Author: gks256

Continuity of Government (COG) and HOA-Land

Continuity of government (COG) is the principle of establishing defined procedures that allow a government to continue its essential operations in case of a catastrophic event.

It was intended to preserve the American form of representative government, continuity of federal authority aided law enforcement, ensured general safety, and protected the government from the illegal assumption of power by rival foreign powers or anti-government organizations. 

The COG Plan was only activated in the 9/11 crisis until Jan. 6th. According to George Stephanopoulos (The Situation Room), the White House Situation Room put the COG Plan into action on January 6, 2021.  President Trump watched TV and in Congress the Secret Service protected VP Pense from the crowd.

Undoubtedly because it was never anticipated, COG did not address the slow erosion of the Constitution and democratic values from within the country, as we see with the HOA-Land Nation within America.  HOA-Land describes the collection of HOAs throughout America as “HOA-Land.” It identifies HOA-Land as a nation within America based on its culture, beliefs commonality of contractual CC&Rs acting as their constitution.

All state “may/shall” statutes imply HOAs as state actors

The use of the words “shall” and “may” have generally accepted meanings in state laws and statutes. Their use in bills and laws relating to HOA-Land raises the highly controversial question of: Are HOAs state actors?  “The overlooked impact and consequence of this word is to legalize activities and actions that were all-to-fore not legal rights granted to the HOA.”[1]

Arizona’s HB 2575 creates HOAs as state actors with the slick use of the legal differences between these terms. BUT, as applied to sui generis HOAs, implicitly create state actors. The bill introduces a new section (emphasis added) with, “ARS 33-1820. Powers of the association. Subject to the provisions of the declaration, the association may:” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 is particularly onerous because of the use of the introductory “the association may.” A 12 item list is presented mimicking the CC&Rs, a common tactic to legitimize contractual challenges to the governing documents. Very clever!

Item 4 was particularly onerous because it permitted the HOA Board to lobby in the name of the members.

“[the association may ] 4. Institute, defend or intervene in litigation or administrative proceedings in its own name on behalf of itself or two or more members on matters affecting the association or planned community or the members’ interests.”

After 3 sessions ending with “ret on cal,” (retain on calendar)  I emailed my may/shall state actor argument (as summarized here) to the legislative leadership resulting in the sponsor’s amendment rewording item (4). In relevant part, “the association may not institute, defend or intervene in litigation or arbitration in its own name on behalf of itself or a member.”

Thus, a potential constitutionality challenge was avoided as I had instituted in 2013, and won, with the help on a nonprofit legal organization, Arizona Center for Law in the Public Interest (ACLPI).[2]

Although the bill passed out of the House with the other argument that the 12 items also reflect an implied state arm it was a major victory 1) on a broad constitutionality issue and 2) a punch in the nose to CAI who actively sponsored this bill, according to the AZ Homeowners Coalition.  CAI can be beat!

There are other arenas to challenge and expose CAI for what it is and stands for.  I present some 56 events over 24 years that serve to guide what worked and what did not work for advocates to successfully challenge the Evil Empire. Organized into 4 sections: On Reform Legislation, On The Bill of Rights, On the Judiciary, and On Civics.[3]  Available on Amazon, paperback or Kindle.

References

[1] See in general, Are HOA state actors created by statutory use of shall/may? (Section 2, paragraphs 5 +). (2019).

[2] Suing the AZ Legislature: AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

[3] Read the book, HOA Constitutional Government: the continuing battle. 

Fines: unconstitutional delegation to HOAs

This question of HOA fines, in 2 cases, was brought to my attention in my early years by Shu Bartholomew. It is a prime example of how constitutional issues can perk down and affect members in HOA-Land.  It is important to understand that they apply to just 2 states, RI and VA. Why not in other states?  Because legal doctrine holds that all bills are deemed constitutional unless challenged in court. If people do not raise these issues in court, like I did in Arizona in 2013, you can see HOAs fining away in violation of the laws of the land.

A 1982 VA supreme court in Gillman (292 S.E. 378)  overturned imposed fines and a lien, holding,

“We find no language in the Condominium Act which authorizes the executive or governing body of a condominium to levy fines, impose penalties, or exact forfeitures.”  

“The imposition of a fine is a governmental power. The sovereign cannot be preempted of this power, and the power cannot be delegated or exercised other than in accordance with the provisions of the Constitutions of the United States and of Virginia. Neither can a fine be imposed disguised as an assessment.”

NOTE: Current VA POA statutes speak only of “charges” and liens for non-compliance, nothing about fines. No violation of fundamental rights.

In Foley (RI, 1999), the question of the constitutionality of HOA fines was answered after 4 decisions. The issue involved whether the Condominium Act of 1982 violated the RI Constitution of “an unconstitutional delegation of power to a private entity.”  The RI Supreme Court remanded to the superior court, outlined below,  to decide the constitutionality question.

The key factor involved the enforcement of fines by means of foreclosure. Only recently have the courts and legislatures looked at the validity and fairness of the HOA foreclosure process. The owner’s equity is wiped out and raises the question of a cruel and unusual punishment in violation of the 8th Amendment. The supreme court and remanded trial court decisions are presented.

Foley v. Osborne, 724 A.2d 436 (R.I. 1999)

2. Improper Delegation Claim

The plaintiff argued on appeal that the actions taken by the committee pursuant to provisions in the 1982 act were illegal because they stemmed from an improper delegation of article 10 judicial power to a private entity. R. I. Const., art. 10. We are of the opinion that plaintiff  properly presented his claim that there was an unconstitutional delegation of power to a private entity.

In his opening statement, plaintiff argued at length — again without objection — that the 1982 act allowed an unconstitutional delegation of police power to the committee, a private entity. . . . . The trial justice, however, subsequently issued a bench decision and judgment that failed to rule on plaintiffs argument that the 1982 act unconstitutionally delegated  judicial power.

Consequently, we remand this case to the Superior Court with our instruction that the trial justice consider and rule on whether in this case the 1982 act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.

If the trial justice finds that the delegation is unconstitutional, then within the time permitted for appeals, the defendants may seek appellate review of the trial justice’s ruling; alternatively, as a consequence of the trial justice’s ruling, the defendants may bring “an action to recover sums due for damages or injunctive relief or both” in accordance with the condominium association’s bylaws.

If the delegation is found to be constitutional, the trial justice must then find whether any conflicts between the provisions of the 1982 act significantly modify the relation between an owner and an association where, as here, the bylaws provided for a judicial procedure prior to foreclosure.

If the trial justice finds no conflict and affirms the previous judgment, the plaintiff may seek review of the ruling. If the trial justice finds such a conflict, the defendants may appeal pursuant to the rules  of appellate procedure.

Foley v Osborne, 1999 R.I. Super. LEXIS 50 (Newport Superior Ct  on remand)

[Decision on remand from RI Supreme Court (724 A.2d 436)]

The Superior court held the following.

Although other statutes permit debt collection without court intervention, none authorizes private entities to impose fines.  It is the authority to impose fines and to enforce them that distinguishes the 1982 Act from other legislation. Finally, the act empowers the association with the ability to enforce its orders by depriving a violator of his property by foreclosure. In this capacity, the association acts as a tribunal exercising judicial power.

For the foregoing reasons, the Court finds that the 1982 Act represents an unconstitutional delegation of judicial or police power to the condominium association, a private entity.

Collected Writings — holding the judiciary accountable

In my BJR Con Job paper I end with  the failure of judges to be fully educated with respect to HOA-Land, but also the failure of  law schools to fully educate graduating students in regard to the HOA legal scheme.  Homeowners in court quickly find out how ignorant are the courts and lawyers with regard to HOAs. The chief reason is the dominance of the “CAI School of HOA Governance”[1] —  the CAI Ministry of Public Enlightenment and Propaganda.

It is important then that we address this state of affairs by educating the judges, the law school administrators, and the graduating law students. One way is to present a consolidated picture of the failures of the courts to uphold the Constitution as I have attempted with my HOA Constitutional Government: the continuing battle. (See ACT NOW below).

What has this to do with legislative reforms, you may ask.  There is an interplay between the legislature and the judicial system — separation of powers — whereby it is up to the courts to uphold and defend the Constitution from violations. As we know,  unfortunately, the courts have accepted and supported unjust HOA legislation!

 I can only recall one comprehensive attempt to accomplish this task by reporter Judy Thomas of the KC Star (August 2016, not currently available to the public without signup) with her extensive coverage of HOA board of directors conduct.[2]

* * * *

CALL TO ACTION

“The protection of the rights of free citizens depends upon the existence of an independent and competent judiciary.” 

First read the book, if only the Amazon description, book Preface, and selected issues of your choosing. Then send a Kindle or paperback copy to your state legislative leaders, the clerk of your state supreme court and any related education of judges division.

(Example from the AZ Supreme Court Education Div.)

Also include the deans of the law schools and persons in charge of programs (like a course in HOA related laws), and The Federalist Society whose mission is to educate law students by exposure to real cases, laws, and issues.

Purchasing the book alone will demonstrate to the above persons our commitment and concerns regarding the longstanding failure of the judicial system to support “equal justice under the law.” Sending copies will provide the documented framework, the evidence on record, containing the acts and views of judges in their own words.

ACT NOW!  

You can buy the 145-page book on Amazon:

Kindle (eBook) version    $ 9.95;     Paperback version:      $15.95

References

[1] The foundation and principles of the School can be traced back to CAI’s Public Policies, The CAI Manifesto (its 2016 “white paper”), its numerous seminars and conferences, its Factbooks and surveys, its amicus briefs to the courts, and its advisories, letters, emails, newsletters, blogs etc. I have designated these foundations and principles collectively as the CAI School of HOA Governance.

[2] See in general, “KC Star: problem with HOA? Don’t go to CAI”.

HOA lawyers take heed! Federal judge chastises lawyers

The NY Times Opinion by retired federal Judge Luttig*, while speaking to the national Trump Era crisis, well applies to HOA lawyers. I am completely mystified by the lack of defense and silence by state attorney generals, constitutional think tanks like CATO Institute, The Heritage Foundation, The Federalist Society, and constitutional lawyers and law schools. Read on!

“Leaders of the legal profession should be asking themselves, ‘What role did we play in creating this ongoing legal emergency?’ But so far, there has been no such post-mortem reflection, and none appears on the horizon.  Many lawyers ‘have instead stood largely silent, assenting to the recent assaults on America’s fragile democracy.’

“More alarming is the growing crowd of grifters, frauds and con men willing to subvert the Constitution and long-established constitutional principles for the whims of political expediency. . . . Any legal movement that could foment such a constitutional abdication and attract a sufficient number of lawyers willing to advocate its unlawful causes is ripe for a major reckoning.”

The Opinion is concerned about what, if anything, is being done to rectify this attack on democratic institutions.

“The Federalist Society, long the standard-bearer for the conservative legal movement, has failed to respond in this period of crisis. . . . Principled voices [must] speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily. To do otherwise would be to cede the field to lawyers of bad faith. We have seen in recent years what the unchecked spread of wildly untrue and anti-democratic lies gets us.”

Addressing law colleges failure to educate students, a movement is called for.

“The movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps. The Constitution cannot defend itself; lawyers and legal scholars must.”

In the past I’ve written about the failure of law colleges to include the numerous views and positions on the constitutionality of the HOA legal structure. See “Is CAI’s ‘lack of candor to the tribunal’ intentional?”

*          “The Trump Threat Is Growing. Lawyers Must Rise to Meet This Moment,” NY Times Opinion, Nov.23, 2023. By George Conway, J. Michael Luttig and Barbara Comstock.  “The writers are lawyers. Mr. Conway was in private practice. Mr. Luttig was a judge on the United States Court of Appeals for the Fourth Circuit from 1991 to 2006. Ms. Comstock represented Virginia’s 10th District in Congress from 2015 to 2019. They serve on the board of the newly formed Society for the Rule of Law Institute.”