of fact so much as they're issues of law. And I say that because in part the questions that pop up are, what is good standing? What is misapplication? Is misapplication an erroneous application but not criminal? Or is it an erroneous application that is criminal? Is it criminal because it's based upon absolute liability, or is it based upon improper mens rea? And so these are questions that arise in the process of determining whether or not the indictment was proper. Well, I mean, respectfully, what you're saying is because you've never before today seen this charge. But the plain language is what we need to look at. And the plain language controls. And the plain language is misapplying any funds. And any funds. I thought I tried to explain to you that the term misapplication has many permutations. And you're using the interpretation of misapplication as, in my opinion, absolute liability. Absolute criminal liability. Do you disagree with what my interpretation is? But there is no facial challenge to the misapplication of funds. There was not even an as-applied challenge. So if what you're saying is it's so vague that there can't possibly be anybody who commits misapplication, we know here that if we're going to look at a facial, which wasn't even raised, you have to say that it wouldn't be possible in any circumstances to ever apply this fairly. If we're going to look at as-applied, then we're going to have to look at the fact that she said, I'm going to give these credits to businesses in good standing. So what did she mean? How did she propose an ordinance or, I'm sorry, a resolution that she is now saying is so vague she had no idea what it meant? Part of the problem I'm having with this case is the idea that she misapplicated funds, okay? If this was criminal, how did it come about or how did it arise? And if it arose based upon the fact that the mayor and the village board or city board, whatever it is, decides that they've settled her with the problem of resolving this problem, is she now a criminal because she supposedly did it wrong? I wouldn't say so. This was, look at me, I have this power, I'm going to use it, I'm going to exercise it, my office is going to approve these credits, my office is going to decide. That's her being saddled. And in fact, when the budget was being taken away, there were complaints. Okay, is the crime being committed that what you've just said was false? And it was intentionally false? And it was fraudulently false? She was attempting to defraud where you served? That would be a question for the jury. Or our judge was a trier of fact. That's not going to be a matter of law, just like we would decide what it meant to knowing we do something. Well, I think I'm done asking questions because I'm not seeing a light at the end of the tunnel. All I see is more darkness, actually. But I may have other questions at the end of your final argument. I understand. Thank you. Excuse me, I'm getting over a cold. Mr. Vincent? Vincent Price, I remember him. You may proceed. Thank you. May it please the Court, Joshua Vincent on behalf of the defendant appellee, Janet Kilkelly. This appeal should be affirmed. Could you speak up, please? Pull it up just a bit. This appeal should be affirmed. The indictment was properly dismissed for two independent alternative reasons. One is that the COVID relief ordinance that we're talking about here is unconstitutionally vague. It did not provide fair notice at all as to what conduct was criminalized. And it invited arbitrary and discriminatory enforcement because the operative eligibility term here, in good standing, was completely undefined and left to these ad hoc interpretations. There was a memo, and I think it's pretty clear, this memo that this teen-op woman wrote. And she really laid out what in good standing was. Now, I appreciate that the attorney for the village said I never defined good standing, but somebody in this office, this teen-op woman, had it laid out as to what good standing was. Didn't she? Well, you have to read that whole thread, okay? The January 6th thread actually starts with an email from the, I think he was the director of operations at the time of the city, Thomas Villard. And he says that it doesn't include all the things that Tina Smigielski says, the question of a good standing. So what that email thread actually does, it doesn't support the state's case at all. It completely undermines it because it demonstrates that there was absolutely no agreement or consensus among any of the stakeholders that were involved in this process as to what it meant. In fact, when you go through this record, you can see that you can come up with six different interpretations of what in good standing meant. You've got Bob Long, the city corporation counsel. This is the guy who drafted the ordinance. He admitted that he probably should have defined it and did not. But he said, you know, if it were up to me, I think it means that you have a license that has not lapsed or has been revoked or suspended. That's it. Now, that's completely different than the theory on which the state is proceeding here. And then if you look at Mayor Cunningham's testimony, he said, I don't know what it meant. All I know is that the purpose of this was to help the businesses that suffered during the pandemic. And we're talking about bars and restaurants here. I mean, there was probably nobody who was hurt more during that period of lockdowns than the bars and restaurants. He said the purpose is to help them. They've gone through a terrible financial hardship. And, you know, if they earned a small fine or, you know, they didn't have a bill paid or a tax paid, or maybe they didn't go through enough, that's not going to disqualify them. That was his position. But what was inaccurate or misleading about Jurgensen's grand jury testimony related to good standing? He made it up. He explained that the resolution in Kilkelly's memo to each department requesting feedback on good standing. And he testified that none of the businesses were in good standing. He made that standard up, okay, because each one of the spreadsheets had eight categories on it where somebody could check off in good standing, not good standing, and give an explanation. All right? Two categories were unmarked, not applicable. All right? And the other six, you know, fire, police, food and beverage. We talked about the disagreement between the director of operations and the finance chief about whether that should even be on there. And so what is the defendant left with to go by? You know, Jurgensen decided it's all or nothing. Right. He's not a judge. But was he, was the state required to present to the grand jury exculpatory evidence as to good standing? No. What the state was obligated to do was to present the grand jury with an objective standard by which in good standing could be measured, not one made up by the investigator. I mean, as Justice McClaren pointed out, the question here about in good standing is not a fact question. That is a question of law. Okay? You argue in your brief that good standing is a question of law. Yes. But isn't it a determination whether good standing is ambiguous or whether extrinsic evidence is needed in order to define good standing? Isn't that better suited for summary judgment after you've had an opportunity to do some discovery and present some? No. Judges don't sit and do jury instruction conferences based on summary judgment motions. Okay? And that's the question. Mr. Morrison and I were preparing for this argument today. That was the key thing that we said to each other was, you know, how do we instruct the jury in this case? I mean, I'd like to know how Ms. Lee would answer that question because you can't come up with a jury instruction that would tell the fact finder what objective standard in good standing means. It can't be decided on the basis of five or six people coming up and testifying as to what they think it means and then the jury decides what it means and whether it was violated or not. That stands the law in its head. Because the whole point of good standing... Are you saying that this person is either guilty or innocent based upon what the jury determines is the definition of good faith? That's what it cannot be. It cannot be that. This is an unconstitutionally vague standard. It is completely undefined. Is it on its face or as a plot? As a plot. I mean, actually, I think, you know, there's enough fair argument to be made that it could be even on its face. I mean, take a look at it from the standpoint of the businesses who are affected. If you deny it... What is your definition of misapplied? Well, you can only define that here, excuse me, through reference to the underlying statute that anchors the criminal act here. Well, is the jury going to make that determination as well, whether or not misapplication is a crime? Only if you can first define what in good standing is, because you can only misapply the credits if the business was not in good standing. And so absent that definition of what in good standing means, you can't, like I said, you can't even instruct the jury on it. So the jury has to determine what good faith is, and based upon what good faith is, whether or not there was a misapplication. And then does the jury decide whether or not it was based upon a criminal intent or mere negligence or mere ignorance or the fact that she got up on the wrong side of the bed? Right. That's the state's theory, and that's what's fundamentally wrong with the state's entire theory of this case, is that the jury does not decide those questions. The jury has to be instructed on the benchmark standard of what in good standing meant. And the state can't define it. I haven't heard one definition of it here other than the one that Inspector Jurgensen came up with out of thin air, and he admitted it. Was this a resolution or an ordinance? How is this approved or passed by the village? It was proposed by the mayor and the city clerk, and it was voted on by the aldermen and approved all in one session in one day, with absolutely no discussion, by the way, of what in good standing meant. Mayor Taylor said that. Let's talk about, get away from the good standing. I mean, let's talk about that grand jury testimony. Even though Kilkelly was not appointed as the deputy commissioner, why was Jurgensen's grand jury testimony that she was the one that approved the credits, not sufficient to support the charge of official misconduct? Because it misled the jury on the issue of her knowledge of what in good standing meant. And when you attribute to her that title that she did not hold, that she was in charge of issuing and approving liquor licenses, that she was in charge of the whole process, because she held the title deputy liquor commissioner, which was undisputably false, you are supplying the knowledge element that is missing here, and that's false. And weren't there other ample indications that she was responsible for approving the credits? Not insofar as the grand jury was concerned. All the grand jury heard was Jurgensen's testimony that she was deputy liquor control commissioner and in charge of the entire thing, when, in fact, the evidence shows that it was anything but that, as the court has already recognized during this argument. But even if she wasn't deputy commissioner, who else was approving these credits besides her? Mayor Cunningham testified that Ms. Kilkelly came up with a process to basically survey the six to eight different city departments to get their feedback on that, and that ultimately, and this is not 100% clear from his testimony, but I think it's around page 191 of the record, where he explains that it was a discretionary call on her part based on weighing these various factors to make a recommendation, which I would interpret the testimony that he gave to mean that he was the one who gave final approval to whether these were awarded or not, because he was the mayor and he was the liquor control commissioner. But it's a little squishy there, I will say that. I think the problem was, sort of as Justice McClaren pointed out, you know, nobody really knew what it meant, so they just kind of left it to Ms. Kilkelly to try and figure it out. And, of course, now she's sort of being hoisted by her own catarct, because she's the one who came up with a process to do it, and because an agent for the state police comes in and says he disagrees, it should have been all or nothing. You either satisfied every single category or you didn't, and then it's a violation of the law, and she decided in her discretion that on balance and based upon the purpose of the ordinance, as Mayor Cunningham explained, you know, this was what was fair. This was what was reasonable. You didn't have to check every box. You only had to check some, because the purpose was to provide some financial relief. Isn't it conceivable that at this particular time, and you brought this up early in your argument, this is a very difficult time, businesses are going out of business, bars, restaurants especially. Yep. Isn't it conceivable that in her mind or in the spirit of this regulation, in good standing meant that they were licensed, and if the circumstances created a situation where they did not have the money to license, couldn't she have still considered them to be in good standing and give them credit so they could get their licenses? Yes. Yeah. I mean, this was the consensus that you hear from the testimony of Mayor Cunningham, from the city attorney, Mr. Long, who drafted the ordinance. That was in the whereas clauses throughout the ordinance itself. It explains that purpose. So, yes, the answer to your question is yes. You know, I think on the ‑‑ you know, I do want to stress that, you know, the People v. Manus case on the unconstitutionality issue and the vagueness issue almost fits this case like to a tee. You know, that involved the Child Endangerment Act, and the statute said, you know, that a parent or a guardian had to take reasonable steps to prevent, you know, a minor female from being sexually assaulted by a male who was less than five years her senior. And the court said, what does reasonable steps mean? You know, do you just tell them to stop? Do you call the parents? There's absolutely no guidance whatsoever, and that's the exact same circumstance that we have presented with here, is there's just no guidance. Is it three boxes are checked, two boxes are checked, all five? Well, but isn't a vagueness challenge more appropriate for summary judgment after each party has had the opportunity to present in its full case? No. A question of unconstitutionality is a question of law, and that does not require any fact-finding whatsoever, especially on this record. But how do we resolve an as-applied challenge which is fact-specific at the pretrial stage? Well, in this case, all the facts that you need here are undisputed. I mean, there's no disputed facts here about what occurred, and there's no dispute as to what the ordinance said. It said in good standing, and that is just completely undefined. I mean, what you can see from the record, as I said before, is, you know, you have Long's testimony, which said one thing. You have Cunningham's testimony, which says another. You have the disagreement among everybody in the January 6th e-mail thread that the state relies upon so heavily. You have a section of the ordinance itself that says you couldn't qualify for the credits if you didn't follow the governor's and the mayor's orders for mitigating the spread of COVID. That could be yet another basis for determining. And then you've got Jorgensen's statement. And then you've got Tina's memo. Yes, who says count food and beverage. Mayard says you don't count food and beverage. I mean, there's no way for anyone to know when they've crossed the line from acting in good faith to acting in a criminal manner, and that's the definition of an unconstitutionally vague statute. None of that's in dispute. There's no fact-finding to be done. It's plain on the face. You cannot come up with an objective standard. There's no way to instruct the jury on that issue. Mr. Counsel, you said that an ordinance was passed? Yes. And after the ordinance was passed, was there any post-approval or ratification of the downstream effects of what that ordinance was that was passed? None that I saw on the record, no. Would it have been more appropriate if, after the ordinance was passed, a document was presented indicating what entities or businesses were in good standing and then have the board or whatever the constituted members would vote on it and pass an ordinance granting the release based upon the list that was submitted to them for a vote of approval? I suppose that that could have been another method of doing it. Well, would it have, if they had done it that way, would it then have removed the defendant from the process that allegedly was an act of official misconduct? I think that would have, yes. Okay. Any other questions? No, not for me. Eric? I have nothing further. Thank you. Okay. Thank you, sir. May I ask that you affirm the judgment? Thank you, Your Honors. There's a motion that we haven't resolved. I believe it's a motion to cite additional persuasive authority. I believe you filed it. Mr. Lee? We withdraw our objection. Pardon? We withdraw our objection. Okay. Thank you. Yeah, my understanding was it was going to be taken with the case, so I wasn't planning to discuss that. I would like to, I'm happy to, but I would like to respond to a few things here. It will be taken with the case. Okay. The, I don't know how we've suddenly gotten to an unconstitutional, on-his-face challenge of the misapplication of funds, which was never even raised below. We have, you know, examples that were just given about, you know, in the child custody or child care. We also have what's a mandated reporter? What does neglect mean? What does abuse mean? Those are all things that we have in these statutes, and courts do their best to hone them in and define them as best they can, but number one, again, there was never a challenge here on its face, and Your Honor is actually absolutely correct. You're raising a fundamental question of law, and that is that does the record reflect sufficient specificity that avoids the problem of the vagaries of the case to the extent that something is so vague that we can't resolve the problem, and we therefore either affirm or just dismiss the case, because there are instances where the record is so defective, so insufficient, that we can't rule on the merits. But what you're talking about is, and have to remember, we're supposed to go back to the grand jury testimony. Did it meet the elements? Did it state a cause of action? It stated a cause of action for two different offenses, one of which was misapplication of funds. The description has to give notice so that the defendant could go to trial on that and be tried as to whether she, in fact, misapplied any funds. If what she did is deliberately proposed vague ordinance that can't possibly be enforced, then she's misapplied all of the credits because none of them were valid, if that's the theory. Are you submitting that that grand jury questioning was sufficient for a true bill? Yes. The grand jury questioning was sufficient to give probable cause under the seal. Absolutely. And what it said is that she had final authority. The grand jury didn't know by any testimony they had received what good standing meant, correct? They knew what they were told in pages 9 to 14. They were told that for CYOC their food and beverage wasn't in good standing because they hadn't paid or filed taxes since 2019 and that their business license was not in good standing because of unpaid invoices. They were told that Lifestore Star Bakelits had no proper approval from the fire department, no proper approval from the water department, was not current on its food and beverage taxes and she approved it anyway. They also heard that the Isfah-Del-Mar No. 2 owed food and beverage taxes dating back to 2019. Did they hear whether or not there was a definition adopted by the village or the city? They heard that the memos went around and they, that's my recollection, is they heard that they were given the categories and they received the results and the results said on them not in good standing in these specific areas or good standing. They heard that the vast majority were not in good standing and, in fact, if the defendant didn't know, again, what good standing is, she's misapplied all of the funds because she shouldn't have been enforcing or giving credits to anybody if there was no way to determine and instead you asked about post-ordinance, post-ordinance. How did the defendant have the authority to commit the acts that are allegedly a crime? Because the mayors gave her that authority. Mayor Taylor specifically said... Does that then mean that the mayor is guilty of a crime for giving her the authority that she supposedly isn't supposed to have? Nothing says she can't have that authority. The testimony at the evidentiary hearing was that anybody can serve in that position. And that there's no formal proceedings to do so. And it was not Martin Walker. Is it a question of fact or law whether or not she has the authority or whether it was necessary for the village to actually pass an ordinance or at least take official action and vote and pass it by either a majority or at least the sufficient vote of a quorum? If you're costing the city $118,000 in funds that they should have received, absolutely. I have a quick question. Go ahead. Mr. Vincent withdrew his objection to the motion, so therefore I think we don't have to take with the case we can grant. Which motion? Her motion to cite additional... I thought you indicated you had no problem. Did I misunderstand? No, you're right. I'm happy to address or not. I'm willing to ask you to address it. I mean, you raised Turek. And I think it was because of the knowing portion of it, but I'm still trying to figure out how Turek that we decided, I appreciate we decided it after you filed your brief, but wasn't this the status of the law long before Turek? I mean, we didn't make this new law, did we? Right, right. And I think what it did is it clarified in a certain way the idea of surplusage. Surplusage really isn't an issue here. If you're following the seal, then we don't really care. We care if we've met the elements. This, again, you know, the whole dish has gone above and beyond, as I said. We are now dealing with a proof as if there was a trial here. So if there's a trial, then yes, you'd have to look at did it matter. I was actually considering it more in the light of did she have this title or not. What Turek discusses is the idea of when something is an element and when it is not. And, you know, whether she had the title, whether she didn't, it's not going to, in the end, be an element of the offense. Why is it not an element of the 33E with the public contract? I mean, how… Well, that one didn't even allege that title. So the only ones that alleged the title were the official misconduct. And all that she had to be for that was a, I believe it's a public officer. So is she a public officer with or without that title? Do we think it's false? Because if you look at the testimony at the evidentiary hearing, it was very clear that there's no set method to give somebody that title. So if somebody walks into a doctor's office and they don't introduce themselves as doctor, are they still going to be the one in the room? It's performing that authority, sometimes with a title, sometimes without. She clearly said she had final authority. She told him that. And then she later wrote to officials and said, I no longer have that authority. So she was sure that she had it. And you asked about post-resolution communications. January 6th, 2021, there was a whole bunch of correspondence going through, oh, I think we have developed a good working procedure for deciding this. The key will be qualifying. That's from the defendant. Any other questions? Thank you. We would ask to reverse. Thank you. Very interesting case. We'll take a short recess. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A101875. Public record. Not legal advice.