Tag: Community Associations Institute

Competency of judges; HOA reform policy

I offer the following commentary on  the detailed 10-page Rosie Manins’ article[1] who quotes David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts.  I present relevant quotes that provide an understanding of the realities of a judge’s competency. As we well know with respect to HOA-Land lawsuits, their competency is in question as well as their difference to alleged expert opinion and dominance by CAI attorneys.

My annotations are in square brackets [ ].”

“’The lack of a clear training path for the vast majority of judges in the U.S. undoubtedly increases the likelihood they’ll stray into troubled waters,’ said David J. Sachar, director of the Center for Judicial Ethics at the National Center for State Courts. A former prosecutor, state court judge and executive director of the Arkansas Judicial Discipline and Disability Commission, Sachar told Law360 ‘that the transition from attorney to judge is difficult’.

“’Most of the time we’re elected or appointed as judges, and one day you’re a lawyer practicing probate law, and the next day you’re on the bench. We have this really important piece of our republic, and yet we don’t have a solid training system for preparation.’ Sachar said.

“’The vast majority of the judges I know are honorable people who work hard, and they got there by ascending to a level in their own profession,’ he said. ‘Training is an arm of an ethical judiciary. It hurts confidence when you walk into a courtroom and the judge doesn’t appear to know what they’re doing.’”

“You can’t just wave a magic wand and say [to a newbie judge], ‘Here’s how all courts are going to do this,'” he said. “You’re stuck with ‘Hi, welcome to the judiciary. Here’s a couple of bench books. Follow the path of people you saw before you.'” [And guess who that may be?]

[As to the political side of judicial appointments,]

“’Now, as money pours into the political process behind many judicial appointments and elections, there is an ever-present danger of judges taking the bench without the necessary skills and for the wrong reasons’, Mann[2] said. ‘You really have to kind of narrow this down to what has the political process done to judicial selections,’ Mann said ‘Given the pressure that is being put on the independent judicial branch of government, we need to start thinking about early preparation for judges and what skills are needed to be an effective, impartial judge’ [And CAI is outspoken on its efforts to influence judges and legislators[3]]. ‘And it may be that it’s producing younger, more political judges that have less qualifications and experience to be a judge.’

It is my sincere hope that advocates will understand that HOA reform legislation is political in nature and that they are facing a powerful Evil Empire that dominates the playing field. Advocates must lose their fear and retaliate using the abundance of legal authority on their side —  case history, the existing laws, and CAI’s own words, statements and attitudes.

They must come armed before the courts to chasten and hold judges accountable for their lack of HOA knowledge and their dependency on the CAI promoted business judgment rule[4]. But the advocates must first become educated themselves.

Advocates must advocate – publicly recommend and support HOA reform policy before state legislatures, county planning boards, the media, and homebuyers at large —and not just post among themselves on social media.  Patrick Johansen, Steve Horvath, Raelene Schifano, Jim Lane, Deborah Goonan,  and  others have started programs to influence the decision-makers. I congratulate all of them.

[1] As posted by Joe Homes post in HOA Fight Club (FB), Is The State Court System Setting Judges Up To Fail? (Rosie Manins · 2023-10-27).

[2] Judge Julian Mann III, chair of the American Bar Association‘s Judicial Division and retired Administrative Law Judge. 

[3] “Community associations should build effective relationships with decision-makers—public officials at all levels of government and regulatory agencies. Association attorneys should advocate educational programs for judges and other attorneys to foster deeper understanding of the community association housing model.”  (“Public Policy Paradigms,” Community Next: 2020 and Beyond, Community Associations Institute. Notable Trustee member is Vice Chair J. David Ramsey, esq., Becker & Poliakoff pa, Morristown, NJ, who is very active in ULC and UCIOA revisions.)

[4] See in general, Business judgment rule; understanding the courts.

A history of the institutionalization of HOAs

After 58 years, the public, the legislators, the media, and the HOA boards of directors and vast majority of members have remained quietly accepting HOAs as a private form of local government.

“People could care less about the truth. People buy promises and dreams. They’ll do anything to avoid reality” (anonymous)

The above quote, reflecting human nature,  gets to the very heart of the HOA-Land problem. It applies to all HOA members throughout America.  In a sarcastic Nextdoor  post, the writer expressed his feelings that my posts presenting justifications for restructuring HOA-Land were, in my words too cute. He didn’t want “to be in an association that George had anything to do with . . . and take his trouble making rhetoric to other lucky people.”

I responded:

“My HOA right or wrong! So what if it has violated state laws and the governing documents, and refuses to defend itself. So what! As long as the amenities keep coming and assessments stay low, I guess all is OK.”

I have high hopes that all HOA members will follow their conscience and do what is right for their community, their state, and for America.  The alternative is a rejection of our democratic institutions, our constitutional government,  and the principles and values that we, as Americans, stand for.  The alternative is an acceptance of the HOA-Land Nation Within America.

Lost HOA Constitution webinar complete videos

This post allows access to 3 webinar videos on Restoring the Constitution to HOA-Land. The quality improves as I go on — it’s the content, the material, that’s important to learn and understand.

For best viewing press the ‘expand’ icon (lower right) for full screen viewing. Place cursor over video to select menu.

Restructuring HOAs: “CAI School and member benefits” pt. 2

Mentoring: “CAI School of HOA Governance”

Part 2 addresses the heavy influence of the CAI and its affiliated, shill, organizations functioning as supporters of HOAs and the questionable claim of also supporting homeowners.

CAI heavy influence

Several HOA attorneys have maintained that the expression of the common interest of all the members is found 1) in the Declaration that they all agreed to be bound by and 2) because the members still remain a resident and a member of the HOA. It is through the Declaration itself that provides their benefits and the BOD is not derelict in its duties and obligations to the members. And that’s all there is to it!

However, herein and in my intents and purposes paper[1] I argued that the BOD’s mission statement, vision and values are one-sided and heavily influenced by the mindset created by the CAI School of HOA Governance[2] that neglects constitutional protections for the members. The alleged benefits for the members as contained in the CC&Rs do very little to provide the benefits of a democratic government. In fact, they restrict or deny the application of constitutional rights and freedoms, and the privileges and immunities of citizens of this country and their state.[3]

“The policy makers have failed to understand that the HOA CC&Rs have crossed over the line between purely property restrictions to establishing unregulated and authoritarian private governments.”

In order to correct these serious defects in the HOA legal model the HOA must be restructured to conform to and be subject to the Constitution and laws of the land. It must begin with a declaration of citizenship to be made a covenant in all declarations, charters, bylaws and other governing HOA documents. State laws and CC&Rs must be amended according as proposed in my HOA Member Declaration shown in part below:

Therefore, the members of the association, having not waived or surrendered their rights, freedoms, privileges and immunities as citizens of the United States under Section 1 of the Fourteenth Amendment, and as citizens of the state within which they reside, the CC&Rs or Declaration for any planned community, condominium or homeowners association shall state that, or be amended to comply . . . .”[4]

In order for this revision to become a reality the BOD and HOA members must be reoriented away from the teachings of the CAI School and toward the forgotten and neglected principles and values of democratic America. The CAI School needs to be replaced with a qualified program of education and training on municipal government: its structure, objectives and mission, functions and operations.

CAI support of HOAs

Why does CAI oppose holding HOAs subject to the Constitution? How can CAI take this stance and still assert that it’s supportive of the homeowners? It seems by adopting the WW II Fascist philosophy of Italy’s Il Duce, Benito Mussolini, who proclaimed, “All within the state, nothing outside the state, nothing against the state.”[5] And who described Fascism a being “for the State; and it is for the individual in so far as he coincides with the State ”[6] Just substitute “HOA” for “state” and it all makes sense. Essentially, this is CAI’s true position on HOA governments.

While there is much to support and justify the need to remove the heavy influence by CAI over HOA-Land, a few instances are provided.

“In the context of community associations, the unwise extension of constitutional rights to the use of private property by members . . . raises the likelihood that judicial intervention will become the norm.”[7] (NJ).

In other words, CAI doesn’t want our constitutional judicial system to be applied to HOAs. They can rule themselves without judicial oversight. All other forms of local government, including the most liberal of self-government charters under the home rule doctrine are subject to the Constitution.

AGAINST

[CAI] Kathe Barnes, Self(02/10/2020); Jason Barraza, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Terry Carstens, Self(02/23/2020); Quinten Cupps, Self(02/06/2020); [CAI, AACM] Mary Jo Edel, Self(02/06/2020); Alexis Glascock, COMMUNITY ASSOCIATIONS INSTITUTE(02/09/2020); [CAI attorney] Lynn Krupnik, Self(02/06/2020); [AACM] Linda Lang, Self(02/10/2020); Mark Logan, Self(02/10/2020); Dave Norton, Self(02/06/2020); Jeff Sandquist, AZ ASSN OF COMMUNITY MANAGERS (AACM)(02/10/2020); Vicki Sears, Self(02/06/2020); [AACM] Mark Wade, Self(02/06/2020); Donna Wood, Self(02/06/2020); [AZ]

The above quote represents the persons and/or organizations against Arizona Senate bill SB 1412 (2020). The bill would bring homeowner protections for HOA political activity and free speech rights. Note the absence of any identification of several persons who are members of one or the other mentioned organizations, CAI and AACM (AACM is a spin-off from CAI in 2003). That’s 8 out of 14 persons in opposition. Please also note that none of these persons have identified themselves with any HOA. Where are the HOA directors or presidents?

California’s SB 323 (2019) introduced fair elections procedures for HOAs that protect homeowner voting rights. It addressed one of my 6 substantive defects in the HOA legal scheme.[8]   It has become California law. Long time California lawyer Adrian Adams is heavily involved in CAI policy and management at the HQ and chapter levels. He writes:

Last year, the Center for California Homeowner Association Law (CCHAL), an organization hostile to community associations . . . The train wreck legislation . . . The bill also forces members . . . In another hostile move against associations . . . The California Legislative Action Committee (CLAC) is a volunteer organization consisting of homeowners and professionals serving homeowner associations by monitoring legislation, educating lawmakers, and protecting the interests of those living in community associations.[9]

CAI’s California LAC:[10]

The California Legislative Action Committee (CLAC) is a committee of Community Associations Institute (CAI), a national not-for-profit educational and resource organization dedicated to fostering vibrant, competent, harmonious community associations. CLAC consists of homeowners and professionals serving community associations.

We worked hard to defeat SB 323 and we came very close, especially on the Assembly Floor where the bill passed and was sent to the Governor. . . . Let’s work closely together to make sure legislators understand the negative consequences SB 323 potentially will have on community associations.

It should be obvious by now that CAI is not a friend of the homeowner in spite of its lofty, high sounding pronouncements, policies and Best Practices. The acts of its members both in CAI HQ and in the numerous state chapters speak an entirely contradictory message. CAI is there to support the HOA and the BOD that is the real person representative of the HOA association. It is obvious that granting and admitting individual rights and freedoms to the homeowners presents an obstacle to its personal agenda; CAI is a business trade tax-exempt nonprofit entity to make money for its members, the attorneys and managers for the most part, the

After consideration of the above and earlier posts under Restructuring HOAs, I ask and answer: Does the Declaration provide covenants that implement and accomplish the intents and purposes of the HOA that serve the interests of the members? My answer is NO. It raises the question of why BODs accept the HOA model of local government and resist revisions in order to bring the HOA within the Constitution for the protection of its members?

Notes

[1] See “Restructuring HOAs – intents and purposes,” George K. Staropoli, HOA Constitutional Government (Feb 2020).

[2] The basis for a definition can be found in “CAI claims Factbook 2018 at home with Democracy in America.”, in HOA Constitutional Government, footnote 9.

[3] See “Would the HOA legal scheme collapse under a democratic form of government?” in HOA Constitutional Government (2014); “HOA-Land and the decline in democratic institutions” in HOA Constitutional Government (2019).

[4] See “HOA member Declaration of US and State citizenship” in HOA Constitutional Government (2012).

[5] See Benito Mussolini: What is Fascism, 1932.

[6] “Fundamental Ideas of Fascism,” Benito Mussolini, Souciant, Inc. (2016).

[7] CAI amicus curiae brief in CBTR v. Twin Rivers, 890 A.2d 947 (NJ Super. App. Div. 2006).

[8] See HOA Common Sense: rejecting private government, Democratic elections, No. 5. (2019).

[9] Adams Stirling Newsletter, Adrian Adams, Esq. (Feb. 24, 2019). Adams is a member of CAI’s Community Association Research Foundation, CAI chapter director and CLAC delegate.

[10] CAI-CLAC Feb. (2020).

 

 

 

Restructuring HOAs: “benefit of the member” pt. 1

Mentoring: “inure to the benefit of the member”

Government of the members

Continuing my discussion of the Declaration’s intent and purpose[1] as expressed by “shall inure to the benefit of the member, ” the question arises as to how does the BOD accomplish this task when it has a contractual obligation to many owners. How can the BOD represent the individual interests of the buyer with those of all existing members? Must we accept the interpretation of “member” in the Declaration to really mean “members”? Really!

This concern is of importance and not a mundane, trivial concern because it involves concepts and principles of representative democracy, as claimed by HOA proponents, the will of the people doctrine, vote of the majority, and obedience in conscience. It is relevant because the HOA is not subject to municipal law or the Constitution, but under a binding, private contractual agreement. HOAs are allowed to exist as outlaw governments, operating and functioning outside the laws of this democracy.

Much too often the courts and legislatures have treated the HOA as if it were a municipal government, ignoring the CC&Rs contract and misapplying municipal doctrine and precedent; without applying those aspects of the laws that protect the member’s constitutional rights. For example: allowing the HOA to tax its members — called assessments — with a right of draconian foreclosure, but providing a laughable “due process” known as “a right to a hearing” where the judges are the accusers and judicial civil procedure is an unknown.

Ask yourself: Is this the benefit being provided in the best interests of the members? I think not! And the legislatures do not have clean hands in this matter, not at all!

Maintaining an orderly HOA

The philosophical theory, simply stated, behind a democracy as a direct democracy is the voice of the people. But what does that really mean? First, it means each person gets to have his voice heard in the governance of his community or society along with all others. And that combined, aggregated voice is measured not so much as by shouting but by a vote of the hands or a ballot. Second, our US representative democracy the people elect representatives to speak their voice. In HOA governments members choose a board of directors to govern the HOA as their elected representatives, or their voice.

In both cases the practical application of the voice of the people has been reduced to a vote of the majority and the majority rule doctrine.[2] These were issues that the political philosophers of the Age of Enlightenment — Rousseau, Montesquieu, Voltaire, Adam Smith — had to contend with as necessary for an orderly society even though it was not a true, direct vote of the people. But what about the minority, those who disagreed with the majority position? Well, they had to obey the general will of the people represented by the majority even though they were on the losing side.[3] However, they may not agree in conscience especially if they firmly believe the law is unjust and not fair.

Former AG Meese wrote,

Through deliberation, debate, and compromise, a public consensus is formed about what constitutes the public good. It is this consensus on fundamental principles that knits individuals into a community of citizens.[4]

Where is the consensus of the HOA members to constitute the public good? To knit individuals into a true community? Surely not by a hand-me-down contract that the buyer must accept as is without any give and take.

Randy Barnett, Director of the Georgetown Center for the Constitution, wrote,

A law may be ‘valid’ because it was produced in accordance with all the procedures required by a particular lawmaking system, [the HOA amendment procedure, for example] but be ‘illegitimate’ because these procedures were inadequate to provide assurances that a law is just.[5]

With respect to the courts and legislatures upholding tacit (implied) consent, Keith Wittington, Prof. Politics at Princeton, wrote,

Tacit consent purports to provide a rationale for obligating those of us who, by chance or choice, have not made their approval of the government explicit. . . . Perhaps most significantly, we are taken to have consented tacitly to government action if we continue to vote for government.[6]

Understand that when your HOA says the majority rules maintaining that it represents the voice of the owners just remember it’s just a means to maintain an orderly society and to grant the board the authority to govern. What about a member’s agreement in conscience?

This topic continues with Restructuring HOAs: “CAI influence on member benefits” pt. 2 with the CAI School to be posted soon.

Notes

[1] See “Restructuring HOAs – intents and purposes,” George K. Staropoli, HOA Constitutional Government (Feb 2020).

[2] State laws governing corporations provide the legal basis for BOD authority and powers. Robert’s Rules provides widely accepted procedures based on majority rule.

[3] For a summary of the will of the people see my Commentary, HOA consent to agree vs. “the will of the majority”. For a detailed discussion of agreement in conscience and consent to agree see Randy Barnett, Restoring the Lost Constitution, Princeton Univ. Press, (2004); Keith E. Whittingham, “Chapter 5, Popular Sovereignty and Originalism,” Constitutional Interpretation, Univ. Press of Kansas (1999); Edwin Meese III, “What the Constitution Means,” The Heritage Guide to the Constitution (2005).

[4] Id, Meese.

[5] Supra n. 3, Barnett.

[6] Supra n. 3, Whittington.