Tag: Arizona

CAI response to amicus brief: laws never protected HOA homeowner’s constitutional rights

 

My long awaited debate with the CAI (Community Associations Institute) lawyers on substantive issues relating to HOAs has finally come about. Well, almost. The CAI member law firm and attorney for the HOA responded to the amicus brief submitted to the Arizona Supreme Court by this homeowner rights advocate in Gelb v. DFBLS, CV 10-0371-PR. In short, two issues are addressed: the constitutionality challenge itself, and the alleged political bias by the appellate court in its decision holding the statute unconstitutional.

 

First, the Response simple reiterates its Response to the Petition for Review, maintaining that the issue was already settled by the appellate court.

 

Second, as to the arguments advanced in the amicus brief that the appellate court allowed political considerations to influence its opinion, the Amicus, that’s me, is painted as a conspiracy believer. “The amicus curiae closes his brief with a conspiracy theory about the involvement of undersigned counsel in this case and other cases in which the constitutionality of the statute was challenged.” The CAI member attorney defends his rush to file this appeal, which occurred as a result of the Phoenix Townhouse v. AZ OAH superior court default decision, with “legal counsel had the obligation to raise every issue available that could result in prevailing for his client in the pending case.” However, this sidesteps the question raised in the default Phoenix Townhouse case, still unanswered by the attorney, as to the legal standing of the real person in interest, Ron Meritt, who had left the HOA prior to the constitutionality challenge. Smith coud not risk opening this door again.

 

In unsupportable conclusions, the attorney, Jason Smith, charges me with suggesting that his constitutionality challenge was made to intimidate homeowners from filing suit. That does not follow logically. The challenge, as stated in the brief, was that the HOA attorneys weren’t looking too good and had to end the success of OAH adjudication. Further far-fetched charges made by attorney Smith include that I “liken undersigned counsel and his firm to henchmen for authoritarian regimes suppressing the rights of homeowners.” The record before the Arizona Legislature over the past 10 years and statements made by the firm are well documented in this respect. Smith adds, “The conspiratorial hyperbole notwithstanding”, we were just doing our job for our client.

 

Furthermore, in an unbelievable statement echoing that of the CAI amicus brief before the NJ appellate court in Twin Rivers HOA free speech case, Smith firmly states that, “It is clear from the that the amicus curiae simply wants to impose constitutional protections on members in homeowners associations. The law has never supported that proposition.” Let me rephrase that statement:

 

The law has never supported the proposition that homeowners in HOAs are entitled to constitutional protections.

 

A copy of CAI’s Response Brief with its above in-your-face statement of the law should be sent to every state attorney general, every state legislature, every state real estate department, and every state’s consumer watchdog and consumer protection agency. This declaration by Smith, p. 8, should be highlighted as evidence of misrepresentation and fraud in the sale of planned communities and condos, and homebuyer protections demanded.

 

Finally, in Smith’s gratuitously offered proposed solution, as all those of us who have attempted to obtain justice from our state legislatures well know, and as CAI — the national lobbying organization supporting the HOA establishment — and attorney Smith well know, the legislatures have not accepted the fact that the HOA laws are unconstitutional special laws for private organizations, as these laws cannot be supported by a necessary and compelling government interest. This level of judicial scrutiny is necessary to deny due process and equal application of the law protections to the residents in de facto, yet unrecognized HOA private governments.

 

Sources:

Staropoli amicus curiae brief

CAI/Smith amicus response

CAI Twin Rivers amicus curiae brief, p. 19.

For AZ Speaker Pro Tem is an honorable man

 Dear Arizona Speaker Pro Tem Montenegro,

 

Rep. Montenegro, you seem to have adopted the same approach as the special interest CAI lobbyists who are against constitutional protections for the people.  I cannot understand your continued support for this bill, and making false statements about all the stakeholders, holding an “ex parte” meeting with the only the special interests attending and no advocates, and alleging agreement by all “stakeholders” to the trivial amendment to a horrendous bill —  the Home Builders Assn., CAI, and its its property managers spring-off, AACM.   America is a country of the people, by the people, for the people,  not for the special interest business groups.

 

Emails in opposition to the bill were sent to you from a few homeowners prior to your ex parte meeting, any one or all of whom you could have invited to the meeting, if you were indeed a neutral party as you alleged in your false statement to COW. (Ariz. COW # 2 session of Feb. 23, 2011, HB 2441. For an anlaysis of this bill, see Analysis of AZ HB 2441, the HOA minority control bill).

 

You erroneously assert by your actions, following CAI’s propaganda, that vendor groups are equal in private property rights with the  homeowner.  No, I’m sorry, you obviously believe that these so-called “stakeholder” vendors hold more rights than the homeowner, since you neglected to include any outspoken and known opposition homeowners in your alleged “stakeholder” meeting.  This is disgraceful conduct for one who holds the position of Speaker Pro Tempore. This is the attitude expected from a fascist government where  the business of government is in supporting businesses, and the people’s rights are secondary.

 

How do you justify this bill as good public policy? You bring disgrace and dishonor on all those good and honorable Arizona legislators.  I find your position quite surprising and disturbing, and I have difficulty in reconciling it with your deep religious beliefs and involvement with the National and Arizona Messengers of Peace (not related to the UN Messengers of Peace).   “The desire of his heart is to be a vessel of honor in God’s hands.”

 

Your floor amendment is dishonorable and still allows the declarant or a minority of members to control the board and therefore the HOA, as anyone who has really looked into the real-life conditions of HOA living would easily discover.  You’ve added additional “wiggle room” wording that still permits the CAI lawyers to run to the courts and soak up those fees.  Why were you afraid to include homeowner advocates at your meeting?  Was it because we don’t count?  

 

Interestingly, Rep Burges, Chair of the GOV Committee, responded to my email on HB 2441 by noting that I had not appeared before the GOV committee to speak.  I answered her with,

 

Generally, after 10 years before the Legislature, I’ve found such in-depth exchanges do not occur at any committee hearing.  I do not understand why any legislator or committee chair does not pick up the phone and say, “Come on down and explain your email to us.”  Yet, paid lobbyists walk the halls and legislators seem always to have time for them.  

 

Your disingenuous statement is living proof of my statement to Rep. Burges.   

Anticipating such a continued bias toward HOAs by a good number of legislators, I had included the following plea to the Justices in my Feb. 1, 2011 amicus brief to the AZ Supreme Court  in Gelb, “It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws.” (See Advocate submits amicus brief in AZ supreme court appeal of HOA due process).

 

You have not served your Party or the people of Arizona well with your misguided belief that better landscaping makes a better Arizona. I will be requesting that you be removed as Speaker Pro Tempore for your unethical conduct on behalf of the special interests, and against the good people of Arizona.

 

George K. Staropoli, Pres.
Citizens for Constitutional Local Government

 

AZ legislature falls for CAI lobbyist ramblings – HB 2441

I just watched the Arizona CAI lobbyist, Kevin DeMenna, spew forth misleading statements and irrelevant  ramblings in support of HB 2441, before the AZ House Government Committee on Feb. 8, 2011, in an excellent example of professional spin.  And the committee members bought it, lock, stock and barrel with its 8 – 0 vote. Based on the few questions asked by the committee members, apparently all that counts is the information provided by paid special interest lobbyists, and the statements by informed and knowledgeable citizens are given scant attention.

  

Were the members sleeping when DeMenna stated at the very start that, “We are are the managers and association boards’ duly elected . . . and what have you.”  (That’s a technique in advertising to avoid fraudulent advertising). Obviously,  no committee member read or understood my plain language that CAI is a business trade organization not permitted to have HOA members, and that all those “volunteers” do not speak for their HOAs. 

 

I had emailed the committee my detailed analysis of the bill (Analysis of AZ HB 2441, the HOA minority control bill), and wrote again in my 2/6/11 email saying,

  

However, for years CAI attorney lobbyists have been misrepresenting that they speak for HOAs and is homeowner members.  HB  2441 continues this misrepresentation and interference into the HOA CC&Rs contract for the interests of attorneys, and not the HOA or its members.  CAI AZ spends more money on lobbyists activities than on its educational programs, which is the stated basis for its tax exemption. (See its 990 EZ).

  

Apparently, the democratic process previously extolled by CAI means little to them in regard to HB 2441 where CAI supports the position that  a minority can take away the private property rights of the homeowners without their consent. DeMenna gave false and evasive replies that the courts will uphold a validly enacted amendment.  Section 3.1, Validity of Servitudes, of the Restatement (third) of Servitudes clearly states that covenants are not valid if they are unconstitutional, contrary to public policy or are unreasonable.   DeMenna easily misleads the committee with his false analogy of legislature’s frequent interference with contracts across the state in Santa Cruz and Cochise counties, which are not private contractual governments!  (More slight of hand).  Of course, the CAI lobbyist first slicked them with an admission that HOAs are “in effect, little tiny, mini-governments.”

  

The DeMenna & Associates Ethics web page proudly states that, “we will consistently uphold the highest standards of personal integrity” and “will always do our best to win.” DeMenna’s conduct before the committee reflects the extent to which he will go to win, and his ethical standards.

 

In my amicus curiae brief in the OAH constitutionality challenge before the AZ Supreme Court (Gelb v. DFBLS, CV 10-0371-PR)  I wrote, justifiably with respect to this astonishing vote,

“It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE for due process protections and the equal application of the laws.”

 

 Source:  House Archives. Click on “video” for House GOV, 2/8.

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AZ Supreme Court accepts advocate’s amicus brief in challenge to HOA statute

The Arizona Supreme Court has accepted my amicus curiae brief in support of constitutionality of the DFBLS/OAH due process statutes (Gelb v. DFBLS, CV 10-0371-PR). The Court has yet to decide if it will hear the Petition from the homeowner. Neither party objected to my brief, not even the CAI HOA law firm that received harsh treatment. I had presented background facts and arguments in an effort to assist the Court in understanding the disgraceful state of affairs with HOAs.

Responses to my brief, if any, are due within 20 days. For over 10 years I’ve been waiting for the CAI HOA attorneys to debate the substantive, constitutional issues with me for all to see.  I await their response.

The excerpt below makes a strong accusation against the Arizona Legislature, which can be applied to all state legislatures. Given this posture,  I would like to thank those all too few individual legislators who had come forth over the years, in several states, to do battle for homeowner justice, but who were not sufficient to overcome the opposition in their legislatures. Your efforts are very much appreciated.

From the first paragraph of my Conclusion:

It is quite evident that an Arizona homeowner living within an HOA governed subdivision cannot look to the Attorney General, the Legislature, DFBLS, or ADRE (real estate dept.) for due process protections and the equal application of the laws. Even the lower courts are suspect. With all due respect, it remains to this Court to stand behind the promises and covenants between our system of government and the people as set forth in the U.S. and state Constitutions.

See Advocate submits amicus brief in AZ supreme court appeal of HOA due process, and for a copy of the amicus brief, Amicus.

Suppose I park on an HOA public street. Then what?

Dear Arizona Legislators,

I cannot fathom the continued refusal of the Legislature to put this bill into law, having failed to do so for the past four years — SB 1360 (2007), HB2724 (2008), HB 2034 (2009), HB 2153 (2010).

 

This refusal to pass this bill invites more and more senseless litigation that only benefits the HOA lawyers, who should be advising their HOA of its violation of the law rather than willing go off to court against the member. Suppose I park my car on a public street in Sun City, or Sun City West, or Anthem, perhaps in front of a board member’s home. How will the scenario unfold?

 

  1. Nothing happens, and everybody lives happily ever after Not likely, since these HOA members have argued over the years before legislative committees for their right to stop this parking.

  2.  Some HOA member, presumably a board member, or his “hired gun”, the management firm, call the local/county police to evict me. I ask the officer his name, rank and serial number, and just what law I am breaking parking on an unrestricted public street. If he persists on getting me to move, I say to him this is harassment and you are violating the law, and wrongfully acting to evict me. If he says that I am creating am nuisance, I reply that he is the person violating his authority and acting on behalf of a private person/organization who is filing a false complaint. I ask him to arrest the HOA member for filing a false complaint.

  3. Does the HOA fine the member for not “policing” his street segment, under which he has no legal authority to do anything but plead and beg me to move? If so fined, then I have no sympathy for any homeowner who allows his board to engage in establishing such “laws”, presumably under the advice of the HOA attorney.
  4. In effect, all this posturing is an illegal extortion of the HOA member to violate the law under the threat of a fine, as the HOA and its attorney know better than to undertake such an illegal enforcement action themselves.
  5.  The HOA member has the right to file suit against the HOA, if he believes that the HOA “law” is illegal, contrary to public policy or unconstitutional, and he may do so. The Legislature will honor his beloved CC&Rs contract, between the member and the HOA, and not third-parties, and do nothing, leaving him to happily pay his fine as a good, loyal HOA member.
  6. If the HOA does not fine the member, what is their real issue, except the power struggle of who controls and regulates the people within the HOA territorial subdivision. All these HOAs have to do is to go to their zoning board and get a variance. Why aren’t they doing it?   Why?

  7. Suppose 10 other cars are so parked throughout these HOAs. Then what?

 

 You may ask why hasn’t this happened? Perhaps because:

  1.  homeowners are law abiding,
  2.  they do not understand or know their rights under the law since there is a broad “no negatives about HOAs” policy pervading the state,
  3.  there is no “Truth in HOAs” law like truth in lending or truth in advertising,
  4. and they are intimidated by their HOA with its coercive fines and liens authority, without effective legal recourse to stand up to the HOA with its money and attorneys.

  

This sad and preventable state of affairs, creating divisiveness, hostility, anger and resentment only benefits the HOA attorneys who are all too eager to go to court — their reason for being. All because the Legislature has failed to uphold the Arizona Constitution and to pass this bill.