The case of Boucher v. 111 East Chestnut Condominium Association
Kovitz Shifrin Nesbit—law firm
08 August 2018
On June 15, 2018, the Illinois Appellate Court published their decision
in the case of Boucher v. 111 East Chestnut Condominium Association.
This case has implications for condominium Association Boards as the
issues relate to violation hearings and executive sessions, the records
that a Board must maintain with respect to owner violations, and the
First Amendment rights of owners.
A brief summary of the case is as follows:
The Board of the 111 East Chestnut Condominium Association
("Association") issued warnings and notices of violation to an owner,
Michael Boucher, based largely upon his alleged repeated obnoxious and
offensive communications towards both other owners and the
After a request from the owner, the Board conducted a hearing for the
violations with the Board, Mr. Boucher, and Mr. Buocher's attorney
present. At the hearing, Mr. Boucher's attorney requested to review all
underlying evidence, information and/or documents relating to the
allegations against his client. During the hearing, the Board
videotaped the proceedings, and the attorney subsequently requested a
copy of those tapes as well. The Board subsequently denied Mr.
Boucher's attorney's requests for the documents and the video tape, and
ultimately levied a $500.00 fine against Mr. Boucher. Mr. Boucher then
filed suit against the Association and each of its Board Members.
There are three important components of the decision by the Illinois Appellate Court in this case:
1. Executive Session Meeting Minutes;
2. Availability of Evidence to Be Used in Violation Hearing; and
3. First Amendment Rights of Owners.
Executive Session Meeting Minutes
First, the Appellate Court held that the hearing conducted by the Board
with Mr. Boucher constituted a meeting of the Board, and even though it
was a closed session, the Board still had a duty to maintain its own
minutes of the meeting pursuant to Section 19 of the Illinois
Condominium Property Act ("Act"). The Court then opined that despite
the fact that the Act specifically authorizes the Board to handle
hearings and other violation matters in closed session, they needed to
produce copies of the minutes to any owner that requested them pursuant
to Section 19 of the Act.
As a result of this decision in the case, it is our recommendation that
the minutes of the Board meeting should reflect the votes to go in and
out of executive session, and can generally describe the the reason for
the executive session, which can simply refer to one of the six
exceptions noted under the Act for executive session (i.e. interview of
potential contractor; meeting with Association counsel; violation
hearing, etc.). No further details should be included in the Minutes
with respect to the discussion in the executive session. Further, the
executive session should not generally be recorded on audio/video.
Since the Act does not permit no votes or decisions to be made in an
executive session, there should be no substantive information or
"notes" of what was discussed in the executive session contained in the
minutes. As always, any vote on decisions arising out of an executive
session matter should be done in an open Board meeting, and the Minutes
should, of course, reflect the motion and vote in open session of a
Board meeting as to the matter that was discussed in executive session.
As noted above, the Board in the Boucher case did videotape the hearing
that was conducted with Mr. Boucher in executive session. Surprisingly,
the Illinois Appellate Court considered the videotape to be the
"Minutes" of the executive session, and required the videotape to be
provided to the unit owner.
As a result of the decision, it is our strong recommendation that
associations do not make any audio or visual recordings of closed
session meetings, to include violation hearings. If recordings are
made, based on the Boucher holding, you may be required to provide a
copy of those tapes to the owners if they so request it.
Availability of Evidence to Be Used in Violation Hearing
Second, the Appellate Court decision also addressed the availability of
records that must be provided to an owner in conjunction with a
violation hearing. The Court held that the Board must provide the
accused owner with any documentation related to violation.
It is our opinion that the Board is only required to provide the
documentation that the Board is intending to use at the hearing or will
rely upon in making a determination in the violation hearing. However,
please note that the accused owner or their attorney must make a
request for such evidence, and there is no affirmative duty to provide
them in the absence of a request. This of course means that any witness
complaint statements that are received from other owners or occupants
in the Association may have to be provided to the accused owner.
First Amendment Rights of Owners
Finally, the Appellate Court held that Unit Owners have a right to
freedom of speech, and the Association's rules and regulations cannot
impair an owner's right to exercise such rights, as confirmed by
Section 18.4(h) of the Act. The appellate court held that an owner
could not be fined for exercising his First Amendment right of speech,
when he berated and criticized the manager. Accordingly, rules and
regulations that may impair an owner's right to exercise their First
Amendment rights are not enforceable.
However, do note that the First Amendment does not protect all speech.
Speech, whether written or oral, that is threatening in nature or
causes any owner, employee, staff member, managing agent, or other
person to fear for their safety is not protected by the First
Amendment, and an owner could be subject to a fine under an applicable
rule or provision of the declaration for such speech.
Associations must be careful and consult with their attorney when
addressing noxious and offensive behavior complaints, especially those
involving speech, to ensure that the speech is not protected by the
First Amendment and the ruling in the Boucher case.
An Appeal to the Illinois Supreme Court
As always, KSN is available should you have any additional questions or
concerns regarding this case. We would also like to note our office
handled this case, we believe the court made errors, and we have filed
a Petition For Leave To File An Appeal to the Illinois Supreme Court.
If there are any further developments with respect to this case, we
will advise you as soon as possible.
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