Boucher v 111 E Chestnut Ruling was filed June 14, 2018.
By Deborah Goonan, Independent American Communities
The attorney for defendants in Michael Boucher v. 111 E. Chestnut Condominium Association has filed an appeal to Illinois Supreme Court, asking for a reversal of the Appellate Court Opinion in favor of the Plaintiff.
Diane Silverberg, attorney of Kovitz, Shifrin, and Nesbit law firm, argues that, on several legal points, the Appellate court erred in its judgment in favor of free speech and due process rights of condo owner Michael Boucher. Silverberg argues:
- That the condominium association is a private organization; that the relationship between the association and its members is merely contractual, and that, in the absence of state action, the lower court’s ruling in favor of the association should stand.
- That the videotape of Boucher’s closed meeting hearing with the association does not serve as “minutes” of the meeting; that the videotape and any written complaints against Boucher made by staff and management should remain confidential, in order to uphold attorney-client privilege and “preserve the dignity of the owner.” That the court’s ruling that minutes must be provided for closed meetings threatens confidentiality and the “necessarily destroys attorney-client privilege.”
- That condo boards are mandated by state law to enforce rules by levy of fines, after notice and an opportunity to be heard; that due process in the condominium setting need not be elevated to the standards of the Sixth Amendment of the U.S. Constitution — ie. That it should not be necessary to present the accused violator with all of the evidence against him, and that the hearing in a condo association provides adequate due process merely by allowing the accused to state objections to the proposed fine or sanction.
- That the court should not interfere in the self-governance process, and should defer to the board’s judgment. If the State continues to question the judgment of a condo board, then the board will shy away from their duty to enforce restrictions and rules, putting the association at risk for litigation from owners who expect strict enforcement.
- That board members of 111 E. Chestnut should not be held personally accountable for their decision not to release the videotape of the hearing to Boucher, because the board based its decision on the advice of their Counsel (Silverberg). The business judgment rule should apply, as well as exculpatory clauses in the Declarations.
- That the Defendant has already provided ample evidence of the Plaintiff’s “obnoxious” behavior to the court, and that the Defendant failed to answer these complaints, thereby creating a presumption of guilt. The Appeal goes on to describe Boucher’s alleged obnoxious behavior. The Defendant’s “evidence” provided to the court (but not to Boucher or his attorney) consists of an elevator videotape without audio, and statements from the accusers and witnesses.
The psychological projection of an HOA’s abusive conduct onto its residents
In summary, a reading of Silverberg’s plea for Supreme Court reversal regurgitates the same, tired old defenses for board members of association-governed communities: Being a board member is a “thankless job,” the court has no business in making judgment on the nature of internal disputes. The Court’s second guessing association board decisions will make it even more difficult to recruit members willing to serve on their condo (or HOA) board, and allow disobedient owners and residents to behave badly without consequence, even to the point of bullying and harassing their fellow owners, board members, employees and staff.
Portions of Silverberg’s pleading are textbook examples of psychological projection, which is defined as follows:
Psychological projection is a theory in psychology in which the human ego defends itself against unconscious impulses or qualities (both positive and negative) by denying their existence in themselves while attributing them to others. For example, a person who is habitually rude may constantly accuse other people of being rude. It incorporates blame shifting.
See also, this definition of neurotic projection:
- Neurotic projection is the most common variety of projection and most clearly meets the definition of defense mechanism. In this type of projection, people may attribute feelings, motives, or attitudes they find unacceptable in themselves to someone else.
In a condominium environment, where residents share living space and financial liabilities, conflict is not unexpected.
However, without concrete evidence or a chance to directly address the members filing a complaint, the internal “notice and opportunity to be heard” process usually amounts to nothing more than the board — or one of its appointed committees — hurling accusations against the owner/member, without any meaningful opportunity for the accused violator to explain or defend his or her actions or inactions.
Without an equal playing field, without meaningful due process, nothing stands in the way of a board’s tendency to shift blame from the Association’s officers and agents, to the outspoken member.
There is an unwritten presumption that the accused is guilty unless proven innocent.
Why can’t the Court stick with the status quo?
Sliverberg also laments the fact that the Appellate Court Opinion has failed to follow the status quo of previous legal decisions. But, if the courts were to never engage in reanalysis of previous case law, reflexively deferring to one side of a controversy forever into the future, then there would be no trajectory toward the pursuit of justice.
Imagine the state of affairs in this nation if the Courts of today still upheld the “separate but equal doctrine” or the exclusive right of landowners to vote in elections.
These once revered legal and philosophical ideals no longer apply at the local, state, and federal levels of government.
However… in many respects, at the hyper-local level of governance, association-governed communities, through the modern corporate language of their Declarations, have created unofficial second and third class citizenship for owners and non-owner residents of association-governed communities.
After all, thanks to decades of word parsing and aggressive lobbying by Community Associations Institute’s elite class of attorneys, millions of Americans now reside in “contractual” communities, under privatized local governance, characterized by a separate realm where the industry trade group effectively claims that The Bill of Rights Need Not Apply.
Related: How HOAs defy the Constitution
For decades, CAI attorneys like Silverberg, have insisted that housing consumers have “agreed” — albeit under false pretenses and without explicit knowledge and consent — to compromise their Constitutional rights in exchange for the supposed “privilege” of living in a common interest community, where the association corporation may provide certain desirable amenities and perks, will handle some of the laborious maintenance tasks that owners would rather not do, and will see to it that idyllic, arbitrary standards of cleanliness, attractiveness, and security are upheld. And, mind you, this is for your own good, whether you like it or not!
Those presumably noble goals, the industry trade group claims, provide ample justification for the erosion of one’s private property and civil rights.
Reply from Boucher’s attorney
Norman J. Lerum’s reply to Silverberg’s appeal to the Illinois Supreme Court also deserves to be highlighted.
Lerum’s counterpoints are:
- That “state action” is not a prerequisite for protection of First Amendment/Free Speech rights in a condo association. This is spelled out in the Illinois Condominium Property Act and supported by ample case law, including Spanish Court II Condominium Association v. Lisa Carlson. In Illinois, the condominium association is a creature of Statute, not merely a private contractual relationship.
- Furthermore, the Plaintiff provided plenty of evidence to the Court that the board’s actions were retaliatory in nature, and in response to Boucher’s criticism of Association policies and practice. On the contrary, the Association failed to provide clear evidence of the violations lodged against Boucher, resulting in the Appellate Court’s judgment in favor of the Plaintiff.
- Illinois Statute clearly states that a condo association must keep minutes of all meetings, without exception, and, in this instance, the audio-video tape of the hearing served as minutes of the closed meeting.
- Attorney-client privilege does not apply to the hearing, since third parties (Attorney Lerum) were invited to attend the closed meeting. To put the matter in context, attorney-client privilege is still upheld with regard to the association’s right to withhold information directly related to threatened or pending litigation.
- Lerum poses the following questions: “Is it contrary to Illinois public policy to require condominium managers and/or directors to be honest and transparent with unit owners when they wish to penalize or fine unit owners? Will honesty and good faith deter people from holding positions on condominium boards? Will honesty and good faith impair the administration of condominium associations?”
- The Appellate Court appropriately recognized its duty to examine the case on its own merits, rather than to blindly defer to decisions of the condo board by way of the business judgment rule and exculpatory clauses. The Defendants’ breach of fiduciary duty amounts to constructive fraud. And business judgment rule does not apply when a fiduciary neglects to be fully informed prior to rendering a decision.
- In the course of discovery, Lerum states specific examples of the board’s failure to review written statements and the elevator video tape that served as the basis for the violation notice. He also notes that there was no personal communication with Boucher or the management employees involved in the incidents that preceded the violation notice.
- Furthermore, the Defendant provided no evidence that they relied on the advice of legal Counsel prior to making decisions.
Lerum concludes his reply as follows:
It should also be noted that 3 of the 7 board member Defendants are not named as Petitioners in this Appeal to the Supreme Court.
Given the facts and arguments presented in this case, it seems unlikely that the Illinois Supreme Court will consider Silverberg’s appeal on behalf of 111 East Chestnut Condominium Association.
Stay tuned for future updates.
Defendant’s Petition to Leave for Appeal
Plaintiff’s Answer to Petition for Leave to Appeal