mourning your honour's council may please the court i'm bruce lyneham appearing on behalf of like holiday property owners association with me today in my co counsel camilla pollack flynn and doug as well as a number of members from lake holiday your honour's the key issue that we're here to discuss today involves the fundamental right of a private association and its members to contract enact and enforce private rules and regulations for the self governance free from judicial interference when there is no issue regarding due process and where you do not have rules which are arbitrary or fraudulent like how a day is a not for profit corporation the plaintiff mr porous has been a member for eighteen years when lake holiday was initially formed through its plaid a survey and declaration restrictions it involves fifteen hundred acres with two thousand single family homes four hundred of which are on a three hundred twenty eight acre lake private roads traverse the community there are a number of these communities throughout the state of illinois it's important to remember that these roads are private now counsel at the trial court and public court and even here have read his raise the issue of the lake holiday's rights to make these rules as they have relative to enforcement of speed so i want to take you through that does not prohibit lake holiday from enforcing their own you know you're going to go into that i just want to get some face you know there is so let's sell county officers also issue speeding tickets or whatever  that area they can they they can i believe given the fact that they're aware of like how a days security presence if they do i think it would be an extremely rare situation ok and delayed holiday security officers issue traffic citations to individuals who are on those streets that are not part of the association lake how they don't pay they have issued citations which the member who that person is visiting is ultimately responsible for so if someone were coming to visit you know if i owned a home and like how a day and someone was coming to visit me they are there at my hest and if they were stopped and they were speeding by the lake holiday security force the ultimate responsibility for that citation would fall upon the owner because the owner is the one who has contracted with like how a day and agreed to follow the rules and regulations now members would give the saviour's alternately the members would be responsible for the citation i believe that there have probably been occasions where the citation may have been written to the other person but that person has no contractual relationship with like holiday and therefore like holiday wouldn't have the right to collect from them they would ultimately have the right to collect from the owner and the owner could and check in and give your name or give identification before entering you can drive in without that does the general public then use the lake of the roads of not being gated or is of primarily members and guests it i in the record and you know i hope you all have seen it cause it is very i think it helps clarify a number of issues as to what took place there's no follow up on one factual question posed by justice thomas if since if well what i believe like holiday all they could do is tell in the cable person that you're on private property and the face shouldn't be able to come back again like hollywood i'm a speeding ticket they could not issue them a speeding ticket because again there is no contractual relationship with that person now i think with the where that issue comes into play more often is at the private beach and on the private lake on lake holidays premises because one of the things that lake however one reason for the rules which allows them to ask people for identify their late holiday identify she cation card as well as a driver's license is because they do want the lake and the beach to be used by the members of lake holiday and that's one of the things these members of lake holiday are paying for when they join the association and buy property there now getting back to where lake holidays  authority derives from if you look at the survey in the declaration restrictions it grants like holiday responsibility for construction repair and maintenance of roads the articles of incorporation then state that like holiday was formed and construct private roads and maintain their own buildings and structures of all types roadways and all other things reasonably necessary they're for bylaws were then entered which gave the board of directors  empowerment to adopt rules and regulations necessary for the association members including employing people to enforce the rules and regulations ultimately then rules and regulations were adopted including a twenty five mile per hour speed limit and it provided for violations for not following the rules and the rules specifically stated that there is no one shall resist or obstruct the performance of an authorized person and that private security officers are given the power to enforce the regulations so when you look at the not for profit corporation act which gives not for profits the right to exercise all powers necessary to effect any purpose which the corporation was formed powers and implied powers the council has raised the issue of whether or not it specifically says you can try to stop people for traffic violations and know what does not but the whole idea is that these are more general in scope you do not we do not live by a napoleonic code here where you have to have every specific thing stated instead general filings are used and are purposely intended to be broad to give corporations latitude are there any limits to rules the association and absolutely and i think the cases that have been decided in the state relative to private associations are very instructive on that if they violate due process they can't be an act that if they are fraudulent or if they are arbitrary they cannot be enacted but absent that the the courts in illinois have universally indicated that they are not going to substitute their judgment for the judgment of the private association and so long as the rule in the enforcement do not violate due process are not arbitrary are not fraudulent the courts are going to or if the rule is not enforced on a level playing field but absent that they are going to let the private association adopt if if like how they had a rule it as long as that rule was not counter to a illinois statute because they cannot make rules that are countered in illinois statute but if they if they may if they had a rule and their members agreed to that then they could stop some for that you know i think the amicus brief i think had a very interesting scenario that they laid out which is in a private community such as this you know somebody might have a golf cart and they're driving down the road with five kids on that golf cart ok does lake holiday have the ability in that case because you know like halladay had a rule that ok you can't have golf carts and have you know more than two people in them would they have the ability to stop that person and i think the answer would clearly be yes are there any only just situations were security officers issued tickets for traffic violations in the university setting or country clubs or mall security you're absolutely i mean this is the i think that the the issue here is the appellate court's decision has left a scenario where these private organizations do not know what they can do and how they can enforce their rules because you know if you're at a private university and you have a security force are you able to enforce the university's rules you should be able to at a shopping mall you know can you enforce the rules at most a little bit different because the general public is invited to a shopping mall and when you also get into situations there where security at those places are oftentimes stopping people for shoplifting which is a violation of the illinois criminal code and at that point then they  are basically holding someone while they call the police which is a different scenario but in whether it be a country club an elks club a university yes there are a number of scenarios statewide where this comes into play and i think the amicus brief was very very informative on that because it talks about the i believe nineteen late communities but that's only one aspect there are other aspects that all serious driving incidents he u i or holiday security is not going to be able to perform a major accident investigation and you'd have the you have ambulance personnel it's cetera coming into the community you know i in terms of at what point at what degree does lasalle come in i think that list sal when you have violations of illinois will illinois statutes if you had a some but what i think is crucial here is this does not affect your driving privileges this is not them trying to enforce illinois statutes this is simply lake holiday seen private contract rights with its members and i think that the the appellate court missed that issue they looked at this solely  issue of the the stop and whether this was a citizen's arrest they didn't look at the issue that mr porus was a member of like halladay when he moved there he agreed to the rules and regulations light holiday he had the opportunity to work with the board or to run for the board to try to change the rules if he didn't agree with them and you know he made the choice not to do that and he made the choice to stay in the community so he is a green to follow those rules and that's what the courts in the leak case i think is very instructive he have a hockey association that is not releasing some  young child from a hockey team so he can play somewhere else and the court goes ok you know our judgment may be different we may think back to where we were kids and you know these kids games should be for kids and you shouldn't have all this adult  enforcement of these rules but they owe what we have to step back this is a private association a private association has set rules and we're not going to put our judgment in where they have made a judgment unless they have failed to give due process or the rule is arbitrary or fraudulent and here that simply is not the case this is simply a mechanism so that the members of like ho money correct but i do believe that you know late how the list sal county sheriff as they are already burdened trying to deal with their entire county to not allow lake halliday to do this means there is zero consequences to someone if lake ality can't at least find this person then the person would end up could drive ninety miles per hour through lake with no fear because this is someone was repeatedly speeding and the like holidayed went through a cell county sheriff and said ok we have someone who is have been driving fifty miles per hour through the like holiday area at that point maybe lasalle county could come in and set up some type of a you know on a one day thing try to set up an area where they could get the person who was driving sixty miles an hour and twenty five miles per hour who is threatening the safety of the if you get beyond that if you disagree with us there still is a factual issue we'll let you know if the court agrees with you yes your position that we should render judgment in your favor or send it back for a brief in an argument and that is well i believe that you should render judgment in our favor because since we believe we are justified in performing the traffic stop and the traffic stop was justified of summary judgment you know and the trial court denied their motion as to false imprisonment and granted ours and i believe the rationale was that you know ultimately there was no issue raised by the plaintiff factually that would permit him to go forward with a false and it was really it was i do agree that he raised in his he had a motion for summary judgment and false imprisonment was the counts so he was my kind is up i would ask that the court reverse the appellate court and reinstate the trial court's ruling granting summary judgment as to all counts and behalf of like holiday thank you thank you mr l obviously have never agreed as to anything what i would like to correct is i believe is justice thomas asked a question about whether people from the outside regularly go into lake colony the answer is yes lake  we had appealed the entire circuit court ruling at that particular time down in the circuit court judge doherty had ruled that we had to have a probable cause hearing but since he had felt that the detention was not illegal that in effect knocked me out on the false imprisonment because he felt they had a right to make the stops so therefore it was it was like a exercise in futility and we said you might as well just include it all because we can't proceed without the other it was raised anyway but as you can if you look at the video i also got out of my vehicle there was an argument with mr pazner and i went back to my vehicle and from the audio portion of that stop for to have five minutes later it was clear that i had not agreed to being detained because i asked him why are you detaining me and he said i'm not the painting you i'm keeping you in your car for your safety in mind or words to that effect so yes i was not free to go plus he took my driver's license that is correct as a license drive instead all i have so have it on me and the point is that if i get a speeding ticket from a police officer i can drive on that ticket i cannot drive on a citation from like holiday and they had my license plus if i were to leave be cited for obstruction for not obeying his orders do you agree with opposing counsel that if we agree with his position they have the right this you for this that there could be no detention in that circumstance and therefore the false imprisonment should just be reversed all right no i do not in your position and then well my position is very simply this if there was no false imprisonment i would have stopped because but i was forced to stop i was ordered to obey a mr pazner it was against my will and therefore that's false imprisonment even if we determine that they had a right to make the well if that's the case obviously you have much more authority than i do arrangement the scenes agreement do you have a right to be heard can you is there some kind of process by which you can chance it deny this well that's an interesting question because i did go to a hearing for the citation committee and they promptly kicked me to the board forth and when they amended it all i had to do is say things to the effect of any and all things allowed for homeowners associations of a not for profit organisation act like ali never filed those forms with the secretary of state that allowed them to take advantage of th boilerplate language that's why it's kind of surprising that they're trying to use that same language now when they never took advantage of it previously so under those circumstances i think that you know they're limited very limited and if you also look at the  of development it said that if the roads were talking primarily about keeping the roads in their original condition and if you did not if like how many did not keep the roads in their original condition then the south county could come and make the repairs a bill like holiday for it video and audio recording tools plus radar we have an officer dressed driving that's why dressed in the uniform wearing a badge containing an equipment belt outfitted with various equipment plus weapons making a traffic stop using oscillating and rotating lights giving orders to man in compliance with those orders and finally issuing a citation but the average person just would sound like a police officer why didn't it stop me very simple the color of the lights was wrong i do a lot of criminal law and they and blue lights instead they were amber and white that's why i got out of my vehicle looking back i probably should not have done that either but i did anyway this was not a police officer an employee of a homeowner's association one of the things that i think should be aware of if you've looked at it i'm sure you've looked at the video but i went back and looked at it again and during the conversation that occurred at the back of my truck when i was waiting there mr potter approached you'll notice that his flashlight at all times was on my midsection my hands it to me indicates that he was aware of a potentially dangerous situation that could be there he didn't know what i had or what i didn't have but the irony of the situation is that he created the dangerous situation and  ultimately turned out he was one of the weapons when the other problems we have is that none of these lay colony security officers are required to be trained the training is listed in the internal manual and that's one of the things we talk about they keep saying i tried i agreed to  obey rules this is not in the rules the only rules that involves a college the security says that they're empowered to enforce the rules and they can issue citations that rule was passed three and a half years after i moved it so i don't think i'm required to sell my home because they pass a rule that may be invalid the procedure for stopping vehicles is an internal document that is most people don't yet and we pick up through that number have to go through discovery which is called the lake county security manual which says they will make traffic stops i know that the court asked mr lyon about duis and that type of thing the fact of the matter is is this if it's a class a misdemeanor then yes you have a right to make a stop and use the lights to do it that may be a problem because again the lights would be a felony under the vehicle code if you don't have proper authority and with me it was a rule violation which has a lot less authority than an ordinance and a citizen's arrest has to be for greater than an ordinance and that is really what we're dealing with here is we're dealing with concepts of not only the illinois motor vehicle code but also with the illinois criminal code as as well as trying to factor into this the lake holiday rules the problem that lake holiday has is that they've given these security of vigils who are not licensed and if you look at the manual it says that whatever training they have first what they have to pay for but second of all you know they can only take i think it's at the illinois crime compelling a valley crime commission i believe it is and there's a reason why we have to have licensing the state legislature has indicated under the bus a private security locksmith that i normally b v a to it but they said that that's for the protection of the public like holiday says that well we're here to protect the public but how are they protecting the public when ineffective created a vigilante police department that's out there swooping down on people they're not licensed security people know the rules they know what you can and cannot do which is only us citizens arrest the sheriff they could bring the sheriff in and let him patrol the streets of lake holiday i think somebody told me it was like a special tax district i'm not familiar with minutes of law but there are other alternatives we can put cameras up at intersections there's things you can do like holly is not a gated community and so therefore you can gate it there's you can use swipes or like i pass for the vehicles there's many things they can do if they really wish to take care of the people of like holiday but having people that are not trained allowing them to carry weapons and if you notice in this security manual it says very clearly that you're allowed to carry whatever weapons you're certified to carry and i think there's three exceptions and there is a fourth i mean and the three exceptions are stun gun a spring loaded baton a holster and a gun but everything else you can use and obey the orders even though i knew it was dead bang wrong and i chose the latter alternative so i defused it he was not about to give in dispursed there's a number of issues the been raised the we probably won't have enough ok what i said was that it was evidence of their attempts to act like a police department it was used for illustration purposes only the radar i agree you can use radar i mean i can buy a radar gun at wal mart to time a fast ball i agree with that but this particular radar unit required an f c c license and it's a police radar unit and they falsified a letter to the f c c to get that license that i said is still an open issue the public would never address that issue they just said you can use radar and i agree the same way you can use audio video recording equipment that's another good point there were a number of counts that weren't even talked about by the appellate court right is and what they go back to my question did you ask the appellate court to address those counts on appeal those counts were not raised on appeal because as i said the declaratory judgment counts when the court the circuit court ruled against me that count pretty well took care of all record recording equipment very well it worked on that was not in violation of these now that's true so you're basically ok with those two right i have no problem i mean i don't recall consenting but is looking for a real wide brush the kind that you would use of white washing maybe to the side of a barn they wanted to rot as they can with what they're allowed to do but i think the case law is very contrary it says that because homeowners associations are creations of the legislature since are not for profit corporations it's a very limited brush that they're allowed to use in their authority they have to follow what they're allowed to do as i've indicated part of the problem is i still don't know why i'm fighting  private security because it was not the color lights that were used on me but this was a factual situation that was changed during the course of this litigation and it was so that lay collar could use those lights i think it's telling though that mr clifford in the testimony that was attached to the pleadings indicated that the lights that were used on me which were white and amber were definitely illegal and they were a felony and he knew it so the question becomes ultimately i think is you know was i detained the case was very clear yes i was people that's well ryan if you take a look at the factors in that case there's no doubt but that i literally fell into every one of the categories that they indicated was evidence of an arrest the mechanism they've created is not allowed by illinois statutes seventy three the application of the not for profit corporation act as it would apply to them the we've already covered citizen's arrests and of course the only thing i'd add on that is that this court's case of people versus large says that radar normally  a tool it's a bailable for individuals to use and so therefore cannot be the basis of a citizen's arrest and of course obviously i was stopped i think that that's one of the problems that we have one of things to this is that they argue twenty five mile an hour speed limit in lake holiday then of course i get a state citation but if i'm stopped by lake holiday security for the same speed side and same speed limit i don't get it i get it like holiday traffic citations if they're public roadways i don't know how they can call them private roads because but like holly says we don't enforce the law and i motor vehicle code however rule three point zero one states that the illinois motor vehicle code must be observed in lake holiday and the security manual specifically states  ali security will enforce traffic laws so they're contradicting themselves and it's an illegal software in a power the issue of self governing is very simple i don't disagree that to a degree you're allowed to self government but it has to be legal it has to be within the law and when they try to contract theory the fact of the matter is is that it cannot be a violation of the law it cannot agree to the commission of a crime and it has to be otherwise legal well for me to agree to allow them to commit crimes in their enforcement of their rules if i were to tell anybody else it would tell me to leave my license but they are d c as i'm walking out of town today but so i cannot agree to an illegal contract i can not agree to a secretary of state's office it's a lake qualities like asian is rendered it's meaningless to the secretary of state right and i guess just as a practical point of view i mean can do that separately they don't have to create their own non licensed untrained individuals to make traffic stops there is alternatives available you can put speed bumps and you can put cameras up i think one of the lake communities actually has talked about putting cameras up to monitor speed and i have no problem with that you're not a resting people that's my beef my sole complaint in this whole thing is i would they arrested me they had no authority to do so and i think that what you're talking about is very  fundamentally we have an issue here relative to a member of a private association who entered into a contract with the other people who live there and that association to follow the rules and regulations where he lived we have cited to numerous cases from private associations dealing with the rules and regulations and their enforcement of them in all of those cases the courts did not interfere with the enforcement mechanism used by that private association counsel has cited no cases where private association rules and the enforcement thereof has been reviewed and changed the courts for over one hundred years have not placed their judgement ahead of the judgment of the private association consulate let me ask you a question because there's a factual dispute with respect to whether or not you said the roads are used almost exclusively by lake khalidi residents and their guests mr forrest as no other they're used all the time by others rules what happens if they stop someone that is just from a neighboring community that's cutting through the i asked that specific question the what they would do is inform the person that they were driving in violation of like holiday rules they would warn them they would tell them they were also trespassing and like politics and that it wasn't to be used as a cup throw up now i think here the issue of the driver's license council's argument basically is that he was falsely imprisoned because he gave his driver's license up under the appellate courts logic if you had a gated community and you drove up to the gate and they ask you for your driver's license they have falsely imprisoned you that simply cannot be you have to allow these communities to be able to have some way to identify whether people have the did not have to drive on to their grounds i mean you are correct that they do not have a hut where they asked for everyone's license before they drive them but mr porus agreed in to follow the rules and he that is absolutely correct but that doesn't mean they don't apply to you if you live in the community the case was clear on this that by living in the community you have agreed to follow the rules and regulations of that community and he you have options you can fight a new rule or regulation you can run for the board you can try to work to have a change where you can leave the community if you don't like the rules and regulations but in any association you join if you join a country club or if you join the elks club you have to agree to follow their rules those rules may change from time to time but you have to follow now i think  that it's very important here to look at the amicus brief because i think that lays out the breadth of the potential problem here we're looking at  a potential for large communities with hundreds of miles of road they have no ability to enforce rules or regulations on those and actually just scream i actually miss earlier when you had asked about if someone i think is you would have a dui remember just or if someone had committed a felony then you are always entitle to make a citizen's arrest in that case so that  a differentiation that counsel mentioned in his argument that i should have said that generally like holiday does not ever you don't enforce illinois rules but if they saw the commission of a felony they are entitled like any citizen to make a citizen's arrest and call a cell phone that there has been a felony violation so up now one thing all county making all of these roads public again look at the amicus brief the hundreds of miles of road the thousands and thousands of visitors here the sheriff's departments are already strapped relative to their ability to enforce to take on additional enforcement is simply something not within their means at this point in time as  call that said yeah you are correct in some of the lake communities there are no enabling ordinances and they have no right to go into those communities and you're right and so what you have is right now millions of dollars are spent annually in these lakes communities and if you saw a couple of them have over six hundred seven hundred thousand dollar budgets in order to make sure that it is safe for their members and the guests and the  decision as it sifts leaves them with no recourse that they may as well not have rules because they can't enforce them certainly you would you agree that if these offices had security officers had in some  way used these porous he would have a closet action absolutely and his argument seems to be maybe not quite the abuse but that for example police officer that this security officers were armed when they had no rights be am that kind of thing is there any redress he has for those kind of things well first of all the stop in case here the officer had a flashlight i don't consider and there was no issue here of him attempting to do anything relative to mr porous if mr porson doesn't like the idea that the private security force is authorized to carry those things which they are a license to do then he should go to the board and tell them he should talk with other members of the community and say no we shouldn't have those and  work on getting a change that he feels that it's improper but we have a rules that allow them to carry what they are licensed with exceptions as mr porson indicated and the the way you change  rules when you are in a private organization is you talk with the members you talk with the board and you work to have them change or you work to have them never entered in the first place and again you're always free to leave well you can i mean you could have i believe that the rule as stated is that they can carry it if they have a certification for that but the certification would have to be from the state or from  out to another organization they have that within their own community such as i think most of the lakes communities do that as well well want to thank you very much for your time today and i would ask that you please reverse the court and