HOA Constitutional Government

President Obama nominated Sonia Sotomayor for Justice of the Supreme Court.  He described her as a person of compassion.  Do we want a person of compassion or a “strict constructionist”?  Or, do we want a person who will do justice and right bad or unjust laws?

 Before we can decide, we must examine some of the myths and realities of the American judicial system.  First, we have the concept of justice, the very foundation of any judicial system, although some have argued it is to uphold the law.  Philosophically, a judicial system cannot exist in a democracy if it does not uphold justice and correct the wrongs of the past.  In fact the people are told “Equal Justice Under Law”, the motto on the Supreme Court building; “to secure justice”, the commonplace stated purpose of court rules of procedure;   “to establish justice”, the opening purpose in the Preamble to the US Constitution; and we designate the members of the Supreme Court as “justices”. Notice that “to uphold the law” is not included in the above.  This is the argument, along with the insistence on precedent, used by those special interests who favor unjust laws.

 I guess we indeed require that justice be done, regardless of one’s political ideological persuasion. And if there need be an interpretation or new construction of the Constitution, that such a finding does justice.    In other words, the guiding principle is not political ideology, but doing justice under the Constitution,  and that includes overturning precedent when so required. 

 Precedent, or “stare decisis”, is another principle or doctrine of American jurisprudence that serves to establish an aura of acceptance by the people that America is a land under law, not men.  This doctrine has an inherent fallacy or inconsistency with the message that the courts are here to do justice.  Suppose a decision was a bad one, or motivated by a personal agenda?  How does it get overturned and corrected if the doctrine of precedent is cast in concrete?   However, precedents are indeed overturned, but only occasionally are Supreme Court opinions overturned (See 1954 Brown partially overturning the 1896 Plessy v. Ferguson  on equal but separate facilities).  Like the debate on the ideological leanings of a Justice, there is evidence to show that the personal views of judges do influence their decisions on a particular precedent .  And the concern for justice is not a factor.

 Additionally, the research found that “the justices are more likely to negatively treat [modify or reject] a precedent they dislike on ideological grounds if that precedent is quite vital [how often cited in support]” by the judges.  (See Judicial precedent and HOA bias).

 As an example with respect to HOAs regarding a default decision on the constitutionality of an a two year-old Arizona HOA statute,

 And I concluded with the appeal, “For the Court to do justice and maintain its integrity, my ‘letter of fact’ and supporting materials must be made part of the case.”   All that I asked, the real issue, was to remove a “gag order” on my materials containing factual information that could have no other result than to have the judge, sua sponte,  as permitted under the law, put the factual materials on record in order for justice to be done.  (See Actions by AZ judge in HOA constitutionality case found ethical).

 There are very strong arguments to right not only unjust HOA laws, but HOA laws that are not consistent with the Constitution.

 Rep. Julio Robaina held several hearings throughout Florida in early 2008 for condo reforms and his bill, HB995, was passed into law. (See video clips at the HOAGOV Channel, and click on “FL Select” videos).  This year, his community association reform bill, HB1397, met defeat.  It was a comprehensive reform bill.  The dangers of a comprehensive bill is that homeowners tend to perceive any negative provision as outweighing all other positive reforms.

 As I wrote earlier (see The Florida HOA Battleground (HB 1397): police powers and the loss of fundamental rights),

 Homeowners must understand that HB 1397 will be the result, for all practical matters, of a compromise between opposing parties, and the decision to support the bill must so accept this reality of governance. It will be a question of “pluses and minuses.” Trade-offs will be made, but each must be weighed against the balancing scale of justice for the people, first and foremost. Rep. Robaina’s bill is a must! Once passed into law, “blemishes” can be adjusted and will subject to the democratic process of give and take between the homeowners themselves, and between homeowners and the special interests.

Granted there is strong opposition in Florida, as in most other states, but that means that advocates for reform must be practical as mentioned above:  take a small step that promises to  lead to larger gains.  There are no guarantees in life.  However, by doing nothing and opposing any bill without exercising sound judgment in advancing your goals will always result in failure.  The opposition is too strong! 

For example, one provision that has resulted in voiced opposition in many states, and included in HB1397, has been the requirement to “ante up” and pay a fee for what homeowners feel is to obtain their rightful justice. While fees are required in our judicial system, they are on a transaction basis and not a blanket “per door tax” applied to all homeowners.  However, homeowners in HOAs should regard such a fee as “insurance” against abuse, and not a self-centered, “not with my money” attitude.  A sunset provision could have been added to satisfy homeowners from fears of more “do-nothing” agencies.

In my opinion, the provisions could have been negotiated by advocates in order to keep the bill from failing.  In Arizona, for example, advocates are well familiar with such amendments to keep a good bill alive.

For these reasons, and others, I urged support of HB1397.  I urge voiced support by Floridians for their HOA/condo reform champion, Rep. Julio Robaina, because a white knight legislator  is a must in order to obtain substantive reforms.  Don’t let him down!  Let him hear your voice. A survey is great, but is devoid of rationale and justifications as to why the reforms are needed. 

Keep Rep. Robaina informed with facts and legal arguments (like the Constitution or existing state laws).    Help your champion fight for you!

 Rep. Julio Robaina held several hearings throughout Florida in early 2008 for condo reforms and his bill, HB995, was passed into law. (See video clips at the HOAGOV Channel, and click on “FL Select” videos).  This year, his community association reform bill, HB1397, met defeat.  It was a comprehensive reform bill.  The dangers of a comprehensive bill is that homeowners tend to perceive any negative provision as outweighing all other positive reforms.

 As I wrote earlier (see The Florida HOA Battleground (HB 1397): police powers and the loss of fundamental rights),

 Homeowners must understand that HB 1397 will be the result, for all practical matters, of a compromise between opposing parties, and the decision to support the bill must so accept this reality of governance. It will be a question of “pluses and minuses.” Trade-offs will be made, but each must be weighed against the balancing scale of justice for the people, first and foremost. Rep. Robaina’s bill is a must! Once passed into law, “blemishes” can be adjusted and will subject to the democratic process of give and take between the homeowners themselves, and between homeowners and the special interests.

Granted there is strong opposition in Florida, as in most other states, but that means that advocates for reform must be practical as mentioned above:  take a small step that promises to  lead to larger gains.  There are no guarantees in life.  However, by doing nothing and opposing any bill without exercising sound judgment in advancing your goals will always result in failure.  The opposition is too strong! 

For example, one provision that has resulted in voiced opposition in many states, and included in HB1397, has been the requirement to “ante up” and pay a fee for what homeowners feel is to obtain their rightful justice. While fees are required in our judicial system, they are on a transaction basis and not a blanket “per door tax” applied to all homeowners.  However, homeowners in HOAs should regard such a fee as “insurance” against abuse, and not a self-centered, “not with my money” attitude.  A sunset provision could have been added to satisfy homeowners from fears of more “do-nothing” agencies.

In my opinion, the provisions could have been negotiated by advocates in order to keep the bill from failing.  In Arizona, for example, advocates are well familiar with such amendments to keep a good bill alive.

For these reasons, and others, I urged support of HB1397.  I urge voiced support by Floridians for their HOA/condo reform champion, Rep. Julio Robaina, because a white knight legislator  is a must in order to obtain substantive reforms.  Don’t let him down!  Let him hear your voice. A survey is great, but is devoid of rationale and justifications as to why the reforms are needed. 

Keep Rep. Robaina informed with facts and legal arguments (like the Constitution or existing state laws).    Help your champion fight for you!

My response letter to Commission’s finding of ethical behavior (For more info see The State of Arizona will not protect buyers of HOA homes!

Dear Commissioners:

 In the 1953 Supreme Court case, Brown v. Allen (334 US 443), Justice Robert Jackson commented, “We are not final because we are infallible, but we are infallible because we are final.”

 On April 30, 2009, the Arizona Commission on Judicial Conduct wrote that,

 The commission reviewed the complaint filed in this matter and found no evidence of ethical misconduct on the part of the judge. The issue raised is a legal question and is outside the commission’s jurisdiction.

 The above rationale for dismissal “is a puzzlement”.  As I wrote in my complaint,

This incredible order by McMurdie violates the overall intent and purpose of the Code of Judicial Conduct “that judges, individually and collectively, must respect and honor the judicial office as a public trust” (Preamble), that “a judge shall uphold the integrity and independence of the judiciary” (§1), and that “a judge shall perform, the duties of Judicial Office impartially and diligently” (§3B).  It is inconceivable that my submitted information would be summarily dismissed, kept from the public, not acted upon, and the default decision allowed to stand. 

 And I concluded with the appeal, “For the Court to do justice and maintain its integrity, my ‘letter of fact’ and supporting materials must be made part of the case.”   All that I asked, the real issue, was to remove a “gag order” on my materials containing factual information that could have no other result than to have Judge McMurdie, sua sponte,  as permitted under the law, put the factual materials on record in order for justice to be done.  Placing submitted materials “on the record” has occurred in the past.  The CAI attorneys could find another legitimate case to challenge the constitutionality of the statute, not this tainted case.

 Why is the Commission viewing conduct to gag information that would, by law, void the judge’s decision ab initio, solely as a question of law and not as ethical and moral misconduct explicitly prohibited by the Code itself?  Why did Judge McMurdie deny my intervention without providing reasons?  Why did Judge McMurdie not only strike my materials, but ordered the Clerk not to accept further communications from me?  Does the judge’s conduct support  judicial integrity?  Does the judge’s conduct uphold judicial impartiality?  It is hard to believe that it does! 

 Filing an appeal does nothing to regulate the ethical conduct of judges.  I  believe you are remiss in your oversight of judicial conduct in this very important case.

 I request once again, that my materials be entered into the record as public information.  Let the judge do his duty under the Code and act on my submitted materials!  Let justice be done!

Respectfully,

George K. Staropoli

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. James Madison, The Federalist Papers, No. 51.

HOAs currently engage in many activities that would be prohibited if they were viewed by the courts as the equivalent of local governments. Prof. Evan McKenzie, Privatopia.

In my 9 plus years as a homeowner rights advocate with many appearances before the Arizona legislative committees, and before committees in other states,
 

the legislators have repeatedly refused to protect homeowners living in homeowners associations.

In general, they feel that the homeowner was fully informed and willingly accepted everything and all actions of the HOA board and officers. They have repeatedly rejected legislation to hold the HOA accountable to the state as a matter of good public policy, justice and the equal treatment of all citizens. They have repeatedly rejected punitive enforcement against HOA board violations of existing state laws, as is the generally accepted practice in the public arena, to serve as deterrents for such future actions by the HOA, or other HOAs; they have rejected bona fide fair trial due process hearings of HOA complaints by an independent tribunal where evidence must be presented and witnessed and accusers available for questioning.
 

They continue to believe, in the face of repeated abuse, that homeowners are not disadvantaged in attaining justice, and that the alleged benefits of HOA living outweigh any loss of rights or in equal justice under the law.

The Attorney General, also, with authority to act on consumer complaints relating to real estate, has repeatedly refused to act to protect homeowners against abusive HOAs.

Your government believes that the overriding objective of the US Constitution is “no contract interference with HOAs” and that all other protections and prohibitions are of secondary concern.

Therefore, the homeowner is at the sufferance of the HOA board and of his fellow neighbors who allow such abuse to continue, without any effective means to attain equal justice under the law.