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.,

(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.”

Illinois is a fact-pleading jurisdiction, and a plaintiff must allege facts sufficient to bring a claim

within a legally recognized cause of action.

. 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.”

. We review an order granting or

denying a section 2-615 motion de novo.

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,

.

¶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,

(N.D. Ill. 2001) (denying Gilyana’s habeas corpus petition). 3 No. 1-15-0460

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. 4 No. 1-15-0460

their government.” (Emphasis added.) Engel v. Walsh,

(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,

(1976); Poris v. Lake Holiday Property Owners Ass’n,

.

¶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,

(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,

(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,

. These would include the

organization’s right to resolve membership disputes internally and without judicial review.

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,

(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,

); (2) the organization violated its own internal rules (Finn v. Beverly Country Club,

(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,

,

(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.”

6 No. 1-15-0460

Poris v. Lake Holiday Property Owners Ass’n,

(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,

(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.”

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)

7 No. 1-15-0460

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,

(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,

(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.,

(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,

.

¶ 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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