Joy V. Cunningham
Joy V. Cunningham

A condominium owner fined by his condo board for “obnoxious or offensive activity” can sue the board for violating his free speech rights, a 1st District Appellate Court panel found.

Brian Connolly’s claim against his condo board can continue, the panel ruled.

He alleges the board violated a section of the Condominium Property Act, which prohibits a board from imposing rules that may “impair any rights” established by the First Amendment.

The unpublished order issued in late March against the condo board located near the Gold Coast affirmed a cause of action for alleged violations of Section 18.4(h) of the Condominium Property Act. Connolly argues the board’s fine was in retaliation for his criticism of the board.

The panel — which consisted of Justices Joy V. Cunningham, Mathias W. Delort and Sheldon A. Harris — wrote that a June 2018 1st District opinion in Boucher v. 111 East Chestnut Condominium Association is controlling.

“[T]he nature of plaintiff’s claim is essentially identical to that alleged in Boucher, namely, that the ‘association penalized him for expressing opinions’ critical of defendants’ conduct,” Cunningham wrote. “The gist of plaintiff’s claim (as in Boucher) was that the notice of purported violations of the association’s rule against ‘obnoxious activity,’ was, in fact, retaliation for exercise of his First Amendment right to express criticism.”

The panel noted the Boucher case was brought by a different unit owner in the same condo building.

Reversing Circuit Judge Kathleen M. Pantle’s ruling to dismiss Connolly’s claims, the panel also reversed her Rule 137 sanction against Connolly and his attorney, Norman J. Lerum of Norman J. Lerum P.C.

The condo board sent Connolly a violations notice in August 2013 claiming he exhibited “erratic and intimidating behavior.” In one of the alleged incidents, Connolly told a boy that he was violating building rules by bringing his bicycle into the main elevator.

In another alleged incident, he angrily confronted a resident who walked her dog through the front door of the building.

The condo board also alleged Connolly told residents to turn down their music at the building’s pool, then disconnected their iPod. In a separate incident, he allegedly told residents food wasn’t allowed in the pool area and may have photographed them without their consent.

The condo board accused Connolly of violating the section of the association’s declaration that: “No obnoxious or offensive activity shall be carried on in any [u]nit or in the [c]ommon [e]lements.”

In October 2013, the board held a hearing on the violations and it imposed a $250 penalty for each violation, for a fine totaling $1,000.

Connolly sued the board members later that month in Cook County Circuit Court. He amended his lawsuit three times. He filed his third amended complaint in August 2014, alleging, among other things, that the board’s notices and fines violated the section of the Condominium Property Act.

Pantle dismissed the third amended complaint, finding Connolly failed to state a claim under Section 18.4(h) of the act because the board’s fines and notices pertained to Connolly’s conduct, not his speech.

Pantle also granted the board members’ motion to issue Rule 137 sanctions against Connolly and his lawyer and ordered Connolly to pay attorney fees totaling $111,940.

On appeal, Connolly challenged the dismissal and the sanction order.

The panel reversed Pantle’s decision to dismiss Count 1, which alleged the violation of the Condominium Property Act, but affirmed her dismissal of the other counts.

Delort specially concurred.

The panel noted the similarities between Connolly’s complaint and Boucher, decided in June after parties in this case began their appeal. In Boucher, the board sanctioned the unit owner for obnoxious or offensive behavior after Michael Boucher ‘yelled profanities’ at an association employee and separately was ‘rude and disrespectful’ to another employee.

As the panel determined in Boucher, Cunningham wrote, “the intent of the [condominium] statute was to prevent the institution of rules infringing upon condominium owner’s First Amendment rights ... ”

The panel disagreed with Pantle’s finding that the board’s violations involved Connolly’s conduct and not speech.

“Clearly, the statements or questions attributed to plaintiff could be deemed rude or socially inappropriate. Nonetheless, it is well-settled that First Amendment protection encompasses speech that may be considered socially unacceptable or offensive,” Cunningham wrote.

Connolly was represented on appeal by Lerum, who said he viewed this case “almost as a civil rights matter.”

“It’s essentially a protection of political speech and political speech has always been safeguarded by the courts,” Lerum said.

The board members were represented by Marshall Seeder, a partner at Tressler LLP, and Diane J. Silverberg, a principal at Kovitz Shifrin Nesbit P.C.

In an e-mailed statement, Silverberg said the volunteer board members and the association itself are disappointed with the appellate court’s decision to reverse Pantle’s dismissal.

“They are evaluating all options open to them for possible further appeal,” Silverberg said in the e-mail.

“We believe the unpublished decision — and especially the special concurrence by Justice Delort — while not creating binding authority on other parties or courts, nonetheless highlights a challenge arising from the manner in which Section 18.4(h) of the Illinois Condominium Property Act was drafted.

“Specifically, 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 [s]tate Constitutions guarantee when nonstate actors like condominiums or their board members are involved.”

This case is Brian Connolly v. Anthony Milazzo, et al., 2019 IL App (1st) 171906-U.