Category: Opinion

The following is an example of how to read between the lines to interpret legislative procedures and legislator motives.  In short, how legislators use the rules to obtain their goals.

Arizona’s HB 2382 has an excellent amendment that would allow CC&Rs amendments to become valid only if no homeowner affected by the amendment objects to the amendment.  It applies to situations where the amendments affects less than all homeowners, like those with golf course views or like those whose properties borders some physical landscape condition as a runoff ditch or access road, etc.  It would restore the constitutional protection against ex post facto laws or eminent domain takings by the HOA.  A limited but major plus for homeowners.

The bill passed out of the House and out of the Senate committee and was set to be placed on the Consent Calendar.  Since there were no amendments to the House version, legislative procedure allows a fast route to final vote by bypassing the COW (Committee of the Whole) step. A legislator can object to a bill being placed on the Consent Calendar, as happened to HB 2382, and must undergo COW debate and vote.  In COW, a bill may be amended, a “floor amendment,” as also happened here.

The amendment was simply a technical correction – remove comma, change “or” to “and,” etc.  This was the essence of the floor amendment to HB 2382. Normally, these technical corrections are handled in committee before going to the final vote process, or in some later session.  So, what gives?

My reading is that in order to stop the bill from becoming law the amendment, if accepted by the Senate, forces the bill to return to the House for confirmation of the amendment or to resolve differences in the 2 versions of the bill.  It allows further opportunity to defeat a bill.  It says something about the amendment sponsor’s motives.

Now, a rational person would say that here should be no problem with accepting technical corrections to a bill.  But, this is politics influenced by a dominant special interest lobbyist effort.  People have been known to change their minds.  Let’s see what happens.

In 2013, Arizona Rep. Ugenti got caught in playing fast and loose with the rules and got an HOA bill passed in the wee hours of the legislative session. The bill was successfully challenged in court and rules invalid.   See AZ Attorney General admits SB 1454 HOA to be invalid and without effect.

Many of us have had anecdotal stories of unjust decisions by state bars that protect attorneys even in the face of point blank evidence of wrongdoing.  Some have had actual experiences, and are aware of documented decisions affecting others, of state bar rulings with the same astonishing and unreasonable results.  What’s the truth of the matter?  How do state bars work?

As an example of state bar procedures, let me use the Arizona Bar as an example. “A/CAP” is the designation of the first level complaint handler whose function is to screen calls and deal with written complaints. “ER” is a reference to an Ethical Rule of Professional Conduct. The Bar can apply sanctions or dismiss the complaint, or submit the complaint to the supreme court attorney complaint committee (in the judiciary) for handling.  It’s a two-step procedure. Here’s an email excerpt from a HOA member’s complaint, who had replied to the attorney’s answer..

 “Following A/CAP’s final determination finding no violation of the Rules of Professional Conduct and trusting A/CAP has diligently prescreened the information provided bar counsel alleging a conflict of interest (ERs 1.7 -1.10) . . . [provided] written notice to the respondent lawyer of the nature of the allegation . . . [obtained] a response which is copied to the complainant for comment and/or response to the bar’s request for additional information . . . .”

Here’s the Bar’s response email:

“Mr.xxx

 The emails you provided do not warrant reopening the file [sic].

 The HOA is represented by counsel.  The country club is represented by separate counsel.  If either of those attorneys thought there was a conflict, they would address the issue with each other and each of their clients.

 This matter will remain closed [sic].  You are of course free to return my phone call if you would like to discuss the matter.

Tom xxxx”

 Please note the basis upon which the Bar apparently decided the issue:  if the complaint were true, the alleged culprit attorneys would have addressed the issue in accordance with the Professional Rules of Conduct. But, isn’t that the nature of the complaint that they did not!   And whenever did you hear of an attorney telling the HOA that it did or will do wrong? (ER 1.13). Enough said about the State Bar’s integrity.

In my personal encounter with the Bar, I came away with the same conclusion:  whatever the attorney says is gospel truth, even if irrelevant.  In my case, the attorney complained about being late on assessments for a few months, causing trouble by demanding answers from the board, etc.  The attorney can do no wrong!  Case closed!

It is understandable that professionals who deal with the public will be subjected to wild allegations by parties simply seeking revenge on their attorney’s failure to get his desired results.  But, when the balance swings well over to protecting the attorney and not doing justice society has a problem.  The courts have a serious problem with the integrity of the judicial process. The lack of integrity of public-private state bars to do justice and the failure of the oversight state supreme court to monitor the integrity of the state bar process is appalling.

In 2009 I did a detailed analysis of Arizona’s Bar complaint handling for all attorneys, not just HOA attorneys (Will your State Bar HOA attorney complaint get results?).   It links to a detailed numerical analysis made more difficult by the sloppy recordkeeping by the Bar and supreme court.

Over 4 years only 15% of the complaints resulted in sanctions against the attorney.

Based on the large number of complaints filed and the nature of those complaints, one would reasonably expected a much higher percent of attorneys being sanctioned, especially HOA attorneys.

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?

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 14^th 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 14^th 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.