13-Aug-18 – Fined for expressing opinions about his condo board, a unit owner successfully sued his condo association but now the Supreme Court of Illinois is being asked to reconsider the ruling.

Michael Boucher sued 111 East Chestnut Condominium Association and seven of its board members after they imposed a $500 fine against him for allegedly violating condo rules that prohibit “obnoxious or offensive activity within the association.” Boucher (left) is a restaurateur who once owned Smokin’ Woody’s, a barbecue restaurant in the North Center neighborhood of Chicago.

Complaints against Boucher, many of which he has denied, include calling a female doorperson a “cocky bitch,” a black unit owner a “ghetto dog,” and a condo board president of Italian heritage a “dago.”

Boucher paid the fine but sued the condo association in November 2013, saying he was penalized by the board in retaliation for expressing his opinions about management practices. The trial court sided with the condo association, but the Appellate Court of Illinois on June 14 agreed with Boucher.

In her petition asking the Supreme Court to now reconsider the appellate ruling, Diane Silverberg (right), a principal of Kovitz Shifrin Nesbit, says Boucher’s constitutional rights to free speech were not violated, as he claimed, because there was no “state action,” or activity by the government that violated his civil rights.

The relationship between a condo association and its owners, she says, is “contractual, formalized in reasonable covenants,” and not a forum for “facilitating academic discourse.”

The appellate ruling, she says, would be unfair to unit owners who choose to live in an association with an enforceable code of conduct.

“If left to stand, the [ruling] will enfeeble boards to the point where even good boards, such as that comprised of [the defendants], may shirk from the statutorily mandated enforcement of its governing documents to enforce rule violations,” wrote Silverberg.

In his response, Boucher’s attorney, Norman Lerum, points out the Illinois Condominium Property Act prohibits condo boards from adopting or enforcing any rule that impairs rights guaranteed by the First Amendment, such as exercise of religion, freedom of speech, or right to peaceably assemble.

“The ‘state action’ requirement urged by the defendants is a false issue designed to be a nullification defense to a unit owner’s statutory action,” wrote Lerum (left). “The Illinois legislature enacted the statutory provision to prohibit condominium boards from unduly restricting speech or activities protected by the First Amendment of the United States Constitution or Section 4 of the Illinois Constitution.”

He says the complaints against Boucher “are without support in the record.” Board members, he claims, did not speak with Boucher before fining him – or management employees making the allegations against him – or even review their written statements.

“He continued to pay his assessments, paid his fines so as not to be evicted, and sought his remedy in court as prescribed by this Court,” wrote Lerum about his client. “In fact, [Boucher] also followed this Court’s recommendation to become involved in the political process. Unfortunately, his involvement resulted in being falsely accused, embarrassed, and fined without the evidence, or bases, of that punishment being disclosed to him.”