Author: HOAGOV

"The Voice for HOA Constitutionality". I have been a long-term homeowner rights authority, advocate and author of "The HOA-Land Nation Within America" (2019) and" Establishing the New America of independent HOA principalities" (2008). See HOA Constitutional Government at http://pvtgov.org. My efforts with HOAs took me to a broader concern that was deeply affecting the constituionality of HOAs. Those broad societal and plotical concerns caused me to start this new blog for my commentaries on the State of the New America.

Apple vs. FBI: is Apple politcally motivated?

Below is a copy of the 3 page actual court order, in relevant parts.  While the order includes modifying the device’s software to accomplish the task, if necessary, it clearly and explicitly narrows the search to one particular device.   The order does not require Apple to modify its operating system, iOS, for use by everyone else.  The control of that modified software remains in the hands of Apple who could then seal it away or “burn” it at Apple’s discretion.

Having been involved in the computer software industry for some 50 years — since the dawn of commercial computers and continuing to personal computers and smart phones of today, and having modified operating system software — Apple’s arguments are without merit.  In my opinion, Apple is playing politics.

 FBI

UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. ED 15 – 0451M, Feb. 16, 2016

[PROPOSED] ORDER COMPELLING APPLE, IINC. TO ASSIST AGENTS IN SEARCH

Note:  The capitalization below appears in the actual court filing and was not added.

For good cause shown, IT IS HEREBY ORDERED that:

  1. Apple shall assist in enabling the search of a cellular telephone, Apple make: iPhone 5C, Model: A1532, P/N:MGFG2LL/A, S/N:FFMNQ3MTG2DJ . . . in obtaining access to the data on the SUBJECT DEVICE.”
  2. (2) it will enable the FBI to submit passcodes to the SUBJECT DEVICE for testing electronically via the physical device port . . . .”
  3.   Apple’s reasonable technical assistance may include . . . signed iPhone Software file, recovery bundle, or other Software Image File (“SIF”) that can be loaded onto the SUBJECT DEVICE. The SIF . . . will not modify the iOS on the actual phone, the user data partition or system partition on the device’s flash memory. The SIF will be coded by Apple with a unique identifier of the phone so that the SIF would only load and execute on the SUBJECT DEVICE.

 

 

APPLE 

Below is a copy of the Introduction section of Apple’s 65 page motion. Contrast Apple’s arguments that seem to be a response to issues not warranted by the order and raising issues that are under Apple’s control.  Apple’s opening sentence reads, “This is not a case about one isolated iPhone,” setting the tone of Apple’s opposition of the order. Apple raises issues of forced speech – compelling a private entity to do something – in violation of the 1st Amendment. It broadens and extends the issue to that of modifying its software would imperil the rights of all owners having Apple’s iOS operating system.

 Furthermore, an apparent political motive of Apple comes forth by its criticism of the government for not first going to Congress to change the laws, as it so believes is necessary, and stifling public debate on the issues not warranted by the court order (see last quote paragraph below).

 

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION

ED No. CM 16-10 (SP), Feb. 25, 2016

APPLE INC’S MOTION TO VACATE ORDER COMPELLING APPLE INC. TO ASSIST AGENTS IN SEARCH, AND OPPOSITION TO GOVERNMENT’S MOTION TO COMPEL ASSISTANCE

This is not a case about one isolated iPhone. Rather, this case is about the Department of Justice and the FBI seeking through the courts a dangerous power that Congress and the American people have withheld: the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe. The government demands that Apple create a back door to defeat the encryption on the iPhone, making its users’ most confidential and personal information vulnerable to hackers, identity thieves, hostile foreign agents, and unwarranted government surveillance.

 There are two important and legitimate interests in this case: the needs of law enforcement and the privacy and personal safety interests of the public. . . . But rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests . . . .

 The order demanded by the government compels Apple to create a new operating system—effectively a “back door” to the iPhone—that Apple believes is too dangerous to build.

 This would make it easier to unlock the iPhone by “brute force,” trying thousands or millions of passcode combinations with the speed of a modern computer. In short, the government wants to compel Apple to create a crippled and insecure product.

 But rather than pursue new legislation, the government backed away from Congress and turned to the courts, a forum ill-suited to address the myriad competing interests, potential ramifications, and unintended consequences presented by the government’s unprecedented demand. And more importantly, by invoking “terrorism” and moving ex parte behind closed courtroom doors, the government sought to cut off debate and circumvent thoughtful analysis.

Legal Disclaimer

The information contained in this written or electronic communication, and our associated web sites and blog, is provided as a service to the Internet community and does not constitute legal advice or opinion. We perform legal research and case analysis services, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in any report, finding, recommendation or any communication, or linked to this web site and its associated sites. No document prepared by HALRIS or George K. Staropoli is to be considered a legal document to be filed in a court or in a legal proceeding. Nothing provided by HALRIS or George K. Staropoli should be used as a substitute for the advice of competent counsel. George K. Staropoli and no person associated with HALRIS, AHLIS, or Citizens for Constitutional Local Government are attorneys nor are employed by an attorney.

CA legislature’s general interest in AB 968?

I do not understand the legitimate purpose of and the California government’s interest in AB 968 (2014, to be effective Jan. 2017).   The meaningful change made by this bill is to shift the maintenance of the “exclusive use common area” to the homeowner. In this short bill of 6 paragraphs, the relevant paragraphs all contain the phrase, “Unless otherwise provided in the declaration of a common interest development.”

It follows that the bill would affect only those HOAs that are silent on the costs, repairs and maintenance of these exclusive common areas by imposing and mandating a discretionary split of costs. It transfers “replacing” and “repairs” obligations to the HOA and the maintenance obligation of these same areas to the homeowner. The bill is defective as it does not clarify and define the differences between “maintaining,” “repairs,” and “replacing.”  (The California Center for Homeowner Association Law does an excellent analysis of AB 968.)

However, my interest here lies in the legislature’s close nexus with the day-to-day operations of HOAs; its support and cooperation with HOA management; its coercion in forcing HOA members to amend their CC&Rs by 2017 if disagreeing with the state’s imposed mandate that affects their CC&Rs — their private charter or constitution. The bill makes a strong case for finding HOAs as an arm of the state and state actors. Why this intrusion into private contracts? What is the legislature’s legitimate government interest to deny HOA members’ their rights to govern themselves as permitted by state laws and CC&Rs?

While the defenders of this bill will argue that there is no direct interference with private contracts, there is an indirect coercion to force HOA members to amend their CC&RS if not happy with the bill.  We know that the deck is stacked against CC&Rs amendments initiated by the membership and not by management. Very clever wording and a recognition of the impact of constitutional law on the bill, and the implied contradiction of HOAs as a democratic voice of the community.

What we are witnessing with AB 968 is the parallels with management – labor disputes, where these 2 classes of employees have different goals and obligations. Here management is HOA management, supported by its member funded attorneys, opposing the interests of the membership. Management is organized and funded, but the membership is fragmented and unfunded as was the case with management – labor disputes.

In 2013 I proposed a Council of HOA Members for each HOA that is legally recognized as a bargaining entity for HOA members. See Organize, organize, organize, but organize your local HOA. Wouldn’t it have been more appropriate to adopt a law establishing HOA membership bargaining organizations?  Wouldn’t HOA Member Councils have been a just and fair approach to a vague condition that somehow warranted the legislature to get involved and interfere with local private governments?

Why did the California legislature adopt AB 968?  Was it functioning as legitimate representatives of the people, or under special interest lobbying? To better understand how our system of government is functioning in today’s world read Rediscovering American Democracy.  Understand why state legislatures favor HOAs as opposed to defending individual rights of the people.

Has America retained the basic tenants of a democracy: the freedom of all citizens to participate equally in government?  Rediscover the origins of the philosophical and political theories surrounding representative democracy. What are the American Organic Laws that constitute the fundamental principles of our American system of government? How do they apply to elections, separation of powers, the abundance of rights, and political correctness?

 

 

CAI flexes its muscle in Congress arguing constitutional law and judicial review

With respect to the federal Amateur Radio Parity Act of 2015, S 1685/HR 1301 (HAM operators), the national lobbying organization, Community Association Institute (CAI), seeks to assert that the private contractual HOA CC&Rs are constitutionally protected from government contract infringement. CAI CEO Skiba argues that there is no compelling government interest to allow contract infringement and that the province for HOA regulation lies at the state level.[1]  This is a first for CAI!

It shows that it understands what I’ve been writing about: that the surrender and waiver of constitutional rights in HOA-Land must pass judicial scrutiny although the courts have gotten around this legal requirement.[2]  Here, for the first time that I’m aware, CAI argues that the Amateur Radio Act fails to pass judicial scrutiny because there is no compelling and necessary government interest for the law.[3]

As I wrote the sponsors of these bills,

State laws are pro-HOA, and the states have abdicated their obligations to protect the individual rights of citizens. State legislatures are strongly influenced by the special interest lobbyists headed by CAI.

I explained that the attitudes, views, and conduct of CAI demonstrate the dual façade, the two-faced voice of CAI, that now shouts for constitutional protections against the bill.

CAI gives the false impression that HOAs are democratic and offer the same protections of individual rights as found in the public domain. This is grossly untrue. You will not find fair election laws in HOAs, nor effective due process hearings for violations, nor penalties against the HOA officers and directors for violations of the law and contractual obligations as found in the public domain, nor the right to member initiatives, nor the conditions for a valid surrender of one’s rights and freedoms. All of which would be necessary for a just and fair legitimate democratic government.

CAI would also have you believe that HOA CC&Rs, which are binding sight unseen by means of constructive notice, are sufficient for the surrender of fundamental rights.

I further wrote that “protecting an invalid contract would make a mockery of the Constitution.”

With respect to CAI itself, I informed the sponsors that,

“CAI comes with unclean hands. . . . Operating as a monopoly, CAI indoctrinates the public at large, public officials, the media, and homebuyers into its view of the HOA industry.  This indoctrination creates a common core of beliefs and attitudes, and establishes CAI as a national shadow government, a private entity, that has not been delegated such powers and authority by Congress.”[4]

I explained that CAI’s opposition to the bill is based in its argument “that private entity HOAs need not be subject to the Constitution or the laws of the land. [And that] the 14th Amendment does not apply to these private governments.”

I added that, “Furthermore, CAI resists the intrusion of government into its shadow government arena and dominance of HOA-Land.”

 

Notes

[1] See, Statement For the Record  H.R. 1301 The Amateur Radio Parity Act 2015 , House Energy and Commerce Committee, Jan. 12, 2016, Thomas M. Skiba, CAI CEO; see also, Will the real CAI standup: its contradictory beliefs, pronouncements and goals.

[2] The courts have upheld free speech surrenders and other implicit surrender of rights on the basis of a general government interest, and not applying strict scrutiny review.  The courts presumed genuine consent to be bound was present, or the application of constructive notice – no need to see or sign the CC&Rs to be bound – as controlling. The question of violations of the 14th Amendment “due process” and “equal protection of the law” requirements were not considered.

[3] “Are the means [the statute] narrowly tailored to accomplish a compelling governmental objective? (narrowly tailored – the means are necessary and there are no equally effective less restrictive alternative means available to accomplish the objective) (sometimes the word necessary is used instead of narrowly tailored, but in the context of strict scrutiny they mean the same thing).”

Standards of Review web page, (http://www.wneclaw.com/conlaw/standardsofreview.html).

[4] This one-sided, personal agenda becomes obvious when CAI has failed to adopt a poll based on the Truth in HOAs Disclosure Agreement, and in general, does not include in its education programs the topics contained in HOA Common Sense: rejecting private government.

AZ SB 1088 is an unconstitutional and selective impairment of a contract bill

Arizona’s SB 1088 bill seeks to invalidate CC&Rs that require approval by a homeowner to allow any visitor access to the homeowner.  It specifically deals with — and is only meaningful with respect to gated communities which are gated for a very good reason — not hindering process servers access to a homeowner defendant.  It is punitive with a $250 “civil penalty” for anyone violating this law.

Background 

Under our laws and judicial system a plaintiff must service notice of a lawsuit upon a defendant as required by the Constitution.[1]  It is well known that there are people who act to avoid being served notice, which stops any lawsuit from moving forward. However, the law does allow for posting the summons notice to the public notices page of a newspaper in the event the defendant cannot be personally contacted.[2]

Impairing the obligation of contracts

The proponents’ argument would be generally along the lines that “due process under the law” triumphs over any contract infringement violation as a matter of public policy and for the general good of the people. An HOA covenant cannot hinder constitutional due process of law and the equal application of the law to a person, not necessarily an HOA, who is suing a defendant in such an HOA.  It’s not fair they would cry, referring to the greater good served outside the HOA.

But, the bill seems to be unnecessary as there are other means to satisfy civil procedure process servers.  It would also not pass judicial scrutiny[3] required to deny constitutional rights under contract infringement.  The bill seems to be sponsored as a request from a constituent facing some problem that lacks merit, considering the alternative methods available for service notice by process servers.

Selective enforcement of the law

It is long held doctrine that a government cannot pick and choose what laws to enforce or to ignore, and still be seen as a legitimate government.  The entirety of the covenants in a declaration of CC&Rs — allegedly constituting the voice of the people in a private contract to not be bound by the Constitution and the laws of the land — contains many, many covenants that violate the protected rights of the people.

Yet the state stands idly by and does nothing to end these private contractual violations of the constitution’s requirement for the equal protection of the law.  The CC&Rs are a mockery of due process protections, of fair elections, of eminent domain protections, of cruel and unusual punishment by foreclosure rights, of contract law misrepresentation and full disclosure violations, of the failure to provide civil penalties against HOA violations of the law, etc.

They are either ignored or have the “blessings” of the legislature as a result of laws that coerce compliance with the HOA, cooperate with the HOA, or closely interact with the day-to-day operations of the HOA. Any of which would make the HOA a state actor subject to the Constitution.

SB 1088 is a selective impairment of contract obligations while other infringements of the laws are allowed to stand. Adopting this bill would be a mockery of the law.

 

References

[1] 14th Amendment, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.”

[2] Ariz. R. Civ. P., 4.1(n). “Where the person being served . . . has avoided service of process . . . then service may be by publication  . . . . “ Also, Rule 4.1(m) allows for “alternative or substituted service.”

[3] Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.  See, in general, Arizona’s HB 2382 is an unconstitutional violation of eminent domain law.

Arizona’s HB 2382 is an unconstitutional violation of eminent domain law

HB 2382[1] deals with valid association covenants and amendments.  The section dealing with valid covenants is severely lacking in homeowner protections, but the section dealing with amendments has substantive, positive reforms, which should be applied to covenants under ARS 33-440. Please bear in mind that Article II, Section 2 of the Arizona Constitution affirms the state’s obligation to defend individual rights. “[G]overnments . . . are established to protect and maintain individual rights.”

Amendments

On the positive side, HB 2382 contains additions to ARS 33-440 (subsection C), and PUD law in ARS 33-1817 (new subsection A), but not condo law. It addresses an aspect of consent of the governed[2].  Under the above subsections, paragraphs 1 and 2 are of interest.

Paragraph (2)(b) requires the actual consent of the affected homeowners, which opens up a bona fide exchange that is satisfactory to the affected homeowners. “The amendment receives the affirmative vote or written consent of all of the owners of the lots or property to which the amendment applies.” In short, they can reject the amendment or demand payment from the HOA. However, it applies only to instances where less than all the members are affected by the covenant.

Paragraph (1) provides the right of the board or of a homeowner to propose an amendment provided he obtains the requisite number of votes for a valid amendment. This subsection appears to allow for no board involvement in the amendment process. The “reformer” only needs to get the required valid votes and file a document with the county clerk affirming compliance with the law and CC&Rs.

Still, the vote of affected, non-consenting homeowners is not required and constitutes a private government eminent domain[3] taking.

While this is a major advance for substantive reforms that bring the HOA closer to the same constitutional restrictions and prohibitions as are public entities, unless (2)(b) is made part of paragraph (1), it still is a private government “eminent domain” taking without compensation.

 Covenants

Relating to covenants, upon a close reading of 33-440(A)(2), which has been law since September 26, 2008, the above changes appear to be redundant and not necessary, because in order to be a valid covenant the consent of “the owner of real property affected” by the covenant is required.  This paragraph renders the proposed changes to the HOA amendment process to be unnecessary. It is binding whether or not the covenant affects only some of the members. It applies to existing covenants existing declarations and in any new HOA declaration as well as to amendments.

This law, section 33-440, has been ignored by attorneys for homeowners and, as expected, by HOA attorneys for over 7 years!  I have not seen this law raised in the courts in Arizona.

Could it be because paragraph (A)(3) renders the entire law meaningless as it defines “consent” as set forth by the CC&Rs procedures, which, as we all know, do not require the consent of any affected property owner? They require a specified vote of consent by the members without regard to the consent of affected members. It also broadly presumes that each new purchaser has agreed to the surrender of his private property rights to the whims of other members as set forth in the CC&Rs amendment covenant.

(A test of the weak argument that members have openly and knowingly agreed to be bound at the time of purchase, or now have agreed to be bound, which the leading national pro-HOA lobbying organization, CAI, has failed to adopt, is a poll based on the Truth in HOAs Disclosure Agreement [4].)

These boiler plate CC&Rs amendment procedures, themselves, also constitute an unconstitutional surrender or waiver of property rights that will not pass judicial scrutiny.  Judicial scrutiny relating to constitutional rights requires a compelling and necessary government interest, not a general government interest, to deny protected rights.[5]

Take, as an example of the government’s interest, the defensive arguments that HOAs are justified because they 1) maintain property values and 2) lower municipal costs due to private funding of infrastructure. Are there alternative methods or approaches that can effectively accomplish these goals without a loss of rights?  I think we all would agree that the answer to this question is “Yes.”  These widely accepted government interests cannot be just a preference over other alternatives.

CC&Rs permit HOAs to ignore constitutional protections

I believe that this bill, with all the good intentions of its sponsor, provides an excellent example in support of the argument that these private declarations of CC&Rs are a devise to bypass constitutional protections of the rights of citizens.[6] Paragraph (A)(3) of 33-440 is an unconstitutional statutory violation of the private property rights of citizens living in HOAs. It permits the HOA to alter your CC&Rs “contract” at the time of purchase and remove your rights without compensation.  It’s not the American way!

The most shameful example of this taking involved a homeowner who paid a premium price of some $50,000 for a golf course view that was protected by the CC&Rs from neighbors infringing upon that view. This did not stop the board from amending the CC&Rs to remove that restriction, which allowed a neighbor to so obstruct the golf course view by planting large trees.  The affected homeowner was not compensated for his contractual loss of property rights.

HB 2382 recommended revisions

For the reasons given above, this bill must be amended by deleting 33-440(A)(3) in its entirety, and to include only the proposed amendment subsection with the addition of 1) “notwithstanding any provision in the declaration” and 2) the proposed changes to the HOA amendment process in paragraphs (1) and (2) be deleted in their entirety, substituting the following:

“1. THE DECLARATION MAY BE AMENDED BY THE ASSOCIATION OR AN OWNER OF PROPERTY THAT IS SUBJECT TO THE DECLARATION BY

(a) AN AFFIRMATIVE VOTE OR WRITTEN CONSENT OF THE NUMBER OF ELIGIBLE VOTERS AS PRESCRIBED IN THE DECLARATION, AND

(b) AN AFFIRMATIVE VOTE OR WRITTEN CONSENT OF ALL OF THE AFFECTED OWNERS OF THE LOTS OR PROPERTY TO WHICH THE AMENDMENT APPLIES.”

The legislature cannot allow HOA private covenants to serve to override constitutional law and to bypass constitutional protections of fundamental rights and freedoms of the good citizens living in HOAs.  It must not!

 

References

[1] http://www.azleg.gov/legtext/52leg/2r/bills/hb2382p.pdf.

[2] See HOA Common Sense: rejecting private government, Consent of the governed, No.4.

[3] The 5th Amendment clearly states, “nor shall private property be taken for public use without just compensation”; Section 1 of the 14th Amendment clearly states, “Nor shall any state deprive any person of life, liberty, or property, without due process of law.” (My emphasis).

[4] Truth in HOAs Disclosure Agreement; Homeowner Association Consent to be Governed Agreement model Act (“Truth in HOAs Act”).

[5] “Are the means [the statute] narrowly tailored to accomplish a compelling governmental objective? (narrowly tailored – the means are necessary and there are no equally effective less restrictive alternative means available to accomplish the objective) (sometimes the word necessary is used instead of narrowly tailored, but in the context of strict scrutiny they mean the same thing).” Standards of Review web page, (http://www.wneclaw.com/conlaw/standardsofreview.html.)

[6] See CC&Rs are a devise for de facto HOA governments to escape constitutional government and HOAs violate local home rule doctrine and are outlaw governments.