Gilyana v. Assyrian American Ass'n of Chicago , 2015 IL App (1st) 150460 ( 2015 )

2015 IL App (1st) 150460
SIXTH DIVISION
September 25, 2015
No. 1-15-0460
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
ESKHIRIA GILYANA and MALKO ODISHOO, ) Appeal from the
) Circuit Court
Plaintiffs-Appellants, ) of Cook County.
)
v. ) No. 14 CH 14916
)
ASSYRIAN AMERICAN ASSOCIATION OF CHICAGO, ) Honorable
) Rita M. Novak,
Defendant-Appellee. ) Judge Presiding.
JUSTICE DELORT delivered the judgment of the court, with opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 Plaintiffs Eskhiria Gilyana and Malko Odishoo filed a five-count amended complaint
seeking various forms of relief against defendant Assyrian American Association of Chicago
(AAAC). In essence, the sprawling 176-paragraph amended complaint alleged that the AAAC
improperly denied Gilyana and Odishoo membership or particular positions in the AAAC. The
AAAC moved to dismiss the amended complaint pursuant to both sections 2-615 and 2-619 of
the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2014)). The motion
basically argued that Illinois law does not recognize a legal claim regarding membership in a
private organization. The trial court granted the motion and dismissed the amended complaint
with prejudice. The written order specifies that the dismissal was pursuant to section 2-615.
No. 1-15-0460
Plaintiffs opted to rest on their amended complaint and appeal rather than file a second amended
complaint.
¶2 Count 1 of the amended complaint sought injunctive relief to reinstate Gilyana as an
AAAC member. Count 2 sought injunctive relief to reinstate Odishoo as a committee chairman
and ex officio member of the Executive Committee. Count 3 sought injunctive relief to delay
elections of AAAC officers until certain unnamed individuals were permitted to join the AAAC
as new members, who would presumably side with Odishoo and Gilyana with respect to internal
AAAC disputes. Count 4, labeled “Breach of Contract,” alleges that by paying dues, both
plaintiffs entered into contracts with AAAC which AAAC breached when it removed plaintiffs
from their respective positions. Count 5 alleges that the AAAC violated plaintiffs’ rights to “due
process.” Copies of the AAAC constitution and bylaws are attached to the complaint as exhibits.
¶3 On appeal, plaintiffs argue that the trial court erred in dismissing the amended complaint
pursuant to section 2-615 of the Code. “A section 2-615 motion to dismiss [citation] challenges
the legal sufficiency of a complaint based on defects apparent on its face.” Marshall v. Burger
King Corp., 222 Ill. 2d 422, 429 (2006). “In reviewing the sufficiency of a complaint, we accept
as true all well-pleaded facts and all reasonable inferences that may be drawn from those facts,”
and we “construe the allegations in the complaint in the light most favorable to the plaintiff.” Id.
Illinois is a fact-pleading jurisdiction, and a plaintiff must allege facts sufficient to bring a claim
within a legally recognized cause of action. Id. at 429-30. However, “a cause of action should
not be dismissed pursuant to section 2-615 unless it is clearly apparent that no set of facts can be
proved that would entitle the plaintiff to recovery.” Id. at 429. We review an order granting or
denying a section 2-615 motion de novo. Id. This court can also consider the exhibits attached
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to the complaint when reviewing the propriety of a section 2-615 dismissal. Cowper v. Nyberg,
2015 IL 117811, ¶ 12.
¶4 The amended complaint sets forth a sordid history of long-standing and ongoing disputes
between the parties over plaintiffs’ influence and involvement in the AAAC. Much of the
complaint consists of legal arguments and citations, laudatory references to plaintiffs, and
negative characterizations of defendant’s officers rather than allegations of relevant material
facts. Ignoring these extraneous and unnecessary allegations, we can extract the salient facts
relevant to our review.
¶5 Gilyana claims that he was an AAAC member since 2006, but expelled from AAAC
membership in 2014. The expulsion letter states that the AAAC was invoking a bylaw which
prohibits convicted felons from AAAC membership. 1 Gilyana concedes his conviction, but
asserts that enforcing the rule was improper because the AAAC knew he was a convicted felon
when he was first admitted to membership but belatedly enforced it later. In essence, he claims
that the rule was merely a pretext for the real reason behind his expulsion, which was his
challenge to the procedures used to select a new AAAC vice president, a challenge which was
unpopular with AAAC leadership. He alleges that he was entitled to a hearing under the AAAC
bylaws and constitution before being expelled.
¶6 Odishoo’s complaint is slightly different. He alleges he was a member of the AAAC
since 2011, and served as the Membership Chairman, which entitled him to an ex officio seat on
1
Gilyana was convicted of solicitation of murder for hire in 1994 and sentenced to 20
years’ imprisonment. See generally People v. Gilyana, No. 1-95-0569 (1996) (unpublished order
under Supreme Court Rule 23); United States ex rel. Gilyana v. Sternes, 180 F. Supp. 2d 978
(N.D. Ill. 2001) (denying Gilyana’s habeas corpus petition).
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the Executive Committee. 2 He states that he engaged in an ongoing effort to recruit new
members and encourage former members to return. He also pointed out that various members of
the Executive Committee were potentially disqualified from further service because they had
missed three or more consecutive meetings, and suggested that the AAAC leadership was
insufficiently aggressive in collecting back dues from delinquent members. He also alleges that
the AAAC’s new vice president, Edward Nadersha, was appointed by fiat rather than by special
election as required by the AAAC bylaws and constitution. Odishoo alleges that he was expelled
from his positions in retaliation for these complaints without a hearing as required by the bylaws.
¶7 Our supreme court has cautioned against courts becoming embroiled in disputes over
membership in private organizations. Over a hundred years ago, the court held:
“The courts have frequently been called upon to restrain voluntary
associations, such as churches, lodges of various kinds, boards of
trade, and the like, from expelling members for an alleged
violation of some rule or regulation of the association, and in such
cases this court has uniformly refused to sanction the practice of
calling on a court of equity to adjust disputes arising between such
associations and its members ***. Courts will not interfere to
control the enforcement of by-laws of such associations, but they
will be left free to enforce their own rules and regulations by such
means and with such penalties as they may see proper to adopt for
2
The AAAC Executive Committee consists of 22 members: 6 elected officers, 3 elected
directors, 3 directors appointed by the president, and 10 committee chairs serving ex officio. The
president appoints all the committee chairs. Accordingly, the president and his appointees
control the board by a 13-9 margin.
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their government.” (Emphasis added.) Engel v. Walsh, 258 Ill. 98,
103 (1913).
¶8 In recent years, our supreme court has cited Engel favorably and reaffirmed the vitality of
its central holding. See, e.g., American Federation of Technical Engineers, Local 144 v. La
Jeunesse, 63 Ill. 2d 263, 268 (1976); Poris v. Lake Holiday Property Owners Ass’n, 2013 IL
113907, ¶ 31.
¶9 That court has similarly rejected claims that private organizations must follow their own
internal rules with exacting punctiliousness, or with protections similar to those which the
constitution grants to criminal defendants. The court has stated that “strict adherence to judicial
standards of due process would be arduous and might seriously impair the disciplinary
proceedings of voluntary associations.” Van Daele v. Vinci, 51 Ill. 2d 389, 394 (1972). Our
supreme court’s rejection of a due process analysis in this context is undoubtedly grounded in the
fact that due process is a legal doctrine which primarily applies to the action of governmental,
not private, bodies. This court has stated that “ ‘courts will not undertake to inquire into the
regularity of the procedure adopted and pursued by such tribunals in reaching their
conclusions.’ ” Robinson v. Illinois High School Ass’n, 45 Ill. App. 2d 277, 284 (1963) (quoting
4 Am. Jur. Associations & Clubs § 17, at 466 (1936)).
¶ 10 The Engel court further noted that in “voluntary associations, each person, on becoming a
member, either by express stipulation or by implication, agrees to abide by all rules and
regulations adopted by the organization.” Engel, 258 Ill. at 103. These would include the
organization’s right to resolve membership disputes internally and without judicial review. Id.
This court has explained that doctrine, stating:
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“Courts are not to be regarded as a sanctuary from all the problems
and vicissitudes of modern life. They are ill-equipped,
intellectually and otherwise, to override and second-guess the
decisions of administrators who live and work with their particular
areas on a daily basis. Courts must approach hardships of the type
seen in the instant case with great caution and with a decent respect
for the integrity of the organization with which they are dealing.”
Proulx v. Illinois High School Ass’n, 125 Ill. App. 3d 781, 787-88
(1984).
¶ 11 Notwithstanding these holdings, the bright-line rule of Engel has evolved over time and
become a bit less strict. Some cases have established narrow exceptions under which a court can
consider membership disputes if: (1) the expelled member might suffer a financial loss or
“economic necessity” is at stake (internal quotation marks omitted) (Van Daele, 51 Ill. 2d at
394); (2) the organization violated its own internal rules (Finn v. Beverly Country Club, 289 Ill.
App. 3d 565, 568 (1997)); or (3) in cases of “mistake, fraud, collusion or arbitrariness” (id.).
¶ 12 The plaintiffs rely strongly on the second and third exceptions. However, we are required
to follow precedents established by our supreme court and are not required to follow those of any
lower courts. O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440, 892
N.E.2d 994, 1006 (2008). We note that our supreme court has not itself adopted any exceptions
to the bright-line rule of Engel, but for the “financial loss or economic necessity” exception in
Van Daele. In fact, as recently as 2013, our supreme court reaffirmed Engel, even long after
cases such as Finn suggested that an aggrieved member might have a judicial remedy for a
violation of internal association rules or in cases of “mistake, fraud, collusion or arbitrariness.”
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Poris v. Lake Holiday Property Owners Ass’n, 2013 IL 113907, ¶ 31 (cursorily noting Finn in
dicta). Broad, open-ended exceptions such as those in Finn are almost impossible to reconcile
with Engel because they are exceptions that can easily swallow up the rule. In light of our
supreme court’s reluctance to adopt these “exceptions” and apply them to grant relief to a party
in any reported case, we will construe them narrowly and not treat them as binding upon us.
¶ 13 There is no allegation that the plaintiffs have lost money due to their exclusion from
AAAC. We thus turn to the second exception. The gist of plaintiffs’ complaint is that the
AAAC violated its own constitution and bylaws by removing plaintiffs from their respective
positions. Accordingly, we will not summarily affirm merely because of the Engel abstention
rule. Instead, we will examine both plaintiffs’ claims not only in light of Engel and its progeny,
but also in light of the applicable AAAC rules. However, even this review does not rescue the
plaintiffs.
¶ 14 We first note that the constitution contains a preamble stating that it is only a “basic guide
for the activities and business before the organization.” Similarly, the bylaws state that they are
merely a “structural diagram and guide for internal operations.” Gilyana suggests that the
AAAC breached a contract with him by violating the constitution and bylaws. He relies on
authorities such as Local 165, International Brotherhood of Electric Workers, AFL-CIO v.
Bradley, 149 Ill. App. 3d 193, 202 (1986), in which the court stated that the “bylaws and
constitutions of unincorporated associations and unions” were contracts. The Local 165 court
limited its contract characterization, however, noting that these documents “have been
historically regarded as unique.” Id. Additionally, the actual words of the AAAC documents
undermine any possible contract claim. The “guide” language suggests that the AAAC rules are
more flexible than a standard binding contract. As the AAAC points out, article 1, section E(5)
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of the AAAC bylaws states that an expelled member such as Gilyana can appeal his expulsion to
the Executive Committee, which must then set the expulsion before a “General Body meeting.”
The General Body can reinstate the expelled member by a two-thirds vote of the members
present. The amended complaint does not allege that Gilyana ever requested or availed himself
of this necessary step of the appeal process. The expulsion letter, which is also an exhibit to the
complaint, clearly states: “The Executive Committee will reconsider this decision if you feel
that it was made in error.” Therefore, even taking the allegations in the amended complaint as
true, including his allegations that he did not receive “any” hearing, Gilyana does not
demonstrate that he exhausted his internal remedies. That being the case, he cannot seek judicial
relief under the “violation of internal rules” exception.
¶ 15 Even so, it is difficult to see how he would have been successful in reinstating his
membership, because of his disqualifying felony conviction. We acknowledge his argument that
the AAAC is estopped from belatedly enforcing the disqualification rule, but when and how
strictly to enforce that rule is a matter properly within the discretion of the AAAC and immune
from judicial review. See Robinson v. Illinois High School Ass’n, 45 Ill. App. 2d 277, 284
(1963) (noting that it has been held that courts will not “inquire into the regularity of the
procedure adopted and pursued by such tribunals in reaching their conclusions” (internal
quotation marks omitted)).
¶ 16 The third exception does not provide Gilyana with an avenue of relief. Looking at the
first of the four elements of this exception, it is clear that his expulsion was not a “mistake”.
After all, he concedes he is a convicted felon. Similarly, he alleges no false statement by the
AAAC or one of its officers, which is a necessary element for a fraud claim under Illinois law.
Doe v. Dilling, 228 Ill. 2d 324, 342 (2008); . Collusion is a legal term describing a defense
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created when two or more persons to conspire to defraud a court or a third party (usually an
insurance company), and nothing of the sort is alleged here. See, e.g., Dubina v. Mesirow Realty
Development, Inc., 197 Ill. 2d 185, 196-203 (2001). And he does not claim that the AAAC acted
arbitrarily by allowing some other convicted felon to remain as a member, but not him.
¶ 17 Odishoo’s claim similarly fails. Article II, section E(C) of the bylaws provides that the
AAAC president may “suspend any appointed chairman for cause based on the actual facts of the
cause and appoint a more active member to perform the duties of the suspended chairman.”
Essentially, the chairmen serve at the pleasure of the president. The bylaws do not define
“cause,” so whether cause exists is a matter properly reposed in the discretion of the president
and likewise protected from judicial review. See Robinson, 45 Ill. App. 2d at 284.
¶ 18 Accordingly, the trial court properly dismissed the case pursuant to section 2-615 of the
Code for failure to state a valid claim under Illinois law.
¶ 19 Affirmed.
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