An interesting aspect of the law came to my attention unexpectedly arising from the Trump lawsuits: willful blindness. This post takes a broader view of the HOA-Land legalities.
“Willful blindness, also known as conscious avoidance, is a judicially-made doctrine that expands the definition of knowledge to include closing one’s eyes to the high probability a fact exists.” ( The Supreme Court’s Willful Blindness Doctrine Opens the Door to More Wrongful Criminal Convictions | The Heritage Foundation).
The mens rea fundamental principle to uphold a wrongful act required actual knowledge of the wrongdoing by the accused, and can be found quite commonly in the statutes. So, evidence of actual knowledge had to be proven. This principle, although it had good intentions, failed to address the question of the accused lying, “I didn’t know I violated the law. Honestly!”
But what if the evidence clearly shows that it had to be obvious to any reasonable person that the law was being broken? What then? In the name of justice, the courts accepted the willful blindness doctrine. “C’mon, everybody knows that the act was a violation of the law” and cannot be denied by claiming dumb ignorance.
“the prosecution must show that the defendant was aware of a high probability of the fact in question but deliberately avoided confirming it. The prosecution must prove that the defendant was subjectively aware of the risk involved and that he or she consciously avoided learning about it.” (Willful Blindness Law and Legal Definition | USLegal, Inc.).
HOA willful blindness affirmative defense
I am sure most readers are aware of alleged lies made by the HOA, its managers, and directors, including its lawyers that come as a surprise to the average owner. “They’re lying, they’re lying,” the homeowner shouts to no avail. What to do? Take charge now that you are informed about the law, and even educate your attorney likewise, to raise an affirmative defense. You charge the HOA with willful blindness as its obvious it violated the law by knowingly turning a blind eye to its actions. Example, not reading the obvious applicable governing documents or state laws on the issue at hand.
“An affirmative defense is a defense in which the defendant introduces evidence, which, if found to be credible, will negate criminal liability or civil liability, even if it is proven that the defendant committed the alleged acts. The party raising the affirmative defense has the burden of proof on establishing that it applies.” (affirmative defense | Wex | US Law | LII / Legal Information Institute (cornell.edu)).
Please take note on how powerful this doctrine is in holding the board of directors and managers to the wire when acting outside the law. It will put stop to their outright falsehoods and lies, and hold then to knowing the law and governing documents. It will require their attorneys to make the law and governing documents clear to the board.
HOA Constitutional Government 