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.

NJ Supreme Court upholds constitution against HOA free speech electioneering violations

Those familiar with rogue HOAs have seen this occur time after time – board control of the electioneering process.   In, Dublirer, a NJ Supreme Court case, [1]

“The [condo] Board, citing a ‘House Rule’ that barred soliciting and distributing any written materials, denied the request. On prior occasions, though, the Board had distributed written ‘updates’ under apartment doors throughout the building, which criticized the Board’s opponents. The resident filed a lawsuit and claimed that the House Rule was unconstitutional.”

Finally, a state supreme court said enough is enough and free speech in elections for members dominates the governing documents, and the state constitution prevails (This case was not filed under federal laws).

Under that approach, we find that the Board’s policy violates the free speech clause of the State Constitution. The important right of residents to speak about the governance of their community, which presents a minimal intrusion when a leaflet is placed under a neighbor’s apartment door, outweighs the Board’s concerns. We therefore affirm the judgment of the Appellate Division.

The panel [appellate decision] noted that Dublirer’s expressional activity was ‘political-like speech’ because it related to the management and governance of the common-interest community. The panel found that the restriction left Dublirer without reasonable alternative means to convey his message.”

Thus, even though Dublirer did not run for public office, his message was akin to and should be treated as political speech, which is entitled to the highest level of protection in our society. . . . If anything, speech about matters of public interest, and about the qualifications of people who hold positions of trust, lies at the heart of our societal values.

Essentially, members – and speaking with respect to member-owners — must be given equal access to the membership as long as the campaign does not excessively disrupt the “tranquility” of the community. Suitable means must be given to members to allow for free speech expressions. The HOA had argued, beyond technicalities that were dismissed, that members had no free speech rights.  Imagine that!  CAI’s description of HOAs as democracies was just contradicted!

The Court held,

“On balance, we find that the restriction on Dublirer’s right to disseminate his written materials to neighbors is unreasonable. Dublirer’s right to promote his candidacy, and to communicate his views about the governance of the community in which he lives, outweigh the minor interference that neighbors will face from a leaflet under their door. In short, Dublirer’s right to free speech outweighs the Board’s concerns about the use of the apartment building. We therefore find that the Board’s House Rule violates the free speech guarantee in New Jersey’s Constitution.”

It appears that this Court believes that HOAs are akin to public governments and the election of board members is tantamount to a local public election and must be constitutionally protected.  To ensure that local community government works for the member-owners, don’t due process protections and the equal protection of the laws under the 14th Amendment require judicial enforcement against HOA violations?  And that these rights deserve supremacy over privately drafted contracts that have as their objective the dismissal of constitutional protections?  I think so!  So should state legislators!

As for CAI’s amicus brief, it denied free speech rights to homeowners, declared HOAs are businesses and members are like stockholders during board elections, and other non-constitutional methods were available so forget about applying constitutional law.  Sounds like a belief that HOAs are indeed independent principalities (See Establishing the New America: a new book).

CAI cannot allow HOAs to be treated as equivalent to state entities.  See Commentary posted here.

Note 1.  “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).

CAI: the HOA form of government is independent of the US Constitution

In its amicus brief in the NJ Supreme Court Dublirer case [1] involving free speech in an HOA election campaign, CAI clearly makes the point that HOAs are not subject to constitutional protections and elections processes are covered solely by the HOA governing documents.

These rights of members do not arise from the State Constitution but rather from statutes, contract, the association’s and governing board’s fiduciary duties, public policy and fundamental fairness.

In light of these statutory, contractual and common law standards protecting the interests of community association members, they need not claim constitutional protection from the conduct of governing boards to exercise their rights with respect to the associations.

What CAI is saying is that the pro-HOA statutes that it helped write and the adhesion contracts executed under misrepresentation [2] supersede the protections of constitutional law.

Furthermore, CAI attempts a strenuous argument of “the sky is falling” if free speech was allowed in private HOA communities, which would doom the essential private nature of HOAs.

CAI-NJ’s concern is the attempt to convert private communities into constitutional actors and to open such communities to access not only to speakers from within the community but also to the public, while ignoring contractual agreements and non-constitutional protections.

This case did not deal with outside speakers, but a member running for office and seeking equal access to the membership. CAI then raises another of its favorite “cause celebres” — HOAs are businesses.  Read this fantastic argument:

The relationship between the plaintiff and the defendants here is that of a business corporation and so is similar to that involved in any other business corporation. A shareholder who wishes to run for a position on a corporate board has no right to post campaign signs on the corporation’s property. Moreover, if such a shareholder wishes to distribute campaign literature to the other shareholders before the issuance of the corporation’s annual meeting announcement and proxy, such shareholder must do so at his own expense. Dublirer’s position vis a vis the cooperative here is no different. He has no constitutional right to distribute his campaign materials within the cooperative’s property simply because mailing them to the other tenant/shareholders may cost him money”.

This in the trenches argument stands in stark contrast to CAI’s propaganda statements made for public consumption that HOAs are democratic and represent the best town hall democracy in America.  If HOAs are businesses, why is the term ‘community” used rather than “cooperative”? For example, like “building vibrant, harmonious, competent cooperatives.”

And finally, CAI makes its last ditch appeal that there are other non-constitutional protections for HOA members so the court need not introduce the Constitution into HOA-Land.  Let them remain independent principalities where hired-hand stakeholders like CAI can control and dominate.

This is CAI’s most fearful event of all, that the courts will hold HOAs as constitutional actors or state entities and subject HOAs to the 14th Amendment protections.  This state of affairs would be the death knell not of HOAs, but of the need for CAI itself.  And CAI well knows and fears this eventual outcome.

These views by CAI before the courts and not propaganda for public consumption must be made known to the media and to all state legislatures and legislators.  Then the legislators must be asked where they stand? Behind the Constitution or behind CAI?

Notes

  1. “BRIEF OF PUTATIVE AMICUS CURIAE COMMUNITY ASSOCIATIONS INSTITUTE – NEW JERSEY CHAPTER,” Michael S. Karpoff, Jan. 3, 2013 (Dublirer v. 2000 Linwood Avenue Owners Assn, N.J. Docket 069154 (2014)).
  2. Misrepresentation: CAI comes with unclean hands.

Pres. Obama fails to support his People, and his fellow Americans

We need new leadership and statesmen in Washington and in state legislatures to deal with the special interest domination of HOA legislation that is detrimental to those living in HOAs, and detrimental to the  foundations of our democratic system of government. We need people who are not afraid to stand up and take a position that they know is right and just against a system that is dominated by the special interest HOA stakeholders.

Obama had the opportunity to speak up for his People who maintain that a bias exists by the courts and police toward Blacks.  He missed his opportunity to lead by stating that he thought the Ferguson decision was wrong and was going to issue an executive order to investigate the Brown murder and procedure used in the grand jury process.

He is no leader, not like Teddy Roosevelt or Franklin Roosevelt who used executive action to advance causes that they truly believed in; causes that they stood up and defended vehemently against strong opposition and criticism.[1]   He does not rise to the level of the Roosevelts.  He failed to back his People, the people who brought him to power and who supported him in his presidency.

Rather, Obama comes before the camera, the people and his People, listless, flat, unemotional, lacking passion, and lacking the audacity to change.  Looking forlorn and wishing that he was not there.

He is a failure as a President. He is basically incompetent and should reign for the good of the country and for the good of all Americans.

Where are the statesmen who are not afraid to stand up and take a position that they know is right and just against a system that is dominated by the special interest HOA stakeholders.

Note 1.  See the PBS special The Roosevelts: An Intimate History.

Should CAI’s public policy embrace “Duty, Honor, Country”?

The CEO of Starbucks visited West Point, the US Military Academy, where he saw three words over and over again: Duty, Honor, Country.   He told Meet The Press this morning that if Congress and the White House adopted these principles America would be a better America.  I believe if CAI adopted these principles as it public policy America would be a better America. I believe by adopting these principles the alleged purpose as advertised by CAI to build vibrant and healthy communities could be achieved.

Unfortunately we live in a society where there is widespread adoption of the principle of political correctness, not ethical or moral correctness, but political correctness; where activist Supreme Courts redefine the traditional and long held meaning of words and concepts like, “public use”  replaced by “public purpose” and corporations are real people and not ficticous people; and where strict interpretations of the law serve the special interests over the intent and purpose of the Constitution, like HOAs are not governments.  I agree with Starbuck’s CEO – Congress and the White House must return to these three basic principles to make a better America.

Afterthought

Over the years West Point produced such notable military leaders as Ulysses S. Grant (Pres. of US), Robert E. Lee, John J. Pershing (WWI), Douglas MacArthur (received Medal of Honor, as did his father; “American Caesar” of postwar Japan), George C. Marshall (Army Chief of Staff and FDR’s chief military advisor was denied by FDR to lead European invasion as FDR needed him in Washington; later Secretary of State; Marshall Plan for European recovery after WWII), Dwight D. Eisenhower Pres. of US), George C Patton, Omar Bradley and many others.

Where are the statesmen of this caliber today? Nowhere to be found!

Did PA congressional candidate get it right with HOA contracts?

Andy Ostrowski, a PA congressional candidate, writes in support of homeowners with HOA issues. He is a constitutional lawyer and believes that certain HOA issues are similar to the constitutional waiver of rights question as stated in the US Supreme Court decision in Overmyer v. Frick.[1]  He wrote:[2]

Principles of freedom of contract must be recognized …  but these homeowners, often focused on raising families and building their lives in peace and comfort, and not focused on legalese and boilerplate contracts, must be sure to have known the rights that they are giving up.

If it is an honest system, and the CAI and HOA organizations truly have the best interest of the homeowners at heart, and are not just trade groups serving the big corporate and banking interests, the simple assurance, through full and complete disclosure, and arms-length negotiation, that people are not giving away their constitutional rights for nothing is something that we should, as a society, expect at a minimum,

This entire system of contracting appears to violate the principles of Overmyer v. Frick. At the very least, then, these contracts would be subject to challenge on those grounds, and this could be done across the country.

Overmyer was not an HOA issue but one involving the doctrine of cognovit, which is the surrender of rights in a contractual agreement.  In reaching its decision the Court took the following as applicable to the surrender of constitutional rights:

This is not a case of unequal bargaining power or overreaching. The Overmyer-Frick agreement, from the start, was not a contract of adhesion.

[W]e assume that the standard for waiver in a corporate-property-right case of this kind is the same standard applicable to waiver in a criminal proceeding, that is, that it be voluntary, knowing, and intelligently made, or “an intentional relinquishment or abandonment of a known right or privilege,” and even if, as the Court has said in the civil area, “[w]e do not presume acquiescence in the loss of fundamental rights . . . .”

Simply stated, cognovit contracts, or the more general waiver of rights by contract, are not necessarily unconstitutional.  However, Evan McKenzie wrote that Ostrowski’s argument was “Interesting theory, but I think it is far-fetched. The problem is that the court ultimately ruled in favor of cognovit.”[3]

In this layman’s view, the argument has merit and is not far-fetched and must be raised in the courts.  It can be argued that the CC&Rs are an adhesion contract heavily weighted in favor of the HOA/developer and is of “unequal bargaining power or overreaching,” Furthermore, valid arguments can be attached in regard to the alleged consent to have agreed.

In my view, this is another challenge that strikes horror into the hearts of the pro-HOa forces, especially CAI.

References

[1] D. H. OVERMYER CO. v. FRICK CO., 405 U.S. 174 (1972)

[2] Homeowner’s Associations – The Perfect Storm of Corporate Cronyism and Legislative and Judicial Abuse of Constitutional Rights

[3] Overmyer v. Frick–new theory for HOA rights?