The legal doctrine of Monell claims appears to be suited for those instances where public policy permits violations of constitutional rights under 42 US 1983, “Civil action for deprivation of rights”.[i]These claims can pertain to police departments and county attorneys, planning boards, and real estate departments and other HOA commissioners or ombudsmen officials if they have adopted such a policy. In other words, if it is the policy of a planning board, or the police department and/or county attorney to ignore or dismiss legitimate complaints against HOAs then this policy allows for the application of civil rights protection under federal law.
In Nevada, Bob Frank and Tim Stebbins have filed such a federal claim[ii] against Henderson Police Department for false arrest and malicious prosecution relating to their whistle-blowing, which involved IRS rules violations relating to tax refunds to HOAs. Without probable cause and an independent audit, the police arrested the two homeowners under filing a false claim. Subsequent to their arrest, the IRS completed its audit that did indeed substantiate the allegations of Frank and Stebbins.
Basically, a Monell Claim involves a claim “against a government unit [with] sufficient facts to show (1)the existence of a government policy or custom and (2)that the unconstitutional act was taken pursuant to that policy or custom.”[iii] Further clarification of what constitutes “policy” was provided in Pembaurv. City of Cincinnati[iv] decision that held, among other things,
“We hold that municipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question.”
In other words, the policy or custom must come from a high-level official who can be said to speak for the agency, and thus the municipality. For example, Commissioners and Directors who are permitted to set rules and regulations by law. Any such rule, especially an explicit policy statement, may lead to a Monell Claim. For example, in Pembaur the Prosecutor was held to be the final authority when he told the police to break into a business without a warrant. In Frank, it is shown that the Police Chief and Municipal Judge approved the probable cause claim for the criminal arrest warrant. See this link for current documents in this case.
When the “unspoken alliance of no negatives about HOAs” becomes incorporated into an agency policy, then Monell Claims may arise.
Notes
[i] “Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected to . . . the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable . . .” (emphasis added).
[ii]Frank v. City of Cincinnati, 2:12-cv-01988-GMN-GFW (D. Nev.) (not decided).
There are 2 bills before the Arizona legislature this session. HB 2467 will require HS grads to sign a pledge of allegiance as a requirement for graduation. SB1212 will require public school education in American organic law. The U.S. Code defines the organic laws of the United States to include the Declaration of Independence, the Articles of Confederation, the Northwest Ordinance, and the U.S. Constitution. (US Statutes At Large, 1789 –1875, Vol. 18, Part I, Revised Statutes (43rd Congress, 1st session), p. v and vi).
I strongly believe that such organic law education should be a required course at all community colleges as well, open to the public on a class by class basis. Maybe then the private government HOA regimes will better understand how HOAs repudiate fundamental American principles. Maybe then HOA management companies, and HOA attorneys, will begin to understand their disgraceful attitudes and comments. Such a disgraceful attitude was exemplified by property manager David Henderson of Red Mountain Management (Arizona), who said in response to a death threat against an HOA member by a director, “This is a private association issue.” (Death threats for woman feeding feral cats in Mesa).
The director urged other board members to ”Just shoot her and put her out her misery,” speaking about a repeated HOA “offender.” I cannot imagine a public official daring to make such a statement to other agency members.
Beginning in the 2013‑2014 school year, In addition to fulfilling the course of study and assessment requirements prescribed in this chapter, before a pupil is allowed to graduate from a public high school in this state, the principal or head teacher of the school shall verify in writing that the pupil has recited the following oath:
I, _________, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge these duties; So help me God.
SB1212
The instruction on the Constitution of the United States and American institutions and ideals shall be given in accordance with the state course of study for at least one year of the common school grades and in each year of the high school grades, and shall include instruction on the founding principles of the United States, the declaration of independence and the bill of rights.
“We are not final because we are infallible,
but we are infallible because we are final.”[i]
This Commentary excerpts relevant arguments from the court’s opinion in Poris v. Lake Holiday[ii] relating to police powers and false imprisonment. I find it necessary to use excerpts so you, the reader, can follow the issues and analysis as they actually occurred before the court. I believe this is the best way to understand public policy and how the laws are interpreted by the HOA attorneys and courts. Please read through this lengthy commentary, and discuss with others.
FIRST, let’s look at the analysis of the appellate court’s finding that the stopping of the member for an HOA rule violation was unlawful. The appellate court held,
“Specifically, plaintiff [homeowner] argued that: the Association was not authorized by law to stop vehicles and detain drivers;
“[S]ecurity guards occupy the same status as private citizens.
“[HOA] security officers were attempting to assert police powers that they had neither the right nor the power to assert. [my emphasis].
“Because [the HOA] restrained plaintiff for violating an Association rule, not a criminal law, plaintiff established the elements necessary for his false imprisonment claim.”
It is important to understand the detailed reasoning as to why the HOA had no powers to arrest was given:
“The appellate court concluded that security officers are without legal authority to stop and detain drivers for violating Association rules, because those rules are enacted by the Association, not the General Assembly, and therefore do not constitute an ’offense’ . . . .”
NOW, let’s see how the 7 wise men of the Illinois Supreme Court saw the law.
Police powers.
“Plaintiff contends that only the Illinois legislature has the authority to create a private or public police department. . . . Plaintiff and the appellate court err in viewing this issue as one involving private citizens improperly attempting to assert police powers. . . . The appellate court failed to consider the Association’s enforcement of its rules and regulations in the context of its authority as a voluntary association to enact and enforce those rules and regulations.
“[Since] courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion or arbitrariness. . . . plaintiff generally complains that the Association was unlawfully exercising police powers and authority . . . . However, plaintiff does not, and cannot, argue that the Association and its security officer did not act consistently with its bylaws, or its rules and regulations . . . . ¶
”Plaintiff also argues that the Association is exceeding the legislative powers granted to not for profit homeowner’s associations in enacting and enforcing its traffic rules. . . . each corporation shall “have and exercise all powers necessary or convenient to effect any or all of the purposes for which the corporation is formed.” [IL statute]. . . . Regulating and enforcing traffic rules is reasonably necessary to maintain the Lake Holiday roadways.
¶
“The Association rules and regulations were enforced only on Association property, and citations for violations of the rules and regulations were only issued to Association members. Consequently, the Association was not unlawfully exercising police powers that it did not possess, but rather was acting within its authority as a voluntary association to adopt and enforce its own rules and regulations.
“We can discern no logic in allowing a private homeowners association to construct and maintain private roadways, but not allowing the association to implement and enforce traffic laws on those roadways.”
And finally, false imprisonment.
“[T]he appellate court erred in analyzing [the HOA’s] stop of plaintiff in terms of a private citizen effecting a citizen’s arrest, rather than analyzing the stop as pursuant to Association rules and regulations. . . . These facts would lead a person . . . to believe or entertain a strong and honest suspicion that plaintiff was guilty of violating Association rules. Consequently, [the HOA] had probable cause to believe that an offense was committed by plaintiff, which is an absolute bar to plaintiff’s claim for false imprisonment. [my emphasis].”
My perspective
In Poris we have another instance of a state supreme court holding private contracts superior to the Constitution (See NJ supreme court opinion in Twin Rivers[iii]). Apparently, the only thing that the Constitution has to say is an absolute “no contract interference.” Note how the court adopted a narrow reading of the laws as it parsed and examined the precise wording of the laws, not stepping back in its alleged legal wisdom seeing only the trees and not the ugly forest.
The court cleverly ignored the question of detaining non-members, and the question of public streets.
Think of the implication that a non-profit, any non-profit, can enforce its rules even by detain and arresting its member. And think of the impact on the US Supreme Court question, and Arizona laws (SB 1070), dealing with similar issues of detention, probable cause, and reasonable suspicion by police officers to demand “your papers” to uncover illegal immigrants.
I can summarize the Illinois opinion with the simple statement by William Pitt, part of which appears on the façade of the Arizona Supreme Court building:
Unlimited power is apt to corrupt the minds of those who possess it: and this I know, my lords, that where law ends, tyranny begins!”[iv]
[i] Justice Robert Jackson, Brown v. Allen, 334 US 443 (1953). (Robert H. Jackson was also US Attorney General and chief US prosecutor at the Nuremberg Trials).
[ii]Poris v. Lake Holiday, 2013 IL 113907 (Jan. 25, 2012). (It should be noted that I cannot find any record of the amicus curiae for the HOA, an Illinois Association of Lake Communities).
[iii]Committee for a Better Twin Rivers v. Twin Rivers, 929 A.2d 1060 (NJ 2007).
[iv] This statement was made by Lord Chatham (William Pitt) to the British House of Lords in January 1770.
America is still a democracy, I hope, and firmly in support of the capitalistic economy philosophy – people are free to do as they please. This freedom rejects government restraint and relies on the competing self-interests of the people. In simple terms, “what’s good for business is good for the country.”
But, is America going off the deep end of capitalism toward fascism? “Fascism should more appropriately be called corporatism because it is the merger of state and corporate power.” So said Benito Mussolini, the founder of modern fascism in 1922 Italy. How much of a democracy can exist under a fascist system that places government power in the hands of corporations? Just look at the fantastic wisdom of the US Supreme Court in its United decision that corporations are people and can make campaign contributions. And how about its Kelo decision where the court redefined “government use” as “government purpose” and took away a person’s home for private corporation development.
And then there’s this thing called a planned community, with its corporate form of private government commonly known as a homeowners association. Where law firms and property management corporations have extreme influence or almost complete control of the HOA. Where the legal structure and pro-HOA statutes favor the corporation government over the rights, freedoms, privileges and immunities of the people.
In a democracy, how could this come to be? In a democracy the answer must lie in the will of the people that either supported this evolution, or idly stood by and did nothing. Mayer wrote (They Thought They Were Free), speaking of the Nazi take-over of democratic pre-war Germany, that the “good” Germans went along “in the usual sincerity that required them only to abandon one principle after another, to throw away, little by little, all that was good.” In America today, Rev. Jim Wallis wrote in 2010 (Rediscovering Values), “What has been deliberately and carefully made ‘socially acceptable’ was, not too long ago, thought to be irresponsible – both financially and morally.”
It was the will of the people, the voice of the majority that spoke and elected our representatives: the President, Congressmen, and state legislators and governors. And it is the voice of the people to accept HOAs in spite of its rejection of our founding principles in favor of corporatism, with its self-interest motivations for profits and property values. And we have become true believers in that “what’s good for the HOA is good for the member-owners.” Or, has the voice of the people become the voice of the corporations?
American founding principles stand at odds with the self-serving HOA corporatism of the HOA-state objectives, which prevail over our founding principles. This is the fundamental issue to be resolved! And it cannot be resolved without legislation that addresses violations of our founding principles as contained in American organic law – the US Constitution, the Bill of Rights, the Articles of Confederation and the Northwest Ordinance of 1787.
In a democracy, the people must act to reject corporatism/fascism and demand conformity with American principles of democratic government. But, that first requires the election and enlightenment of representatives who understand the need to return to our founding principles.
On December 21, 2012 my Petition to the White House to declare that the people living in HOAs are still citizens of this country and of their respective state (White House petition to defend US citizenship of people in HOAs) failed to receive the necessary submissions for a WH response. That petition failed miserably, evidencing a very narrow understanding of the actions necessary for HOA reform legislation. This lack of interest and concern denied reformers an opportunity to create a dialogue with Washington on a problem facing homeowners in all the states.
A petition related to citizenship and a united country (grant the State of Louisiana to withdraw from the United States of America ) did get the 25,000 submissions (just under 39,000 submissions) and received a response from the WH, Our States Remain United. Shame on all those advocates seeking reforms who failed to see an important opportunity to advance national awareness of and the need for HOA reforms across the country and in every state.
HOA Constitutional Government 