Tag: constitutional rights

HOA reform advocates: the enemy is us

Let me start by saying that I have the utmost respect to the handful of persons, advocates, who have actively supported HOA reforms of substance over the years, and have had some success.  To all others I say, the enemy is us.

I well understand the reasons and justifications of people refusing to get actively involved. Personally, talking over the phone and through emails, that most do not have the temperament, want someone to solve their own personal issue with an attempt to expand it nationally, fear retaliation, fear legal issues and the government, and just don’t care about government issues in general.

The numerous social media reform groups, some old but most are new less than 3 years, have not only failed but have  resisted the establishment of a unified,  bona fide and legitimate, national entity; argued as far back by Evan McKenzie when interviewed by Shu Bartholomew, to the best of my recall, sometime before 2004. Today, I must regrettably say some groups make this claim, but they are in name only.

And so, the many Davids believe that they can defeat the mighty Goliath of CAI. The newbie leaders who rise from time to time and disappear a few years later, start by believing that CAI acts in good faith and they can work things out for the protection of homeowner rights. They quickly discover that they have been had, been played with, and realize they are helpless to withstand the entrenched CAI. Today, many who are beginning to be actively involved realize the dominance of CAI over their legislature.

Watch AZ CAI lobbyist at work, 2010, before committee dodge questions, make false statements, and avoid hard questions. Who Controls public streets? HOA or municipality? Part 2 of 3 (youtube.com). (Early quality video).

As the adage goes, as a figural demonstration of one’s commitment to reforms, “put your money where your mouth is.” However, in reality, I have asked people to buy my book, HOA Constitutional Government, as a demonstration of national commitment on a national website, Amazon, but have received token response.

In my announcement I  clearly stated, and still abide by it, that if there were such a legitimate national reform group I would assign all my royalties to that organization.  $15.00 is a trivial show of commitment but will be effective for recognition of national support. BUY NOW! Amazon books.

Taking a positive perspective, I noticed over the past few years a growing trend toward legislation and court decisions in several states affirming constitutional and fundamental rights of HOA members. That’s a good sign that advocate messages and communications are having an effect. 

Now is the time to strike while the iron is hot! Get unified, get organized, get focused, and stop the HOA social media reform groups’ fragmentation of me first, NIMBY policy.

The Lone Ranger still fights for HOA constitutionality

“(Common Ground, May/June 2006, Christopher Durso, Editor).

“CCLG’s [Citizens for Constitutional Local Government] founder and president, George Staropoli, for example, originally agreed to an interview but later changed his mind. In a brief phone call during which he’s quiet and almost courtly, he explains that Common Ground is CAI’s ‘house organ,’ and that he’d be more comfortable with a debate or similar format where he could express himself at length, without the risk of being quoted out of context. He asks that his prolific writings on the CCLG website speak for him, although a week or two later he sends an ‘open e-mail questionnaire to CAI’ containing four questions that sprout from CCLG’s mission.”

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 As of this writing, the four questions, also sent to the Arizona Legislature, have not been answered by any party.  Why not?

“1. Is it proper for the state to create, permit, encourage, support or defend a form of local government of a community of people, whether that form of government is established as a municipal corporation or as a private organization that is not compatible with our American system of government?

“2. Is it proper for the state to permit the existence of private quasi-governments with contractual ‘constitutions’ that regulate and control the behavior of citizens without the same due process and equal protection clauses of the 14th Amendment; that do not conform to the state’s municipal charter or incorporation requirements; or do not provide for the same compliance with the state’s Constitution, statutes or administrative code as required by public local government entities?

“3. When did ‘whatever the people privately contract’ dominate the protections of the US Constitution? The New Jersey Appeals Court didn’t think so. Does “constructive notice”, the ‘nailing to the wall,’ the medieval method of notice, measure to the requisite level of notice and informed consent to permit the loss of Constitutional protections?

“4. Please state what, if any, are the government’s interests in supporting HOAs that deny the people their constitutional rights?”

Staropoli lists a selection of unsolicited testimonials over his many years of HOA activism.  

His latest activity in January 2024 was the publication of “Seeking HOA Constitutional Government: the continuing battle, Collected Writings.” It contains in one volume some 56 writings — emails, social media postings, and articles — presenting 24 years of historical events, case histories, legislation and related documents by proponents of the HOA status quo.

The battle for HOA Constitutional Government – supplement

It should be well understood that the real purpose for HOA reform legislation is to seek homeowner-member justice and fairness. Either with respect to day-to-day denied under the HOA legal scheme, as set forth in the Declarations of CC&Rs and state laws. 

To be more specific, these rights affect free speech, participation in HOA government, fair elections procedures, due process with respect to fines and punishments including foreclosure abuse, and an effective means to hold the board accountable under the law. In other words, challenging the validity and constitutionality of the HOA legal structure.

Over the past year I have noticed a favorable increase  in legislation and in court decisions as a result of increased claims by homeowners and advocates who, by their actions, are winning with the winners.  What is there to fear? Reforms have moved at a turtle’s pace over the past 30 years. Nothing to lose by taking a strong stand backed by legal authority.

“There can be no change without change”

Encourage others to take a strong stand by providing authoritative support to win with the winners, as can be found in HOA Constitutional Government: the continuing battle. My Collective Writings over 24 years.  Spread the word to others to act without fear.

Publisher’s Cataloging-in-Publication Data

  • HOA Constitutional Government: the continuing battle / George K. Staropoli
  • 145 p. StarMan Publishing, Surprise, AZ | includes index | Published January 9, 2024
  • ISBN: 978-0974448886 (pbk) | ASIN: B0CSC5LCY8 (KDP eBook)
  1. Constitutional law – Constitutional principles – public policy – form and structure of government
  2. Political science – sovereignty – consensus. Consent to be governed –  law making  – local government
  3. Social sciences – community – social influence

K3154 – 3370 LCCN classification

Judicial Scrutiny standards judge claims of constitutionality

Claims regarding the constitutionality of laws are subject to judicial review. Generally speaking, and simplifying matters considerably, courts use three different standards to adjudicate constitutional claims: (1) rational basis review; (2) intermediate scrutiny; (3) and strict scrutiny. The “standard of scrutiny” applied to a particular claim is of critical legal importance and usually determines whether the claim will succeed.  

The first standard — rational basis review — is the most forgiving.  Under rational basis review, a litigant challenging a law on constitutional grounds “bear[s] the burden of proving that it does not bear a rational relation to any conceivably legitimate governmental purpose—even a hypothetical one.”  With vanishingly few exceptions, nearly all laws satisfy this standard.

The second standard, known as “intermediate scrutiny,” raises the stakes considerably.   Under this . . .  a law “must serve important governmental objectives, and . . . the discriminatory means employed must be substantially related to the achievement of those objectives.”  

The third standard of review, which is the most rigorous, is “strict scrutiny.”  Under strict scrutiny, “the government must prove that the challenged law is both narrowly tailored and the least-restrictive means available to further a compelling governmental interest.”  Strict scrutiny applies in areas such as racial and religious discrimination, and it also applies to many claims involving free speech.

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I have yet to see any valid government justification in support of the HOA legal scheme that deprives citizens of their constitutional and fundamental rights. Some have argued that it eases the state/county’s financial burden as a legitimate government interest. However, the HOA scheme must be reviewed under strict scrutiny as it damages the members’ rights and freedoms. Furthermore, the claim that the member agreed to the Declaration and surrendered and waived his rights has come under criticism as an invalid surrender in the courts.

Source: Constitutional Standards of Scrutiny (link: Supreme Court of Tennessee Blog)

Authoritarian HOAs and AZ SOS Fontes on American authoritarianism

In January 2022 I summarized my earlier works on authoritarianism in HOAs as a natural consequence of authoritarianism in America.[1]

I came to the conclusion in 2019 that there was a rise in authoritarianism throughout the world including America. And with HOA-land[2] constituting of some 23% plus of Americans, authoritarianism was also well rooted in the HOA form of governance. 

“The HOA legal structure and scheme is basically authoritarian in nature: strong central power, limited political freedoms, no accountability, and under the rule of man, not law. ‘There are a lot of Americans who do not care for democracy. They do not mind [failing] to follow the Constitution, or that [it] poses a danger to democracy.’” (Authoritarianism in the HOA-Land Nation (2019)).

There is a mass psychology present in HOA-Land. Mass psychology is a study of how your behavior is influenced by large groups of people — “birds of the same feather flock together.” It is the result of the longtime conditioning and indoctrination into identifying with the principles and beliefs promoted by the CAI School of HOA Governance. ( Mass Psychology and Cult Behavior Within HOA-Land (2020)).

Arizona Secretary of State-Elect, Adrian Fontes

In MSNBC interview on Nov.17, 2022, the Arizona Secretary of State-Elect had the following to say about Americans .[3]

“Election deniers . . . we need to call them authoritarians because they don’t believe in the democratic process.  They don’t believe in the consent of the governed. This is  so soundly an authoritarian movement when you look at the people who care about democracy, who care about the function of our government.”

“The people have spoken. There is an authoritarian movement in America, it may be loud . . . but it is dangerous, and we must continue to push back against it with vigor. . . . We have to become better citizens across the nation . . . we have to understand the fundamental structure [of government] better.”

Asked by the interviewer what can you do as secretary of state,  

“I have begun to work with . . . members of the Arizona Legislature . . . we got to be bigger than the problem, we got to be working together, to help people understand that we are all in this together.  You have to set your partisanship aside and work together toward common ends.”

“That’s the kind of leadership that folks like me have to set.   We got to reach out and show the American public that . . . cooperation will open up more avenues of conversation and that’s how we as leaders can set the example.”

Restructure the HOA model of governance

I have stepped outside the box to offer the boards of directors (BOD) a fresh view of the nature and legalities of the HOA legal scheme. StarMan Group HOA Management Consulting believes that the HOA legal model of government must be restructured to establish the climate and culture of the HOA enabling the restoration of the lost constitutional principles of democratic government — individual rights, justice, and fair play — for its members within the confines of a private contractual government.

The HOA model of local government is a fourth type of local government in addition to the public domains of commission, council-manager, and council-mayor forms. I ask: Is there a legitimate, bona fide reason and justification for the HOA to function outside public government?   No, there is none!

It goes without saying that private HOA governments must be restructured to return to the Union and restore member rights, freedom, privileges, and immunities.[4]

The task before the new Arizona administration

In 2006, HB 2824 (Ch.324), sponsored by Rep. Eddie Farnsworth, established OAH hearings of HOA disputes, followed in 2011 by SB 1148 (Ch. 185), sponsored by Senator Andy Biggs to revise HB 2824 to deal with constitutionality challenges by the trade group, CAI, and 11 years later Arizona now has HB 2158 (Ch. 125), sponsored by Rep. John Kavanagh, allowing for a more meaningful, democratic voice of the members in HOA government.

Hopefully, Fontes will apply his concerns about authoritarian America to that 23% of the population directly subject to authoritarian, contractual, private local government known as HOAs. Hopefully, the to-be-elected Attorney General will identify with Fontes, and they will exert strong influence on the new administration to correct the past legislative ills of supporting, co-operating, encouraging, and protecting the HOA legal structure.

Hopefully, the newly constituted Arizona Legislature will  restore fundamental and constitutional protections, especially due process and the equal protection of the law, to citizens living in homeowner associations.

Notes

[1] Authoritarianism in America; authoritarianism in HOA-Land (2022).

[2] Some 23% of Americans live in HOA-Land, that collection of fragmented independent principalities known, in general, as HOAs. HOAs are separate, local private governments not subject to the constitution, and collectively constitute a nation within a defined geographical region known as the United States.   “A nation consists of a distinct population of people that are bound together by a common culture, history, and tradition who are typically concentrated within a specific geographic region.”

[3] We Must Push Back Against Authoritarians, Says Arizona’s Secretary Of State-Elect – Bing video.

[4] Restructuring the HOA model, George K. Staropoli, StarMan Publishing  (2020).