Category: Opinion

Posts by GKS

A free speech ‘puzzlement’: tattooing vs. HOAs

Echoing the thoughts of Yul Brynner in the 1956 King and I movie (Anna and the King of Siam), I’ve encountered a “puzzlement.”  In the just released 27 page opinion of the Arizona Supreme Court in Coleman v. The City of Mesa, No. CV-11-0351-PR, the Supreme Court ruled that the lower court must allow the tattoo artists to show that tattooing was a protected expression of free speech.  The City of Mesa had a discretionary zoning ordinance against tattooing establishments.  The higher court held that the trial court could not summarily dismiss the complaint as not having a questionable issue of law.

The complaint sufficiently sets forth claims for relief for alleged violations of the Colemans’ rights to free speech, equal protection, and due process. Whether they can prove those claims will depend on the course of proceedings in the trial court.

I will not go into the legal details of the court’s analysis, but allow me to make some comparisons with HOA free speech issues from the point of view of “consent to be governed” (not discussed in the opinion).  I refer to the pro-HOA arguments that continuing to live in your HOA is an implicit agreement to be bound by the ruling private HOA government under its pseudo-constitution and pseudo-laws. That argument, alone, the courts have repeatedly held, controls the homeowner’s consent to agree.

BUT, as we have in this case, shouldn’t operating a tattoo parlor in the City of Mesa be likewise viewed as an implicit consent to agree to city zoning ordinances, among other public laws?  And as such, haven’t the artists waived and/or surrendered their constitutional rights that they are now arguing that they still retain?  Like it is argued against HOA members? Apparently not, for the supreme court there are sufficient grounds to make such a legal argument (helped by the Goldwater Institute).

It’s a puzzlement.  Why two sets of legal doctrines?  One for the public and one for a class of citizens who live in HOAs?  A real puzzlement.

CAI attorney stalwart defends HOA Land private constitutions and so-called bill of rights

The CAI stalwarts once again responding to my challenge to defend the constitutionality and legal status of the HOA legal scheme, including the highly questionable assertion of a “consent to agree” under the constructive notice doctrine.  This time, dedicated CAI stalwart Beth Grimm enters the arena with her August 2012 e-newsletter, What’s new in HOA Land . . .  The topic is, “Homeowners Bill of Rights.”

From the very start she informs her readers, in a round-about way, that there are no federal or state constitutions applicable to HOA private agreements.  I’ve been saying that for years!  And she points out that, “Without A Constitution What Is a Bill of Rights Worth?”  Grimm continues in what must be taken as a joke, in full agreement with the comment by Bill Davis, with a quote from Thomas Jefferson about the need for a bill of rights after admitting there is no HOA constitution.  

It appears that the reader is entering the realm of the attorney “word-game,”  where long established concepts and meanings are distorted to suit the attorney’s private agenda.  It’s an indoctrination and propaganda tactic. Welcome to Newspeak.

In strict legal terms, the assertion by Grimm that the governing documents are the HOA’s constitution is not correct.   But the courts have upheld the CC&RS as if they were just like a political constitution and interpreted them as a de facto constitution.  And as I have tried to explain, state laws like the California Davis-Stirling Act, the UCIOA acts, and other state HOA “Acts” serve as a parallel code of public laws applicable at the local government level to the class of nonprofit private governments called HOAs. 

The courts have also applied public government attributes, conditions and rights to these private contracts that are not contained in the explicit CC&RS covenants, and have applied overly broad interpretations as to what the members have agreed to without their signature – just by simply taking their deed in hand.  In other words, the activist courts are imputing a “consent to agree” that does not exist in the CC&RS. And nobody warns the unsuspecting homeowner of the consequences of reaching out for that deed. Nobody!

A host of reputed rights are then examined by Grimm, but they read more like the documents of the Rights and Responsibilities of members (a document first used to explain what a democracy is all about and how citizens are to act;[i] and a publication of CAI Central). It is in stark contrast to the preamble to the US Bill of Rights, emphasis added,

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

This long time CAI stalwart attorney does not address the constitutional concerns raised in my The Truth in HOAs Disclosure Agreement, nor does she call for CAI to conduct such a poll. There is no support for my Declaration of US and State Citizenship. Grimm’s presentation misses this important point.

Nor does she mention that back in the 2008 – 2009 the California Law Review Commission’s attempt to rewrite the Davis-Stirling Act contained a proposed Chapter 2, Member Bill of Rights.  It was quickly removed and has not been adopted in the new law to become effective in 2014.  Nor does she present the homeowner advocates proposed homeowners bill of Rights published in the now defunct AHRC website and the AARP version written by David Kahne in 2006, among others.

It should be noted that in 2008 the Uniform State Laws Commission adopted a bill of right for UCIOA (UCIOBORA), but did not incorporate it was a part of UCIOA.  Rather, they created a separate version so that states can choose to adopt its so-called bill of rights or leave them out.  To date, no state has adopted this bill of rights.  It reads like your CC&Rs and pro-HOA state laws.  Nothing at all like the US Bill of Rights or the state Declarations of rights.

If HOA Land is to join the union and lose its independent principality status, thereby providing constitutional protections to the homeowners,  then Beth Grimm and all other CAI legal-academic aristocrats should be demanding the amendments to the Declaration  and state laws as proposed in my Declaration above,

The association hereby waivers and surrenders any rights or claims it may have under law and herewith unconditionally and irrevocably agrees 1) to be bound by the US and State Constitutions, and laws of the State within which it is located, as if it were a subdivision of the state and a local public government entity, and 2) that constitutional law shall prevail as the supreme law of the land including over conflicting laws and legal doctrines of equitable servitudes.

Why aren’t they?  The above state law and mandatory Declaration amendments will put an end to the jokes and word games that attempt to hide the fact that HOAs are de facto but unrecognized governments operating outside the Constitution. And there will be a bona fide Bill of rights!

 

[i] The Rights of Man, Thomas Paine, 1791; The Declaration of the Rights of Man and of the Citizen, 1793, French revolution origins)

HOA board education or indoctrination?

Donna DiMaggio Berger of Florida’s CAN HOA advocacy group wrote about the increasing numbers of board members seeking to be educated in HOA matters and in the affairs of HOA-Land (Do most Condo & HOA Directors want to be educated?).  I agree with Donna that these private government officials need to be educated, because unlike pubic government officials there is no long term infrastructure or institutional culture to guide them. 

Neither are there the penalties against wrong-doing as we have with laws holding public officials accountable.  Yes, not only must these private officials be properly educated, but be held accountable, too.  But, accountability is not discussed.

Sadly, in regard to the educational materials, the pro-HOA believers and groups ignore the fact that the “teachings” are really indoctrination courses into how to behave in HOA-Land under its unconscionable and oppressive adhesion contract, supported by pro-HOA laws and top-down UCIOA covenants. The materials flow from the pseudo-educator, the national lobbying trade group, which seeks to maintain the inequities of the HOA legal scheme.  They teach “how to behave as a good HOA member and avoid financial and emotional stress, and the good chance of losing your home if disobedient.”  And that is, is to follow the rules and to participate under procedures that thwart participation by “outsiders.”

There is no presentation of constitutional issues, of 14th Amendment violations, of the fallacies in the “consent to agree” argument, of no clean elections laws or of unacceptable due process procedures as a few examples.  Not even a discussion of the validity of my Truth in HOAs Disclosure Agreement argument.  Not even an invitation for attendees to proclaim their US citizenship status by signing the Declaration of US and State Citizenship form.

And why not?  Why aren’t these issue made public and taught by the great HOA educators?  Maybe, just maybe, as Col. Jessup shouted out in the movie, A Few Good Men, “You can’t handle the truth!”   Why are they afraid of the truth?

If the watchdogs of the judiciary fail, it follows that the government also fails

On May 30, 2012 I file a complaint against Judge Olson, No. 12-148, for illegally closing the files on the complaint against CAI attorney Maxwell by a court appointed Receiver[1].   (See Judicial misconduct complaint filed for sealing records in AZ case against HOA attorney).  The AZ Commission writes that it has no problem with Judge Olson’s sealing of the records.

 

ORDER

 

The complainant alleged that a superior court judge improperly sealed a case. The responsibility of the Commission on Judicial Conduct is to impartially determine if the judge engaged in conduct that violated the provisions of Article 6.1 of the Arizona Constitution or the Code of Judicial Conduct and, if so, to take appropriate disciplinary action. The purpose and authority of the commission is limited to this mission.

 After reviewing the information provided by the complainant, the commission found no evidence of ethical misconduct and concluded that the judge did not violate the Code in this case. The commission does not have jurisdiction to review the legal sufficiency of the judge’s ruling. Accordingly, the complaint is dismissed in its entirety pursuant to Rules 16(a) and 23.

 Dated: August 15, 2012.

FOR THE COMMISSION

 

Its first reaction to my complaint was to attack the messenger, asking how did I know about the case. (See AZ judicial conduct comm. on hidden HOA attorney case: who let the cat out of the bag?).

I am still trying to fathom the logic or rational that the judge did not violate Rule 123(d) of the Rules of the Supreme Court.  Rule 81 is the Code of Judicial Conduct that I referenced in my complaint.  Under Rule 81 there is at the very start, Rule 1.1, Compliance with the Law.   The act of sealing all the court record information by Judge Olson is prima facie evidence of a violation of Rule 123(d) (see Judicial misconduct complaint link above). 

How can the Commission say, with a straight face, “The commission does not have jurisdiction to review the legal sufficiency of the judge’s ruling.”  Who then watches the judges?    Their brethren?  Given the black and white issue here, the Code becomes a joke!

The entire beginnings of Rule 81 under Preamble and Scope speak to maintaining the integrity of the court, the confidence of the public, and avoiding the appearance of impropriety.  Words, simply words that have no meaning at all!

What is most offensive to the legitimacy of the court, and to the legitimacy of the government, is that the Commission, the watchdog of the judiciary, took a hands-off “not me” position and did nothing.  If the judicial watchdogs fail, what then of the judiciary itself that watches the government?  It, too, most fail, and so too the government.

[1] DC Lot Owners v. Maxwell & Morgan, CV 2010-004684, Pinal County Superior Court, AZ.

Court decisions: HOA Enlightenment Movement vs. the Dark Ages

In this “groundbreaking decision”, as described by Evan McKenzie in  his Privatopia Blog, the Illinois appellate court made a ruling consistent with the HOA Enlightenment Movement.  Neglect by a condo asociation to make repairs affecting a unit is a defense against continued payment of assessment.  This is a major step toward homeowner justice that removes the “pay no matter what, or lose your home” doctrine of the authoritarian HOA governments.

The case, Spanish Court Two Condominium Association v. Lisa Carlson (2012 IL App (2d) 110473), involved a demand for assessments owed plus a possession — forcible entry — of the unit that was alleged to have suffered damages due to the condo association’s neglect.  (Understand that the condo sued under the Forcible Entry Act to repossess the unit). The court held the condo in the same position as a landlord under the landlord-tenant laws, which allow a tenant to withhold rent as a defense against forcible entry.

 We hold, by analogy to the case law on actions brought under the Forcible Entry Act by landlords for possession of leased property due to unpaid rent, that the unit owner may claim neglect as a defense to the board’s suit under the Act.

 And of very important significance for case law precedent is the holding on the mutual obligations of the CC&Rs contract, my emphasis, (p. 13,14),

 “Plaintiff suggests that a board’s right to collect assessments is absolute and that a claim for nonpayment of assessments is not subject to any affirmative defense.”

[The court replied,] “nowhere does the . . .  Condominium Act suggest that the right is absolute.”  The Condominium Act appears to set the rights of unit owners on par with the rights of the board of managers. Moreover, the rights arise from mutually exchanged promises—on the one hand to pay assessments, on the other hand to maintain the common elements—and so the Declaration and the Bylaws are best seen as contracts.

[T]he condominium instrument indicates (as presumably most do) that the unit owner’s promise to pay assessments is in exchange for the board of managers’ promise to use those assessments for the repair and maintenance of the condominium property, the unit owner may claim, as a justification for nonpayment of assessments, that the board of managers breached its duty of repair and maintenance.

 Contrast this decision with the recent California Supreme Court opinion, reflecting a culture still in the Dark Ages sorely in the  need of enlightenment, Pinnacle Museum Tower  v. Pinnacle Market Development( No. S186149, Aug. 16, 2012 ).   Here the court validated the binding arbitration clause with (my emphasis),

 [T]the Davis-Stirling Act ensures that the covenants, conditions, and restrictions of a recorded declaration — which manifest the intent and expectations of the developer and those who take title to property in a community interest development — will be honored and enforced unless proven unreasonable.

 Under its Discussion, B. Contractual Nature of Terms in a Recorded Declaration, the court gives an instructive presentation on the preferential treatment of the declarant/developer, consent to obey, waiver of rights, “for the common good,” and the open-ended amendment process.  Section C explains what constitute an unconscionable contract clause, rejected in this instance.  Very informative of the Dark Ages culture.

 

The HOA Enlightenment Movement is rolling on, and will gather momentum as the truth, justice, and the American way shall once again prevail.