                           ILLINOIS OFFICIAL REPORTS
                                         Supreme Court




             Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505




Caption in Supreme         GARY PALM, Appellee, v. 2800 LAKE SHORE                           DRIVE
Court:                     CONDOMINIUM ASSOCIATION et al., Appellants.



Docket No.                 110505


Filed                      April 25, 2013


Held                       A conflict between a home rule ordinance and a state statute does not
(Note: This syllabus       render the ordinance invalid or beyond constitutional home rule authority,
constitutes no part of     and if the legislature wishes to preempt a home rule power, it must do so
the opinion of the court   specifically—city ordinance on production of condominium records
but has been prepared      upheld.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Appellate Court for the First District; heard in that court
Review                     on appeal from the Circuit Court of Cook County, the Hon. Sophia H.
                           Hall, Judge, presiding.



Judgment                   Affirmed.
Counsel on               Mark D. Roth, of Orum & Roth, LLC, of Chicago, for appellants.
Appeal
                         Gary H. Palm, of Chicago, appellee pro se.

                         Mara S. Georges, Corporation Counsel, of Chicago (Benna Ruth
                         Solomon, Myriam Zreczny Kasper and Christopher S. Norborg, of
                         counsel), for intervenor-appellee.


Justices                 CHIEF JUSTICE KILBRIDE delivered the judgment of the court, with
                         opinion.
                         Justices Garman, Karmeier, and Theis concurred in the judgment and
                         opinion.
                         Justice Thomas specially concurred, with opinion.
                         Justice Freeman dissented, with opinion, joined by Justice Burke.



                                           OPINION

¶1         The primary issue in this appeal is whether a City of Chicago ordinance allowing
      condominium unit owners to inspect condominium association financial books and records
      is a valid exercise of the City’s home rule power. We affirm the appellate court’s holding that
      the City’s ordinance is valid and enforceable. We also affirm the appellate court’s decision
      that the trial court did not err in awarding the plaintiff interim attorney fees.

¶2                                    I. BACKGROUND
¶3        Plaintiff Gary Palm owns a unit in the 2800 Lake Shore Drive condominium building in
      Chicago. He served on the board of directors of the condominium association from 1992 to
      1998.
¶4        On September 15, 1999, Palm sent a letter to the president of the Association board of
      directors asking for production of specific documents and records related to the building’s
      management. Palm explained that he needed the documents to investigate the board’s
      actions, including whether: (1) the board awarded contracts improperly; (2) the board used
      improper investment and banking practices; (3) the board held unlawful private meetings;
      (4) board president Kay Grossman used Association funds without proper approval; (5) the
      1998 board election was compromised by “irregularities or improprieties”; and (6) legal
      action should have been pursued against the builder.
¶5        When his request was denied, Palm filed a complaint seeking to examine, inspect, and
      copy the documents. The Association moved to dismiss the complaint, and the circuit court
      of Cook County dismissed it without prejudice.

                                                -2-
¶6         Palm then filed a four-count first amended complaint. In count IV, the only claim at issue
       in this appeal, Palm challenged the denial of his request for production of documents. Palm
       sought an order compelling production of the documents under various laws, including a
       provision of the City’s condominium ordinance. The ordinance allows condominium unit
       owners to inspect a condominium association’s financial books and records within three
       business days of delivering a written request to examine the records. Chicago Municipal
       Code § 13-72-080 (2009).
¶7         The Association moved to dismiss the complaint under section 2-615 of the Code of
       Civil Procedure (735 ILCS 5/2-615 (West 2000)). On December 11, 2000, the trial court
       granted the motion to dismiss all four counts of the complaint, ruling that section 107.75 of
       the General Not For Profit Corporation Act of 1986 (805 ILCS 105/107.75 (West 2000))
       preempted the City’s ordinance and Palm was not entitled to the requested documents under
       that statute. The trial court allowed Palm 14 days to file a second amended complaint.
¶8         On December 19, 2000, Palm filed a motion to reconsider the dismissal of his first
       amended complaint. The City petitioned to intervene to defend the validity of its ordinance
       and submitted a brief in support of Palm’s motion to reconsider. The trial court allowed the
       City to intervene.
¶9         The trial court entered an order on April 3, 2001, stating it had reconsidered the previous
       dismissal order. The trial court dismissed with prejudice counts I, II, and III of the first
       amended complaint. Count IV was dismissed without prejudice and Palm was given until
       April 17, 2001, to file a second amended complaint. The trial court denied the City’s request
       for a finding under Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 1, 1994)) that
       there was no just reason to delay an appeal.
¶ 10       On April 17, 2001, Palm filed a motion to reconsider the order entered on April 3, 2001.
       A new trial judge was assigned due to the retirement of the original judge. The trial court
       granted Palm’s motion in part, vacating the dismissal of count IV based on its finding that
       the City’s ordinance was a valid exercise of its home rule authority and the ordinance was
       not preempted by a state statute. The Association’s motion to dismiss was, therefore, denied.
¶ 11       The trial court later granted in part Palm’s motion for summary judgment on count IV
       of his complaint. The Association was ordered to produce the requested documents as
       required by the City’s ordinance.
¶ 12       Palm petitioned for an award of interim attorney fees, alleging that as the prevailing party
       he was entitled to fees under the ordinance. Palm submitted that $300 per hour was
       reasonable and appropriate. He acknowledged that he paid his attorney in accordance with
       a fee agreement at a rate of $200 per hour, but claimed it was a reduced rate. He asserted that
       when attorney fees are recoverable under a statute, it is typical for a fee agreement to provide
       for a reduced hourly rate with reasonable attorney fees determined upon completion of the
       case.
¶ 13       Palm’s petition further alleged that the fee award would be retained by his attorney.
       According to the petition, Palm would receive no part of the award other than reimbursement
       of his actual payments to his attorney. Palm submitted an affidavit of retired Cook County
       Circuit Court Judge Kenneth L. Gillis, asserting that the rate of $300 per hour was “well

                                                 -3-
       within the prevailing market rates charged in comparable cases by Chicago attorneys of
       similar qualifications, skill and experience.”
¶ 14       On August 26, 2008, the trial court granted Palm’s interim fee petition under the
       ordinance. Palm was awarded attorney fees at the rate of $300 per hour. The trial court
       certified for immediate appeal under Supreme Court Rule 304(a) the order granting Palm
       partial summary judgment on count IV of his complaint and the award of interim attorney
       fees.
¶ 15       The appellate court held that the Chicago ordinance authorizing inspection of the
       Association’s records was a valid exercise of the City’s home rule power and the trial court
       did not abuse its discretion in entering the award for interim attorney fees. Accordingly, the
       appellate court affirmed the trial court’s judgment. 401 Ill. App. 3d 868.
¶ 16       We allowed the defendants’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26,
       2010).

¶ 17                                         II. ANALYSIS
¶ 18                                         A. Jurisdiction
¶ 19       First, we identified a potential jurisdictional issue in our initial review of the briefs in this
       case. The briefs describe a complicated procedural background suggesting that the trial court
       may have entered a final judgment on April 3, 2001. The briefs indicate that the April 3,
       2001, order denied the motion to reconsider the dismissal of the first amended complaint.
       According to the briefs, that order was followed by a second motion to reconsider filed more
       than 30 days later on May 8, 2001.
¶ 20       The jurisdictional concerns were raised by this court during oral argument, and we
       subsequently entered an order allowing the parties to file supplemental briefs addressing
       whether the circuit court lost jurisdiction before entering the orders subject to this appeal.
       The parties filed supplemental briefs clarifying that the April 3, 2001, order dismissed count
       IV without prejudice and with leave to refile. The parties assert that the order was not a final
       judgment subject to appeal and the trial court never entered a final order dismissing count
       IV of the first amended complaint. The parties, therefore, agree that the trial court did not
       lose jurisdiction before entering the orders subject to appeal in this case.
¶ 21       The jurisdictional concerns that arose in our initial review of this case centered on
       whether the April 3, 2001, order constituted a final judgment. A civil ruling is final if it
       terminates the litigation and fixes the parties’ rights leaving only enforcement of the
       judgment. In re Detention of Hardin, 238 Ill. 2d 33, 42-43 (2010). A review of the record
       confirms that the April 3, 2001, order dismissed count IV of the first amended complaint
       without prejudice and with leave to refile. An order dismissing a complaint with leave to
       amend is not a final judgment. See Smith v. Central Illinois Regional Airport, 207 Ill. 2d 578,
       585-87 (2003). The order did not terminate the litigation or fix the parties’ rights.
       Additionally, the order was subject to reconsideration by the trial court at any time prior to
       entry of a final judgment. See Towns v. Yellow Cab Co., 73 Ill. 2d 113, 119-21 (1978). Thus,
       after reviewing the record, we agree with the parties that the trial court did not lose
       jurisdiction before entering the orders subject to this appeal.

                                                   -4-
¶ 22                                    B. Validity of Ordinance
¶ 23        The central issue in this appeal is whether the Chicago ordinance allowing condominium
       unit owners access to association financial books and records is a valid exercise of the City’s
       home rule power.1 The defendants contend that the ordinance conflicts with and renders
       unenforceable within the City of Chicago portions of the Condominium Property Act (765
       ILCS 605/1 et seq. (West 2000)) and the General Not For Profit Corporation Act of 1986.
       Those statutes require condominium unit owners to state a proper purpose for obtaining
       association financial books and records, require production of only 10 years of records, and
       allow an association 30 days to gather and produce the records. Under the Chicago
       ordinance, a unit owner is not required to state a proper purpose for requesting the records,
       there is no restriction on the age of the documents, and the documents must be produced
       within three business days of the request. The defendants contend that the ordinance exceeds
       the City’s home rule authority because it conflicts with the statutory provisions and renders
       them unenforceable. The defendants, therefore, maintain that the appellate court’s judgment
       upholding the ordinance should be reversed.
¶ 24        Palm and the City contend that the General Assembly may limit home rule authority to
       regulate in a given field by expressly reserving that power for itself or prohibiting home rule
       units from exercising that power. They contend that in rare cases involving interference with
       a vital state interest, this court has intervened to compensate for legislative inaction or
       oversight and preempted the exercise of home rule authority. This court has intervened,
       however, only in cases involving environmental regulations based on specific language in
       the Illinois Constitution establishing the state’s supremacy in that field. The legislature has
       not specifically limited the authority of home rule units to regulate condominiums or
       reserved that power for itself, and the state does not have a vital interest in regulating
       condominiums necessary to justify preemption of the City’s ordinance. Accordingly, Palm
       and the City contend that the appellate court’s judgment should be affirmed.
¶ 25        Palm also asserts that in response to his September 15, 1999, letter requesting production
       of documents, the Association’s attorney provided a copy of a monthly income-expense
       report with a letter claiming to comply with the ordinance. Palm contends that the letter
       claiming to comply with the City’s ordinance constitutes a waiver of any challenge to the
       validity of the ordinance. Palm does not cite any authority in support of his claim.
¶ 26        Waiver is the “intentional relinquishment or abandonment of a known right.” (Internal
       quotation marks omitted.) People v. Phipps, 238 Ill. 2d 54, 62 (2010) (quoting People v.
       Blair, 215 Ill. 2d 427, 444 n.2 (2005), quoting United States v. Olano, 507 U.S. 725, 733
       (1993)). In contrast, forfeiture applies when an issue is not raised in a timely manner. Waiver
       is, therefore, distinct from forfeiture. People v. Houston, 229 Ill. 2d 1, 9 n.3 (2008).
¶ 27        Palm has not established that the defendants intentionally relinquished or abandoned their
       claim that the ordinance exceeds the City’s home rule power. The letter from the


               1
                The defendants do not raise any issue on the construction of the ordinance or whether the
       documents requested by Palm were subject to production under the terms of the ordinance. The
       appeal is limited to whether the ordinance is a valid and enforceable exercise of home rule power.

                                                  -5-
       Association’s attorney purports to comply with the ordinance but does not make any
       statement relinquishing or abandoning any challenge to the ordinance. The letter does not
       even mention or recognize the availability of a potential claim under the home rule
       provisions of the Illinois Constitution. Accordingly, we conclude that the defendants did not
       waive their claim in this case.
¶ 28       The appeal in this case is from the trial court’s entry of partial summary judgment
       ordering production of the requested documents under the City’s ordinance. Summary
       judgment is appropriate when “the pleadings, depositions, and admissions on file, together
       with the affidavits, if any, show that there is no genuine issue as to any material fact and that
       the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West
       2008). We review de novo an order granting summary judgment. Millennium Park Joint
       Venture, LLC v. Houlihan, 241 Ill. 2d 281, 309 (2010).
¶ 29       Home rule is based on the assumption that municipalities should be allowed to address
       problems with solutions tailored to their local needs. Schillerstrom Homes, Inc. v. City of
       Naperville, 198 Ill. 2d 281, 286 (2001). The home rule provisions of the 1970 Illinois
       Constitution were designed to alter drastically the relationship between our local and state
       governments. City of Chicago v. Roman, 184 Ill. 2d 504, 512 (1998). Article VII, section
       6(a), of the Illinois Constitution provides:
               “Except as limited by this Section, a home rule unit may exercise any power and
               perform any function pertaining to its government and affairs including, but not
               limited to, the power to regulate for the protection of the public health, safety, morals
               and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII, § 6(a).
¶ 30       Section 6(a) was written with the intention to give home rule units the broadest powers
       possible. Scadron v. City of Des Plaines, 153 Ill. 2d 164, 174 (1992). The Illinois
       Constitution further provides that the “[p]owers and functions of home rule units shall be
       construed liberally.” Ill. Const. 1970, art. VII, § 6(m).
¶ 31       The General Assembly may, however, preempt the exercise of a municipality’s home rule
       powers by expressly limiting that authority. Schillerstrom Homes, 198 Ill. 2d at 287;
       Scadron, 153 Ill. 2d at 185-86. Under article VII, section 6(h), the General Assembly “may
       provide specifically by law for the exclusive exercise by the State of any power or function
       of a home rule unit.” Ill. Const. 1970, art. VII, § 6(h). If the legislature intends to limit or
       deny the exercise of home rule powers, the statute must contain an express statement to that
       effect. City of Evanston v. Create, Inc., 85 Ill. 2d 101, 108 (1981) (citing Stryker v. Village
       of Oak Park, 62 Ill. 2d 523, 528 (1976)). If the legislature does not expressly limit or deny
       home rule authority, a municipal ordinance and a state statute may operate concurrently as
       provided in article VII, section 6(i):
               “Home rule units may exercise and perform concurrently with the State any power
               or function of a home rule unit to the extent that the General Assembly by law does
               not specifically limit the concurrent exercise or specifically declare the State’s
               exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i).
¶ 32       Thus, the Illinois Constitution provides home rule units with the same powers as the
       sovereign, except when those powers are limited by the General Assembly. Roman, 184 Ill.

                                                 -6-
       2d at 513 (citing Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 230 (1989)). Under section
       6(i), home rule units may continue to regulate activities even if the state has also regulated
       those activities. Schillerstrom Homes, 198 Ill. 2d at 287-88. To restrict the concurrent
       exercise of home rule power, the General Assembly must enact a law specifically stating
       home rule authority is limited. Scadron, 153 Ill. 2d at 185-86. The General Assembly has
       codified that principle in section 7 of the Statute on Statutes (5 ILCS 70/7 (West 2010)),
       providing:
                     “No law enacted after January 12, 1977, denies or limits any power or function
                 of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of section 6 of
                 Article VII of the Illinois Constitution, unless there is specific language limiting or
                 denying the power or function and the language specifically sets forth in what manner
                 and to what extent it is a limitation on or denial of the power or function of a home
                 rule unit.”
       Section 7 has been formally adopted as part of this court’s home rule jurisprudence.
       Schillerstrom Homes, 198 Ill. 2d at 287.
¶ 33        Additionally, the legislature has enacted the Home Rule Note Act, providing “[e]very bill
       that denies or limits any power or function of a home rule unit shall have prepared for it
       before second reading in the house of introduction a brief explanatory note that includes a
       reliable estimate of the probable impact of the bill on the powers and functions of home rule
       units.” 25 ILCS 75/5 (West 2010). Accordingly, the legislature has recognized its principal
       role in determining whether to preempt or limit home rule power and its responsibility to use
       specific language when preempting or limiting that power.
¶ 34        We have consistently recognized that the home rule provisions of the Illinois Constitution
       are intended to “ ‘eliminate or at least reduce to a bare minimum the circumstances under
       which local home rule powers are preempted by judicial interpretation of unexpressed
       legislative intention.’ ” Scadron, 153 Ill. 2d at 186 (quoting David C. Baum, A Tentative
       Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems, and
       Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 571); see also Schillerstrom Homes, 198
       Ill. 2d at 288; Roman, 184 Ill. 2d at 516. “The Illinois approach places almost exclusive
       reliance on the legislature rather than the courts to keep home rule units in line.” (Internal
       quotation marks omitted.) Roman, 184 Ill. 2d at 517 (quoting Scadron, 153 Ill. 2d at 187-88).
       “ ‘[I]f the constitutional design is to be respected, the courts should step in to compensate for
       legislative inaction or oversight only in the clearest cases of oppression, injustice, or
       interference by local ordinances with vital state policies.’ ” (Emphasis in original.) Scadron,
       153 Ill. 2d at 190 (quoting David C. Baum, A Tentative Survey of Illinois Home Rule (Part
       I): Powers and Limitations, 1972 U. Ill. L.F. 137, 157).
¶ 35        Prior to our recent decision in City of Chicago v. StubHub, Inc., 2011 IL 111127, this
       court had used a three-part test to review the constitutionality of the exercise of home rule
       power. Schillerstrom Homes, 198 Ill. 2d at 289-90. Under that test, we first determined
       whether the disputed exercise of local government power pertains to local government and
       affairs as required under section 6(a). If so, we determined whether the General Assembly
       preempted the exercise of home rule powers in the area. If not, we determined the “the proper


                                                 -7-
       relationship” between the local legislation and the state statute. Schillerstrom Homes, 198
       Ill. 2d at 289-90.
¶ 36        The “vital state policy” analysis was treated as the third part of that test, to be considered
       after determining whether the local ordinance pertains to the home rule unit’s government
       and affairs under section 6(a) and whether the legislature expressly preempted the exercise
       of home rule authority. Roman, 184 Ill. 2d at 512-19; Scadron, 153 Ill. 2d at 174-90. In
       StubHub, however, this court recognized that “the concept of a vital state policy trumping
       municipal power is analytically appropriate under section 6(a)” rather than section 6(i). City
       of Chicago v. StubHub, Inc., 2011 IL 111127, ¶ 22 n.2. Accordingly, “[i]f a subject pertains
       to local government and affairs, and the legislature has not expressly preempted home rule,
       municipalities may exercise their power.” StubHub, Inc., 2011 IL 111127, ¶ 22 n.2. In those
       circumstances, the “proper relationship” between the local legislation and the state statute
       is established by section 6(i), providing that home rule units “may exercise and perform
       concurrently with the State any power or function of a home rule unit to the extent that the
       General Assembly by law does not specifically limit the concurrent exercise or specifically
       declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i).
¶ 37        The defendants’ brief specifically states no argument is raised on whether the City’s
       ordinance pertains to local affairs or whether the legislature has expressly preempted home
       rule authority. In fact, in their reply brief the defendants criticize the City for addressing those
       parts of the home rule analysis because “those factors are not even at issue in this appeal.”
       The defendants assert that “the only issue on appeal related to the enforceability of the City’s
       ordinance *** is the third test ***[,] whether there is ‘a proper relationship between the local
       ordinance and the state statute.’ ” The defendants contend that the City’s ordinance is invalid
       because it renders unenforceable within Chicago portions of the Illinois Condominium
       Property Act and the General Not For Profit Corporation Act of 1986. The City’s ordinance
       states:
                    “No person shall fail to allow unit owners to inspect the financial books and
                records of the condominium association within three business days of the time
                written request for examination of the records is received.” Chicago Municipal Code
                § 3-72-080 (2009).
       Section 19 of the Condominium Property Act and section 107.75 of the General Not For
       Profit Corporation Act of 1986 require condominium unit owners to state a “proper purpose”
       for inspecting condominium financial books and records. 765 ILCS 605/19(e) (West 2000);
       805 ILCS 105/107.75(a) (West 2000). Additionally, section 19 of the Illinois Condominium
       Property Act requires production of only the current and previous 10 years of financial books
       and records and allows 30 business days to produce those records. 765 ILCS 605/19(a)(9),
       (e) (West 2000).
¶ 38        The defendants assert that the City’s ordinance directly conflicts with the statutory
       provisions because: (1) it does not require unit owners to state a proper purpose for
       inspecting financial books and records; (2) it does not limit production to a certain number
       of years; and (3) it contains a much shorter time period for producing the records. Relying
       on Schillerstrom Homes, the defendants argue that the ordinance exceeds the City’s home


                                                   -8-
       rule power given the direct conflict with the statutory provisions. The defendants contend
       that in Schillerstrom Homes this court upheld an ordinance only because it did not conflict
       with a state statute. The defendants, therefore, maintain that an ordinance exceeds home rule
       power if it conflicts with a state statute.
¶ 39        The defendants further contend that an ordinance may be a valid exercise of home rule
       power only if it is more restrictive than a state statute addressing the same subject. A more
       restrictive ordinance leaves the statute intact and enforceable. The defendants contend that
       the ordinance here is less restrictive than the statutes in granting access to association
       financial books and records. The ordinance, therefore, is invalid because it eliminates the
       statutory requirement of stating a “proper purpose” to obtain records, changes the scope of
       documents subject to production, and alters the time frame for producing those documents.
¶ 40        In Schillerstrom Homes, a real estate development company filed a complaint against the
       City of Naperville, alleging that the City willfully failed to approve the company’s final
       subdivision plat within the 60-day period required by a state statute. Schillerstrom Homes,
       198 Ill. 2d at 282-83. The company sought damages under the statutory remedy provision.
       Schillerstrom Homes, 198 Ill. 2d at 283. While the City’s ordinance also set forth a 60-day
       period for plat approval and was “strikingly similar” to the statute, the ordinance was silent
       on a remedy for a violation of its provisions. Schillerstrom Homes, 198 Ill. 2d at 288-89. The
       dispute centered on whether the ordinance superseded the statutory remedy provision.
       Schillerstrom Homes, 198 Ill. 2d at 283.
¶ 41        In analyzing the issue, we considered whether the ordinance superseded the entire statute,
       including its remedy provision. See Schillerstrom Homes, 198 Ill. 2d at 291-93. We
       concluded that the ordinance, by remaining silent on the remedy, did not supersede or limit
       the remedy provision of the statute. Schillerstrom Homes, 198 Ill. 2d at 293. The statutory
       remedy provision simply filled the gap in the ordinance. Schillerstrom Homes, 198 Ill. 2d at
       293. Importantly, we did not question whether the ordinance could supersede a conflicting
       state statute. Rather, we clearly accepted the basic principle that an ordinance may supersede
       or limit a conflicting statute. Schillerstrom Homes, 198 Ill. 2d at 291-93. We only held that
       the ordinance, by remaining silent, did not supersede the portion of the statute providing a
       remedy.
¶ 42        Contrary to the defendants’ argument, the conflict between the City’s ordinance and the
       state statutes here does not render the ordinance invalid or beyond home rule power. “ ‘The
       fact that the state has occupied some field of governmental endeavor, or that home rule
       ordinances are in some way inconsistent with state statutes, is not in itself sufficient to
       invalidate the local ordinances.’ ” Scadron, 153 Ill. 2d at 194 (quoting David C. Baum,
       Tentative Survey of Illinois Home Rule (Part II): Legislative Control, Transition Problems,
       and Intergovernmental Conflict, 1972 U. Ill. L.F. 559, 572). In holding that a statutory
       provision did not preempt an inconsistent home rule ordinance, this court has relied on
       Professor Baum’s explanation that:
                “ ‘It may happen that a state statute and a home rule ordinance are in direct and
                immediate conflict and cannot reasonably stand together. ***
                    *** Since the state always can vindicate its interests by legislating in the proper


                                                 -9-
                form, it seems unwise to sustain state legislation at the expense of home rule
                ordinances except when a state statute is in the required form or in those few cases
                where vital state interests would be sacrificed by permitting the local legislation to
                prevail until the next session of the General Assembly.’ ” Roman, 184 Ill. 2d at 519
                (quoting 1972 U. Ill. L.F. at 572-73).
¶ 43       Further, this court has never held that a home rule unit may only enact an ordinance more
       restrictive than statutory provisions. Instead, we have held that the General Assembly may
       limit or restrict a home rule unit’s power by allowing local ordinances, but only within limits
       consistent with the statutory scheme. Roman, 184 Ill. 2d at 519. To limit or restrict home rule
       authority, however, the General Assembly must do so specifically. Roman, 184 Ill. 2d at 520.
       Comprehensive legislation that conflicts with an ordinance is insufficient to limit or restrict
       home rule authority. Roman, 184 Ill. 2d at 519-20.
¶ 44       In sum, the constitutional framework places almost exclusive reliance on the General
       Assembly to determine whether home rule authority should be preempted. Roman, 184 Ill.
       2d at 517; Scadron, 153 Ill. 2d at 187-88. The legislature has not specifically denied the
       City’s exercise of home rule power or required its exercise of that power to be consistent
       with statutory provisions. If the General Assembly wishes to deny or restrict the City’s home
       rule authority, it may enact a statute expressly providing for that action at its next session.
       Accordingly, we conclude that the City’s ordinance is a valid exercise of its home rule
       power.

¶ 45                               C. Interim Attorney Fees Award
¶ 46       The defendants also contend that the trial court erred in awarding Palm attorney fees at
       the rate of $300 per hour when he agreed to pay and actually paid his attorney $200 per hour.
       The defendants contend that the City’s ordinance only allows recovery of attorney fees
       actually incurred in an action to enforce the ordinance.
¶ 47       The City’s ordinance provides the basis for awarding attorney fees in this case. Our
       review of the interim fee award, therefore, begins with interpreting the City’s ordinance. See
       Blum v. Stenson, 465 U.S. 886, 892-93 (1984) (determining correct standard for calculating
       attorney fees award “begins and ends with an interpretation of the attorney’s fee statute”);
       Citizens Organizing Project v. Department of Natural Resources, 189 Ill. 2d 593, 598-99
       (2000) (interpreting fee-shifting provision in section 10-55(c) of the Illinois Administrative
       Procedure Act in accordance with its plain language).
¶ 48       The rules of statutory construction apply to the interpretation of municipal ordinances.
       Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008). The fundamental objective of
       statutory construction is to ascertain and give effect to the drafter’s intent. Hubble v. Bi-State
       Development Agency of the Illinois-Missouri Metropolitan District, 238 Ill. 2d 262, 268
       (2010). The statutory language, given its plain and ordinary meaning, is the best indication
       of legislative intent. In re Andrew B., 237 Ill. 2d 340, 348 (2010). We review questions of
       statutory construction de novo. Ries v. City of Chicago, 242 Ill. 2d 205, 216 (2011).
¶ 49       The City’s ordinance provides, in pertinent part, that a prevailing plaintiff in an action
       brought to enforce an ordinance provision “shall be entitled to recover, in addition to any

                                                 -10-
       other remedy available, his reasonable attorney fees.” Chicago Municipal Code § 13-72-100
       (2009). The ordinance, therefore, allows a prevailing plaintiff to recover or obtain reasonable
       attorney fees.
¶ 50       In Blum, the Supreme Court construed a federal statute with language similar to the
       City’s ordinance allowing recovery of “reasonable attorney fees.” The statute applicable in
       federal civil rights actions provided that “the court, in its discretion, may allow the prevailing
       party, other than the United States, a reasonable attorney’s fee as part of the costs.” (Internal
       quotation marks omitted.) Blum, 465 U.S. at 888 (quoting 42 U.S.C. § 1988). The Court
       considered whether the statute required use of the prevailing market rate or a cost-based
       standard in calculating attorney fee awards. Blum, 465 U.S. at 892-93. Based on the statute
       and its legislative history, the Court concluded that “reasonable fees” were to be calculated
       in accordance with the prevailing market rates in the relevant community. Blum, 465 U.S.
       at 895.
¶ 51       The phrase “reasonable attorney fees” has generally been interpreted to require use of the
       prevailing market rate in calculating a fee award. See Wisconsin v. Hotline Industries, Inc.,
       236 F.3d 363, 366 (7th Cir. 2000) (general rule for calculating fee awards under statutes
       authorizing a “reasonable attorney’s fee as part of the costs” is to use the “prevailing market
       rates in the relevant community”). Thus, contrary to the defendants’ argument, the language
       of the City’s ordinance does not indicate that recoverable attorney fees are limited to those
       actually incurred or paid by the plaintiff in the litigation. Rather, use of the phrase
       “reasonable attorney fees” indicates an intent to allow recovery based on the prevailing
       market rate for the attorney’s services.
¶ 52       Here, the trial court awarded interim attorney fees based on the market value of the
       attorney’s services. The trial court, therefore, used the correct standard in calculating the
       attorney fees award under the ordinance. The trial court’s award using the correct standard
       is reviewed for abuse of discretion. Lurie v. Canadian Javelin Ltd., 93 Ill. 2d 231, 239
       (1982).
¶ 53       In this case, Palm provided the only evidence on the prevailing market rate for the
       services of his attorney. Palm submitted the affidavit of retired Cook County Circuit Court
       Judge Kenneth L. Gillis, attesting that the rate of $300 per hour was “well within the
       prevailing market rates charged in comparable cases by Chicago attorneys of similar
       qualifications, skill and experience.”
¶ 54       The defendants did not present any evidence on the prevailing market rate for the services
       of Palm’s attorney. Instead, the defendants contend that the fee award at the prevailing
       market rate will result in a windfall to Palm and an award of exemplary damages against
       them because Palm will be allowed to keep the amount exceeding the $200 per hour he paid
       his attorney. The defendants, therefore, contend that the fee award allows Palm to profit from
       his challenge to the ordinance.
¶ 55       The defendants’ argument is, nevertheless, contradicted by the allegations in Palm’s
       petition for interim attorney fees. In his petition, Palm alleged that the fee agreement
       provided a reduced hourly rate that is typical in actions allowing recovery of attorney fees
       by a prevailing party. The petition further alleged that the fee award would be retained by


                                                 -11-
       Palm’s attorney and Palm would only receive reimbursement for his actual payments. Palm’s
       attorney signed the petition, averring that she had personal knowledge of the allegations and
       could testify to the matters set forth in the petition. According to the verified petition,
       therefore, Palm will not receive a windfall from this action, but will only be reimbursed for
       his actual payments to his attorney. Palm’s attorney will receive “reasonable attorney fees”
       based on the prevailing market rate as required by the City’s ordinance.
¶ 56       Given this record, we cannot find that the trial court abused its discretion in setting the
       interim attorney fees award. The award is based on the only evidence presented on the
       prevailing market rate for the attorney’s services. Accordingly, the trial court’s award of
       interim attorney fees must be affirmed.

¶ 57                                    III. CONCLUSION
¶ 58      For the foregoing reasons, we hold that the City’s ordinance is a valid exercise of its
       home rule power and the interim attorney fees award is not an abuse of discretion. The
       appellate court’s judgment is, therefore, affirmed.

¶ 59       Affirmed.

¶ 60       JUSTICE THOMAS, specially concurring:
¶ 61       I join the majority opinion. I write separately to address the dissent filed by Justices
       Freeman and Burke, in which the dissenting justices criticize the majority for not reversing
       the appellate court on an unargued and unbriefed basis. The dissent, unfortunately, causes
       great confusion about what issues are properly before the court, and it is off base in its
       discussion of both home rule and the proper role of a court of review.

¶ 62                              I. What Is at Issue in This Appeal
¶ 63       The argument made by the Association is straightforward and clear: a municipality may
       not enact an ordinance that is less restrictive than a state statute. The Association reads this
       state’s case law as establishing a rule that home rule municipalities may enact ordinances that
       are more restrictive than state statutes, but not less restrictive. The argument section of the
       Association’s brief contains eight pages of argument on this issue, and another seven pages
       on the attorney fees issue. That is it. Apparently unhappy with the way that the appellants
       framed their argument, the dissent has decided to make a different argument for them: that
       the ordinance does not pertain to the City’s government and affairs.2 The dissenting justices


               2
                  The vast majority of the dissent is spent addressing matters not in any way at issue. For
       instance, the dissent opens by demonstrating that the ordinance and the statute conflict. Of course
       they do; both sides concede this. If there was no conflict, we would not have this case. The dissent
       likewise spends a great deal of time tracing the history of condominium law in the United States. But
       this is in no way relevant to the Association’s appeal. The Association raises a simple argument that
       does not require an examination of the history of condominiums: a home rule ordinance may not

                                                  -12-
contend that this court should reverse on this unargued and unbriefed basis. Although this
court unquestionably has the power to do what the dissenting justices request, our established
precedent dictates that we should not. We recently discussed this very issue in People v.
Givens, 237 Ill. 2d 311 (2010). In that case, we explained why a reviewing court should not
search the record for unargued reasons to reverse the lower court:
             “Illinois law is well settled that other than for assessing subject matter
        jurisdiction, ‘a reviewing court should not normally search the record for unargued
        and unbriefed reasons to reverse a trial court judgment.’ (Emphasis added.) Saldana
        v. Wirtz Cartage Co., 74 Ill. 2d 379, 386 (1978); see also Parks v. McWhorter, 106
        Ill. 2d 181, 184 (1985) (noting that except for jurisdictional grounds, a search of the
        record for unargued and unbriefed reasons to reverse a lower court’s decision is
        improper); People ex rel. Akin v. Southern Gem Co., 332 Ill. 370, 372 (1928) (‘while
        this court will examine the record for the purpose of affirming a judgment it will not
        do so for the purpose of reversing it’). Moreover, in Greenlaw v. United States, 554
        U.S. 237, 243, 171 L. Ed. 2d 399, 408, 128 S. Ct. 2559, 2564 (2008), the United
        States Supreme Court recently addressed the propriety of a reviewing court ruling
        upon issues raised sua sponte. The Court admonished:
                  ‘In our adversary system, in both civil and criminal cases, in the first instance
             and on appeal, we follow the principle of party presentation. That is, we rely on
             the parties to frame the issues for decision and assign to courts the role of neutral
             arbiter of matters the parties present. To the extent courts have approved
             departures from the party presentation principle in criminal cases, the justification
             has usually been to protect a pro se litigant’s rights. [Citation.] But as a general
             rule, “[o]ur adversary system is designed around the premise that the parties
             know what is best for them, and are responsible for advancing the facts and
             arguments entitling them to relief.” [Citation.] As cogently explained:
                  “[Courts] do not, or should not, sally forth each day looking for wrongs to
             right. We wait for cases to come to us, and when they do we normally decide
             only questions presented by the parties. Counsel almost always know a great deal
             more about their cases than we do ***.” [Citation.]’ Greenlaw, 554 U.S. at 243-
             44, 171 L. Ed. 2d at 408, 128 S. Ct. at 2564.
        Our appellate court in People v. Rodriguez, 336 Ill. App. 3d 1, 14 (2002), expressed
        a similar sentiment as follows:
             ‘While a reviewing court has the power to raise unbriefed issues pursuant to
             Supreme Court Rule 366(a)(5), we must refrain from doing so when it would
             have the effect of transforming this court’s role from that of jurist to advocate.


conflict with a state statute in such a way that it is less restrictive than the statute. And this argument,
the only preemption issue before the court, is never mentioned or addressed by the dissent. Thus, one
wonders what the dissent means when it opens by stating the majority opinion is an “unnecessary
departure” from settled condominium property law, when the majority opinion does not address
condominium law at all. The majority opinion is limited to the issues before the court.

                                               -13-
                    [Citation.] Were we to address these unbriefed issues, we would be forced to
                    speculate as to the arguments that the parties might have presented had these
                    issues been properly raised before this court. To engage in such speculation
                    would only cause further injustice; thus we refrain from addressing these issues
                    sua sponte.’ ” Givens, 237 Ill. 2d at 323-24.
¶ 64       And, here, the problem goes beyond mere forfeiture. Not only did the appellants not raise
       this argument, they criticized the City for even mentioning it. As noted by the dissent, the
       City did a complete analysis of every possible preemption argument that the Association
       could make, and demonstrated that the Association would lose on every one. In its reply
       brief, the Association stated the following:
                “The Schillerstrom court noted that there are three tests for determining
                enforceability of a home rule ordinance. The first two tests are whether the ordinance
                pertains to local affairs, and whether a state statute expressly preempts home rule
                power. Although the City devotes the vast majority of its brief to those first two
                issues, those factors are not even at issue in this appeal.” (Emphasis added.)
       So, according to the dissent, this court should grant relief to the appellants on the basis of an
       argument that they criticized the appellee for even mentioning.
¶ 65       The dissent offers several reasons why the normal rules of appellate procedure do not
       apply to this case, but none are convincing. First, without citation to authority, the dissent
       claims that the issue is “squarely and properly before the court” (infra ¶ 96 (Freeman, J.,
       dissenting, joined by Burke, J.)) because the City addressed it in its appellee’s brief. I direct
       my dissenting colleagues’ attention to Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6,
       2013), which contains the requirements for an appellant’s brief and provides that: “Points not
       argued are waived and shall not be raised in the reply brief, in oral argument, or on petition
       for rehearing.” Thus, the scope of the Association’s appeal was framed when it filed its
       opening brief.
¶ 66       Second, the dissent argues that the question of whether a matter pertains to local
       government and affairs under section 6(a) is a legal one, and thus this court is not bound to
       abide by the parties’ contentions. While I do not disagree with the dissent’s premise, its
       conclusion is a non sequitur. Had the Association properly raised a section 6(a) issue, I agree
       that this court would not be bound by the parties’ precise legal contentions on that issue. I
       do not see, however, how a section 6(a) question being a legal one excuses the Association’s
       complete failure to raise the issue in the first place. Under the dissent’s reasoning, any legal
       question not raised by the parties would always be squarely and properly before a reviewing
       court. Again, no citation to authority is offered for this proposition.
¶ 67       Third, the dissent argues that, “under the approach set forth in the majority decision, our
       standard for deciding the legal question of whether a municipality has exceeded the home
       rule power granted under section 6(a) will vary, depending on what arguments are raised in
       the parties’ briefs.” According to the dissent, this will lead to a “confusing and inconsistent
       body of home rule jurisprudence”(infra ¶ 98 (Freeman, J., dissenting, joined by Burke, J.),
       and that the court should suspend waiver to ensure a uniform body of precedent. The
       dissent’s concerns are unfounded. This court has stated that its opinions are authority only


                                                 -14-
       for what is actually decided. Department of Public Works & Buildings v. Farina, 29 Ill. 2d
       474, 479-80 (1963). Here, the only thing that was “decided” with respect to section 6(a) and
       the City’s ordinance is that the Association did not raise a section 6(a) argument. It is the
       dissent, not the majority, that is creating the confusion by expounding at length on an issue
       not raised by the appellants.
¶ 68        Finally, the dissent argues that the Association did not have the benefit of this court’s
       decision in StubHub when it filed its brief. The dissent points out that, in StubHub, this court
       recognized that the concept of a state statute trumping a municipal ordinance when a vital
       state policy is involved was not analytically appropriate when considering an argument under
       section 6(i) of the constitution. Although Illinois courts had considered this a section 6(i)
       question in the past, StubHub explained that this should instead be considered a section 6(a)
       question. While it is certainly true that StubHub did this, one wonders what possible
       relevance that is to the Association, as the Association did not argue that a vital state policy
       is involved here. The Association argued only that an ordinance may not be less restrictive
       than a conflicting state statute. Why should this court’s changing the law on a point not
       argued by the appellants cause this court to suspend the normal rules of forfeiture? Both
       before and after StubHub, the constitution required that home rule ordinances must pertain
       to local government and affairs. And, as to the section 6(a) analysis, the StubHub majority
       claimed that all it was doing was applying “settled law” that this court had consistently used
       as the “definitive” section 6(a) analysis. StubHub, 2011 IL 111127, ¶ 25. The dissenting
       justices in this case were in the StubHub majority, and their position in that case necessarily
       precludes them from arguing here that StubHub so significantly altered the section 6(a)
       analysis that we can excuse the Association’s forfeiture. The Association was certainly free
       to argue that this ordinance did not pertain to local government and affairs, but it chose not
       to. The problem with the Association’s argument has nothing to do with StubHub. The
       problem is that the argument is simply wrong on its face. It was not the rule before StubHub,
       nor is it the rule now, that municipal ordinances may not conflict with state statutes.
¶ 69        Clearly, then, the dissent has offered no legitimate reason why this court should assume
       the role of advocate for the Condominium Association, raise an entirely new argument for
       it, and then reverse on that basis.

¶ 70              II. The Ordinance Pertains to the City’s Government and Affairs
¶ 71       Although the question of whether the ordinance pertains to the City’s government and
       affairs is not properly before this court, I feel compelled to point out that, even if it were, the
       dissent’s analysis of that issue is wrong for any number of reasons. Moreover, the dissent’s
       arguments show that, without a doubt, the dissenting justices are simply not comfortable with
       the system of home rule established by the Illinois Constitution.
¶ 72       First, the dissent looks at the extent of the state’s regulation in the area of condominium
       law. This is not, however, how we decide preemption questions. No one has explained this
       better than Justice Freeman, who wrote in City of Chicago v. Roman, 184 Ill. 2d 504 (1998):
                     “Further, ‘comprehensive’ legislation is insufficient to declare the state’s exercise
                of power to be exclusive. To ‘meet the requirements of section 6(h), legislation must

                                                  -15-
               contain express language that the area covered by the legislation is to be exclusively
               controlled by the State. [Citations.] It is not enough that the State comprehensively
               regulates an area which otherwise would fall into home rule power.’ Village of
               Bolingbrook v. Citizens Utilities Co., 158 Ill. 2d 133, 138 (1994). After Citizens
               Utilities, ‘comprehensive scheme’ preemption is ‘no longer the law of this state.’
               Board of Trustees of the Barrington Police Pension Fund v. Village of Barrington
               Ethics Board, 287 Ill. App. 3d 614, 619 (1997). ‘The General Assembly cannot
               express an intent to exercise exclusive control over a subject through coincidental
               comprehensive regulation.’ American Health Care Providers, Inc. v. County of Cook,
               265 Ill. App. 3d 919, 928 (1994).” Roman, 184 Ill. 2d at 517.
       See also Scadron, 153 Ill. 2d at 194 (“ ‘[t]he fact that the state has occupied some field of
       governmental endeavor, or that home rule ordinances are in some way inconsistent with state
       statutes, is not in itself sufficient to invalidate the local ordinances’ ” (quoting 1972 U. Ill.
       L.F. at 572)); Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1141, 1158-59
       (2007)) (noting that Illinois is unique in that it is the only state to have no rule of implied
       preemption).
¶ 73       Although Roman was not a section 6(a) case, surely the dissent is not contending that a
       court can use comprehensive state regulation to render an area entirely outside of local
       control under section 6(a). I would ask my colleagues in the dissent to consider whether it
       makes any sense at all that this court’s position should be that, while comprehensive state
       regulation cannot preempt home rule authority in an area, it does render the area entirely
       outside the authority of home rule units to act at all. Is it not obvious that this is just
       preemption by another name? Indeed, if comprehensive state regulation means that a
       particular subject does not pertain to the government and affairs of home rule units under
       section 6(a), then we would rarely get past step one of the analysis, and the powers of home
       rule units would be severely restricted. The dissent’s analysis would render decisions such
       as Scadron and Roman meaningless.
¶ 74       Next, the dissent brushes aside the City’s obviously strong and compelling interest in
       regulating condominiums. The dissent disagrees with the majority’s point that the large
       number of condominiums in Chicago gives the City a vital interest in condominium record
       keeping. But this very same reasoning was used in City of Evanston v. Create, Inc., 85 Ill.
       2d 101 (1981), in which this court upheld the right of Evanston to enact a landlord-tenant
       ordinance. In Create, this court explained:
               “The city of Evanston is a densely populated and highly urbanized municipality with
               a large number of rental units. The City, therefore, has a strong interest in protecting
               both the landlord and tenant and in providing each with a detailed description of their
               respective rights, duties and remedies. In accordance with the goals attempted to be
               achieved by the creation of home rule, the local governing body can create an
               ordinance specifically suited for the unique needs of its residents and is keenly and
               uniquely aware of the needs of the community it serves. We therefore believe that the
               ordinance in question was one of the types contemplated in the grant of home rule
               powers under section 6(a) of article VII.” Create, 85 Ill. 2d at 113-14.


                                                 -16-
       As the largest condominium market in Illinois, and the third largest in the United States
       (http://chicagocondosonline.com/marketoverview.html (last visited Apr. 15, 2013)),
       Chicago’s interest in having a condominium ordinance is at least as strong as Evanston’s
       interest in having a landlord-tenant ordinance.
¶ 75        The dissent also argues that:
                “Under the City’s logic, every home rule unit that has a large condominium presence
                can legislate in this area, with the Act reduced to providing the law for those
                condominiums that are in towns and villages that are not home rule units. The rights
                of owners in one town would differ from the rights of owners in another town.
                Similarly, the rights of an association would differ from city to city.” Infra ¶ 123
                (Freeman, J., dissenting, joined by Burke, J.).
       Of course other home rule municipalities could enact their own condominium ordinances
       with different requirements. That is the whole point of home rule. In Create, this court did
       not express any concern that upholding Evanston’s right to have a landlord-tenant ordinance
       would mean that other home rule municipalities could also enact them.3 Again, we can
       simply turn to the words of Justice Freeman for an explanation:
                “[T]he possibility that different home rule units may adopt similar ordinances with
                differing mandatory minimum sentences should be of no concern. ‘The grant of home
                rule powers contemplates that different communities which perceive a problem
                differently may adopt different measures to address the problem, provided that the
                legislature has taken no affirmative steps to circumscribe the measures that may be
                taken and that the measures taken are reasonable.’ ” Roman, 184 Ill. 2d at 514-15
                (quoting Kalodimos, 103 Ill. 2d at 504-05).
       And, if this “patchwork” of local regulations is not what the legislature intended, what should
       the legislature do? As Justice Freeman explained in Roman, “ ‘the state always can vindicate
       its interests by legislating in the proper form.’ ” Roman, 184 Ill. 2d at 519 (quoting 1972 U.
       Ill. L.F. at 572-73).
¶ 76        The dissent next contends that the ordinance is invalid because the entire field of real
       property law is off limits to home rule units. The dissent relies on the following statement
       from the record of proceedings of the Local Government Committee at the Sixth Illinois


               3
                 The dissent drops a footnote arguing that the City’s large number of condominiums does
       not “make the problem so unique to Chicago that its interest its greater than the State’s.” The dissent
       does not explain where this standard comes from; the only authority cited in the footnote is a 2006
       article from the Chicago Tribune about condominium conversion in northwest suburban Cook
       County. The constitutional requirement is that the ordinance must pertain to local government and
       affairs. The constitution does not state that home rule units may enact ordinances only when their
       interest in an area is so unique as to render the municipality’s interest greater than the state’s. As
       Professor Baum has explained, “home rule units are supposed to be free to carry on activities that
       relate to their communities even if the state also is interested and is active in the area.” (Emphasis
       added.) David C. Baum, A Tentative Survey of Illinois Home Rule (Part I): Powers and Limitations,
       1972 U. Ill. L.F. 137, 155. That is the whole purpose of section 6(i).

                                                   -17-
       Constitutional Convention:
                “It is clear, however, that the powers of home-rule units relate to their own problems,
                not to those of the state or nation. Their powers should not extent to such matters as
                divorce, real property law, trusts, contracts, etc., which are generally recognized as
                falling within the competence of state rather than local authorities. Thus the proposed
                grant of powers to local governments extends only to matters ‘pertaining to their
                government and affairs.’ ” 7 Record of Proceedings, Sixth Illinois Constitutional
                Convention 1621.
       Professor Baum warned against taking this language too literally because it could mean that
       things such as fair housing ordinances, which involve both real property and contract law,
       would be off limits to home rule units. 1972 U. Ill. L.F. at 153. This court has agreed with
       Professor Baum and has placed a very narrow construction on the above language. In Create,
       the defendant relied on the listing of contract law in the above passage to argue that
       Evanston’s landlord-tenant ordinance was invalid because it interfered with contracts
       between private citizens. This court disagreed, explaining that “the Ordinance does not alter
       any basic principle of contract law.” (Emphasis added.) Create, 85 Ill. 2d at 114. Similarly,
       here, the dissent has not explained how the section of Chicago’s condominium ordinance
       regulating the right of condominium owners to access the financial books and records of
       condominium associations alters any basic principles of real property law.4
¶ 77        Moreover, this court has consistently recognized the interest that municipalities have in
       regulating real property. In Create, we upheld the right of home rule municipalities to have
       landlord-tenant ordinances, and in Schillerstrom Homes, we explained the following:
                “Municipal development regulations, including the ordinance at issue here,
                undoubtedly pertain to local affairs. See Carlson v. Briceland, 61 Ill. App. 3d 247,
                254 (zoning restrictions pertain to local affairs); Johnny Bruce Co. v. City of
                Champaign, 24 Ill. App. 3d 900, 904 (1974) (the resolution of zoning problems is left
                to the local exercise of plenary home rule power); accord Treadway v. City of
                Rockford, 24 Ill. 2d 488, 493-94 (1962) (pre-1970 Constitution) (‘Zoning lies
                primarily within the province of the municipality’); La Salle National Bank of
                Chicago v. County of Cook, 12 Ill. 2d 40, 46 (1957) (pre 1970 Constitution) (‘It is
                well established that it is primarily the province of the municipal body to determine
                the use and purpose to which property may be devoted’); see also Create, Inc., 85 Ill.
                2d at 116 (city landlord-tenant ordinance was a proper exercise of home rule power).”
                Schillerstrom Homes, 198 Ill. 2d at 290.
       It is simply not possible to argue in 2013 that the entire field of real property law is off limits
       to home rule municipalities.
¶ 78        The dissent contends that Create is distinguishable because the framers recognized that


               4
                 The dissent also argues that condominium law is a blend of real property law, contract law,
       and corporate law, but it likewise does not identify any basic principles of corporate law or contract
       law that are altered by the City’s ordinance. Again, all we are talking about is an ordinance that gives
       condominium owners greater access to the financial books and records of condominium associations.

                                                    -18-
       landlord-tenant relations would fall within local control. The dissent cites a page of the
       record from the constitutional convention showing that the framers believed that home rule
       units could act to prevent slums and could enact rent control ordinances. Infra at ¶ 127. There
       are two problems with the dissent’s argument. First, you cannot simultaneously argue that:
       (1) the entire field of real property law is off-limits to home rule units; and (2) that home rule
       units may act to prevent slums and may enact rent control ordinances and landlord-tenant
       ordinances. Either the entire field of real property law is off-limits to them or it is not; the
       dissent cannot have it both ways. Second, this page of the report of proceedings from the
       constitutional convention was not why Create upheld the right of home rule units to enact
       landlord-tenant ordinances. Rather, Create recognized this as a matter pertaining to local
       government and affairs because “[t]he city of Evanston is a densely populated and highly
       urbanized municipality with a large number of rental units.” Create, 85 Ill. 2d at 113. And
       this reasoning applies equally to Chicago’s interest in enacting a condominium ordinance.
       Thus, Create can be distinguished only if one is willing to ignore the actual basis for the
       court’s holding.
¶ 79        Continuing to exhibit its complete discomfort with Illinois’s system of home rule, the
       dissent complains that the majority is requiring the legislature to include “magic words”
       whenever it wants to preempt home rule authority. The dissent also finds it unsurprising that
       the legislature would not include those “magic words” here, because it never could have
       imagined that including those words was necessary with regard to anything having to do with
       real property. There are so many problems with these points that one barely knows where to
       begin.
¶ 80        As for the dissent’s complaint of a “magic words” requirement, that requirement has
       three sources. First, the constitution clearly imposes that requirement. See Ill. Const. 1970,
       art. VII, § 6(h), (i). Second, this court has interpreted the constitution as imposing that
       requirement. I again point the reader to Justice Freeman’s opinion in Roman, where he
       discusses the magic words requirement in detail, explains that this is the only way that the
       legislature can preempt home rule authority, and notes that the legislature has included the
       magic words in many different statutes. Roman, 184 Ill. 2d at 515-18. Third, the legislature
       has imposed this requirement on itself. As the majority notes, but the dissent ignores, section
       7 of the Statute on Statutes specifically provides that no legislative act after January 12,
       1977, may be read as preempting home rule authority unless it contains specific preemption
       language. 5 ILCS 70/7 (West 2010). There is no hint given by the dissenting justices why
       they believe this court is free to ignore constitutional text, controlling authority from this
       court, and an express statutory directive from the legislature.
¶ 81        As for the dissent’s claim that the legislature could not possibly have imagined the need
       to include the magic words in the section of the Condominium Property Act at issue, the
       dissent must know that this is not true. As the City explains in its brief, the legislature
       requested a home rule note from the Illinois Department of Commerce and Economic
       Opportunity before the second reading of Senate Bill 408 in the House, and the legislature
       was advised by the Department that the amended bill did “not preempt home rule authority.”
       So, even after being advised by the Department that the legislation did not preempt home rule
       authority, the legislature still chose not to include preemption language in the bill. And, we

                                                 -19-
       must not ignore the facts that: (1) the same session of the General Assembly included express
       preemption language in other bills (see, e.g., 215 ILCS 155/3.1 (added by Pub. Act 90-317,
       § 5, eff. Aug. 1, 1997); 225 ILCS 51/170 (added by Pub. Act 90-532, § 170, eff. Nov. 14,
       1997)); and (2) the legislation in question was enacted over 15 years after this court had
       already upheld the right of home rule units to enact landlord-tenant ordinances. In other
       words, the legislature knew exactly what it was doing, and the dissent’s claim that this court
       should now usurp the legislature’s preemption authority is simply untenable.

¶ 82                                        III. Conclusion
¶ 83        In sum, the dissent filed by Justices Freeman and Burke is fundamentally flawed for two
       independent reasons: (1) they improperly assume the role of appellate advocate for the
       Condominium Association, raising an unargued and unbriefed issue on its behalf and then
       criticizing the court for not reversing on this unargued and unbriefed basis; (2) the view of
       home rule expressed therein is diametrically opposed to our state’s constitution, case law,
       and statutes, and seems to advocate a return to the very system that the framers of the 1970
       Constitution intended to replace. As for the parade of terrible consequences of this decision
       that the dissent envisions, there is a simple answer. If the legislature wants this to be an area
       of exclusive state control, then the legislature can make it such with a single sentence. As this
       court stated in Village of Bolingbrook v. Citizens Utilities Co. of Illinois, 158 Ill. 2d 133,
       142-43 (1994), “It is not for us to usurp a function accorded to the General Assembly by the
       Constitution.”

¶ 84       JUSTICE FREEMAN, dissenting:
¶ 85       Today’s decision marks an unnecessary departure from settled law in two important
       areas—home rule jurisprudence and condominium property law. Ultimately, the court
       subjects real property owners who happen to live in condominiums to home rule ordinances
       that deny them important protections intended by the General Assembly to operate statewide.
       While the decision affects only production of condominium records, there is nothing in the
       court’s approach to home rule that would limit further local intrusions on real property
       condominium ownership. I therefore respectfully dissent.

¶ 86                                    BACKGROUND
¶ 87       On September 15, 1999, plaintiff, a condominium owner at 2800 Lake Shore Drive
       Condominium Association,5 sent a letter to the Association’s board of directors requesting
       production of what the majority characterizes as “specific documents and records related to
       the building’s management.” Supra ¶ 4. Plaintiff sought (1) all contracts in effect since 1977
       between the Association and some 18 different entities; (2) minutes from all board meetings


               5
                The Association recorded its condominium instruments, including its declaration, on June
       8, 1979. See 765 ILCS 605/6 (West 2000) (upon recording, the property “shall become subject to
       the provisions of [the Condominium Property] Act”).

                                                 -20-
       from 1980 through 1990; (3) all building expenditures for fiscal year 1988 to the present; (4)
       ballots from the 1998 election of the board of directors; and (5) bank statements for 1998,
       plus itemized financial records from 1988.
¶ 88       On September 28, 1999, the Association’s attorney sent plaintiff a letter which
       acknowledged that some of the records and documents sought had been previously turned
       over to plaintiff and noted that plaintiff’s request sought documents which dated back over
       20 years to a time before the condominium association was even created. The letter also
       stated that plaintiff’s current request, as well as his previous requests, required management
       to divert time from serving the Association to fulfilling document demands that seemed
       designed only to vex and harass.
¶ 89       The board did not turn over the documents, and plaintiff commenced this lawsuit in
       January 2000. Plaintiff’s initial complaint was dismissed without prejudice. Plaintiff
       thereafter filed a four-count amended complaint, which alleged that defendants committed
       a variety of violations of both the Association’s declaration and of the Condominium
       Property Act (Condominium Act or Act) (765 ILCS 605/1 et seq. (West 2000)). Although
       the Condominium Act was referenced throughout the complaint, with respect to count IV,
       which is the only count at issue in this appeal, plaintiff challenged the failure to produce all
       of the documents requested in his September 15 letter, and cited to a Chicago municipal
       ordinance requiring that “financial books and records” be turned over upon request within
       three days. The amended complaint was subsequently dismissed in its entirety. In dismissing
       count IV without prejudice, the court found that the document-access requests were nothing
       more than a “fishing expedition” because plaintiff did not allege a proper purpose for those
       requests.
¶ 90       Plaintiff filed a motion to reconsider the dismissal, which was denied. He then filed a
       second motion to reconsider. In the interim, due to the resignation of the original judge who
       heard the matter, a new judge was assigned to the case and ruled on the second motion to
       reconsider. The court declined to reconsider the previous dismissal of the first three counts
       of the amended complaint. The court, however, vacated the dismissal of count IV, and
       plaintiff thereafter filed a motion for summary judgment with respect to that count, which
       was the only count that remained pending. The circuit court granted the motion in part and
       denied it in part, with the court specifically ruling that the Chicago ordinance mandated the
       production of the following documents:
                    • Itemized and detailed records of all building expenditures during 1988, 1989,
               1994, and 1999 to the present.
                    • Itemized and detailed financial records for the period of 1988 to the present of
               the Association’s reserve fund.
                    • Bank statements for 1998 from three different banks.
                    • Minutes of the board for the period of 1980 through 1990.
                    • All documents relating to exterior concrete facade; any and all documents
               between the Association and the CPA firm of Altschuler, Melvoin, and Glasser; any
               and all documents between the Association and Reserve Advisors; any and all
               documents relating to defects in pipes, including those documents from the original

                                                -21-
               engineering firm for the building; any and all documents relating to the condition of
               the exterior concrete facade between the Association and the original architectural
               firm for the condominium building.
       The circuit court also included Rule 304(a) language in its order, which allowed the issue to
       be immediately appealed. The court further awarded plaintiff interim attorney fees pursuant
       to the Chicago ordinance.6
¶ 91       The appellate court affirmed, holding that the Chicago ordinance mandated the
       production of the documents. 401 Ill. App. 3d 868.

¶ 92                                        ANALYSIS
¶ 93                                       I. Home Rule
¶ 94        As the majority acknowledges, this court traditionally has employed a three-part test in
       reviewing the constitutionality of an exercise of home rule power. Supra ¶ 35 (citing
       Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 289-90 (2001)). The first
       element of that inquiry requires that we determine whether the challenged exercise of local
       government power pertains to local government and affairs, as mandated by section 6(a). Id.
       If so, we then must consider whether the General Assembly has preempted the use of home
       rule powers in the relevant area. Id. If the legislature has not preempted the area, we then
       determine “the proper relationship” between the local ordinance and the state statute. Id. In
       examining “the proper relationship” between an ordinance and a statute, this court has held
       that “ ‘[w]hether a particular problem is of statewide rather than local dimension must be
       decided *** with regard for the nature and extent of the problem, the units of government
       which have the most vital interest in its solution, and the role traditionally played by local
       and statewide authorities in dealing with it.’ ” City of Chicago v. StubHub, Inc., 2011 IL
       111127, ¶ 24 (quoting Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 501 (1984));
       see also Scadron v. City of Des Plaines, 153 Ill. 2d 164, 176 (1992).
¶ 95        Here, the majority entirely omits the first element of our traditional analysis because
       defendants have not specifically challenged whether the City’s ordinance pertains to its local
       government and affairs. The omission of that analysis is improper for several reasons.
¶ 96        First, the City’s brief does contain an argument regarding whether its ordinance
       constitutes a valid exercise of home rule power under section 6(a). Thus, although it was not
       raised by defendants, that issue is squarely and properly before the court. Moreover, this
       court has recognized that a reviewing court may, in furtherance of its responsibility to
       provide a just result and to maintain a sound and uniform body of precedent, override
       considerations of waiver that stem from the adversarial nature of our system. Hux v. Raben,
       38 Ill. 2d 223, 224-25 (1967); see also People v. Givens, 237 Ill. 2d 311, 325 (2010); Ill. S.


               6
                 While the interlocutory appeal from the grant of summary judgment on count IV was
       proceeding in the appellate court as well as this court, the parties continued their litigation in the trial
       court. Plaintiff ultimately filed a third-amended complaint in the case, which apparently went to trial.
       Those allegations are not at issue in this appeal.

                                                      -22-
      Ct. R. 366(a)(5) (eff. Feb. 1, 1994). I believe that responsibility outweighs defendants’
      procedural default in this case. See, e.g., Dillon v. Evanston Hospital, 199 Ill. 2d 483, 504-05
      (2002) (and cases cited therein). In my view, it is inappropriate to sidestep a significant, and
      I believe dispositive, element of our traditional analysis simply because it was not argued by
      some of the parties to the litigation.
¶ 97      Second, the question of whether a matter falls within the scope of the home rule power
      granted in section 6(a) is a legal one. See Ampersand, Inc. v. Finley, 61 Ill. 2d 537, 540
      (1975) (holding that the “qualifying phrase ‘pertaining to its government and affairs’ *** will
      ultimately depend upon an interpretation by this court as to whether or not the power
      exercised is within the grant of section 6(a)”); see also StubHub, 2011 IL 111127, ¶ 19
      (noting that the determination of this question lies in judicial interpretation of this qualifying
      phrase). As such, this court is not bound to abide by the parties’ contentions. See Hux, 38 Ill.
      2d at 225.
¶ 98      Third, under the approach set forth in the majority decision, our standard for deciding the
      legal question of whether a municipality has exceeded the home rule power granted under
      section 6(a) will vary, depending on what arguments are raised in the parties’ briefs. This
      variable approach will lead to a confusing and inconsistent body of home rule jurisprudence
      that fails to provide necessary guidance to municipalities throughout the state.
¶ 99      Finally, ignoring the first element of the traditional three-part test is manifestly unfair
      under the circumstances presented here. As the majority has recognized, defendants do not
      dispute that the City’s ordinance pertained to its local government and affairs. Instead,
      defendants focus their arguments on the third element of the test, addressing “the proper
      relationship” between the ordinance and the relevant state statutes. That argument necessarily
      requires consideration of “ ‘the nature and extent of the problem, the units of government
      which have the most vital interest in its solution, and the role traditionally played by local
      and statewide authorities in dealing with it.’ ” Stubhub, Inc., 2011 IL 111127, ¶ 24 (quoting
      Kalodimos, 103 Ill. 2d at 501 (1984)); see also Scadron, 153 Ill. 2d at 176. Defendants claim
      that the City’s ordinance is invalid because it effectively nullifies several important
      provisions of the Condominium Act and the General Not For Profit Corporation Act of 1986,
      which govern the duty of condominium associations in Chicago to maintain and disclose
      certain books and records. In refusing to address defendants’ claims, the court relies on a
      footnote in StubHub, which “recognized that ‘the concept of a vital state policy trumping
      municipal power is analytically appropriate under section 6(a)’ rather than section 6(i).”
      Supra ¶ 36 (quoting City of Chicago v. StubHub, Inc., 2011 IL 111127, ¶ 22 n.2).
¶ 100     However, the court’s approach is fundamentally flawed because defendants did not have
      the benefit of our decision in StubHub, which was argued during the same term as this case
      and was not finally decided until November 2012, 18 months after both cases were
      submitted. Consequently, when the instant case was briefed and argued, the traditional three-
      part test that had governed our analysis of home rule power for more than 30 years included
      consideration of whether a vital state policy should take precedence over home rule authority,
      even if the problem pertained to local government and affairs. See Schillerstrom Homes, Inc.
      v. City of Naperville, 198 Ill. 2d 281, 291 (2001). Under that test, a party could challenge the
      constitutional validity of an exercise of home rule power without contesting that the problem

                                                 -23-
        addressed by the municipality pertained to its government and affairs. It was only in
        StubHub, that this court explicitly held, albeit in a footnote, that the existence of a vital state
        policy was not “analytically appropriate” in cases involving concurrent authority under
        section 6(i). At the time defendants formulated and presented their arguments, they did not
        know that we were about to dispense with the third element of our long-standing inquiry in
        such cases. We can only assume that, had defendants known that our decision in StubHub,
        would render the third element of the traditional test a nullity in cases analyzed under section
        6(i), they would not have limited their argument to that element alone.
¶ 101       More importantly, any analysis regarding the validity of home rule power must begin
        with a determination of the legal question of whether the problem pertains to local
        government and affairs, as required by section 6(a). After our decision in StubHub, section
        6(i) cases are governed by the following standard: “If a subject pertains to local government
        and affairs, and the legislature has not expressly preempted home rule, municipalities may
        exercise their power.” StubHub, 2011 IL 111127, ¶ 22 n.2. Accordingly, the first step in our
        analysis under section 6(i) requires consideration of the “pertaining to [local] government
        and affairs” language under section 6(a), which is the first element of our traditional test.
        Therefore, though it was not argued by defendants, this court should undertake that analysis
        with regard to the ordinance at issue in this case or, at the very least, order supplemental
        briefing on the question, in light of our intervening decision in StubHub. Alternatively, the
        court should consider defendants’ arguments as to the “proper relationship” between the
        City’s ordinance and the relevant state statutes, in accordance with the traditional three-part
        inquiry that has guided our home rule jurisprudence for more than three decades. As set forth
        below, I believe that analysis compels a finding that the City’s ordinance exceeds the home
        rule power granted in section 6(a).
¶ 102       Defendants first contend that the Chicago ordinance, if valid, eviscerates section 19 of
        the Condominium Act, which sets forth both the rights and obligations of the Association
        and individual unit owners with respect to record keeping and access. They contend that the
        City does not have the authority under the Illinois Constitution to act in this manner.
¶ 103       Before addressing defendants’ constitutional arguments, it is necessary to compare the
        two competing provisions. The state statute is found in section 19 of the Condominium
        Property Act (765 ILCS 605/19 (West 2000)). The Act, as I will explain in detail later, is an
        enabling statute which not only recognizes the condominium as a form of property ownership
        in Illinois, but also sets forth the manner in which condominium associations must be
        managed as well as the rights and duties of the association and individual owners to each
        other. Section 19 imposes on a condominium association’s board of directors the duty to
        keep and maintain (1) the association’s declaration, bylaws, rules and regulations; (2)
        minutes of all meetings of the association and its board for seven years; and (3) all current
        policies of insurance of the Association. 765 ILCS 605/19(a) (West 2000). Section 19 also
        requires the board to produce, within 30 days, these documents to any owner who makes a
        written request stating with particularity the documents sought to be examined. 765 ILCS
        605/19(b) (West 2000). Nothing in the Act otherwise obligates an association to keep and
        maintain minutes that are older than seven years.
¶ 104       Further, section 19 requires the board to keep “all contracts, leases, and other agreements

                                                   -24-
      then in effect to which the association is a party.” 765 ILCS 605/19(a)(6) (West 2000). In
      other words, the board is not required to keep expired contracts and is under no obligation
      to produce such a document even upon request. Section 19 requires the board to keep and
      maintain the “books and records of account” for an association’s current and 10 preceding
      fiscal years, including itemized and detailed records of all receipts and expenditures. 765
      ILCS 605/19(a)(9) (West 2000). An association member has a right to request these types
      of materials only if the request is made in writing and states a proper purpose. 765 ILCS
      605/19(b) (West 2000). Section 19 imposes on the requesting association member the burden
      of proving, in an action to compel, that the request is based on a proper purpose. 765 ILCS
      605/19(e) (West 2000). Moreover, no attorney fees can be assessed against the board unless
      a court first specifically finds that the board acted in “bad faith” in denying the member’s
      request. 765 ILCS 605/19(e) (West 2000). Finally, section 19 specifically exempts certain
      documents from disclosure, “unless otherwise directed by court order.” These include
      documents relating to association employees’ discipline or dismissal; documents relating to
      actions pending against or on behalf of the association or its board in a court or
      administrative tribunal; and documents relating to the common expenses or other charges
      owed by an association member other than the requesting member. 765 ILCS 605/19(g)
      (West 2000).
¶ 105     In contrast to section 19’s specific and comprehensive provisions, the City of Chicago
      ordinance states generally as follows:
                  “No person shall fail to allow unit owners to inspect the financial books and
              records of the condominium association within three business days of the time
              written request for examination of the records is received.” Chicago Municipal Code
              § 13-72-080 (2009).
      The ordinance contains no time limits for the keeping of financial books and records. In
      contrast, the Act imposes a statutory duty on boards to keep such records for 10 years. In
      addition, the requirement of a proper purpose for a record request is not included in the
      ordinance. The ordinance therefore imposes a less stringent burden on association members
      in Chicago in requesting such records than does section 19. Also, section 19 gives the
      association 30 days to produce; the ordinance allows only 3 days. Therefore, the ordinance
      and section 19 are in direct conflict.

¶ 106                              Home Rule: General Principles
¶ 107       The Illinois Constitution of 1970 gave home rule municipalities broad power to deal with
        problems that were local in nature. Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill.
        2d 281, 286 (2001). The notion of home rule, in fact, was predicated on the assumption that
        problems affecting municipalities and their residents should be met with solutions tailored
        to local needs and concerns. Id. As a result, our constitution provides that home rule units
        “may exercise any power and perform any function pertaining to its government and affairs
        including, but not limited to, the power to regulate for the protection of the public health,
        safety, morals and welfare; to license; to tax; and to incur debt.” Ill. Const. 1970, art. VII,
        § 6(a).


                                                 -25-
¶ 108       As this court recently iterated in City of Chicago v. StubHub, Inc., 2011 IL 111127,
        ¶¶ 18, 19, while this “intentionally imprecise language” grants local governmental units “the
        broadest powers possible,” that home rule authority nevertheless must relate only to local
        problems. This court, while mindful of the constitutional mandate of liberal construction, has
        not hesitated to strike down home rule ordinances where they did not pertain to the
        government or affairs of the local unit (see Ampersand, Inc., 61 Ill. 2d at 542 (collecting
        cases)), and StubHub stands as the most recent example of this principle. As noted above,
        the meaning of the “qualifying phrase ‘pertaining to its government and affairs’ *** will
        ultimately depend upon an interpretation by this court as to whether or not the power
        exercised is within the grant of section 6(a).” Ampersand, Inc., 61 Ill. 2d at 540; StubHub,
        2011 IL 111127, ¶ 19.7 Thus:
                “If a home rule unit attempts to exercise a power or to perform a function which is
                not within the scope of the grant contained in [ ]section 6(a)—i.e., if the action does
                not pertain to the government and affairs of the home rule unit—*** the exercise or
                performance would be void unless authorized by statute or by another provision of
                the 1970 Constitution.” ILCS Ann., 1970 Const., art. VII, § 6, Constitutional
                Commentary, at 265 (Smith-Hurd 2006).

¶ 109                The Chicago Ordinance Does Not Pertain to the City’s
                                     Government and Affairs
¶ 110     This court has recognized that an ordinance pertains to local government and affairs
      where it addresses local, rather than state or national, problems. Schillerstrom, 198 Ill. 2d at
      290. That determination requires the court to consider the “ ‘nature and extent of the
      problem, the units of government which have the most vital interest in its solution, and the
      role traditionally played by local and statewide authorities in dealing with it.’ ” StubHub,
      2011 IL 111127, ¶ 24 (quoting Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 501
      (1984)).
¶ 111     The majority decision states that “[t]he primary issue in this appeal is whether a City of
      Chicago ordinance allowing condominium unit owners to inspect condominium association
      financial books and records is a valid exercise of the City’s home rule power.” Supra ¶ 1.
      Yet, characterizing the issue in this manner overlooks critical aspects of condominium
      property ownership. Indeed, to describe the problem as relating only to unit owners’ access
      to association documents is to look at the issue only from the perspective of the individual
      unit owner. That is too narrow and does not comport with condominium law, which was
      created to address ownership rights from the perspective of both the individual unit owner


                7
                 Significantly, the drafters’ intent regarding this inquiry contrasts sharply with their intent
        with respect to the separate question of whether the General Assembly has preempted home rule in
        a given area. As to that question, our case law is clear that once a home rule unit falls within the
        grant of power of section 6(a), the drafters intended to “eliminate or at least reduce to a bare
        minimum the circumstances under which local home rule powers are preempted by judicial
        interpretation.” Scadron v. City of Des Plaines, 153 Ill. 2d 164, 186 (1992).

                                                    -26-
      and the perspective of the joint holders of the common property of the association.8 What
      may be in the best interest of an individual unit owner may not be in the best interest of the
      association. Therefore, condominium laws have been historically designed to balance the
      needs of both. As section 19 demonstrates, the unit owners’ right of access to certain records
      must be balanced against the association’s duty to keep and maintain those records in the first
      instance. This balancing of competing interests reflects the need to protect associations and
      unit owners alike from potential abuses. These issues, which are addressed in section 19, are
      not covered in the ordinance. As we just made clear in StubHub, this court “can declare a
      subject off-limits to local government control only where the state has a vital interest and a
      traditionally exclusive role.” StubHub, 2011 IL 111127, ¶ 25. As I explain below, the
      General Assembly appears to have seen the matter from defendants’ perspective, as shown
      by the extent and history of the state’s activity as well as by the legislative record.
¶ 112     A condominium is a form of joint ownership of real property which has been defined as
      “a system of separate ownership of individual units in multi-unit projects.” 1 Patrick J.
      Rohan & Melvin A. Reskin, Real Estate Transactions: Condominium Law & Practice
      § 1.01(1) (1974). Each unit owner holds title to his or her unit in fee simple, and owns the
      underlying common elements as a tenant in common with other unit owners. Id. Ownership
      of the units in fee simple permits financing tailored to individual needs and minimizes the
      economic dependence of neighbors. Id. § 9.01. As a result, for a condominium arrangement
      to be feasible, the rights and duties of unit owners with respect to the common elements must
      be clearly defined. Generally, an association consisting of unit owners is organized to tend
      to administrative matters, maintenance, and allocation of common expenses. Id. § 5.04.
¶ 113     The condominium form of ownership of real property was recognized in the United
      States as early as 1947 in New York.9 Allan Goldberg, The Illinois Act and Condominium
      Titles, in Illinois Condominium Law § 1.3 (Ill. Inst. for Cont. Legal Educ. 2010). In 1951,
      the legislature of Puerto Rico became the first to enact specific legislation acknowledging
      the right to own real property in this manner. Id. § 1.4. In 1960, the United States Congress
      recognized condominiums as a form of property ownership that was to be included within
      the purview of federally guaranteed housing legislation. Id. As a result, Congress amended
      the National Housing Act to require each state to recognize the condominium as a form of
      real property ownership before a Federal Housing Authority mortgage guarantee could issue.
      Id. § 1.5; see also Charles E. Ramsey, Condominiums: The New Look in Co-ops, Practical


               8
                Individual unit owners enjoy collective ownership in common areas of the property with
       other unit owners as tenants in common. 1 Gary A. Poliakoff, The Law of Condominium Operations
       § 1.1 (1988).
               9
                Commentators disagree somewhat as to whether this form of property ownership existed
       historically at common-law. See Carol Jane Brown, Note, Special Declarant Rights and Obligations
       Following Mortgage Foreclosure on Condominium Developments, 25 Wm. & Mary L. Rev. 463,
       465 (1984) (collecting sources). There is authority for common interest property ownership in
       England and Scotland without benefit of statute. Curtis J. Berger, Condominium: Shelter on a
       Statutory Foundation, 63 Colum. L. Rev. 987, 1001-02 (1963).

                                                -27-
      and Legal Problems 22 (1961) (noting that section 234 of National Housing Act included a
      condition requiring “that the concept of condominium homeownership must be established
      under the laws of the state where the property is located”). At the time of Congress’ action,
      it was generally recognized that state legislation must do three things: (1) “provide a
      procedure for the establishment and dissolution of a condominium,” (2) “accommodate
      existing legislation dealing with taxation, recording procedures, liens, land-use control, and
      security regulatory techniques to the special needs of condominiums, and (3) anticipate
      possible judicial antagonism involving matters such as bars on partition and covenants real.”
      Curtis J. Berger, Condominium: Shelter on a Statutory Foundation, 63 Colum. L. Rev. 987,
      1003 (1963) (Berger).
¶ 114      The original Puerto Rican statute served as the model of condominium legislation, and
      the National Conference of Commissioners on Uniform State Laws subsequently
      promulgated a model act designed to bring uniformity to the statutes governing this unique
      form of property. Jonathan D. Ross-Harrington, Property Forms in Tension: Preference
      Inefficiency, Rent-Seeking, and the Problem of Notice in the Modern Condominium, 28 Yale
      L. & Pol’y Rev. 187, 198 (2009). While it was generally accepted that a condominium could
      exist under common law principles, most legal commentators at the time argued that this
      particular form of property ownership would not grow in the way Congress intended without
      statutory provision. Berger, supra, at 1002. Enabling statutes, it was argued, provided the
      necessary assurances that the legal system would fully recognize unit ownership as an
      interest in real property that would, in turn, stimulate the interest and elicit the confidence
      of lenders, consumers, and suppliers of labor and services. Id. at 1003. In other words, state
      legislation would not only provide certainty in real property law, but would also provide
      increased marketability and insurability
¶ 115      By 1968, every state had enacted a condominium statute. Carol Jane Brown, Special
      Declarant Rights and Obligations Following Mortgage Foreclosure on Condominium
      Developments, 25 Wm. & Mary L. Rev. 463, 466 (1984). All state statutes have several
      things in common. First, they “provide for recognition of divided ownership and the
      utilization of conveying instruments that adequately and clearly demonstrate ownership and
      transferabilty.” David Clurman, F. Scott Jackson & Edna Hebard, Condominiums and
      Cooperatives 13 (2d ed. 1984). Further, they “regulate procedures, delineate the duties of the
      individual unit owners, as well as of the condominium association, provide for the
      distribution of responsibilities in the event of damage, destruction or condemnation, and
      determine the legal rights of condominium unit owners and associations in the event of
      defaulting individual unit owners.” 4 David A. Thomas, Thompson on Real Property 237-38
      (2d ed. 2004). As a result, it is said that condominium law is a “blend” of both property and
      contract law, along with aspects of corporate law. Ross-Harrington, supra, at 198-99.
¶ 116      It was in response to this nationwide effort to facilitate condominium real estate law that
      our General Assembly enacted the Condominium Property Act in 1963, which addresses
      both condominium creation and management. The Act governs the rights of the owners to
      the use and enjoyment of their property and also provides for the areas in which common
      expenses are to be allocated. The Act further regulates procedures and delineates the duties
      of individual unit owners as well as those of the association, as section 19 demonstrates.

                                                -28-
      Almost immediately, the concern of legal scholars that state condominium law had to
      “accommodate existing legislation dealing with taxation, recording procedures, liens, land-
      use control, and security regulatory techniques to the special needs of the condominiums”
      (Berger, supra, at 1003) was illuminated. Provisions had to be added to address the method
      by which real estate taxes could be imposed on condominium property and the manner by
      which tax relief could be sought. See, e.g., Ill. Ann. Stat., ch. 30, ¶ 310, Historical & Practice
      Notes, at 203-04 (Smith-Hurd Supp. 1992). Other changes included, inter alia, (1)
      recognizing condominium associations as non-for-profit corporations. (Ill. Ann. Stat., ch. 30,
      ¶ 250, Historical & Practice Notes—Introduction, at 146 (Smith-Hurd Supp. 1992)); (2)
      coordinating language to synchronize condominium law with the Illinois Mortgage
      Foreclosure Law (Ill. Ann Stat., ch. 30, ¶ 309, Historical & Practice Notes, at 185 (Smith-
      Hurd Supp. 1992)); (3) authorizing condominiums to enter into master metering agreements
      with respect to telephone, gas, and electric public utility services (Ill. Ann. Stat., ch. 30,
      ¶ 250, Historical & Practice Notes—Introduction, at 149 (Smith-Hurd Supp. 1992)); (4)
      providing for the procurement of insurance and insurance trust funds (this was done so that
      condominium associations could benefit from the General Assembly’s comprehensive
      insurance reform package and the Charitable Trust Pool Act) (Ill. Ann. Stat., ch. 30, ¶ 312.1,
      Historical & Practice Notes, at 213 (Smith-Hurd Supp. 1992)); and (5) requiring officers and
      directors to have a fiduciary bond and fidelity insurance coverage in certain amounts so as
      to lessen the difficulty in obtaining such insurance. I cite these provisions only to show
      examples of the variety of ways Illinois condominium law touches upon other areas of
      general law.
¶ 117      With respect to the powers and duties of a condominium board of directors (including
      the duty of record keeping), it is clear that from its beginnings the Act was designed to put
      condominium associations on as equal a footing as possible with other corporate associations
      doing business in the state. See Ill. Ann. Stat., ch. 30, ¶ 250, Historical & Practice
      Notes—Introduction, at 146 (Smith-Hurd Supp. 1992). The Act permits for condominium
      associations to file papers of incorporation with the Secretary of State and further grants all
      associations all of the powers specified in the General Not For Profit Corporation Act, even
      if the association is not incorporated. See St. Francis Courts Condominium Ass’n v. Investors
      Real Estate, 104 Ill. App. 3d 663, 667 (1982). The record-keeping provisions of the Act
      originally corresponded to those in the General Not For Profit Corporation Act. Public Act
      85-1386 was the first in which the legislature moved away from the strictures of the Not For
      Profit Act to ensure that freedom of information provisions were made applicable to
      condominium units. 85th Ill. Gen. Assem., Senate Proceedings, July 1, 1988, at 52
      (statements of Senator Karpiel). This was done for a number of reasons, including having
      uniform sources of information for owners seeking federal mortgages. According to the
      House sponsor, Representative Levin, Senate Bill 1719, which addressed comprehensive
      changes to the Condominium Act, included provisions that “strengthen[ed] the books and
      records provisions of the Condo Act for unit owners.” 85th Ill. Gen. Assem., House
      Proceedings, July 1, 1988, at 88 (statements of Representative Levin). The comprehensive
      legislation was the product of an agreement with the Chicago Bar Association, mortgage
      lenders, and the State’s Attorney’s office of Cook County. Id.


                                                 -29-
¶ 118     By 1991, the General Assembly again addressed comprehensive condominium issues that
      related to record keeping, proxy voting, and reserve funding, this time in Public Act 87-746.
      The legislative debates reveal that the Illinois State Bar Association objected to some of the
      proposed record-keeping provisions because it “is more *** micro-management of boards
      of directors.” 87th Ill. Gen. Assem., Senate Proceedings, July 2, 1991, at 47 (statements of
      Senator Geo-Karis). Eventually, the bill received bipartisan support, and approval from both
      the Illinois State and Chicago Bar Associations. 87th Ill. Gen. Assem., Senate Proceedings,
      July 3, 1991, at 11 (statements of Senator Cullerton).
¶ 119     Shortly thereafter, the legislature had to revisit the issue again in Public Act 88-135. The
      problem sought to be avoided was the impact that the new laws had on secret ballot voting
      in association elections. 88th Ill. Gen Assem., House Proceedings, May 12, 1993, at 125
      (statements of Representative Ervin). Finally, in 1998, the General Assembly again addressed
      the record-keeping duties of an association’s directors, this time in response to problems with
      burdensome requests for older documents. During the debate of Public Act 90-0496, the
      bill’s House sponsor, Representative Feigenholtz of Chicago, was asked what exactly the
      problem was that was being solved by the bill. She responded:
               “Actually, some people have been going to their condominium associations and
               asking for records that are very, very old. And it’s actually been very burdensome.
               So, what we’re trying to do here is set up a better, more expedited system.” 90th Ill.
               Gen. Assem., House Proceedings, May 13, 1997, at 20 (statements of Representative
               Feigenholtz).
      In fact, Representative Feigenholtz characterized the legislation as a “most compelling
      condominium matter.” Id. at 23. During the Senate debate, the bill’s sponsor, Senator
      Cullerton of Chicago, noted that the bill dealt with “the examination of condominium
      records” and “allows for obtaining records of condominium board of managers, certain
      guidelines and rules that you have to follow to gain access to those records.” 90th Ill. Gen.
      Assem., Senate Proceedings, May 31, 1997, at 16-17 (statements of Senator Cullerton).
¶ 120     Thus, the floor debates reveal that unfettered record access had become yet another
      problem relating to condominium record keeping because it allowed for burdensome requests
      that were difficult to meet. The General Assembly sought to solve this problem by amending
      the Act to delineate between the various different types of records that can be requested. As
      a result, section 19 now establishes nine different classes of records that a board must
      maintain and keep. 765 ILCS 605/19(a) (West 2000). The General Assembly further imposed
      time limits for the keeping of such documents (7 years for meeting minutes, 10 years for
      financial records). Id. Importantly, in balancing the interests of an individual owner and the
      rest of the Association’s members with respect to “record access,” the General Assembly
      chose to obligate the unit owner who is requesting financial records to articulate a “proper
      purpose.” 765 ILCS 605/19(e) (West 2000); see also Taghert v. Wesley, 343 Ill. App. 3d
      1140, 1146 (2003) (noting that the Act vests condominium association members with
      inspection rights established in the statutory law of corporations). The requesting unit owner
      likewise has the burden of proof in any court action to compel requests. 765 ILCS 605/19(e)
      (West 2000). The statute does not allow for the recovery of attorney fees without a court’s
      specific finding of “bad faith.” Id. Finally, the statute explicitly states that it pertains to all

                                                  -30-
      condominiums incorporated in this state and is an expression of public policy. 765 ILCS
      605/19(h) (West 2000).
¶ 121     It is therefore clear from the outset of condominium regulation in Illinois that
      condominium record keeping cannot be considered in a vacuum, as the majority’s view
      indicates. It is part and parcel of a larger statutory scheme and has purposes beyond
      protection of a unit owner’s right of access. Rather, record access is needed for a multitude
      of reasons, including financing and insurance. To address this, the General Assembly
      borrowed from areas of corporate law. Thus, the General Assembly chose to view the matter
      of condominium creation, management, and regulation as a problem which was twofold in
      nature: creating a new form of real property interest and ensuring that the new law matched
      up with other areas of substantive law in order to properly delineate both owners’ and
      associations’ rights and obligations. To do this, the General Assembly created a
      comprehensive statute which borrowed heavily from areas of contract and property law, as
      well as corporate law.
¶ 122     Our recent StubHub decision underscores that the “problem” in this case is not local.
      There, we reviewed the historical and legislative record with respect to the Ticket Sale and
      Resale Act to conclude that the City of Chicago did not have the authority under section 6(a)
      to require electronic intermediaries to collect and remit amusement taxes on resold tickets.
      StubHub, 2011 IL 111127, ¶¶ 26-36. Similarly, here the history and legislative record of this
      enabling statute indicates that its subject matter is not local and, therefore, falls outside of
      section 6(a).
¶ 123     In addition, examination of the third element of our traditional three-part inquiry reflects
      that the state has a vital interest in the regulation of condominium ownership such that the
      statute must take precedence over the City’s ordinance. The City asserts that the abundance
      of condominiums in Chicago renders its interest in solving the “problem” of record keeping
      and access greater than the state’s. This assertion misses the point.10 Under the City’s logic,
      every home rule unit that has a large condominium presence can legislate in this area, with
      the Act reduced to providing the law for those condominiums that are in towns and villages
      that are not home rule units. The rights of owners in one town would differ from the rights
      of owners in another town. Similarly, the rights of an association would differ from city to
      city. It is for this reason that the state has the greater obligation to Illinois property owners
      so as to ensure the proper balance between individual unit owners’ rights and those of the
      collective association. The Act, as I have noted, works to ensure that condominium
      regulations are uniform so as to facilitate Congress’ desire to enhance this form of property



               10
                 To the extent that the City is arguing that because it has many condominiums within its city
       limits, that does not make the problem so unique to Chicago that its interest is greater than the
       state’s. Chicago suburbs have experienced greater condominium development as land becomes
       scarce. For example, in 2005, 2,139 units were converted to condominiums in northwest suburban
       Cook County alone. Annemarie Mannion, Conversion Country: Suburban Complexes Offer Condo
       Buyers Space, Location and Affordabilty; Investors Like Them, Too, Chi. Trib., Apr. 22, 2007, § 16,
       at 1.

                                                   -31-
      ownership.11 In order to preserve this national uniformity and to safeguard the rights of
      associations and unit owners alike, the legislature has acted in areas beyond record keeping
      and has allowed for fiduciary bonds, increased protections against individual owners’ failure
      to pay assessments and mortgage foreclosures, and mandatory insurance—not just on
      property but also for directors and officers, again borrowing from principles of corporate law.
¶ 124      The City’s ordinance directly impedes the purposes of the Condominium Act, which
      include protecting unit owners’ right of access to association records, while imposing
      reasonable limitations on the record-keeping and disclosure obligations of the association.
      Defendants note that in order to comply with the City’s ordinance, they would have to keep
      books and records, including minutes, for an indefinite period of time and would have to
      turnover documents to any owner who so requests even though the owner does not state a
      proper purpose. They would, in fact, have to break state law (and violate a statutorily
      imposed duty) in order to comply with the City’s ordinance. Obviously, if other
      municipalities followed the City’s lead and deviated from state law in such a way, there
      would be a “patchwork” of local regulations. This, of course, frustrates the very reason for
      the uniform state laws that were envisioned when the condominium form of ownership was
      first recognized. Almost all legal commentators recognized that a comprehensive and
      consistent approach to condominium regulation should be instilled among the states. It is
      clear from the history of our Act the General Assembly shared this view and chose to impose
      uniform rules for the creation and management of condominiums across our state. I am
      therefore compelled to conclude that the state has a greater interest than any municipality in
      regulating this relatively new form of property ownership.
¶ 125      Again, StubHub underscores this conclusion. There, we specifically acknowledged that
      the phrase “pertaining to [local] government and affairs” in section 6(a) does not relate to
      matters such as divorce, real property, trusts, and contracts. StubHub, 2011 IL 111127, ¶ 19
      (citing 7 Record of Proceedings, Sixth Illinois Constitutional Convention 1621). We also
      held that the General Assembly’s choice of imposing “a more comprehensive and uniform
      approach,” as opposed to a “patchwork” of local regulations, was evidence that the state had
      a greater interest in solving the problem of tax collection on resold tickets. See StubHub,
      2011 IL 111127, ¶ 34.12 In this case, the conclusion that the state has the greater interest in
      regulating condominium ownership, an aspect of property law, is even clearer. This
      conclusion is not undermined by the fact that we have recognized the authority of home rule
      units to regulate landlord-tenant relationships. See City of Evanston v. Create, Inc., 85 Ill.
      2d 101, 113-14 (1981). The landlord-tenant relationship is not the equivalent of an


               11
                 The reason Congress encouraged condominium growth was because it was deemed to be
       in the national interest to provide more affordable housing for people. Carol Jane Brown, Note,
       Special Declarant Rights and Obligations Following Mortgage Foreclosure on Condominium
       Developments, 25 Wm. & Mary L. Rev. 463, 466-67 (1984). In short, it allowed many Americans
       to pursue the dream of owning one’s own home.
               12
                We held this despite the fact that section 6(a) contains language that expressly grants to
       home rule units the power “to tax.” Ill. Const. 1970, art. VII, § 6(a).

                                                  -32-
      individual’s ownership rights in real property. Also, the constitutional debates make clear
      that it was the intent of the drafters, that like the power to tax, landlord-tenant relations were
      intended to fall within the purview of section 6(a). See 7 Record of Proceedings, Sixth
      Illinois Constitutional Convention 1605 (noting that the prevention of “slums” was one of
      the reasons for the broadened local powers), 1652 (allowing for rent control ordinances under
      home rule). Neither the provisions of the home rule article nor the constitutional debates
      indicate an intent to include the regulation of condominium ownership among the matters
      embraced by home rule power.
¶ 126      Finally, in terms of whether the state or the municipality has a traditional role in solving
      the problem, the history of condominium law reveals that the state has, by virtue of
      congressional mandate, had the traditional role in condominium creation, management, and
      regulation. The power to form a condominium association flowed from the state, not the
      local municipality. This conclusion is not only supported by the history of condominium law
      that I set forth above, but is also supported by the constitutional debates on home rule.
¶ 127          As noted earlier, this court has repeatedly stressed that whether a matter of local or
      statewide concern is a question of law, left by the constitution to judicial interpretation.
      Fortunately, Illinois judges have extensive commentary from the constitutional debates to
      guide us in this area. For example, the Report from the Local Government Committee, which
      drafted article VII, states that section 6(a)’s phrase “any function pertaining to its government
      and affairs” was derived from Model Constitutional Provisions for Municipal Home Rule
      prepared by Dean Jefferson Fordham of the University of Pennsylvania Law School for the
      American Municipal Association in 1953. See 7 Record of Proceedings, Sixth Illinois
      Constitutional Convention 1620. The language of section 6(a) does not track the Model
      language exactly because the drafters also borrowed from provisions of the Alaska
      Constitution—language that they believed was “designed to be the broadest possible
      description” of the powers that the receiving units of local government may exercise. Id. at
      1621. The drafters, however, expressly noted that such powers, broad and liberally construed
      as they may be, ultimately must relate to local concerns:
               “It is clear, however, that the powers of home-rule units relate to their own problems,
               not to those of the state or the nation. Their powers should not extend to such matters
               as divorce, real property law, trusts, contracts, etc. which are generally recognized
               as falling within the competence of state rather than local authorities. Thus the
               proposed grant of powers to local governments extends only to matters ‘pertaining
               to their government and affairs.’ ” (Emphases added.) Id. at 1621-22.
      See also StubHub, 2011 IL 111127, ¶ 19; Ampersand, 61 Ill. 2d at 540.
¶ 128      These very comments have been echoed by Dean Fordham, who, as noted previously,
      was the author of the Model Constitutional Provisions for Municipal Home Rule that was
      utilized by the drafters of our constitution: “It is perfectly plain that we do not want to
      devolve upon local government independent authority to enact private law. To have contract
      law or property law vary from city to city would be horrendous.” Kenneth Vanlandingham,
      Constitutional Municipal Home Rule Since the AMA (NLC) Model, 17 Wm. & Mary L. Rev.
      1, 17 (1975). As stated earlier, condominium law is a blend of real property law and contract


                                                 -33-
      law, with aspects of corporate law added as well. It is clear that this is the very type of law
      that was intended by the drafters of the home rule article to fall outside the purview of
      section 6(a). For this reason, I conclude that the state has the traditional role in regulating this
      area. Just as the state has a traditional interest in regulating corporate record keeping and
      access, so it does with respect to condominiums, which are corporations under Illinois law.
¶ 129     Thus, the underlying basis and goals of the Act and the debates that particularly address
      record keeping evince an intent by the legislature to impose uniform standards on
      condominium associations that are based on areas of property, contract, and corporate law.
      The City’s ordinance does not pertain to its own government and affairs. The City, therefore,
      has overstepped its home rule authority.
¶ 130     Today’s decision has far-reaching implications for home rule jurisprudence. Under the
      majority’s approach, all matters can be characterized as pertaining to a municipality’s
      government and affairs, unless the legislature has taken affirmative action to deny or limit
      home rule power. Virtually any action by a home rule unit can be said to fall within section
      6(a). The General Assembly would have to include express preemptive language to insulate
      against the reach of home rule, even in legislation relating to areas of law that the drafters of
      the home rule article never envisioned would fall within its domain. Given the drafters’
      intent, it is not surprising that the Act does not contain any “magic words” of express
      limitation since real property law, of which condominium law is a part, was never intended
      to fall within section 6(a).
¶ 131     For all of the above reasons, I would conclude that the City’s ordinance is unenforceable.
      Under section 19, plaintiff’s request in 1999 for all of the board meeting minutes dating from
      1980 through 1990 is invalid since an association is required to only keep minutes for seven
      years. State law requires financial books and records of account for the current year and the
      10 immediately preceding fiscal years be produced, but “only for a proper purpose.” I
      therefore would reverse the order of the circuit court and remand with directions that
      plaintiff’s 1999 request be reviewed according to the provisions of section 19 and that all
      further proceedings be conducted in accordance with that statute.

¶ 132                                     II. Attorney Fees
¶ 133     While my position in section I of this dissent does not require that I address the attorney
      fees issue, I feel it necessary to do so given the result reached by the majority.
¶ 134     The ordinance allows for those like plaintiff here to recover “his reasonable attorney
      fees.” Chicago Municipal Code § 13-72-100 (2009). The import of this language is clear—a
      plaintiff can only recover the fees “he” incurred by hiring a lawyer. Reasonable fees are those
      that fall within the prevailing market rates in the relevant community.
¶ 135     Plaintiff’s attorney agreed to charge plaintiff $200 per hour for his services. Evidence
      revealed that the prevailing market rate in Chicago was $300. The $200 fee therefore was
      within the market range. There was no reason for the circuit court to increase the agreed-
      upon rate by $100, thereby awarding a windfall to plaintiff or his counsel.
¶ 136     First National Bank of Decatur v. Barclay, 111 Ill. App. 3d 162 (1982), is directly on
      point. There, the plaintiff’s attorney agreed to represent him in an action on a promissory

                                                  -34-
      note at a rate of $70 per hour. The evidence revealed that the attorney billed plaintiff for 17½
      hours. The circuit court awarded the attorney $5,000. The appellate court reversed the award,
      holding as follows:
              “The record supports an award for 17½ hours of the lawyer’s time, billed at the rate
              of $70 per hour. To allow any greater award in this case, where the plaintiff and
              plaintiff’s counsel had agreed upon this fee, would be to sanction an unjustifiable
              windfall for the plaintiff. The terms of the promissory note obligated the defendant
              to pay the reasonable attorney fees incurred during collection efforts. Here, it was
              error for the trial court to find that a reasonable fee exceeded the rate which the
              plaintiff agreed to pay its counsel in the case.” Barclay, 111 Ill. App. 3d at 164.
      The court remanded with directions for the circuit to enter a fee of $1,225 (17½ x 70). The
      same result should obtain here. The fee award should have been calculated using the agreed-
      upon rate of $200 per hour. It is wrong for the court to affirm the improper calculation.
¶ 137     Accordingly, not only have the collective members of the association here been denied
      the protections of section 19 in this case, they now have to pay plaintiff more money than he
      incurred in attorney fees. Given the importance of balancing the rights of individual
      condominium owners against the right of the association members as a whole, I urge the
      General Assembly to take action in this area.

¶ 138      JUSTICE BURKE joins in this dissent.




                                                -35-
