our fourth case on the docket today is case number one one zero five zero five gary palma versus twenty eight hundred lake shore drive condominium association at all jenna number eight counsel for the  morning justices my name is mark rothko represent the opponents there's two issues involved in this appeal and the first issue relates to the validity and enforceability of a home rule ordinance that was enacted by the city of chicago  first issue specifically is whether the records provision of the chicago condominium ordinance is valid when the ordinance conflicts with section one thousand of the only kind of any property act and renders those conflicting portions of the act on in forcible in the city of chicago there's there's three conflicts between the condominium act on the one hand and the chicago kind of many more than it's on the other there's an initial matter mr roth sorry to interrupt you and you know those are the generally framed issues but i just want to ask you a procedural question there's some suggestion i want to know about timeliness of this appeal that there was a ruling on a motion to reconsider and that was ruled upon then there was a second motion to reconsider but i'm not clear on exactly if yes there was i want to make sure we don't have an appeal jurisdictional feel problem here understand if we do there's no case right and i don't believe that that there is any issue with respect could you clarify that analogy of well from my recollection this case is a golden oldie it's about eleven years old right now but back in about two thousand and one the judge sidney jones was sitting on the bench and chancery division and he dismissed issue which was denied then the city of chicago filed a petition to intervene into that action around that period of time judge jones retired and judge the fia hal motion to reconsider it's a little jumbled in my mind but the the court basically reconsidered everything from the original motion to dismiss on backwards and reconsider judge jones as ruling reconsider i believe that is correct and april third two thousand and one the trial court denied plaintiff's motion to reconsider rock that is correct and then on may eighth more than thirty days plaintiff filed a second motion to reconsider he said trying to stanley that's my understanding i believe that that's a chronology a must be honest with you i'm not exactly sure about the dates you're asking but that sounds like my concern is didn't the trial court lose jurisdiction after thirty days had run from the final order just might dismissing the entire complaint and then the denial of the motion to reconsider that order on april the third how could the court entertain a second motion to reconsider more than thirty days later i believe that there might have been an intervening complaint filed in the interim i'm just not sure of that i'd have to take a look at the chronology of  what has been described to us no one is to suggest that this is another complaint that was filed there's nothing to really explain to us what happened between april third two thousand and one when there was a denial of the motion to reconsider the entire complaint and may eighth two thousand and one one of the second motion to reconsider and at this point you're not sure either i'm quite frankly i'm just not sure i'm sorry i can't answer the question through to take a look at there certainly are conflicts between the acts on the one hand and then the ordinance on the other hand and that is that under the the condominium property act the unit owner has to state a proper purpose in order to obtain financial books and records and under the chicago condominium ordinance there is no purpose required to obtain those books and records so unit owner can ask for the records without any purpose or could ask for the records for an improper purpose the other conflict is that a kind of an association has to produce ten years of books and records under the condominium act the state statute and under this kind of a team ordinance of city chicago it's an unlimited period of time  yes i think it does is that is that one way that what the cases have found is that in the cases where the validity of the home rule ordinance has been  upheld the home rule ordinance has been a subset of the statute so in those cases it was more restrictive and we cited to those cases that city of chicago versus roman city of austin versus crete so you have a a statute and then you have a general ordinance that's a subset of that statute and in that way the the ordinance preserve the integrity and the enforceability of the statute and all of those cases of found and it's a test that this court has used in those cases and in other situations too in deciding whether conflicts exist between you know the illinois supreme court rules in the court of civil procedure for example in those cases where this court decided those issues and found that where rule ordinance is valid in light of a state statute and that is you look at those the home rule ordinance relates to a local governmental issue number one number two is there express preemption in the state statute and number three is there a proper relationship between the state statute and the local ordinance not one and two points one and two about the issue relating to local governance and whether those express preemption are not at issue in this litigation at all we're not raising that you know what we're saying is you need to focus on the relationship between the statute and the ordinance and the reason it is is because the power of the rule unit unless the general assembly by law does not specifically limit the concurrent exercise now can what concurrent means if we take a look at hastings from the united states supreme court and from our own illinois public court and other valid home ordinance and it finds that the exact quote was that absent express authority from the general assembly a local home ordinance is free to enact ordinances that compliment the state's statute and ensures from this court found that the ordinance was in fact valid because it didn't contradict and eviscerate a state statute like we have here but rather it was it was complimentary so that's a very distinguishing factor that we don't see in this particular case never looked at the proper relationship between the statute and the ordinance a what the the city and mr palm want to say is that if it relates to local governmental affairs and there's no expressed preemption then a local  he can do whatever they want to do it doesn't matter but that's actually not the test the test set up by this court and it's been used time and time again and in cases that we've cited is that you have to look at the third prong if they were right if that if and that is i f in fact once there's a finding that there are some issues that relates to local governance and there's no express preemption done the city city can do whatever it wants to do then you would have the third prong of the analysis which is what we're focusing on this particular case and where we believe that we are right and that the ordinance in fact is is invalid as exceeding the home rules authority we think that although the appellate court in this case got it wrong that the second and fourth district cour statute on runners a statute invalid then the ordinance is itself invalid as a as exceeding the power of the home rule authority so we're asking here is that that this court reversed the appellate court on that thing that the older terrorist discussed seven kegs didn't have that issue but that was an issue but i don't think that that diminishes the fact that what we see in oprah terrace and seven kegs is that if there's a conflict a run or statute invalid then then the one thing that you have to the overriding concern is that the ordinance must maintain the integrity of the statute so if it doesn't do that whether you look at it from a condominium association perspective or you know or suspect of then the ordinance should should fall if you take a look at it specifically in this particular case and you take a look at what the only legislature was trying to do is with respect to financial books and records section one thousand of the condominium access that we're going to put restrictions on unit owners obtaining those financial books  records and the restriction would be that they have to state a proper purpose that's a that's a restriction what what the city is saying is well it's less restrictive earth's more restrictive on kind of m obtaining those documents then it would be more restrictive and maintain the integrity of section one thousand of the act so i understand what they're saying but i think in this case it's misapplied and also on it on maybe a more global sense is that in  be enforceable for the ordinance to be enforceable it still has to maintain the integrity of the state statute and that's the cases that we've we've seen now there's another issue that's on appeal here and that relates to the amount of attorneys  issues about that were raised later on about alleged breach of fiduciary duties by the association that are unrelated to the issues that we have here so the case continued on and we tried the case in december of zero nine i to the second issue relating to fees as the the plaintiff was awarded fees at a rate that's higher than the fees that the plaintiff contracted with his attorney to pay that he did pay that he never claim unreasonable and that the attorney never  miner no there's my understanding is that the record is going to show that in fact he paid his attorney two hundred dollars per hour that is the rate that he paid his attorney not that i'm not that i can recall but yes the the problem with this is that well first of all if you find he was ripped he was awarded fees under the city of chicago condominium ordinance because he was a successful plaintiff under the records ordinance so if the records ordinance falls then there may not be any need to get to the fia should because the fees would fall as well because they were based only on the record ordinance we contend in this case that this court should review issue of whether the fees were proper the novel and the reason it is is because any analysis of a fee issue that's based on a statute or ordinance has to first start with what the ordinance says and an interpretation of that ordinance you have some fees statutes for example that say you can get a reasonable fee so neck a secure entitle to a market rate fee other fee statutes say that you can get  us so you have to take a look at what is the term his means the fees has to be his fees they have to belong to him and they have to be reasonable and the only courts universally find that the  ordinance is something that's reviewed to no avail and the u s supreme court in fact has found that when you're taking a look at an award of fees under a statute or here in our case an ordinance that the first question that you have to look at is what is what is the wording of the stance of say because that's going to tell you on what basis you can or or can't the work fees now isn't in this case the plaintiff was awarded more than his fees he paid two hundred dollars an hour he was awarded fees at three hundred dollars an hour so he was not awarded his fees what the plaintiff says is that well despite the fact that i paid two hundred dollars an hour and i'm going to get an award of three hundred dollars an hour somehow that's not a windfall for me but that just doesn't really make sense if the plaintiff is going to profit on a transaction which he clearly is if he's paying his attorney two hundred he's getting three hundred he's profiting on a transaction that's either a windfall to the plaintiff or it's an imposition of damages against the defendants and in this case the plaintiff never was awarded any damages listen lever but because of the feel or because he's being awarded one third more than he's paying out in fees it's essentially an imposition of damage damages really against my client so under any circumstance we believe whether it's a noble review or an abuse of discretion review we don't believe that that that feel or consent like before you start before the clock starts running we understand you have an agreement to split your time we do yes i will come on it's a date yeah now we don't keep track of that time and i can tell you many times i've seen counsel come up and say we have an agreement i will keep an eye on the clock as well to try and make that easy good morning it please the court my name is person or going to system corporation counsel for the city of chicago i'm here today on behalf of the city i will limit my remarks to the home will issue record understanding of the record is that when the motion to reconsider was denied the initial motion to reconsider there was the state of the record was that the motion to dismiss had been denied without prejudice to be amended so it's not as though the first motion to reconsider had the same sort of jurisdictional cert significance it would in in a case where it was a final order that was being that was being up that was subject to the motion reconsider your honor twenty eight hundred lake shore concedes as counsel made clear again today and they certainly made clear in their reply brief in this case that the city's ordinance pertains to the local government in affairs and they also concede that there is no statute that the general assembly has passed that explicitly and express lee and specifically removes home rule power in this area that when the typical home rule case which is exactly what this is that's the end of the story but those two issues are dispositive only in the most extraordinary circumstances that we describe in our brief does this court look beyond that and make a determination that  there is a next step to take in the next that being determining the proper relationship between state law and local law and the situation that that happens is when the illinois constitution has spoken specifically on the issue in the environmental context as recognized in john sexton and some earlier cases the constitution in a separate sr provision to the home rule provision indicated that the state that the general assembly has control over environmental policy and is empowered to pass laws legislation to enforce that policy and the court held reasonably that in that context where the illinois constitution specifically said this is the state's province that if a local home rule unit is going to legislate they may do so but they must do so consistently with state law in john sexton itself they found that the local regulation was consistent and therefore it was upheld another case the legal case where the constitution specifically said that the question whether or not branch banking should be allowed it was for the state to determine the court said the city of chicago recognized language such as that as sufficient to to constitute expert express and specific preemption language the typical boilerplate language which that as we explain in a brief the ninetieth general assembly the general assembly the pas this this law utilized itself is much more detailed and specific actually says home rule power is hereby preempted i'm paraphrasing and so were that were that language to be sufficient that that would probably change the outcome a number of cases because that sort of general language is included in a number of stat other statutes now of course what that language certainly means is that it applies throughout the state it doesn't reach the question of whether or not a  home rule unit could could apply different standards and the reason why returning to my point about why you only reach the search at harmonizing state and local law in situations where there is absent preemption absent  explicit statement by the state legislature where there's explicit statement within the state constitution it's because otherwise you would have some sort of amorphous can consideration by the courts where they would be determining whether or not a state looks to the state law as regulating this the relevant provision section one thousand as regulating unit owner somehow we submit that is much more clearly read to regulate cantante minium and therefore more naturally condominium associations it lets kind of name associations understand whether and to what extent they may refuse to disclose records upon request and sets the contours for that and certainly it's our position that our ordinance is aimed at regulating condominium associations and not unit orders and therefore with respect to whether or not it's more respect restrictive or less restrictive we argued that it is more restrictive on condominium owners and more permissive and more liberal with regard to allowing unit owners to have access to what to be fair are their own records that are members of these o c a sions and if they want to see them the city has reached a decision and reached timely access to these sorts of records to return back to my theme about when this would look past the pertains to local government affairs question and express preemption by the general assembly question this is simply not a case where the court needs to look beyond beyond that this court does not need to determine whether or not the city's ordinance can be harmonized with state law because the state law is state the general assembly and passing the condominium act was not acting in an area that the illinois constitution set aside for the state to be paramount in unlike the environmental cases where there is clear constitutional language saying the environmental realm is for the state to control a legal case with the branch bank in question it's a very limited and extraordinary step for this court to look beyond it but one interesting and very unique case that seems to entertain this would remedy provision and the state didn't act to remedy provisions so it made perfect sense to say there is there is a gap here and we are going to apply the state law remedy provision here and not  leave it with no remedy to do that in this case would not be filling a gap because this is not there's no gap in section one thousand of the city's ordinance a completely broadly granted but completely regulates the area that it means to regulate and so to impose a standard from state law on the city as a home rule unit in this case would be tantamount to imposing state standards and procedures on the city and forcing a city or home rule unit to comply with state standards and procedures and notably that is exactly what the constitutional convention rejected when considering what home meant there was a lot of debate about including a provision of some provision in the home or a provision that would say that the general assembly by general law can set standards and procedures that the homo units would have to comply with but that was defeated it was determined that that would be too much of a that would take away too much or more power and not allow for that for the site specific city specific towns specific treatment of problems that fell within the government affairs of the local homo units so as a result of you me on some shows from is that it's basically favors from real authority even or use arguing that it would allow some conflict as long as it's not sensibly home rule regulation that was identical to the state regulation but left out the remedy that would have lied against it itself and it's only and then sort of in a post hoc manner said well we left that on purpose because we don't want it to apply gets to us now had naperville in that case replaced the remedy with something different some sort of wrist slap type of remedy that was but something or had they explicitly said in the legislation and knots in the defense of the legislation that they had intended that it was the intent active intent to have no remedy then perhaps it would have been a different case but as it stands it was a not a particularly difficult case it was a unanimous decision saying you have a gap in the home rules exercise of its power it could've as a bug perhaps done something more with the time of power but hasn't done it and therefore we look to see if there's any other political law yes there is the state law therefore applies here so i understand it shows from it's a very narrow and specific situation that is really not comparable to what happened here because to import the comprehensively if there is any request by a unit on earth then you need to provide the materials within three days period any request it is a comprehensive a comprehensive regulation and it doesn't require any sorts of it doesn't accept any any types of requests because they're deemed to not have proper purpose so to add the proper purpose would change the city's ordinance and would impose a state standard which as i've explained is just not something that should be done in this context and i need to stress that this is exactly what the constitutional convention did not want to occur in the relation between home rule and state and state law for state law to be able get up with regard to the idea of what concurrent means which is a recurring theme in opposing counsel's argument and twenty eight hundred lecturers argument we submit that chinese room here has nothing to do with with complex usually with working together with with working in conjunction together toward the same end it just has to do with working on the same applying to the same area at the parallel so under that primary definition clearly this this ordinance is concurrent with the state statute and this brings us to the whole point of home rule which is where sovereign power lies once it is determined that something is pertains to local government affairs and once it is determined that there is no express explicit preemption by the legislature or in the rare case a reservation of powers of the state by the constitution then the sovereign power lies with the home rule unit and so the fact that there are parallel ra's all that means the heart of home rule and that's how this supposed to work so i will go ahead and sit down and let mr palm stand up and present his argument thank you very much from the city the city would like to ask for a morning your honour's my name is gary palm and i'm representing myself first let me deal rather than go to my touch deal with the some of the questions that were raised and the first is about the interim fee petition it was filed on september fifteenth two thousand and three this was filed at the time that the judge paul enters summ judgment finding that the city ordinance had been violated by the twenty one hundred condominium association and the fees were only up to that time to the entry of summary judgment after the entry of summary judgment the defendants agreed entered into an agreed order to produce all the documents requested and so production went on a motion to renew the interim feet petition and a listen having reviewed the documents and have them copy we also realized i realized that and the condominium association in response to that has just refunded three point one million dollars to the unit owners for surplices they improperly retained know i know that the condo association may want to appeal but the fact is without these documents we would have never gotten there and convinced the trial judge in chancery that we had a case and so the second thing is that the i don't believe there's any problem with the motions for reconsideration and rice see i'm already down to my three minutes i was go of trick of the two hundred showing that is fair and reasonable and also indicating that the market would have been three hundred where we had on the right the agreement i had with mrs steinberg that is in the record was it in the interim i would pay two hundred dollars per hour and if we lost i was out the two hundred wasn't a traditional contingent fee agreement and if we won she would get whatever the court awarded is steinberg that's a new agreement and there's no there's never been anything that has send out in any briefing or anything that and i know the judge paul didn't intend to give me that and he argues i'm wealthy i'm not wealthy and that has no business in this case whether whatever my financial condition poor people or rich are entitled to attorneys fees and a reasonable market rate when a prevailing plaintive statute you thought we didn't have a timeliness probably didn't quite finish that sentence well i see i would suggest that maybe our final supplemental slate some of the we can might be able to get a joint statement setting out the what happened was they didn't raise the  preemption issue in there from motions to dismiss nor when they produced the riginal document they gave us one two page document originally didn't say this is all but it's preempted they said they were in compliance with the city ordinance they didn't raise briefing and i can't really tell from the record just try to do it at table is whether the supplemental briefing that he ordered about preemption was before the second amended complaint was filed or after but then that's when i went to the city and said hey you know this is take getting rid of your ordinance on preemption and and they decided intervene and then judge jones left the bench and we got transferred to john  just a few points the city claims that you really never get into the third prong of the three prong analysis to determine validity of the home ordinance unless you have an area such as banking or environmental where there everyone kind of agrees that they have soley the province of the state and that's just not supported by the case law schiller's from was a case in which the court delved into that third prong of the analysis that was an eminent domain case the cases court decided in the versus city of displays case was a case involving road signs on the side on the side of a highway in which the case thoroughly analyze the facts there to determine whether there was a conflict between the statute on the one hand and the ordinance on the other hand and so they absolutely delved into the third element which is whether it was a proper relationship between the statute and the ordinance and we believe that you know that's mandated by the constitution which says that these entities have to act concurrently with one another it doesn't say the general assembly you know obviously is presume to know all existing case law and they draft certain language and from the u s supreme court cases on down when they're discussing two legislative bod municipality can preempt state law as long as there is a local issue and as long as there's no express preemption that's not what the constitution says and the case law that interprets that says that they must be complimentary to one another  x amount of attorney's fees a lump sum of attorney's fees it's a member says ninety thousand dollars approximately of fees the the transit transaction with the plaintiff and his attorney is is done he's paid his lawyer the two hundred dollars per hour he's going to get we're going to if we lose we write him a check for ninety three thousand dollars or whatever with interest that doesn't mean that that money is going to say it's a mistake or the distinguishing factor here between this case and some of the other cases are the cases that the point of cites are all contingency fee cases in which there was no contract between a lawyer and his client as far as what fee would be paid so what the co in those cases is the court looked at ok this lawyer was not charging on an hourly basis but what would his fee have been had he been charging on an hourly basis what's a market rate for fees but in this case we have a market rate we have the rate that he's being charged is two hundred dollars per hour and there's one decision directly on point from the first district that's the first national bank versus berkeley case and that case specifically hold that contract reference th if they fail it would be a market rate they've never produced a contract he's just saying that there's never does no written agreement that's ever been produced in this case that that that there would be some reduced rate and then at some point if they when they get a higher rate there's no written contract on that agreement and i would i would note that mr palm is obviously he's a he's a lawyer he's a law professor at university of chicago steinberg saying that i'm going to pay you two hundred dollars an hour no there's no written agreement on that some time later he says well yeah but our agreement was i pay a two hundred dollars nolen if we win then i give her some higher rate so there's nothing in the record at all as to any written agreement other than what he same but the problem is that no matter what he's he's getting fees at a rate that's higher one third higher than the amount he's paying to his lawyer and that's the problem and that's the reason it's a windfall if it's if it's a win for the him and unfortunately it's an imposition of damages as to my client when there was no finding at all of any damages we never paid any damages throughout the entire case not from day one and not till three weeks ago when a final order from the trial court finally came down in this case but yet because of the way that he's structured dispy issue the plaintiff is going to collect money at our expense it's we reviewing whether the judge can use discretion in the wording remember yes you know you're reviewing i think that there's there's a couple layers of review here i think that the one layer of review is you have to you have to review the ordinance the ordinance allow for a market rate for fees regardless of whether what he pays no because what the ordinance says is that a successful plaintiff is entitle to his reasonable fees it doesn't say a reasonable fee it are you familiar with what i think he's saying that's where the feed readers well that's his recitation he filed a motion that says this is my fee agreement there's no fee agreement there was never produced any written fee agreement in this case what he's saying is in my motion i said that this is my fee agreement and that's all affidavit that a reasonable fee is three hundred dollars per hour having said that there was never was no evidence whatsoever that and again this this started this is not in today's dollars to a certain extent two hundred dollars an hour is  not in two thousand and eleven this was in two thousand and one but in any event there's no evidence whatsoever that that moyer ever charged any client anything other than two hundred dollars per hour there's nothing in the record whatsoever that shows that they had lawyer ever charged any other client what the procedure that the court came up with was a followed the northern described illinois local rule i believe it's fifty four where the parties submit if the david's and you also submit your bill so i decide that my bills for example to show how much time i spent on it in my race by the way was less than a that was less than the two hundred dollars per disregarding completely disregarding that the court just blindly accepted judge and actually both is that thank you case number one one zero five zero five very palm versus twenty hundred lake shore drive condominium association is taken under advisement agenda number eight mr marshall the supreme court stands in adjournment until tuesday morning may seventeenth two thousand and eleven nine a