Boucher v. 111 East Chestnut Condominium Ass'n
117 N.E.3d 1123
Ill. App. Ct.2019Background
- Michael Boucher, a unit owner at 111 East Chestnut, was accused in August 2013 of two incidents (elevator and key‑card interactions) violating the association declaration and was offered a hearing.
- The board held an October 4, 2013 hearing (recorded by audio/video); Boucher attended with counsel and asked to review underlying evidence and the hearing recording; the board denied those requests.
- The board fined Boucher $250 per incident (total $500); Boucher paid the fines and then sued the association and seven board members alleging: (1) violation of 765 ILCS 605/18.4(h) (retaliatory impairment of First Amendment rights), (2) violation of 765 ILCS 605/19 (refusal to produce meeting “minutes” — the recording), and (3) breach of fiduciary duty by withholding evidence.
- The trial court dismissed count I (First Amendment claim) for failure to state a claim, dismissed the association from count III, and later granted summary judgment for defendants on counts II and III. Boucher appealed.
- The appellate court reversed dismissal of count I, reversed summary judgment on counts II and III (except as to three board members who did not participate in the decision to withhold the recording) and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether 765 ILCS 605/18.4(h) permits a private‑association claim for board action that impairs First Amendment–protected activities | Boucher: Section 18.4(h) forbids boards from adopting or enforcing rules or penalties that impair owners’ First Amendment rights; he alleged the fines were retaliatory for his criticism of management | Defendants: The First Amendment applies only to state action; private association cannot violate the U.S. Constitution absent state action | Held: Section 18.4(h) prohibits board rules/actions that impair First Amendment rights; plaintiffs need not plead state action to state a statutory claim under §18.4(h); dismissal reversed. |
| 2. Whether a video/audio recording of a closed disciplinary hearing constitutes "minutes" under 765 ILCS 605/19 and must be produced to a member | Boucher: The board recorded the hearing and the Act requires maintenance and member inspection of minutes of "all meetings"; the recording is the only record and therefore functions as minutes | Defendants: "Minutes" must be written; closed disciplinary hearings are exempt from production; the hearing was not a board meeting | Held: A quorum conducted board business at the hearing; the Act requires minutes of all meetings and member access; an audio/video recording that is the only preserved record counts as minutes; summary judgment for defendants on count II reversed as to most defendants. |
| 3. Whether board members breached fiduciary duties by withholding evidence used to impose fines | Boucher: Board had strict fiduciary duties of candor and full disclosure; withholding evidence deprived him of a fair opportunity and supports breach | Defendants: They complied with statutory notice and hearing requirements; business judgment rule and the declaration’s exculpatory clause shield them | Held: Board members owe fiduciary duties; withholding evidence could constitute a breach and defeat business‑judgment/exculpatory defenses; summary judgment on count III reversed (association no longer dismissed). |
| 4. Liability of individual board members who did not participate in the decision to withhold the recording | Boucher: All board members named; he sought relief from all | Del Monico, Jansen, Gajderowicz: They did not participate in the withholding decision | Held: Boucher did not dispute their evidence of nonparticipation; summary judgment affirmed as to these three defendants on count II. |
Key Cases Cited
- Cooper v. Pate, 378 U.S. 546 (1964) (prisoner stated constitutional claim absent a formal statute; courts consider conduct under color of law)
- West v. Atkins, 487 U.S. 42 (1988) (First Amendment/state‑action principles and liability for persons acting under color of state law)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (2006) (standard of review on a section 2‑615 dismissal)
- Lake County Grading Co. v. Village of Antioch, 2014 IL 115805 (Ill. 2014) (de novo review of summary judgment)
- O’Malley v. Village of Palos Park, 346 Ill. App. 3d 567 (2004) (minutes serve as evidence of board/agency actions)
- Spillyards v. Abboud, 278 Ill. App. 3d 663 (1996) (business judgment rule explained and plaintiff’s means to overcome it)
- Wolinsky v. Kadison, 114 Ill. App. 3d 527 (1983) (association liability may follow individual fiduciary breaches)
- Goldberg v. 400 East Ohio Condominium Ass’n, 12 F. Supp. 2d 820 (N.D. Ill. 1998) (statutory §18.4(h) forbids boards from impairing First Amendment rights)