Condo HOA lawyer says her client may continue fight against free speech

By Deborah Goonan, Independent American Communities

Some militant HOA-industry attorneys never cease to amaze. Take, for example, recent public statements made by Attorney Diane Silverberg, of Illinois condo association law firm, Kovitz, Shifrin, & Nesbit.

According to Silverberg, and in contradiction to a recent Illinois Appellate ruling against her client, 111 East Chestnut Condominium Association, condo owners should not be entitled to free speech rights to criticize their condo board or management agent.

As quoted in a Loop North News article written by Steven Dahlman earlier this month, Silverberg laments:

“In the legislature’s warranted haste to address religious discrimination and rights to be free from it under the First Amendment, the legislature seems unintentionally to have created ‘new’ First Amendment ‘rights’ to include protections which neither the U.S. nor State Constitutionals (sic) guarantee when non-state actors like condominiums or their board members are involved,” said Silverberg.

Well, dang the Illinois state Legislature for acknowledging and clarifying an American condo resident’s rights to free speech!

Whatever possessed them?!?

But seriously, this is not a joke — even though the preposterous statement resembles content you might read in a tongue-in-cheek article from The Onion.

Silverberg and many other community association attorneys — many of them active members in the trade group, Community Associations Institute (CAI) — cling to the absurd argument that owners and residents in HOA-governed communities should not expect their Association to be constrained by our U.S. or state Constitutions.

In their twisted legal wisdom, as a member, you merely have the “right” to “contractually agree” to  the Association’s governing documents.

Never mind that the terms of homeowners, condominium, and cooperative association Declarations and Bylaws are blatantly one-sided and often unconstitutional to the core. The HOA-industry says that if you buy property in the Association, BOOM!, you’ve agreed to give up your First Amendment rights as soon as you enter your HOA-governed community.

 

 

HOAs are “private” organizations

What’s at the heart of HOA-industry attorneys’ legal fight for oppressive authority over your First Amendment rights?

According to several prominent community associations attorneys, homeowners, condo, and residential co-op associations are private organizations, not government entities. They argue that Constitutional constraints only apply to your interactions with government, not your association-governing board.

Of course, that’s just their legal opinion. But let’s not lose sight of the fact that limiting speech and punishing those who criticize the HOA board benefits a community association attorney’s clients.

 

HOAs are comparable to governments, serve as state actors

As previously noted in an earlier post on Connolly v. 111 East Chestnut condo lawsuit, Attorney Norm Lerum, who has represented Connolly and other homeowners in legal disputes against their association-governed communities, sees things much differently.

Lerum points out that condo board actions are both granted and limited by the Illinois Condominium Act.

“In Illinois, a Condominium Declaration cannot be inconsistent with statute,” says Lerum. Therefore, a condo associations are governed by a “mix of statutory and contract law.”

In Lerum’s view, since condominium associations are “creatures of statute,” and not private Country Clubs, a condo board is a state actor, and should be held to a higher standard of accountability.

Lerum compares a voluntary membership private club to a condo association. “Because the relationship is purely contractual, a Country Club can enact and enforce all sorts of strict membership rules, and enforce rules of conduct. If a Club member says something that offends other members, the Club can terminate a membership. And the former Club members can’t do anything about it.”

“But,” as Lerum explains, “In a condo association, contract law gives way to the Illinois Condominium Statute. The condo document – the contract – is not the final word.” According to statute, condo boards cannot enact and enforce restrictions and rules in the Association that would interfere with First Amendment rights of its members.

“CAI would like the statute to apply just to religious rights,” says Norm Lerum, “but legislative intent says ‘First Amendment rights.’”

 

HOA attorney viewpoint inconsistencies?

To put Silverberg’s remarks into perspective, it’s important to highlight her case history.

In Spanish Court Two Condo. Ass’n v. Carlson, 2014 IL 115342 (2014), Silverberg argued before the Illinois Supreme Court that the owner of a condominium has a legal obligation to pay assessments, regardless of the condo association’s failure to fulfill its duties to maintain the common elements.

In her argument, as reported in several publications, including an article in the Chicago Tribune, Silverberg compared condo assessment to taxes, not rent. She explained that a condo owner is a member of the association, and must be compelled to pay assessments and fees, just as citizens are compelled to pay taxes.

Now, think about that for a moment.

Other than association-governing entities, can you name even one other “private” non-governmental organization that has the authority to collect taxes?

The answer is NO, you cannot. Because, under U.S. law, only governments have the power to tax.

What better evidence that condo associations are state actors, if not quasi-governments?

Nevertheless, Silverberg’s legal strategy worked.

In Spanish Court (2014), the Illinois Supreme Court agreed with Silverberg’s argument, but just barely, in a 4-3 decision that was celebrated by CAI. The trade group had filed an amicus (Friend of the Court) brief on behalf of Spanish Court Two Condo Association.

Lerum represented the condo unit owner, Lisa Carlson, in that high-profile case.

 

Court opinions shifting toward rights of owners

Four years later, in June of 2018, Silverberg lost another groundbreaking case, where Lerum served as counsel for the Plaintiff-homeowner: Michael Boucher vs. 111 East Chestnut Condominium Association, Inc. and its board of directors.

In Boucher, by a 3 -1 decision, Illinois Appellate Court (First District, Second Division) overturned a Cook County Circuit Court ruling against a condominium owner, and issued a court Opinion that acknowledges First Amendment rights of residents in condo associations.

Then in March of this year, in Brian Connolly v.  Anthony Milazzo, Mike Fish, Serap Brush, and Glenn Greene, the Appellate Court of Illinois ruled 4-0 in favor of Connolly, in an unpublished opinion, citing Boucher as precedent.

 

Sour grapes?

One can only speculate as to Silverberg’s state of mind as she made the following statements to Loop North News:

“We have confidence that the tide is turning against those who cause the dissipation of association assets, disrupt the condominium community, and tie up the courts in needless and expensive litigation,” said Silverberg.

Silverberg also told Loop North News that the court left the door open for future sanction against Connolly and Lerum. Despite the Appellate Court’s clear opinion on upholding First Amendment rights of condominium owners, the community association attorney insists that some lawsuit filings against 111 East Chestnut were ‘frivolous.’

As justification for the possibility of taking another crack at hitting Connolly and Lerum with sanctions, Silverberg cites recent decision by Cook County Circuit Judge Margaret Brennan in 1618 Sheridan Rd. Condominium Association v. Marshall Spiegel.

In that case, Judge Brennan awarded more than $1 million in attorney fees to the condo association in Wilmette, payable by Marshall Spiegel and his attorney, John Xydakis. According to a report in the Chicago Tribune, Spiegel and his attorney filed over 60 lawsuits against his condo association, most of them ‘frivolous’ or ‘harassing.’

But I’d say that’s no comparison to a condo owner who filed one case asserting his First Amendment right to freely criticize his condo board. ♦

 

References:

Condo board may get back into fight against unit owner at center of free speech issue Loop North News, By Steven Dahlman, 22-Apr-19

Wilmette man, attorney ordered to pay more than $1 million in legal dispute with condo association Elvia Malagon, Chicago Tribune, April 12, 2019 5:55 PM

Court rules in favor of association in assessment case
By Pamela Dittmer McKuen, Chicago Tribune, March 30, 2014