The Chicago Commission on Human Relations acted properly in awarding more than $68,000 in legal fees to a lesbian couple who had complained their building’s owners association had harassed and discriminated against them for being lesbians, a state appeals panel has ruled.
The Illinois First District Appellate Court issued its decision in an unpublished order Oct. 28, upholding a Cook County Circuit Court decision.
Justice Robert E. Gordon wrote the order; Justices Shelvin L.M. Hall and Jesse Reyes concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under limited circumstances permitted by the Supreme Court rule.
Illinois First District Appellate Court
When the Chicago Commission determined 7355 South Shore Drive Condominium Association violated the Chicago Fair Housing Ordinance, it ordered the Association to pay two $500 fines and to pay the complainants, Pat Gilbert and Vernita Gray, $100 and $2,000, respectively, in compensatory damages. It also ordered Association board president Shelley Norton to pay two $100 fines.
The Commission, however, most significantly ordered Norton and the Association to pay the women’s legal bills associated with prosecuting their action before the Commission, which totaled $68,189.
Norton and the Association had argued the Commission violated their due process rights “because the final recommended decision was issued by a hearing officer who did not preside over the administrative hearing,” court documents said.
The case centered on a March 9, 2001, complaint Gilbert filed with the Commission, accusing Norton and the Association of trying to keep her from buying a condo, allegedly because she was a white lesbian.
Gray, then Gilbert’s girlfriend, filed a complaint with the Commission on March 30, 2001, saying Norton “made anti-gay comments that created a hostile living environment and that she was evicted due to her sexual orientation.”
The Commission’s evidentiary hearing did not start until Jan. 9, 2007. Hearing officer David Youngerman, due to health reasons, didn’t issue a ruling for more than three years. In July 2010 the Commission gave him a month to issue his ruling, but he missed the deadline. Gray and Gilbert agreed with turning the matter over to a new officer, but the Association and Norton called for compelling Youngerman to rule rather than restart the hearing process.
On Sept. 4, 2010, the Commission discharged Youngerman and appointed Martin H. Malin the hearing officer. On Feb. 4, 2011, Malin announced he did not need to rehear testimony or consult with Youngerman. While he sided with the Association and Norton in regards to racial discrimination, he sided with Gray and Gilbert on their other discrimination claims. Both sides objected — the women to the rejection of the racial discrimination claim and damages, and the Association and Norton to Malin’s alleged due process violation.
On June 24, 2011, Malin issued a final recommendation reinforcing his initial finding. On July 20, 2011, the Commission issued its liability and relief orders, and on June 20, 2012, a final ruling on legal fees. On July 24, 2014, Norton and the Association filed a petition in Cook County Circuit Court to have the Commission’s actions overturned. On Feb. 8, 2014, Cook County Circuit Court Judge Franklin U. Valderrama issued an order affirming the Commission’s decision. Norton and the Association appealed that decision, setting up the Oct. 28 appellate ruling.
Gordon’s order explained the Commission and Norton are barred from claiming a due process violation, as it was their objection to restarting the hearing that led the Commission to give Malin clearance to rule based on the testimony collected by Youngerman.
“It would be manifestly unfair to allow a party a second trial on the basis of error which that party injected into the proceedings,” Gordon wrote.
When given a chance to file a position on the Commission’s actions after discharging Youngerman, the Association and Norton had a choice between a new hearing — to which they objected “most fervently and critically,” per that filing — and letting the new officer rely on the collected evidence. Their preference, having the Commission compel Youngerman to rule, was not an option.
Determining the Association and Norton had no grounds to complain about Malin being allowed to rule, the justices did not need to consider the due process argument. They did, however, look at the legal fees awarded and found them to be reasonable.
The women, Gordon wrote, “prevailed on a significant legal issue and the litigation served an important public purpose,” and furthermore, “the record shows that considerable work was performed in pursuing this case over a course of at least five years,” so the amount itself is not inconsistent with expected attorney costs.
The women were represented in the case by the firm of Foley & Lardner, of Chicago, according to Cook County court records.
The Association was represented by the firm of Gorman Gorman & Paul, of Chicago.