22-Apr-19 – Fined for being, he says, an “outspoken critic” of his condo board, a Gold Coast unit owner’s legal journey may not be over.

Brian Connolly’s lawsuit against 111 East Chestnut Street Condominium Association, trying to recover the fines, was dismissed in 2014 but on March 29, 2019, the Appellate Court of Illinois reversed the dismissal and allowed the case to move forward.

Whether that will happen is up to the condo association. Reached last week, the association’s attorney says they are “evaluating all options open to them for possible appeal.”

“The volunteer board members and the association itself naturally are disappointed that the appellate court has revived what they believe is a baseless claim brought by a single condominium unit owner plaintiff,” said Diane Silverberg (left), a principal of Kovitz Shifrin Nesbit.

Silverberg questions a section of the Illinois Condominium Property Act that prevents a condo association from having a rule or regulation that “may impair any rights guaranteed by the First Amendment to the Constitution of the United States or Section 4 of Article I of the Illinois Constitution.”

Whether this includes freedom of speech is, ironically, up for debate.

The First Amendment prohibits the government from abridging freedom of speech, but can a condominium association suppress unit owners from expressing opinions about how the association is managed?

“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 guarantee when non-state actors like condominiums or their board members are involved,” said Silverberg.

Connolly’s attorney, Norman Lerum, says, however, that while you do not need to prove condo boards are an extension of the government, it might be fair to call them state actors.

“Board members [are] not in charge of a private country club,” says Lerum (right). “They only act because a state statute gives them authority to act. Somebody who sits in that chair and...has the authority to receive assessments, make budgets, spend money...hire and fire management companies...get into people’s condominium units as a matter of right when they want to invade their privacy and do a whole host of things, can only do those things because they’re cloaked with state authority.”

Were fines for bad behavior or criticism of board?

Connolly filed his lawsuit in Cook County Circuit Court in 2013 against the president of his condo board, Anthony Milazzo, and six directors after Connolly was fined $1,000 for what the board said was “erratic and intimidating behavior.”

Alleged incidents included telling residents that food was not allowed in the pool area, telling a young resident he could not bring his bicycle into a passenger elevator, confronting a resident who walked her dog through the building’s main entrance, and disconnecting a resident’s iPod when they did not turn down the music volume.

Connolly said the fines, however, were retaliation by his condo board for his criticism of how it is managed. In reversing dismissal of the complaint, the appellate court said Connolly did “sufficiently plead” violations by the association of the Illinois Condominium Property Act.

Silverberg says the appellate order also keeps alive the possibility of sanctions against Connolly and Lerum. Saying some filings in the lawsuit were frivolous, the lower court had imposed $42,000 in sanctions against Lerum, which he paid, but that has since been refunded, pending a hearing to examine evidence.

Silverberg points to a recent decision by Cook County Circuit Judge Margaret Brennan to award more than $1 million in attorney fees to a condominium association in Wilmette, Illinois. Marshall Spiegel and his attorney, John Xydakis, have been ordered to pay $1,061,672.97 by May 1 after Brennan found they had filed “frivolous” and “harassing” lawsuits against the association located at 1618 Sheridan Road.

“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.